Government Liability Update

Employee's Immunity Does Not Bar Public Entity's Liability under Vehicle Code section 17001

In Silva v. Langford, ordered published June 9, 2022, the Second District Court of Appeal, Division 7 affirmed in part and reversed in part a trial court's dismissal of a lawsuit after demurrer.  The operative First Amended Complaint alleged that in the early morning hours an Uber driver pulled into the Number One lane on the 101 Freeway and demanded that his passengers get out of the vehicle.  While one of the passengers was attempting to cross the lanes of traffic to get to safety, the defendant CHP officer struck and killed him.  The CHP officer was allegedly driving at an excessive speed without activating lights and sirens.  The original complaint alleged that the officer was responding to a call.  These allegations were omitted from the FAC.  The plaintiff sued the officer and CHP for wrongful death, alleging the CHP was liable under Government Code section 815.2(a) for the officer's negligence, and also liable under Vehicle Code section 17001 for the officer's violation of the basic speed law.  The officer and CHP demurred on the ground that liability was barred by Government Code section 821.6, because the officer was allegedly responding to a call, the first step in a police investigation.  CHP contended that under Government Code section 815.2(b), it was entitled to the benefit of the officer's immunity.  The trial court sustained the demurrer on the ground that section 821.6 immunized both the officer and the CHP.

The appellate court noted that the issue of the scope of section 821.6, and whether it applied to acts in the course of a police investigation or merely malicious prosecution actions, was currently pending before the California Supreme Court and was undecided.  It nevertheless ruled that the officer's actions were independently immunized under Vehicle Code section 17004, which immunizes public employees from civil damages resulting from the operation in the line of duty of an emergency vehicle when responding to an emergency call.  Although the court sustained the officer's demurrer on a different basis, the ruling must be upheld if correct on any ground.  But the appellate court reversed demurrer against the CHP.  Vehicle Code section 17001 provides an independent ground for public entity liability for negligent or wrongful operation of a motor vehicle by a public employee, which is not based on vicarious liability under Government Code section 815.2(a).  The liability is therefore not subject to Government Code section 815.2(b), which is an exception to vicarious liability of public entities for their employees' acts under section 815.2(a).

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

Government Code Immunity for Mental Examination's Application to School District's Threat Assessment Is Limited

In Cleveland v. Taft Union High School District, published March 25, 2022, the Fifth District Court of Appeal affirmed a judgment entered after a jury verdict.  A high school student told fellow classmates about a dream he had of shooting multiple students.  The school district suspended the student and performed a threat assessment.  As part of the threat assessment, the school psychologist interviewed the student.  The assistant principal oversaw the threat assessment and interviewed other students about the student.  The School Resource Officer searched the student's house for weapons and a "hit list," and did not find anything.  The school psychologist prepared a report determining the student could return to school.  Students made additional complaints about the student over the succeeding months, and the assistant principal assessed those events.  Ten months after making the initial statements, the student brought a shotgun to class and shot the plaintiff.  The plaintiff sued the school district and its administrators for negligence.  The school district asserted that under Government Code section 855.6, which immunizes public entities and employees from liability for inadequate physical and mental examinations made to determine whether a person is a threat to himself or others, it and its employees were immune from liability for making an allegedly inadequate threat assessment.  The trial court determined that the immunity applied only to the school psychologist's examination of the student and his conclusions from that examination, and did not apply to the rest of the threat assessment.  The jury held the school psychologist, the assistant principal, other administrators, and a school security officer were negligent, and assigned them collectively 54% of the fault for the shooting.  The district was held liable for damages.  On appeal, the district contended that section 855.6's immunity applies to the entire threat assessment.

The appellate court agreed with the trial court.  Analyzing the law and policy concerning administrators' duty of care to protect students, as well as the legislative and case law history of section 855.6, the court concluded that the immunity applies to any public employee, not just medical personnel.  But it interpreted the term "mental examination"  in the statute to apply only to the process of inspecting visually, or by use of the other senses, the physical, mental, and emotional state of the person examined.  Typically, this would involve a face-to-face meeting, although it could also include interviews by telephone or videoconference.  The court determined that applying section 855.6 to all negligent acts or omissions of a threat assessment team would undermine the goal of protecting students, rather than encouraging school districts to diligently perform the threat assessment.  The court responded to the concern that the threat of liability would dissuade school districts from performing threat assessments by reasoning that the districts' duties to protect their students would incentivize them to continue to perform the assessments.  The acts and omissions the plaintiff's expert found in the threat assessment's performance were therefore outside the scope of the immunity.

Pollak, Vida & Barer participated in the appeal.

Police Agency Vicariously Liable for Injury Resulting when Officer's Firearm, Left in Vehicle, Is Stolen and Used

In Perez v. City and County of San Francisco, published March 1, 2022, the First District Court of Appeal, Division 5 reversed summary judgment granted to the defendant city.  The City's police department allowed officers to carry a secondary firearm on duty, and authorized them to carry loaded handguns when off-duty.  Both department policy and state law required officers to secure handguns in unattended vehicles.  The officer in this case had a personal handgun that the department had approved and qualified as a secondary firearm.  He regularly carried the handgun on duty, and transported it when he commuted to and from work.  He regularly carried it when off-duty.  He was a department specialist who worked with a special operations group outside of patrol assignments.  There was evidence specialists were on call 24/7 and were not permitted to respond to incidents without a firearm.  The officer was assigned to a training session in a different county.  When the officer returned home, during scheduled work hours, he left the secondary firearm unsecured inside his vehicle.  That night, the vehicle was broken into, and the firearm stolen.  The stolen firearm was used to kill the son of the plaintiff who brought this action.  The trial court granted the city summary judgment on the ground that the undisputed facts demonstrated the officer was not acting within the scope of his employment.

The appellate court disagreed.  Viewed in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that losses fairly attributable to an enterprise--those that foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business, a jury could reasonably find a nexus between the department's policing enterprise and the risk that one of its officers would negligently fail to secure a department approved secondary firearm upon returning home from work.  A jury could therefore find the officer's negligent failure to secure his approved firearm in an unattended vehicle upon returning home from a department-assigned training fell within the scope of his employment.  The court disagreed with the majority opinion in Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, in which an officer's accidental discharge of his firearm while drinking was friends was found to be outside the scope of his employment.  The court opined that the Henriksen majority opinion failed to rigorously apply the rules for respondeat superior liability.  The court further opined that the case was distinguishable from Henriksen, in that the officer's possession of a department-approved firearm was not the sole factor linking his conduct to his employment, and in that the officer here did not consume alcohol before the tortious act.

Because Parole Agents Did Not Enter into Special Relationship with Victim Murdered by Her Parolee Grandson, Their Employing Agency Could Not Be Held Liable for Negligence

In Russell v. Department of Corrections and Rehabilitation, published December 16, 2021, the Third Appellate District reversed a trial court’s denial of judgment notwithstanding the verdict after a jury trial.  The plaintiff was the son of a woman who was raped and murdered by her grandson, a parolee who suffered from severe mental illness and substance abuse.  The victim had raised the grandson and treated him like a son.  One of the defendants was the grandson’s parole agent from 2007 to 2012, and the other was the parole agent from 2012 to the month of the victim’s murder in 2013.  From 2007 to 2011, the grandson lived with the victim while the grandson was on parole.  The first parole agent and the victim interacted at least twice a month and were friendly.  The agent authorized the grandson living at the victim’s house.  He regularly drug tested the grandson, assisted the victim by ordering the grandson to obtain mental health treatment when he appeared unstable, and agreed to help the grandson find his own place to live.  He advised the victim not to give the grandson all of his Social Security money at once, so that he would have enough money through the month.  In 2011, the grandson was arrested for sex crimes.  In 2012, the grandson was released from state hospital.  He went to stay with the grandmother at her house.   When the second parole agent took over the case, the grandson was homeless, and the grandmother wanted him to stay at her home.  The parole agent informed them that they could not live together, because the house was too close to a school and the grandson was a registered sex offender.  The agent eventually told her that the grandson could be at her home during the day, but had to leave at night.  There was disputed evidence the agent  promised the grandmother that he would find the grandson his own place to live.  The grandson repeatedly absconded and cut off his GPS tracking device.  At one point, the grandson was arrested at the victim’s house by a fugitive apprehension team.  The grandmother was allowing the grandson to live with her.  In late 2012 or early 2013, the grandmother called the agent and told her the grandson was “acting out,” and that the grandmother had had to pull a knife on him. In February 2013, the grandson was jailed and released.  Three days later, the grandson killed the grandmother.  The plaintiff sued the Department of Corrections and the parole agents for negligence.  At trial, the court instructed the jury to determine whether the agents were in a special relationship with the grandmother.  The jury found a special relationship existed, that the agents breached a duty of care to the grandmother, and that the breach caused the rape and murder.  The jury apportioned 60% fault against the Department.  The trial court denied the Department’s JNOV motion.

The Court of Appeal ruled that the trial court had erred in submitting the issue of whether a special relationship existed to the jury.  A person does not owe another person a duty to warn or protect against a third party’s acts unless there exists a special relationship between the parties (or between the defendant and the third party) or some other set of circumstances giving rise to an affirmative duty.  Whether a duty exists is an issue of law for the court, not an issue of fact for the jury.  Although the Department did not object to the special relationship instruction to the jury, a party does not forfeit application of the proper standard of review by failing to object in the trial court.  Further, the Department stated in briefing that the duty issue was one of law.  The appellate court therefore examined the evidence de novo to determine whether a special relationship existed, viewing the facts in the light most favorable to the plaintiff.  The court determined that neither agent formed a special relationship with the grandmother that would have given rise to a duty to warn her of the grandson’s dangerous propensities.  Neither agent made an express or implied promise of protection to the grandmother that caused her to detrimentally rely on the promise.  Neither agent lulled the grandmother into a false sense of security, inducing detrimental reliance and causing her to worsen her position.  Neither created a foreseeable peril to the grandmother that was not readily discoverable by the grandmother.  The court therefore reversed the judgment. 

School District Administrators Have Duty to Act Reasonably to Protect Students from Molestation Regardless of Actual Knowledge of Molestation, but Cannot Be Held Liable under Mandatory Reporter Statute absent Actual Knowledge

In Doe v. Lawndale Elementary School District, published November 30, 2021, the Second District Court of Appeal, Division 7 reversed in part and affirmed in part summary judgment granted to the defendant district.  A music instructor groomed and then sexually assaulted the plaintiff, then 13, by engaging in a sexual relationship with her.  The plaintiff did not provide any evidence that district administrators had actual knowledge of the instructor's activities toward the plaintiff, or that he had previously engaged in sexual misconduct with minors or had a propensity to do so. But several students provided evidence that the behavior of the two indicated that they were having a relationship.  The trial court granted summary judgment on the plaintiff's negligence cause of action.   It concluded that the district did not have a duty to protect the plaintiff from sexual abuse unless it knew the instructor had previously engaged in sexual misconduct or had a propensity to do so, and because the instructor's outward conduct toward the plaintiff was "ambiguous."  The trial court further ruled that the plaintiff could not recover on her cause of action for breach of the mandatory duty to report suspected abuse under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164, because none of the district's employees knew or reasonably suspected the sexual assault occurred.

The appellate court ruled that the trial court's analysis of the duty issue regarding the negligence cause of action was erroneous.  The law established that the district's administrators were in a special relationship with the district's students that imposed a duty of care to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.  The duty includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including a teacher's sexual assault.  The district was vicariously liable for its employees' negligence.  Once a court determines a defendant owes a duty to a plaintiff, the questions of breach and causation are usually questions for the jury.  The exception is where the Rowland v. Christian policy factors establish that a category of cases should be exempted from the general rule of duty.  The appellate court applied the Rowland factors, and determined that molestation cases where the district administrators lack actual knowledge of an employee's sexual abuse or propensity should not be excluded from the general duty to take reasonable measures to protect students from molestation.  The court disagreed with language in multiple cases that might be interpreted otherwise, pointing out that several predated the 2019 California Supreme Court case of Brown v. USA Taekwondo which established the analysis to apply when determining the existence of a duty of care.  The court reversed summary adjudication as to the negligence claim.

But the court also determined, as a matter of first impression that the CANRA cause of action, based on interpretation of the statutory scheme, required that a plaintiff prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew, rather than facts the reporter reasonably could have discovered.  The court therefore affirmed summary adjudication of the CANRA cause of action.

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

 

****Update:  On August 18, 2021, the California Supreme Court granted review of this decision.  The order granting review specified that the lower court decision could continue to be cited for its persuasive authority.****

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.

District Court Errs in Conflating Fourth Amendment Law on Police Use of Force with Broader Standards of California Negligence Law

In Tabares v. City of Huntington Beach, published February 17, 2021, the 9th Circuit Court of Appeals reversed the district court's grant of summary judgment on the plaintiff's claims for negligent use of force under California law.  The defendant police officer observed the plaintiff's decedent acting erratically on the street.   The officer parked, exited his vehicle, and asked the decedent to stop walking to talk.  The decedent refused.  The officer ordered the decedent to stop multiple times.  The decedent eventually turned toward the officer while speaking loudly and aggressively.  The decedent approached the officer with fists clenched.  The officer backed up while instructing the decedent to stop.  The officer tased the decedent, with no visible effect.  The decedent punched the officer in the face.  The two fought.  The officer put the decedent in a headlock.  The officer forced the decedent to the ground and struck him several times.  The suspect grabbed at the officer's belt.  The officer shouted, "Let go of the gun."  The officer felt something being taken from his belt.  It turned out to be the officer's flashlight.  The officer stood, drew his gun, and retreated about 15 feet from the decedent.  He saw the decedent holding what the officer should have known was the flashlight.  The officer shot the decedent six times, shouted, "Get down," and shot him a seventh time.  The decedent's mother sued the officer and the city under 42 U.S.C. § 1983 for violation of the Fourth Amendment, and asserted California law claims for negligence, battery, and violation of the Bane Act.  The district court granted summary judgment to the defendants on all claims.  It ruled that it rejected the negligence claim for the same reasons that it rejected her federal claims:  after multiple ignored warnings and sustained combat, the officer was objectively entitled to an inference that no amount of warnings or non-lethal means would safely subdue the decedent.  The plaintiff appealed only her negligence claim.

The 9th Circuit ruled that the district court had improperly conflated the standards for use of force under the Fourth Amendment with the broader standards that apply under California negligence law.  While federal law generally focuses on the tactical conduct at the time of shooting, under California law the officer's pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if the use of force at the time of shooting might be reasonable in isolation.  Under these standards, a reasonable jury could conclude that the officer should have suspected the decedent was mentally ill, and unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  Further, under either California or federal standards, a reasonable jury could conclude that the officer's use of deadly force was unreasonable because the suspect was 15 feet away, was not approaching, and was armed only with the officer's flashlight when the officer shot him without warning.  Further, that the officer yelled a warning before firing the final shot, then fired before the decedent had time to understand or comply with the command, could lead a reasonable jury to find the number of shots was unreasonable.