Police Liability for Tactical Conduct Preceding the Use of Force-The Implications of Hayes v. County of San Diego

By Michael R. Linden and Justin B. Atkinson*

The Spring 2012 edition of the Public Law Journal featured an article (written by the authors herein) entitled "Can a Lawful Arrest Be Negligent?" This article discussed the issue of whether law enforcement officers owed a legal duty to arrestees to use reasonable care in the tactics employed to effectuate an arrest. While citing authority supporting the existence of a duty to use reasonable force, the article also cited the cases Adams v. City of Fremont ("Adams") and Munoz v. City of Union City ("Munoz") for the proposition that law enforcement officers did not owe a duty to potential arrestees with respect to the tactics utilized prior to the use of force.¹

Since the Spring 2012 article was published, however, the foundation of the broad rule of no duty set forth in Adams and Munoz has slowly eroded On August 19, 2013, the California Supreme Court issued a decision in the case Hayes v. County of San Diego that substantially limits the holdings in Adams and Munoz in cases where police officers cause the death of a subject in the field.² How this change came about is discussed below.

I. HERNANDEZ V. CITY OF POMONA