FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHELSEY HAYES, a minor by and  No. 09-55644

through her guardian ad litem, D.C. No.

Plaintiff-Appellant, 3:07-cv-01738-

v. DMS-JMA

S.D. CAL, COUNTY OF SAN DIEGO, DBA San

San Diego Diego County Sheriff’s

Department; et al.,  ORDER

Defendants-Appellees. CERTIFYING

QUESTION TO

THE CALIFORNIA

SUPREME COURT

and

WITHDRAWING

OPINION 

Filed June 14, 2011

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and Algenon L. Marbley, District Judge.*

ORDER

This case requires us to decide, as a matter of California

negligence law, whether law enforcement officers owe a duty

of care in approaching a suicidal person as part of a welfare

check. While we previously held there was convincing evidence that the California Supreme Court would not follow

intermediate state appellate court decisions on this issue,

*The Honorable Algenon L. Marbley, U.S. District Court Judge for the

Southern District of Ohio, sitting by designation. 

8055
Appellees requested in their petition for rehearing that we certify the issue. We now respectfully request that the California

Supreme Court exercise its discretion and decide the certified

question presented below.

I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, we

request that the California Supreme Court answer the following question:

Whether under California negligence law, sheriff’s

deputies owe a duty of care to a suicidal person

when preparing, approaching, and performing a welfare check on him.

The phrasing of the question set forth above should not

restrict the California Supreme Court’s consideration of the

issues involved, and we understand that the court may reformulate our question. CAL. R. CT. 8.548(f)(5). We will accept

the decision of the California Supreme Court. CAL. R. CT.

8.548(b)(2); Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164

(9th Cir. 1995). Because it is unclear whether the California

Supreme Court would follow the decisions of the California

Courts of Appeal relevant to this issue, there is no controlling

precedent. See CAL. R. CT. 8.548(a)(2); Emery v. Clark, 604

F.3d 1102, 1120 (9th Cir. 2010); Klein v. United States, 537

F.3d 1027, 1032 (9th Cir. 2008). The California Supreme

Court’s decision on this question of California law could

determine the outcome of this appeal. CAL. R. CT. 8.548(a).

II. Factual and Procedural Background

On the night of September 17, 2006, Shane Hayes was shot

and killed inside his home by San Diego County Sheriff’s

Deputies Mike King and Sue Geer. Hayes’s minor daughter,

Chelsey Hayes, subsequently filed suit against the deputies

and the County of San Diego, alleging state and federal

8056 HAYES v. COUNTY OF SAN DIEGO
claims stemming from the incident. Although the claims

asserted each involve the deputies’ use of lethal force, the

question certified here relates exclusively to the deputies’ preshooting conduct in the context of the claim to negligent

wrongful death.

A. The Deputies’ Assessment of the Scene Before 

Confronting Hayes

Deputy King arrived at Hayes’s residence at 9:12 p.m. in

response to a domestic disturbance call from a neighbor who

had heard screaming coming from the house. Hayes’s girlfriend Geri Neill, who owned the house, spoke with Deputy

King at the front door. During a three-minute conversation,

Neill advised Deputy King that she and Hayes had been arguing about his attempt that night to commit suicide by inhaling

exhaust fumes from his car. She told Deputy King that there

had not been a physical altercation between them. Rather,

Neill stated she was concerned about Hayes harming himself,

indicating that he had attempted to do so on prior occasions.

Deputy King did not ask Neill about the manner of Hayes’s

prior suicide attempts and was unaware that he had previously

stabbed himself with a knife. Although Neill advised Deputy

King that there were no guns in the house, she made no indication that Hayes might be armed with a knife. Hayes had

been drinking heavily that night, but Deputy King did not

asked Neill whether he was under the influence of alcohol or

drugs. Deputy King also did not ask about Hayes’s physical

characteristics or if anyone else was in the house. 

At 9:16 p.m., Deputy Geer arrived at the scene and was

advised by Deputy King that there was a subject inside the

house who was potentially suicidal. Based on the concern that

Hayes might harm himself, the deputies decided to enter the

house to check on Hayes’s welfare. Deputy King testified

their intent was to determine whether Hayes could “physically

or mentally care” for himself. 

HAYES v. COUNTY OF SAN DIEGO 8057
Although the deputies had been sent a notification that

Hayes was intoxicated, neither deputy checked for such a

notification before entering the house, and both were unaware

of this information. The deputies had also not checked

whether there had been previous incidents involving Hayes

and were unaware that he had been taken into protective custody four months earlier in connection with his suicide

attempt involving a knife. Finally, the deputies did not discuss

whether the department’s Psychiatric Emergency Response

Team (“PERT”) should be called. 

Upon entry, both deputies had their guns holstered. Deputy

King was also carrying a Taser, although it was not ready for

immediate use. While moving in the dimly lit house, Deputy

King advanced ahead of Deputy Geer and was using his

sixteen-inch flashlight, which he had been trained to use as an

impact weapon. 

Once in the living room, Deputy King saw Hayes in an

adjacent kitchen area, approximately eight feet away from

him. Because Hayes’s right hand was behind his back when

Deputy King first saw him, Deputy King testified that he

ordered Hayes to “show me his hands.” While taking one to

two steps towards Deputy King, Hayes raised both his hands

to approximately shoulder level, revealing a large knife

pointed tip down in his right hand. Believing that Hayes represented a threat to his safety, Deputy King immediately drew

his gun and fired two shots at Hayes, striking him while he

stood roughly six to eight feet away from him. Deputy Geer

simultaneously pulled her gun as well, firing two additional

rounds at Hayes.1 Hayes died as a result.

1Neill witnessed the shooting from behind Deputy Geer and testified

that Hayes was walking towards the deputies with the knife raised at the

time the shots were fired. She stated, however, that Hayes was not “charging” at the officers and had a “clueless” expression on his face at the time,

which she described as “like nothing’s working upstairs.” 

8058 HAYES v. COUNTY OF SAN DIEGO
B. District Court Proceedings

Hayes’s daughter asserted a claim for negligence based in

part on the deputies’ preshooting conduct, specifically their

alleged failure to properly assess the situation before entering

the house. She contends that the deputies created the situation

that led to Hayes’s death by confronting him without first

determining the relevant circumstances of Hayes’s prior suicide attempt involving a knife, his level of intoxication, the

potential need for non-lethal force to subdue Hayes, or

whether a PERT team should be called in. She seeks to present this evidence to a jury in support of her claim that the

deputies’ conduct breached the standard of care and contributed to his wrongful death.

The district court entered summary judgment in favor of

the deputies on this claim. Relying on decisions from the California Courts of Appeal, Adams v. City of Fremont, 68

Cal.App.4th 243, 276 (1998) and Munoz v. City of Union

City, 120 Cal.App.4th 1077, 1097 (2004), the district court

found the deputies owed Hayes no duty of care in their preshooting conduct. The district court did not address whether

the deputies’ preshooting conduct could be considered a

breach of any standard of care, if such a duty were owed.

III. Basis for Certification

This appeal turns on whether California negligence law

imposes a duty of care on law enforcement officers in regards

to their assessment and handling of a welfare check on a person known to be suicidal. In deciding an issue of state law,

when “there is relevant precedent from the state’s intermediate appellate court, the federal court must follow the state

intermediate appellate court decision 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). There is no controlling precedent here because it is disputed whether the California

HAYES v. COUNTY OF SAN DIEGO 8059
Supreme Court would follow relevant intermediate state

appellate court decisions on this issue. See Emery, 604 F.3d

at 1120; Klein, 537 F.3d at 1032.

The California Supreme Court has held that “an officer’s

lack of due care can give rise to negligence liability for the

intentional shooting death of a suspect.” Munoz v. Olin, 24

Cal.3d 629, 634 (1979) (citing Grudt v. City of Los Angeles,

2 Cal. 3d 575, 587 (1970). While this duty has been expressly

applied to the use of deadly force, see id., “[t]here remains an

open question . . . whether an officer’s lack of due care with

respect to preshooting tactical decisions can give rise to liability for negligence.” Brown v. Ransweiler, 171 Cal.App.4th

516, 534 (2009).

As noted by the district court here, however, at least two

decisions by California Courts of Appeal have held that law

enforcement officers owe no such duty of care. In Adams, a

jury held police officers partially liable for the death of an

intoxicated, suicidal man who shot himself, finding the officers negligently failed to gather sufficient information before

confronting him and escalating the situation. 68 Cal.App.4th

at 259-60. Relying upon factors outlined by the California

Supreme Court in Rowland v. Christian, 69 Cal.2d 108,

112-13 (1968), the Court of Appeal reversed, holding that

police officers owe no duty “to take reasonable steps to prevent a threatened suicide.” 68 Cal. App. 4th at 275. The

Adams court stated that:

On balance, the relevant public policy considerations

militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened

suicide from being carried out. The foreseeability

and certainty of harm suffered are factors which

favor imposing a duty. The absence of moral blame,

the remoteness of the connection between the conduct of [the police] and the harm suffered, the policy

of preventing future harm, consequences to the com8060 HAYES v. COUNTY OF SAN DIEGO
munity, the role of law enforcement in society, and

the potential detriment to the public in imposing

judicial allocation of resources all heavily favor

shielding law enforcement personnel from tort liability in instances such as this.

Id. at 276.

Similarly, in Munoz, a jury found an officer had negligently

handled a crisis situation involving an intoxicated, hallucinating woman armed with a knife, holding the officer partially

liable for her death after he used lethal force to prevent her

from stabbing her family members. 120 Cal.App.4th at

1083-93. Relying on the analysis in Adams, the Court of

Appeal found that the trial court erred in allowing the jury to

consider the officer’s preshooting tactical decisions in evaluating negligence.2

Id. at 1097-98. The Munoz court stated:

[As in] Adams, the need to protect the overall safety

of the community by encouraging law enforcement

officers to exercise their best judgment in deciding

how to deal with public safety emergencies vastly

outweighs the societal value of imposing tort liability for the judgments they make in emergency situations. Adams stands for the proposition that law

enforcement officers are shielded from ordinary negligence claims based on their response to public

safety emergencies when those efforts prove to be

ineffective in preventing self-inflicted harm or harm

caused by third parties. Applied to the present case,

Adams means that the conduct of the police—

Woodward’s decisions as to how to deploy his officers at the scene, the efforts made in an attempt to

defuse the situation as safely as possible, and other

such factors—cannot subject appellants to liability.

2Nonetheless, the Munoz court held the error harmless, finding the verdict was supported by the jury’s determination that the officer was negligent in his use of force. 120 Cal.App.4th at 1101. 

HAYES v. COUNTY OF SAN DIEGO 8061
Id. at 1077.

The California Supreme Court has not addressed these

cases and has not directly ruled on the issue of whether officers owe suicidal persons a duty of care in emergency situations beyond the amount of force used.3

“[W]here the state’s

highest court has not decided an issue, the task of the federal

courts is to predict how the state high court would resolve it.”

Westlands Water Dist. v. Amoco Chemical Co., 953 F.2d

1109, 1111 (9th Cir. 1991) (quoting Air-Sea Forwarders, Inc.

v. Air Asia Co., Ltd., 880 F.2d 176, 186 (9th Cir. 1989) (internal quotation marks omitted). “In undertaking this analysis, ‘a

federal court . . . is not free to reject a state judicial rule of law

merely because it has not received the sanction of the state’s

highest court.’ ” Katz v. Children’s Hosp., 28 F.3d 1520,

1528-29 (9th Cir. 1994) (quoting Estrella v. Brandt, 682 F.2d

814, 817 (9th Cir. 1982). “An intermediate state appellate

court decision is a ‘datum for ascertaining state law which is

not to be disregarded by a federal court unless it is convinced

by other persuasive data that the highest court of the state

would decide otherwise.’ ” Estrella, 682 F.2d at 817 (quoting

West v. A.T.&T. Co., 311 U.S. 223, 237 (1940)). Accordingly,

the outcome of the question here would normally be dictated

by the holdings in Adams and Munoz.

After the district court granted summary judgment, however, the California Supreme Court addressed whether law

enforcement officers might be subject to negligence liability

for certain preshooting conduct. See Hernandez v. City of

Pomona, 46 Cal.4th 501, 515-22 (2009). In Hernandez, the

court granted review to consider the following question:

“When a federal court enters judgment in favor of the defen3The decision in Adams has been cited by two dissenting opinions

issued by Justices of the California Supreme Court. See Lugtu v. California Highway Patrol, 26 Cal. 4th 703, 733 (2001) (Brown, J., dissenting);

Merrill v. Navegar, Inc., 26 Cal. 4th 465, 507 (2001) (Werdegar, J., dissenting). 

8062 HAYES v. COUNTY OF SAN DIEGO
dants in a civil rights claim brought under 42 United States

Code section 1983 . . . , in which the plaintiffs seek damages

for police use of deadly and constitutionally excessive force

in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same

incident, what, if any, preclusive effect does the judgment

have in a subsequent state court wrongful death action?” Id.

at 505. The court held “that on the record and conceded facts

here, the federal judgment collaterally estops plaintiffs from

pursuing their wrongful death claim, even on the theory that

the officers’ preshooting conduct was negligent.” Id. at 506.

In doing so, the California Supreme Court did not hold that

law enforcement officers owed no duty of care in regards to

preshooting conduct, as the lower courts in Adams and Munoz

had. Instead, the court found that the officers’ specific preshooting conduct did not breach applicable standards of care.

Id. at 515-22. In light of this conclusion, the court in Hernandez declined to address the officers’ claim that “they owed

no duty of care regarding their preshooting conduct.” Id. at

521 n.18. 

The court’s extended analysis of whether the officers’ preshooting conduct breached the relevant standard of care indicated, however, that it would likely not adopt the broad rule

from Adams and Munoz that officers owe no such duty. Id. at

518-21. Indeed, in a concurring opinion, Justice Moreno

argued that the court should not have reached the issue “because plaintiffs are entitled to amend their complaint to allege

preshooting negligence.” Id. at 522 (Moreno, J., concurring).

The majority responded, stating “we find that plaintiffs have

adequately shown how they would amend their complaint to

allege a preshooting negligence claim, and that we must determine whether any of the preshooting acts plaintiffs have identified can support negligence liability.” Id. at 521 n.18.

There is disagreement within this court as to whether this

discussion in Hernandez suggests that the California Supreme

HAYES v. COUNTY OF SAN DIEGO 8063
Court would not follow the holdings in Adams and Munoz.

Compare Hayes v. County of San Diego, 638 F.3d 688, 697

(9th Cir. 2011), with id. at 702 (Rawlinson, J., dissenting).

Accordingly, we believe the California Supreme Court should

have the opportunity to speak for itself on the issue. See

Emery, 604 F.3d at 1120; Klein, 537 F.3d at 1032. We would

be grateful if the court would take that opportunity here, and

grant our request to answer the certified question. 

IV. Administrative Information

If our request for decision is granted, we designate the

County of San Diego as petitioner. See CAL. R. CT.

8.548(b)(1). The names and address of counsel for the County

of San Diego, Mike King, and Sue Geer are: John J. Sansome

and Morris G. Hill, 1600 Pacific Highway, Room 355, San

Diego, California 92101-2469. The name and address of

counsel for Chelsey Hayes is: Alvin M. Gomez, The Gomez

Law Group, 8910 University Center Lane, Suite 5500, San

Diego, California 92122.

In accordance with California Rule of Court 8.548, the

Clerk of this court shall file the original and ten copies of this

order, along with all briefs on appeal to this court and any

record materials as requested, with the California Supreme

Court. The Clerk shall also file certificates of service with the

parties to this appeal. CAL. R. CT. 8.548(c), (d).

V. Withdrawal of Opinion and Stay of Proceedings

In light of this court’s decision to certify the issue presented

here, the opinion filed in this case on March 22, 2011 and

published at 638 F.3d 688 is hereby withdrawn. The petition

for rehearing and petition for rehearing en banc is denied as

moot. The case is ordered resubmitted for decision without

further argument or briefing. All further proceedings in this

case before our court are stayed pending final action by the

California Supreme Court. The parties shall notify the Clerk

8064 HAYES v. COUNTY OF SAN DIEGO
of this court within ten days after the California Supreme

Court accepts or rejects certification, and again within ten

days if the California Supreme Court renders an opinion. 

This court retains jurisdiction over any further proceedings

in this case.

IT IS SO ORDERED.

HAYES v. COUNTY OF SAN DIEGO 8065