What is the test for negligence in the context of police use of deadly force against a fleeing suspect?

California, United States of America

The following excerpt is from Lopez v. City of Los Angeles, B219499 (Cal. App. 2011):

Appellant's reliance on Munoz v. Olin (1979) 24 Cal.3d 629 is misplaced. In that case, the court explained: "'"[T]he actor's conduct must always be gauged in relation to all the other material circumstances surrounding it and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law."' [Citations.]" (Id. at p. 637.) In Munoz v. Olin, peace officers intentionally shot a suspected arsonist as he was fleeing. (Id. at p. 631.) The court found a triable issue of fact regarding negligence because one of the peace officers shot numerous times in addition to failing to attempt other means to apprehend the suspect. (Id. at p. 637; see

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also Tennessee v. Garner (1985) 471 U.S. 1, 10 [use of deadly force improper to apprehend nonviolent suspect].)

This case is nothing like Munoz v. Olin. Pena was not attempting to flee. Instead, he was shooting directly at officers and holding his child hostage. When all of the material circumstances are considered, as required by Munoz v. Olin, the only reasonable conclusion is that the officers' use of force was reasonable.

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