Young Han v. City of Folsom ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUNG HAN, individually and as No. 15-16078
successor-in-interest to decedent Joseph
Han; et al., D.C. No.
2:10-cv-00633-MCE-GGH
Plaintiffs-Appellants,
v. MEMORANDUM*
CITY OF FOLSOM, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted April 21, 2017
San Francisco, California
Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
This case returns to us after a prior remand. Plaintiffs Young, Nam, and
David Han (collectively, “the Hans”) brought federal claims and state wrongful
death and negligent infliction of emotion distress claims against the City of
Folsom, the Chief of Police, and Officers Barber, Peterson, and Prociw
(collectively, “the City”) for the shooting death of Joseph Han. The district court
granted summary judgment to the City on all claims. The Hans appealed. A three-
judge panel of this Court affirmed the dismissal of the federal claims, but reversed
the dismissal of the state law wrongful death and negligent infliction of emotional
distress claims, and remanded for further proceedings in light of the California
Supreme Court’s decision in Hayes v. County of San Diego, 305 P.3d 252 (Cal.
2013). Han v. City of Folsom, 51 Fed. App’x 923 (9th Cir. 2014). On remand, the
district court granted summary judgment on the state law claims, and this appeal
followed. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and
remand. Because the parties are familiar with the facts of this case, we need not
recount them here.
I
The City contends that it was entitled to summary judgment because the
police officers owed no duty to Joseph Han and, therefore, his negligence claims
must fail. The City is incorrect. Under California law, public employees “are
2
statutorily liable to the same extent as private persons for injuries caused by their
acts or omissions, subject to the same defenses available to private persons.”
Hayes, 305 P.3d at 255; see also Cal. Gov. Code § 820. In addition, “public
entities are generally liable for injuries caused by the negligence of their employees
acting within the scope of their employment.” Id.; see also Cal. Gov. Code
§ 815.2. California applies the familiar common law elements of the tort of
negligence: a duty to use care, a breach of that duty, and a requirement that the
breach was the proximate or legal cause of the resulting injury. Id. California also
“has long recognized that peace officers have a duty to act reasonably when using
deadly force.” Id. at 256. “The reasonableness of an officer’s conduct is
determined in light of the totality of the circumstances.” Id. In police cases, as
well as others, the conduct in question “must always be gauged in relation to all the
other material circumstances surrounding it and if such other circumstances admit
of a reasonable doubt as to whether such questioned conduct falls within or without
the bounds of ordinary care such doubt must be resolved as a matter of fact rather
than of law.” Grudt v. City of Los Angeles, 468 P.2d 825, 831 (Cal. 1970) (quoting
Toschi v. Christian, 149 P.2d 848, 852 (Cal. 1944)).
In Hayes, the California Supreme Court held that an officer’s “tactical
conduct and decisions preceding the use of deadly force are relevant considerations
3
under California law in determining whether the use of deadly force gives rise to
negligence liability.” Hayes, 305 P.3d at 263. As the California Supreme Court
summarized, “peace officers have a duty to act reasonably when using deadly
force, a duty that extends to the totality of the circumstances surrounding the
shooting, including the officers’ preshooting conduct.” Id. at 262. In assessing the
standard of care, “[i]t is universally accepted that the standard of care in a
particular industry may be established by its practitioners.” Cty. of Mariposa v.
Yosemite W. Assocs., 202 Cal.App.3d 791, 806 (Ct. App. 1988); see also Grudt,
468 P.2d at 831 (error not to admit police tactical manual as evidence of standard
of care).
In short, California recognizes that peace officers have a duty to act
reasonably when using deadly force, and reasonableness is determined in light of
the totality of the circumstances, including consideration of tactical and pre-
shooting actions.
II
Given the existence of a duty under California negligence law, and
following Hayes’ guidance that we must consider the reasonableness of the
4
officer’s actions under the totality of the circumstances, the question then is
whether there are triable issues of material fact that preclude summary judgment.1
In this case, Han tendered expert evidence that the police actions were not
reasonable under the totality of the circumstances under generally accepted police
practices. The expert opined that even though the Officers were warned in advance
that Joseph was acting strangely, that he was in possession of a hunting knife, and
that his family was concerned about his well-being and his potential reaction to
police presence, “the officers failed to use reasonable and generally accepted police
practices for dealing with someone they believed was a person of diminished
capacity.” He further opined, among other matters, that the officers made
conscious choices that unreasonably escalated the situation; that the use of deadly
force was contrary to generally accepted police practices; and that the City made a
1
We must reject the City’s assertion, without legal support, that we are
limited to reviewing only those facts set forth in the previous panel’s memorandum
disposition and those facts summarized by the district court in its second summary
judgment order. Our remand in Han v. City of Folsom, 51 Fed. App’x 923 (9th
Cir. 2014), did not alter or limit the record before the district court, and we conduct
a de novo review of the district court’s summary judgment order, James River Ins.
Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008), which requires
consideration of the full record, not just the facts as summarized by the district
court. And, in reviewing a grant of summary judgment, an appellate court “may
examine the record de novo without relying on the lower courts’ understanding.”
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 466 n.10 (1992).
We therefore review the full record as developed before the district court.
5
conscious choice not to provide field officers with proper tactical tools and
decision making techniques. He testified that “[t]hese decisions and unreasonable
actions created the subsequent deadly force incident that resulted in Joseph Han’s
death.”
The record also discloses genuine disputes as to material facts, such as
whether the bedroom door was open or closed when the officers approached it,
whether the officers provided a warning, whether they saw the knife, and the
position of the victim when he was shot. “Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
Even taking only the undisputed facts into consideration, the circumstances
in this case bear a strong resemblance to the situation in Hayes, which also
involved the fatal shooting of a knife-wielding individual.
Given all of these considerations, the entry of summary judgment was
inappropriate in this case.
REVERSED AND REMANDED.
6