Government Liability Update

Use of Lethal Force on Mentally Ill Man Who Pointed Replica Firearm at Police Was Reasonable

In Estate of Strickland v. Nevada County, published May 31, 2023, the 9th Circuit Court of Appeals affirmed a district court order dismissing a lawsuit at the pleading stage.  The plaintiffs' decedent had been arrested by the county sheriff's department multiple times.  While incarcerated, he was diagnosed with mental illness.  Two days after his most most recent incarceration ended, police received reports of a man walking on a residential road  with what appeared to be a shotgun slung over his shoulder.  City police officers and count sheriff's deputies arrived on the scene. The decedent was carrying a black plastic airsoft rifle with an orange tip, pointed at the ground.  The officers and deputies recognized the decedent, and knew he was homeless, had mental health issues, and that he had been released from custody days before.  They would have known the decedent was likely suffering from a mental health episode and would not likely respond to their commands in a normal or expected manner.  The officers surrounded the decedent with guns drawn, and yelled to him to drop the gun.  The decedent said, "It's a BB gun."  He slapped the gun with his hand, making a noise that sounded more like plastic than metal.  The officers continued to yell orders to drop the gun.  They told the decedent, "We don't know that's a fake gun."  When the decedent pointed to the orange tip, the officers responded that he could have painted that."  The decedent said, "I'm not doing nothing wrong."  The officers did not contact their supervisors, request assistance from other officers with crisis training, or attempt to bring a professional negotiator, crisis de-escalator, or mental health provider to the scene.   Instead, officers approached the decedent while the others covered him.  The decedent dropped to his knees, and then began pointing the gun at the approaching officers, and at other times at the sky.  An officer deployed a taser, but it did not attach.  After the decedent again lowered the barrel at the officers, the approaching officers shot him several times.  He passed away.  His survivors and estate sued the officers, agencies, and entities under 42 U.S.C. section 1983 and state law for use of excessive force, and alleged deliberate disregard of the decedent's mental health needs.  The district court dismissed the case under FRCP 12(b)(6).

The appellate court concluded that the use of force was reasonable.  While the bulk of the Graham v. Connor factors for analyzing use of force favored the decedent (including the decedent's known mental health issues, and the officers' lack of effort to deescalate the situation), the most important factor is whether the suspect posed an immediate threat under an objective standard.  When a suspect points a gun in an officer's direction, the Constitution undoubtedly entitles the officer to respond with deadly force.  Reasonableness does not always require officers to delay fire until a suspect turns a weapon on them.  If a person is reasonably suspected of being armed, a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.  These principles apply even when the officers make a reasonable mistake of fact about the threat.  Taking the allegations of the complaint in the light most favorable to the decedent, the court concluded that the officers' mistaken belief that the decedent possessed a dangerous weapon was reasonable, and that they were justified in using deadly force when he pointed it at them.  That the weapon turned out to be a replica does not change the analysis.  The weapon, like all replicas, was presumably intended to look like a real firearm.  The only indication it was not real was the orange-painted tip.  The officers were reasonably justified in not taking the decedent's assurances that the gun was a BB gun at face value, since misplaced trust could be fatal.  Under the totality of the circumstances, it was objectively reasonable for the officers to believe the decedent posed an immediate threat.  The district court properly concluded that the complaint could not be saved by amendment, especially since the plaintiffs had been given leave to amend previously.  Although the plaintiffs contended discovery could reveal additional circumstances, pleading standards must be met before unlocking the doors of discovery.

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.

Under State-Created Danger Doctrine, Officers and Social Worker Who Left Mentally Ill Mother Alone with Infants Can Be Sued for the Infants' Death

In Murguia v. Langdon, published March 14, 2023, a divided panel of the 9th Circuit Court of Appeals reversed in part an order dismissing a suit under 42 U.S.C. section 1983.  The plaintiff called 911 seeking emergency mental health assistance for his ex-wife, with whom he lived and had five children, including infant twins.  The mother was displaying bizarre behavior.  In response to the call, the first group of officers separated the mother and her twins from the plaintiff, and allowed the mother and a friend of hers to take the twins to church.  They prevented the plaintiff from following.  An officer from another agency then drove the mother and twins from the church to a woman's shelter.  A county social worker then allegedly provided incorrect information about the mother to officers from a third agency, who transported the mother and twins to a motel, and left them unsupervised.  The mother then drowned the twins in a bathtub.  The plaintiff sued all of the involved officers and social worker for allegedly violating his 14th amendment rights to substantive due process.  The district court dismissed the action for failure to state a claim.

The 9th Circuit majority reversed the dismissal in part.  The only two exceptions to the general rule against failure-to-act claims under section 1983 are those for special relationships and state-created danger.  There was no special relationship here, because the twins were never under the defendants' custody.  A state-created danger claim could be asserted against those defendant who created or enhanced any danger to the twins.  The panel upheld dismissal as to the first group of officers, since the facts alleged did not show they created or enhanced any danger to the twins by leaving the mother and twins with the mother’s friend.  The panel changed the dismissal to one without prejudice, since the plaintiff might be able to amend the allegations.  The majority held that the plaintiff adequately stated a claim against the officer who arranged for the mother to stay at the hotel room, transported the mother and twins from the shelter to the hotel room, and left the mother in the room with the twins.  The plaintiff adequately pleaded both danger enhancement/creation and deliberate indifference to the risk that the mother would harm the twins.  The majority also concluded the plaintiff adequately pleaded a state-created danger claim against the social worker, for allegedly providing false information about the mother to police.  By providing that information, she enhanced the danger to the twins by foreclosing the return of the twins to their father.  Following precedent, the panel found the claim for infringement on the plaintiff’s liberty interest from removal of the twins from him, and giving them to the other parent with custody of the twins, failed; it was a relatively minor infringement of the right that was insufficient to form a section 1983 claim.  The plaintiff also failed to plead a cause of action for seizure of his person based on the officers preventing him from following the twins.  They did not prevent the plaintiff from leaving his house for any other purpose.  Having found potential individual liability, the majority reversed denial of the Monell claim against the municipalities involved.

One judge dissented from the portions of the decision reversing dismissal.  The judge opined that the state-created-danger doctrine should apply only where officials abuse their power by intentionally putting a person in harm’s way.  The judge contended that the majority’s decision extended the doctrine to injuries caused by negligence and mistake.

Municipality Did Not Violate Parent's Liberty Interests by Allegedly Maintaining Lawless Area That Resulted in Death of Adult Son

In Sinclair v. City of Seattle, published March 1, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a suit under 42 U.S.C. section 1983.  During the George Floyd protests of 2020, the mayor and police department of the defendant city surrendered a police precinct and a large area of the surrounding neighborhood to protesters for a month.  The protesters declared it the Capitol Hill Occupied Protest, or CHOP, zone.  The mayor labeled CHOP a "block party" and a "summer of love."  A councilmember publicly described CHOP as a "peaceful" occupation.  Allegedly, violence, vandalism, open drug use, and other crimes proliferated in the area.  The city allegedly provided the protesters with portable toilets, lighting, and other support, including modifying emergency response protocols of the police and fire department.  The plaintiff's 19-year-old son, who had special needs, visited CHOP and encountered a man with whom he had a history of antagonism.  The man allegedly believed CHOP to be a "no-cop" zone.  He was carrying a gun.  He shot the plaintiff's son.  CHOP participants carried the wounded son to a medical tent they had erected.  The fire department had an ambulance stationed a block and a half from that location.  A man implored the paramedics to help the son.  The paramedics were apparently waiting for a green light from police.  The police were allegedly confused about the paramedics' location.  The miscommunication caused a response delay of around 20 minutes before first responders arrived to treat the son.  By the time they responded, CHOP participants had transported the son to a hospital, where he passed away.  The plaintiff alleged the city violated her 14th Amendment due process rights to the companionship of her adult son.  She alleged that the city's acts and omissions regarding CHOP created a foreseeable danger for her son and that the city was deliberately indifferent to the danger.  The district court dismissed the action for failure to state a claim.

The appellate court agreed that the plaintiff had failed to state a claim.  The court initially expressed doubt on whether a parent had a liberty interest in the companionship of an adult child.  But because 9th Circuit cases had recognized the existence of such an interest, without analyzing the question, the panel believed itself bound by the precedent.  The court therefore addressed the merits of the allegations. The plaintiff alleged the city violated her rights by violating the son's right to be free of state-created danger.  The court ruled that the complaint's allegations supported the strong inference that the city acted with deliberate indifference toward the dangers of permitting and encouraging establishment of the CHOP zone.  But the city's alleged response after the son's shooting do not show deliberate indifference.  The paramedics attempted to provide care.  The city did not prevent them from doing so.  Instead, the delay in care resulted from a miscommunication.  Further, while the allegations support a conclusion that the city created an actual danger, they do not support the danger particularized to the plaintiff that the state-created-danger claim requires.  Any danger the city created affected all CHOP visitors equally.  The danger was not specifically directed at the plaintiff or her son.  The section 1983 claim therefore fails.

One judge wrote a separate concurrence urging that the issue of whether a parent has a liberty interest in the companionship of an adult child be reviewed en banc.

City Can Be Held Liable under California Coastal Act for Failing to Prevent Local Surfers from Harassing Outsiders

In Spencer v. City of Palos Verdes Estates, published February 27, 2023, the Second District Court of Appeal, Division 5 reversed an order granting judgment on the pleadings for the defendant city.  The complaint alleged that a group of local surfers kept outsiders from accessing a premier surfing spot by threats, intimidation and violence.  The complaint further alleged that the city allowed the group to build a masonry and wood structure on city property and use it as their "hangout"; and by allegedly being complicit in the group's activity and tacitly approving it.  The complaint alleged that the city was liable for conspiracy to deny access under the California Coastal Act, Public Resources Code section 30000 et seq.  The trial court concluded that merely allowing the structure to be built on city property was not actionable against the city, absent allegations the city itself performed the construction; and that neither the harassment nor the city's alleged condoning of the harassment is conduct reached by the Act.

The appellate court disagreed.  The Act, as interpreted by case law decided while this case was on appeal, establishes that a landowner, such as the city, that has the ability to remove a structure may violate the Act by allowing an unpermitted structure to be maintained on its property--here, for decades.  Further, while the trial court concluded that the alleged harassment by the group was not "development" under the Act, the appellate court deemed this interpretation of "development" too narrow.  The Act's definition of "development" in Public Resources Code section 30106 includes, on land, change in the intensity of use of water, or of access thereto.  Case law has applied the term "development" as used in the Act as applying to more than constructing physical impediments, including landowners hiring security guards to keep persons from accessing the coast.  Setting up headquarters on city property, physically obstructing trail access to the beach, and intimidating outsiders with word and deed, all with the effect of blocking access to the water, is "development" under the Act.  Finally, the city can be held liable for conspiracy with the group.  Parties can be held liable for Coastal Act violations under the doctrine of conspiracy.  Allegations that many city residents and the city council do not want outsiders in the city; that at least one city official stated that residents want to keep outsiders away; that the group has been blocking access to the coast for decades; that the city was aware of the conduct and was complicit in it; that the former police chief agreed to look into the situation, and then "backed off"; that the city did not enforce its laws against the group; and that the city instead acted to exclude outsiders from the beach by targeting them with traffic citations, parking tickets, and towing, adequately pleaded a cause of action for conspiracy.  

Statute of Limitations under POBRA Starts Running upon Discovery of an Act of Misconduct, Even if Discovered During Investigation of Other Misconduct

In Garcia v. State Department of Developmental Services et al., ordered published February 21, 2023, the Third District Court of Appeal affirmed judgment in favor of the defendant department.  In May 2018, the plaintiff police sergeant was suspected to have manipulated overtime rules by reassigning officers from critical positions to cover positions his superior had instructed him not to assign officers to cover, and then assigning himself to cover those officers' critical positions.  An investigatory entity investigated the allegations.  The investigation took place between June 2018 and February 2019.  During the investigation, the entity discovered that the sergeant had committed various acts of misconduct unrelated to the alleged overtime manipulation.  In April 2019, the defendant department issued a notice of adverse action stating the plaintiff would be terminated effective May 2019.  The notice was based on both the overtime allegations and other misconduct.  After the plaintiff was terminated and appealed, the department withdrew its adverse action and retroactively reinstated the officer in September 2019.  Three weeks later, still in September 2019, the department issued a second notice of adverse action to the plaintiff, demoting him from sergeant to officer effective October 2019.  The adverse action was based on the overtime allegations and other misconduct.  The officer filed an administrative appeal, arguing that under Government Code section 3304(d)(1), part of the Public Safety Officers Procedural Bill of Rights, the adverse action was time-barred.  Under section 3304(d)(1), a public agency cannot discipline an officer “for any act, omission, or other allegation of misconduct” unless the agency completes its investigation and notifies the officer of its proposed discipline “within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”   An administrative hearing determined that the overtime misconduct allegations were time-barred, but that the allegations of misconduct unrelated to scheduling manipulations were also time-barred.  It upheld the demotion.  The plaintiff challenged the result by petition to the superior court for writ of mandate.  The superior court upheld the department's decision.

The appellate court agreed. The plaintiff argued that the one-year statute of limitations under section 3304(d)(1) started running as to all alleged acts of misconduct in May 2018, when the alleged scheduling misconduct was discovered.  The appellate court rejected that interpretation of the statute.  Based on the statutory language and other case law interpreting the statute, the court concluded that the statute of limitation as to each act of alleged misconduct began running upon discovery of that misconduct--even if other misconduct had been discovered earlier, and even if the misconduct is discovered while investigating the earlier misconduct.

No-Contest Plea Held in Abeyance and Dismissed Does Not Bar Suit under Heck v. Humphrey

In Duarte v. City of Stockton, published February 16, 2023, the 9th Circuit Court of Appeals reversed dismissal of the plaintiff's 42 U.S.C. section 1983 suit.  The plaintiff was involved in an encounter with city police officers in which force was used upon the plaintiff.  The plaintiff pleaded no contest to a charge under Penal Code section 148 for willfully resisting, obstructing,
and delaying a peace officer.  The court accepted the plea and ordered it held in abeyance.  The conditions from the plea form required the plaintiff to complete ten hours of community service and obey all laws.  Six months later, after another hearing, the judge dismissed the case, on the prosecutor's motion and "in the interests of justice."  The plaintiff sued for alleged excessive use of force and false arrest.  The district court concluded that the suit was barred by the plaintiff's guilty plea, under Heck v. Humphrey (1994) 512 U.S. 477.  It further concluded that the city and police department wre not "persons" subject to suit under section 1983.

The appellate court disagreed with both propositions.  Heck requires a conviction and subsequent sentence. Here, there was no conviction or sentence. The plaintiff was never found or proved guilty.  Although he pleaded no contest, a plea is not a conviction.  There is no conviction without a subsequent order from the court. Here, the plea was held in abeyance, and then the case was dismissed.  A dismissal is the opposite of a conviction.  Further, both municipalities and their police departments are entities subject to Monell liability under section 1983.

Issues of Fact on Whether Resisting Suspect Posed Imminent Threat of Serious Harm and Whether Officers Had Time to Issue Deadly Force Warning Prevent Summary Judgment Based on Qualified Immunity

 

In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity.  Two police officers responded to a gym’s report of trespassing and disruptive conduct.  When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security.  The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym.  The man ignored the officers except to raise his middle finger.  The officers attempted to handcuff the man.  For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him.  As he resisted, both officers’ body cams were knocked off their uniforms.  The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent.  One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode.  The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser.  According to the officer, the man straddled his partner and pummeled her head and face with punches.  He believed her life was in danger.  He drew his weapon and gave the man a verbal warning that he needed to stop.  He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away.  The man began falling backwards and away when he fired the final shot.  The district court found that evidence contradicted the defendant officer’s version of events.  The warning to stop cannot be heard in the bodycam audio.  Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects.  A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man.  The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired.  The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources.  Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority.  An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away.  The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri

 

The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action.  If either question is answered in the negative, the officer is entitled to qualified immunity.  Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.  Further, an officer must give warning before using deadly force whenever practicable.  When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted.  A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony.  Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force.  The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm.  The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to  eight feet away.  While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger.  Further, the officer never claimed it was not practicable to give a deadline force warning.  On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop.  Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force.  While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.

 

A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.

The Private Search Exception to the 4th Amendment Applies to Location Information

In Kleiser v. Chavez, published December 9, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant state department of labor and industries.  Two disgruntled employees of an electrician company provided the department with data from the employer, particularly printouts of cell site location information, that provided GPS coordinates for company vehicles and movements of electricians in the field.  The department used the data to assess fines against the company for improper supervision of journeymen electricians.  The company sued the department under 42 U.S.C. section 1983, alleging the department violated the 4th Amendment by obtaining the data without a warrant.  The company contended Carpenter v. United States (2018)
138 S. Ct. 2206 , and Wilson v. United States (9th Cir. 2021) 13 F.4th 961, extinguished the applicability of the private search exception (under which the 4th Amendment does not protect against government use of materials that third parties seized without a warrant and provided to the government) to location information.

The 9th Circuit rejected the company's argument.  Carpenter held the third-party doctrine (under which a person who voluntarily turns over information to third parties cannot assert the 4th Amendment protects that information) does not apply as an exception to the 4th Amendment's warrant requirement when the government seeks cell site location information.  The private search exception is a separate exception to the 4th Amendment.  The 9th Circuit joined other circuits in ruling that Carpenter does not apply in private search exception cases.

Officers Were Not Negligent in Using Less-than-Lethal Weapons on Suicidal Suspect after Extended Negotiations

In Villalobos v. City of Santa Maria, ordered published November 16, 2022, the Second District Court of Appeal, Division 6 affirmed summary judgment in favor of the defendant city and its police officers.   Officers responding to a report of a suspicious person with a knife saw the plaintiff's decedent standing in a road holding a knife with a long blade.  The officers ordered the decedent to drop the knife.  The decedent held the knife to his own throat.  He pointed, gesticulated, and appeared upset.  The police attempted to negotiate with him for 42 minutes.  Eventually, without warning, the officers deployed less-than-lethal beanbag rounds and 40 mm rubber projectiles against the decedent.  They were 30-40 feet from the decedent.  The decedent saw the officers taking aim, and made a "go ahead" gesture.  The decedent began jumping up  and down and stabbing himself in the abdomen with the knife.  He slashed his own throat with the knife.  He then charged full speed toward the officers, the knife in his right hand.  The officers fired several rounds of live ammunition at the decedent.  He fell a few feet from the officers.  He died of multiple gunshot wounds.  Based on the totality of the circumstances, the trial court found that the officers were not negligent, and that no reasonable juror could find that the police acted unreasonably.  On appeal, the plaintiff conceded that the shooting became reasonable at some point, but that the officers were negligent in their pre-shooting conduct, resulting in the decedent's suicidal assault with the knife.

The appellate court agreed with the trial court.  The officers were not obliged to let the decedent go.  They could use reasonable force to disable him.  The fact that the less-than-lethal force was unsuccessful is not the reason deadly force was needed.  Viewing the facts in the light most favorable to the plaintiff, no reasonable juror could find that officers were negligent or had acted unreasonably. The officers patiently waited approximately 40 minutes before resorting to less-than-lethal weapons.  The decedent charged the officers in an apparent attempt to commit "suicide by cop."  That the officers did not use alternatives to deadly force did not raise a triable issue on negligence.  Officers are not required to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.