In Gorlick v. State of California, published September 8, 2022, the First District Court of Appeal, Division 3 affirmed dismissal of a defendant county, county sheriff’s office, and deputy sheriff after demurrer was sustained without leave to amend. A disgruntled former resident of a veteran’s home entered the home, armed, and took hostages. The defendant deputy was dispatched to the hostage situation. He opened a metal door in the home, and saw the hostage taker holding a rifle. The deputy closed the door, and fired at the hostage taker through the door. The hostage taker fired back. After exchanging several shots, the deputy held back for several minutes until backup arrived. Hours later, an FBI SWAT team opened the door and found the hostage taker and hostages dead. It was undisputed that none of the deputy’s shots hit the hostages or the hostage taker; the hostage taker killed the hostages and himself, allegedly within seconds after exchanging gunfire with the deputy. The plaintiffs alleged the county defendants were liable for the wrongful death of the victims because they failed to exercise reasonable care in preparing for and responding to the shooting incident. The trial court concluded that the county defendants did not owe a duty of care to the victims.
The appellate court agreed. Peace officers owe a duty of care to act reasonably when using deadly force. But the complaint failed to allege facts showing that this duty encompassed an obligation to prevent the hostage taker from shooting his hostages. Under California law, a peace officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance. A corollary is that the officers have a duty in tort to act reasonably when using deadly force against a suspect. An officer’s lack of due care when employing deadly force may give rise to liability for injuries incurred by third parties in the deadly force incident, when the officer injures those persons. But no one suffered physical injury during the exchange of gunfire between the officer and the hostage taker. Generally, there is no duty to protect others from the conduct of third parties. By using deadly force, the deputy did not assume a tort duty of care to the hostages to prevent the hostage taker from killing them. Case law differentiates injury caused by an officer’s allegedly negligent use of deadly force (which is actionable) from failure to prevent a third party’s use of force (which is generally not actionable). There are exceptions from the rule that a person owes no duty to protect others from perils the defendant did not create. But none of them applied here. The plaintiffs did not allege facts showing that the deputy placed the hostages in danger. By discharging his duty to protect the public as a whole from the hostage taker’s criminal actions, the deputy did not assume a duty of care to the hostages distinct from or greater than his duty to the public. The complaint did not plead facts linking the deputy’s acts to the hostages’ death, and therefore did not establish that the deputy’s acts increased the risk the hostages already faced. To state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a direct connection between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct. Neither the speculative conclusion that the gunfire exchange prompted the hostage taker to shoot the hostages, nor the allegation that the deputy should have entered the room and killed the hostage taker after making his presence known, showed the required connection. An officer does not increase a risk of harm by failing to stop an individual from acting dangerously. The court also rejected the argument that the deputy or county entered into a special relationship with the victims or the killer. The deputy’s mere appearance and attempt to stop the crime did not create a special relationship with the victims. The plaintiffs did not allege that the hostages detrimentally relied on anything the deputy did or said. An “interagency agreement” between the sheriff’s department and the entity running the home, requiring the department to respond to all calls for service at the home, did not create a contractual duty for the department to protect the decedents from the killer. While the department had verbal interactions with the home’s staff about security issues at the home, this did not create a special relationship analogous to that in cases where police secure a person’s cooperation in exchange for promises of protection or assurances that a threat does not exist.
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