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Commission Stretches Hayes Decision, Finds Ford Shooting Out of Policy

Posted on Tuesday, September 01, 2015 at 03:25AM

HOWARD A. LIBERMAN, ESQ.
Partner
Silver, Hadden, Silver & Levine

The Political Attack on Proactive Law Enforcement

The California Supreme Court in 2013 issued its opinion in Hayes v. County of San Diego holding that law enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligent liability (in a civil case). It is important to note that Hayes does not change the criminal standard of self-defense or defense of others, nor is Hayes a case regarding a departmental policy violation resulting in discipline of a peace officer.

The Hayes case concerned two San Diego Sheriff’s Department deputies who responded to a call at a residence of a woman screaming. The woman, the girlfriend of Shane Hayes, reported that Hayes was suicidal and had tried to kill himself earlier in the evening. The deputies, wanting to help Hayes and prevent his suicide, entered the residence and were confronted by Hayes, who was holding a large knife. When Hayes walked toward the deputies raising the knife, the deputies responded by shooting Hayes, who was mere feet away, in self-defense. The court noted that the deputies failed to contact a mental health professional before entering the house and remanded the case to be resolved in later proceedings before a different court.

Recently, the Los Angeles Board of Police Commissioners (Commission), a politically appointed entity, has expanded the use of a Hayes analysis to a completely different type of forum than one entertaining a civil negligence award against a police department. The Commission applied the Hayes standard to determine whether an individual officer’s actions in an officer-involved shooting were within departmental policy (which is normally a precursor to disciplinary action). The Commission’s decision is a scary one. The two involved LAPD officers were assigned to a gang detail. The officers observed a group of four to five gang members. Upon seeing the officers, one gang member placed his hands in his front pockets and started walking away. Officer A said, “Hey, let me talk to you” to the suspect, who turned and walked away. Officer A followed the suspect. The subject, confronted by Officer A, quickly attempted to tackle Officer A and grabbed his gun. Officer A shot the now-homicidal suspect with his backup handgun in clear self-defense. Officer B shot the subject in clear defense of his partner.

Chief Beck and LAPD correctly found the shooting objectively reasonable and within policy.

Applying a Hayes analysis, the Commission, perhaps bowing to the antipolice animus that is currently popular in the media and political climate, found that Officer A’s use of deadly force was not justified, as he had inappropriately detained the subject leading to the subsequent altercation, rendering the use of force unreasonable and out of policy.

Thank goodness that the Commission does not also have the power to impose discipline. This is what happens when case law is misapplied and politics take over. Be forewarned that such actions may be coming to your own city/county, and be prepared to head off any attempts that politicians and/or special interest groups may make to do so.

About the Author

Howard A. Liberman joined Silver, Hadden, Silver & Levine in 1997 after serving in the Judge Advocate General’s (JAG) Corps of the United States Navy and Navy Reserve, retiring in 2014 with the rank of commander. At Silver, Hadden, Silver & Levine, Howard represents the firm’s clients in disciplinary matters, collective bargaining and enforcing the rights of public employees who serve in the military. He has successfully litigated appeals of administrative discipline on behalf of police officers and firefighters wrongly accused of misconduct. Howard is a graduate of Bloomsburg University (1989) and Temple University School of Law (J.D., 1992). 

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