THE CALIFORNIA LEGAL UPDATE
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LU Ref# CAI00008
March 22, 2021
Author Ref. No: Vol. 26 No. 4
LU Ref# CAI00008
March 22, 2021
Author Ref. No:   Vol. 26 No. 4
CONSOLIDATED ISSUE

Robert Phillips
Deputy District Attorney (Retired)

THIS EDITION’S WORDS OF WISDOM:
“Meddle not in the affairs of dragons, for you are crunchy and good with ketchup.” (Unknown)
CASES INDEX
CASE BRIEF
Deadly Force, the Fourth Amendment, and State Negligence Allegations
COURT CASE REFERENCE: Tabares v. City of Huntington Beach (9th Cir. Feb. 17, 2021) __ F.3rd __ [2021 U.S. App. LEXIS 4470]
LEGAL UPDATES REFERENCE NO. CAC00023
RULES
California negligence law regarding the use of deadly force is broader than federal Fourth Amendment law in that the former includes in the totality of the circumstances the officer’s tactical conduct and decisions that precede, and lead up to, the actual use of force.  Such pre-use-of-force conduct and decisions are irrelevant in a federal Fourth Amendment use of force case.
FACTS
Huntington Beach Police Officer Eric Esparza observed Dillan Tabares walking down a sidewalk on the morning of September 22, 2017. Although he was doing nothing illegal, Tabares caught Officer Esparza’s attention because he was wearing a sweater on a warm day, walking abnormally, and making fidgeting, flinching movements with his hands.  Tabares looked over in Officer Esparza’s direction several times, but kept walking. A former police officer who happened to be standing nearby also noted that Tabares was talking to himself and making gestures with his hands.  This person later testified he thought Tabares might have some mental health issues, but did not appear to be dangerous or threatening.  Officer Esparza decided to talk to Tabares, pulling his patrol car into a 7-Eleven convenience store parking lot and intercepting him in front of the store.  When Officer Esparza asked Tabares to stop and talk to him, Tabares told him “no,” and to leave him alone.  He continued to walk away as Officer Esparza told him “multiple times” to stop walking.  At this point, others in the area took notice of the situation, one person later testifying that Tabares had a “crazed look on his face” and “looked completely out of it.”  Another testified that Tabares looked “intimidating” and “intoxicated,” possible under the influence of drugs.  Yet a third witness also believed that Tabares might be under the influence of drugs, having “glazed over eyes.”  Finally, Tabares turned towards Officer Esparza and walked towards him in a confrontational manner with his fists clenched.  Tabares spoke to Officer Esparza loudly and aggressively.  No doubt sensing an impending confrontation, witnesses pulled out their cellphones and began recording Officer Esparza and Tabares.  With Tabares coming at him, Officer Esparza backed up and told Tabares to stop where he was.  Tabares ignored the officer’s commands, continuing to aggressively walk towards him.  Officer Esparza attempted to fend Tabares off by tasing him.  The Taser had no visible effect other than to cause Tabares to punch Officer Esparza in the face. And so the fight was on; both of them ending up wrestling on the ground.  Rather than help, observers continued to record the show on their cellphones. With Officer Esparza sitting on Tabares and punching him, Tabares tugged at the officer’s belt, causing him to believe Tabares was going for his gun. Tabares took the officer’s flashlight instead and stood up as Officer Esparza, also standing, backed away and pulled out his firearm.  Officer Esparza’s body camera turned on at this point.  (It is unexplained why it was not functioning before.)  With the two of them standing some 15 feet apart, and with Tabares’ left side facing the officer while holding the flashlight out of sight in his right hand, and after a three-second hesitation, Officer Esparza began shooting.  No warning was given.  Tabares started to stumble after the first six shots were fired.  Officer Esparza shouted twice to “get down,” and then shot Tabares a seventh time.  Tabares fell to the ground, . . . and died.  Dillan Tabares’ mother, Tiffany, later sued the officer and the City of Huntington Beach in federal court, alleging that Officer Esparza used excessive force under the Fourth Amendment.  Also alleged were state claims of battery, negligence, and a Bane Act violation (i.e., Civil Code § 52.1:  California’s equivalent to a federal 42 U.S.C. § 1983 civil suit).  The federal district court judge granted the civil defendant’s (i.e., the officer and the City of Huntington Beach) motion for summary judgment on all claims in a published decision (see Tabares v. City of Huntington Beach (C.D. Cal. July 30, 2019) 2019 U.S. Dist. LEXIS 163176.)  Plaintiff appealed on the state negligence claim only.