Law Life: Police face liability in shooting of knife-wielding suspect

By Pat Murphy The Daily Record Newswire Rarely will police face liability for shooting a man who approached them with a knife in his hand. But leave it to the oft-criticized 9th Circuit to follow a tortuous path in order to revive a state wrongful death lawsuit against San Diego County Sheriff's Deputies ensnared in what might fairly be characterized as a "suicide by cop." The basic facts in the case are not in dispute. Shortly after 9 p.m. on Sept. 17, 2006, Deputies Mike King and Sue Geer shot and killed Shane Hayes in a home he lived in with his girlfriend, Geri Neill. The deputies were called to the scene by a neighbor who reported hearing screaming coming from the house. Neill met Deputy King at the front door and explained that she and Hayes had been arguing about his attempting to commit suicide. Neill told the deputy that there had been no physical violence and that she was primarily concerned about Hayes harming himself. About four months earlier, law enforcement had placed Hayes in protective custody after he attempted to commit suicide with a knife. On the night of the shooting, the deputies at the scene were unaware of this fact. The deputies also failed to note that the domestic disturbance report they were responding to indicated that Hayes was intoxicated. Deputy Geer arrived as King spoke with Hayes' girlfriend at the front door. Concerned that Hayes might harm himself, the two deputies decided to enter the house to check on the man's welfare. The deputies entered the home with their guns holstered with King in the lead. Because the house was dimly lit, King advanced using his flashlight. Once in the living room, the deputies saw Hayes in the adjacent kitchen area, about eight feet away. Hayes had his right hand behind his back, so King ordered the man to "show your hands." According to King, as Hayes raised his hands, he also took two steps forward. At that moment, the deputies saw that Hayes held a large knife in his right hand. Perceiving the threat, King immediately drew his gun and fired two shots. Geer drew her gun at the same time and fired two additional rounds at Hayes. The man died from his wounds. Hayes' minor daughter, Chelsey Hayes, filed three basic claims against the San Diego County Sheriff's Department and the two deputies. Each of the claims was dismissed on summary judgment by the district court. The messy procedural posture of the case requires some explanation. The first two claims were §1983 claims, one for excessive force in violations of her deceased father's Fourth Amendment rights, the other for a violation of her Fourteenth Amendment liberty interest in the "companionship and society" of her father. A third claim was a negligent wrongful death cause of action under California law. The recent decision by the 9th Circuit addressed each of these claims in turn. With respect to the excessive force claim, the court remanded the matter for the district court to decide whether Chelsey Hayes has standing under state law to assert survival claims based on alleged violations of her father's Fourth Amendment rights. The remand order also encompassed her related Monell claims of municipal liability under §1983 The 9th Circuit further determined that Chelsey Hayes couldn't proceed with her substantive due process claim. The court reasoned that she couldn't establish liability under a "purpose-to-harm" standard given the absence of any evidence that the deputies fired their weapons for any purpose other than self-defense. That left the state wrongful death claim, and here the news was bad for the San Diego County Sheriff's Department and the two deputies. Instead of upholding the summary judgment in favor of the defendants, the court concluded that an issue of fact existed as to whether the deputies breached the standard of care under state law. In particular, the court concluded that the deputies may have been negligent in opening fire without first warning Hayes that deadly force would be used if he did not stop his approach. The deputies claimed that, given Hayes' proximity, there wasn't time to issue a warning, but this didn't satisfy the 9th Circuit. "Taken in the light most favorable to [the plaintiff], Hayes appears to have been complying with Deputy King's order to show his hands when Hayes raised his hands and revealed the knife. ... "Although Hayes was walking towards the deputies, he was not charging them, and had not been ordered to stop. He had committed no crime and had followed all orders from the deputies at the time he was shot," the court explained. (Hayes v. County of San Diego) It takes some chutzpah to second-guess police officers who are faced with a knife-wielding man in a small room. But that's typical of the 9th Circuit. Fortunately, there are some judges on the court who don't revel in academic exercise when passing on the actions of police officers on the street. In this case, Judge Johnnie B. Rawlinson pegged it in his dissent. "As commonly happens in deadly force cases, the events in this case unfolded rapidly within a dimly lit, confined space. By Hayes' girlfriend's account, Hayes kept coming toward Deputy King with an expression on his face 'like nothing's working upstairs.' ... "Faced with a steadily advancing Hayes wielding a large knife, the officer had probable cause to believe that his life was in danger," Rawlinson wrote. Published: Tue, Apr 5, 2011