On February 17, 2021, the Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgement for the City of Huntington Beach Police Department in a lawsuit involving the fatal shooting of Dillian Tabares by a Huntington Beach Police Officer. (Tabares v. City of Huntington Beach (9th Cir. 2021) 988 F.3d 1119.) Even though the suspect had launched a serious physical attack upon the officer, the Ninth Circuit ruled that the officer’s “pre-shooting decisions” may be considered unreasonable under the totality of circumstances pursuant to California’s negligence law.
The case stemmed from a violent encounter between Huntington Beach Police Officer Eric Esparza and Dillian Tabares. While on patrol, Officer Esparza observed Tabares standing in front of a convenience store. Esparza noticed that Tabares was wearing a sweater on a very warm day, he was walking abnormally, he kept making fidgeting, flinching movements with his hands, and he looked in Esparza’s direction several times. In light of the fact that there were people coming in and out of the store, Officer Esparza asked to speak with Tabares. Tabares refused and began to walk away. Esparza gave Tabares multiple commands to stop walking. Suddenly, Tabares turned towards Esparza and began to speak “loudly and aggressively.” Tabares advanced on Esparza in a “confrontational manner with his fist clenched.” Esparza began to retreat and ordered Tabares to stop. Esparza utilized his taser, but it had no visible effect on Tabares. Tabares then punched Esparza in the face. A full-fledged fight occurred between the two involving multiple hand strikes and restraint holds. At one point during the fight, Tabares had his hand on Esparza’s gun and on his duty belt in an attempt to gain access to Esparza’s possessions (knife, flashlight, ammo magazines, pepper spray, etc). Esparza loudly yelled for Tabares “to get his hand off of his gun.” Eventually, Tabares was able to get something off of Esparza’s duty belt. Esparza believed it to be a knife he carried on his belt (it was later determined to be Esparza’s flashlight). Esparza immediately retreated about fifteen feet from Tabares and ordered him to get down as he pointed his duty weapon at him. Esparza then fired at Tabares seven times; Tabares ultimately died from these gunshot wounds. Most of the encounter was video recorded by several people nearby.
Tabares’ mother sued the City of Huntington Beach alleging both California law claims of negligence and civil rights under violations under the Bane Act as well as federal civil rights violations under 42 U.S.C § 1983. The district court granted the City of Huntington Beach’s motion for summary judgement, finding that the application of force by Esparza was reasonable in light of the fact that Esparza attempted to utilize less lethal force during a protracted fight, and with no other viable option, used his firearm to stop the continuing threat of the suspect. Tabares’ family appealed to the Ninth Circuit. The only issue before the appellate court was the plaintiff’s negligence claim under state law.
Watch the oral argument here.
The Ninth Circuit found that the district court made three errors in reaching its conclusion to grant the City’s motion for summary judgement: 1) the district court inaccurately concluded that the plaintiff did not produce any evidence that Tabares was “exhibiting symptoms of mental illness”; 2) the court conflated Fourth Amendment excessive force standards with California negligence law; and 3) Officer Esparza’s decision to shoot Tabares seven times without providing a warning could be found by a jury to be unreasonable.
The Ninth Circuit explained that the district court incorrectly conflated Fourth Amendment excessive force standards with California negligence law. The court explained that California negligence law is overall much broader than federal Fourth Amendment law in excessive force cased, and the officer’s pre-engagement actions needed to be part of the negligence analysis. The court found that a reasonable jury could find that Officer Esparza should have suspected Tabares had mental health issues and acted unreasonably when dealing with a potentially mentally ill person before using force, and therefore he acted negligently. The §1983 claim was dismissed because, under Fourth Amendment law, the focus was on the moment Esparza fired his weapon, which was immediately after he had escaped a violent attack by Tabares, who was then facing him while holding a potential weapon (police flashlight). However, the negligence claim should proceed to a jury because, using California law, a jury could find that Esparza was negligent in interacting with Tabares before calling for back-up and failed to use de-escalation techniques from the start.
It is important to note that this case is the court’s ruling on a motion for summary judgement and not the result of a full-blown trial. However, regrettably, in this opinion the Ninth Circuit has entered into the realm of providing tactical guidance to officers even though they have been warned more than once by the U.S. Supreme Court to not do so. Tactical options and what is practical in these dynamic encounters is best left to the “boots in the field” and not the robes on a bench. Overall, the court’s decision does not provide much practical guidance for the patrol units except to “slow your roll” and hope that the suspect does not harm himself, other individuals, or the officer himself while the officer “de-escalates” the sometimes “tense, uncertain, and rapidly evolving” situation.
Further, the Ninth Circuit’s ruling undermines the supposed justification for Senate Bill 2. SB 2, introduced in December of 2020, would change the standard needed to sue an officer under the Bane Act by replacing the specific intent to violate a civil right with general intent to perform the act that is the subject of litigation. Such legislation is problematic in light of the ruling in Tabares. Given the ruling in Tabares, if SB 2 is passed, officers could be held personally liable under a mere negligence standard.