Hayes v. County of San Diego: Ruling, Impact, and AB 392

Hayes v. County of San Diego, 57 Cal.4th 622 (2013), is the California Supreme Court decision holding that law enforcement officers can face negligence liability for tactical mistakes made before they fire their weapons. The court ruled that a jury evaluating a police shooting must look at the totality of the circumstances, including how the officers approached, planned, and equipped themselves for the encounter, not just the split-second when the trigger was pulled.¹

What Happened the Night of the Shooting

On September 17, 2006, San Diego County Sheriff’s Deputies Mike King and Sue Geer responded to a call at Shane Hayes’s home in Santee. They had been told Hayes was intoxicated and were conducting a welfare check on a potentially suicidal person. They did not check whether there had been prior incidents at the address, and neither deputy knew that Hayes had been taken into protective custody four months earlier after a suicide attempt involving a knife.²

Both deputies entered the home with their guns holstered. Deputy King carried a Taser, but it was not ready for immediate use. He advanced ahead of Deputy Geer through the dimly lit house, using a sixteen-inch flashlight he had been trained to deploy as an impact weapon. When King reached the living room, he saw Hayes in an adjacent kitchen area about eight feet away, with his right hand behind his back.³

King ordered Hayes to show his hands. Hayes took one or two steps forward and raised both hands to shoulder level, revealing a large knife pointed downward in his right hand. King drew his gun and fired two shots. Geer drew and fired two more. Hayes was killed while standing roughly six to eight feet from the deputies.³ His daughter filed a wrongful death suit in federal court arguing that the deputies’ failure to plan, stage their less-lethal equipment, or gather background information made the deadly confrontation avoidable.

The Question That Reached the California Supreme Court

The federal trial court granted summary judgment for the county, concluding that the deputies owed no duty of care for their pre-shooting tactical decisions. On appeal, the Ninth Circuit recognized this as an unresolved question of California law and certified it to the California Supreme Court, asking whether deputies owe a duty of care to a suicidal person when preparing for and conducting a welfare check.²

The county argued officers should not be second-guessed for split-second decisions in dangerous environments. The plaintiff argued that when an officer’s own poor planning creates a crisis, the officer must answer for the resulting harm.¹

The Court’s Holding

The California Supreme Court rephrased the certified question more broadly, asking whether liability can arise from tactical conduct and decisions made by law enforcement before the use of deadly force. Grounded in what the court called “long-established state law,” the answer was yes.¹

Writing through Justice Joyce L. Kennard, the court held that liability can arise when the tactical conduct leading up to deadly force shows, as part of the totality of the circumstances, that the force was unreasonable.⁴ The court explained there is no sound reason to slice a single encounter into isolated moments and force a plaintiff to challenge each one separately. An officer’s approach, positioning, and equipment choices all factor into one continuous assessment of whether the eventual use of force was reasonable.

After receiving the answer, the Ninth Circuit reversed the trial court’s summary judgment on the negligence claim and sent the case back for further proceedings.²

Why the Ruling Matters

Before Hayes, a department could argue that the final second of an encounter looked justified and nothing else counted. After Hayes, a jury can ask harder questions. Why didn’t the deputy wait for backup? Why wasn’t the Taser ready? Why did no one check whether the subject had a history of knife incidents? If those failures made deadly force inevitable, the officer and the department can bear responsibility even if the last trigger pull was a reasonable response to an immediate threat.

In practical terms, the ruling gives California plaintiffs a claim their federal counterparts often cannot bring. The negligence inquiry sweeps in everything from dispatch information the officers ignored to the way they entered the house.

How Hayes Compares to the Federal Standard

Federal excessive-force claims typically run through 42 U.S.C. § 1983, which allows lawsuits against government officials who violate constitutional rights while acting under color of law.⁵ The controlling test comes from Graham v. Connor: whether the force was objectively reasonable from the perspective of a reasonable officer on the scene, considering the severity of the crime, the threat posed, and whether the person was resisting or fleeing.⁶

Graham uses the phrase “totality of the circumstances,” but in practice federal courts have analyzed reasonableness at or very near the moment force was applied. If the final seconds of an encounter show an imminent threat, the use of force is often deemed constitutionally reasonable regardless of how the officer created that situation.⁶

California’s negligence standard after Hayes is deliberately broader. A plaintiff can argue that the officer’s own choices manufactured the danger that made force seem necessary. Walking into a dark house ahead of backup, failing to stage a Taser for immediate use, skipping a records check on the subject’s history: those decisions become fair game for a jury. A California plaintiff can pursue two tracks at once, a federal civil rights claim focused on the moment of force and a state negligence claim covering everything that preceded it.

How AB 392 Built on the Hayes Framework

Six years after Hayes, the California legislature codified a related principle into criminal statute. AB 392, signed in 2019, amended Penal Code section 835a to declare that peace officers should use deadly force “only when necessary in defense of human life.”⁷ The prior standard required only that force be “reasonable.”

The statute defines “totality of the circumstances” to include “the conduct of the officer and the subject leading up to the use of deadly force,” language that closely tracks the Hayes holding.⁷ Officers must evaluate whether other resources and techniques were reasonably safe and feasible before resorting to lethal options.

One provision speaks directly to welfare-check scenarios like the one in Hayes: an officer cannot use deadly force against a person based solely on the danger that person poses to themselves, unless the person also poses an imminent threat to the officer or someone else.⁷ The statute also clarifies that “retreat” does not mean tactical repositioning or de-escalation; backing up to create distance or using time to slow a situation down is exactly the conduct the law encourages. AB 392 governs the criminal standard for justified use of force, not civil negligence, but the vocabulary it borrows from Hayes has reinforced the same idea across both bodies of law.

Proving a Tactical Negligence Claim After Hayes

A negligence claim under California law requires four elements: a legal duty of care, a breach of that duty, causation, and actual injury.⁸ In police shooting cases after Hayes, the duty element is settled. Officers owe a duty of reasonable care in their tactical approach to using force.¹ The harder fights are over breach and causation.

Breach requires showing that the officer’s decisions deviated from accepted law enforcement practices. Causation requires connecting those failures to the deadly outcome as a substantial factor in what happened. The defense typically counters that the decedent’s own actions, such as picking up a knife or stepping forward, were the real cause of the shooting.

Expert testimony carries most of the weight on both sides. Plaintiffs generally retain former law enforcement professionals with backgrounds in SWAT operations, use-of-force training, or crisis negotiation. In a case with facts like Hayes, an expert might testify that a competent deputy would have waited for backup, staged the Taser for immediate deployment, checked the subject’s history of knife-related incidents, or used the doorway as a choke point rather than advancing into the kitchen. Defense experts argue the deputies acted within the range of reasonable choices under time pressure. Juries weigh the competing accounts to decide which side of the line the officers fell on.

1
Supreme Court of California. Hayes v. Cty. of San Diego
2
United States Court of Appeals for the Ninth Circuit. Hayes v. County of San Diego, No. 09-55644
3
CaseMine. Hayes v. County of San Diego, No. 09-55644
4
vLex United States. Hayes v. Cnty. of San Diego
5
Office of the Law Revision Counsel. 42 U.S. Code 1983 – Civil Action for Deprivation of Rights
6
Library of Congress. Graham v. Connor, 490 U.S. 386
7
California Legislative Information. California Penal Code 835a
8
Justia. California Civil Jury Instructions (CACI) 400 – Negligence – Essential Factual Elements