Tabares v. City of Huntington Beach

• Decision Date: 17 February 2021
• Docket Number: No. 19-56035,19-56035
• Citation: 988 F.3d 1119
• Parties: Tiffany TABARES, individually and as successor-in-interest to Dillan Tabares, Plaintiff-Appellant, v. CITY OF HUNTINGTON BEACH; Eric Esparza, an individual; Does, 1–10, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

988 F.3d 1119

Tiffany TABARES, individually and as successor-in-interest to Dillan Tabares, Plaintiff-Appellant,

v.CITY OF HUNTINGTON BEACH; Eric Esparza, an individual; Does, 1–10, inclusive, Defendants-Appellees.

No. 19-56035

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2020 Pasadena, California

Filed February 17, 2021

Catherine Sweetser (argued), Paul Hoffman, and John Washington, Schonbrun Seplow Harris Hoffman & Zeldes LLP, Los Angeles, California, for Plaintiff-Appellant.

Daniel S. Cha (argued) and Pancy Lin, Senior Deputy City Attorney; Brian L. Williams, Chief Trial Counsel; Michael E. Gates, City Attorney; Office of the City Attorney, Huntington Beach, California; for Defendants-Appellees.

Before: Paul J. Kelly, Jr.,^* Ronald M. Gould, and Ryan D. Nelson, Circuit Judges.

R. NELSON, Circuit Judge:

Dillan Tabares was fatally shot seven times by a police officer in front of a 7-Eleven. Tiffany Tabares brought federal and California law claims in response to her son's death (appealing only the state negligence claim). We address the material difference between the Fourth Amendment and California negligence law.

In considering the United States Constitution, we must "always regard[ ] it as unique." Rhode Island v. Massachusetts , 37 U.S. (12 Pet.) 657, 673, 9 L.Ed. 1233 (1838). The Constitution is a "singular and solemn ... experiment" created by one of the finest group of statesmen ever assembled. The Federalist No. 40 (James Madison). It was born of a hard-fought struggle that against all odds wrested a fledgling nation from oppression by the then-greatest empire on earth. The Bill of Rights was adopted in the same vein, championed by James Madison. When we interpret the Fourth Amendment, we ground our jurisprudence in an understanding of the text's original public meaning at ratification and "traditional standards of reasonableness." See Virginia v. Moore , 553 U.S. 164, 168–69, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). Above all, Chief Justice Marshall reminds us, "we must never forget that it is a constitution we are expounding." McCulloch v. Maryland , 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819).

California negligence law, on the other hand, is the product of common law developed through decisions by California courts. Justice Brandeis famously noted that under our federalist system, "a ... state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann , 285 U.S. 262, 387, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). The U.S. Constitution and California common law are thus two distinct legal frameworks. "Individual States may surely construe their own [laws] as imposing more stringent constraints on police conduct than does the Federal Constitution." California v. Greenwood , 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). But "when a State chooses to protect ... beyond the level that the Fourth Amendment requires," these "additional protections exclusively a[re] matters of state law." Moore , 553 U.S. at 171, 128 S.Ct. 1598. And the California Supreme Court has held that California negligence law "is broader than federal Fourth Amendment law." Hayes v. Cnty. of San Diego , 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252, 263 (2013).

The district court erroneously conflated the legal standards under the Fourth Amendment and California negligence law. We hold that Ms. Tabares presented sufficient evidence that Officer Eric Esparza's shooting of Mr. Tabares could be found negligent by a reasonable juror under the broader formulation of reasonableness in California law.¹ See id. , 160 Cal.Rptr.3d 684, 305 P.3d at 258. Accordingly, we reverse the district court's grant of summary judgment on the negligence claim and remand for further proceedings.

I

On the morning of September 22, 2017, Officer Esparza, a City of Huntington Beach police officer, sat at an intersection in his police vehicle when he noticed Mr. Tabares standing on the sidewalk.² Officer Esparza had never seen Mr. Tabares before, had not received a call for service regarding him, and had no reason to suspect he had a weapon or had committed a crime.

Mr. Tabares caught Officer Esparza's attention for several reasons. He was wearing a sweater on a warm day, walking abnormally, made fidgeting, flinching movements with his hands, and looked over in Officer Esparza's direction several times. Simultaneously, Jack Roten, a former police officer standing on the corner, noted Mr. Tabares talking to himself and making gestures with his hands as he passed Roten. These behaviors made Roten believe Mr. Tabares had mental health issues, though Roten did not think he was dangerous or threatened Roten's safety.³

Officer Esparza decided to talk to Mr. Tabares. He parked at a 7-Eleven towards where Mr. Tabares was walking and exited his vehicle. He then asked Mr. Tabares to stop walking to talk. Mr. Tabares responded "no" and told Officer Esparza to leave him alone while continuing to walk away.

Officer Esparza decided to detain Mr. Tabares for an unspecified reason and instructed him to stop walking away multiple times. Philip Azevedo, a customer at the 7-Eleven, stated Mr. Tabares had a "crazed look on his face" when entering the parking lot and "looked completely out of it." Shanon Forge, a nurse sitting in her car facing the 7-Eleven, thought Mr. Tabares looked "intimidating" and "intoxicated," possibly under the influence of PCP or methamphetamines. Another witness, Mike Martin, described Mr. Tabares as having "glazed over eyes" and possibly under the influence of drugs. Mr. Tabares eventually turned towards Officer Esparza while speaking loudly and aggressively.

Mr. Tabares then walked towards Officer Esparza in a confrontational manner with his fists clenched. Forge began recording on her cell phone.⁴ Officer Esparza backed up on the sidewalk while instructing Mr. Tabares to stop, then tasered him with no visible effect. Mr. Tabares then approached Officer Esparza and punched him in the face. The two began to fight, and Officer Esparza appeared to put Mr. Tabares in a headlock. After several seconds, the two ended up on the ground. Another witness, Timothy Newtson, began to film video.

Officer Esparza was on top of Mr. Tabares while he resisted with his back on the ground. Officer Esparza struck Mr. Tabares several times; Mr. Tabares did not strike Officer Esparza. Mr. Tabares grabbed at Officer Esparza's belt while Officer Esparza repeated "let go of the gun." Officer Esparza felt Mr. Tabares take an item from Officer Esparza's belt, which turned out to be his police flashlight. Officer Esparza stood, drew his gun, and separated from Mr. Tabares, as his body camera started recording. Officer Esparza retreated about 15 feet away and saw Mr. Tabares holding what Officer Esparza should have known was his flashlight.

Mr. Tabares stood with his left side turned slightly towards Officer Esparza while holding the flashlight in his right hand. Three seconds after separating 15 feet, Officer Esparza shot Mr. Tabares six times, shouted "get down" twice, then shot him a seventh time after he stumbled from the gunshots. Mr. Tabares slumped to the ground—dead.

Ms. Tabares, individually and as successor-in-interest to her son, filed a complaint in federal district court alleging 42 U.S.C. § 1983 claims, including for excessive force under the Fourth Amendment, and California claims for battery, negligence, and a Bane Act violation. The district court granted summary judgment on all claims for Defendants Officer Esparza and the City of Huntington Beach. Tabares v. City of Huntington Beach , No. 8:18-CV-00821-JLS-JDE, 2019 WL 4455999 (C.D. Cal. July 30, 2019). In a three-sentence paragraph, the district court rejected Ms. Tabares's negligence claim "for the same reasons" it rejected her federal claims, "to wit , that Esparza did not properly identify Tabares's mental illness or establish cause to initiate a stop." Id. at *10. Relying on Billington v. Smith , 292 F.3d 1177 (9th Cir. 2002), the district court held that "after multiple ignored warnings and nearly a minute of sustained combat, Esparza is objectively entitled to th[e] inference" that "no amount of warnings or non-lethal means will succeed in safely subduing a suspect." Id. at *9. Ms. Tabares appeals only her negligence claim.

II

"We review de novo the district court's order granting summary judgment and its interpretation of state law." Diaz v. Kubler Corp. , 785 F.3d 1326, 1329 (9th Cir. 2015) (internal citations omitted). We "view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott , 550 U.S. at 378, 127 S.Ct. 1769 (alterations removed) (internal quotation marks and citations omitted). But any dispute about the facts must be "genuine" and not "blatantly contradicted by the record, so that no reasonable jury could believe it." Id. at 380, 127 S.Ct. 1769 ; see also Fed. R. Civ. P. 56(c).

"When interpreting state law, we are bound to follow the decisions of the state's highest court, and when the state supreme court has not spoken on an issue, we must determine what result the court would reach based on state appellate court opinions, statutes and treatises." Diaz , 785 F.3d at 1329 (cleaned up). "We will ordinarily accept the decision of an intermediate appellate court as the controlling interpretation of state law," Tomlin v. Boeing Co. , 650 F.2d 1065, 1069 n.7 (9th Cir. 1981), "unless the federal court finds convincing evidence that the state's supreme court likely would not follow it," Ryman v. Sears, Roebuck & Co. , 505 F.3d 993, 994 (9th Cir. 2007). To affirm here, we must decide based on the record before us that a verdict in favor of Defendants is the only conclusion a reasonable jury could reach. See Anderson , 477 U.S. at 248, 106 S.Ct. 2505.⁵

III

A

We...