Police-misconduct victims may bring negligence claims against officers. If a jury finds that the officers were negligent, then their employers are liable, too, under a doctrine known as “vicarious liability.”
Officers have a duty to act reasonably when using force, including deadly force. Whether a particular use of force is reasonable depends on the “totality of the circumstances” surrounding that use of force. Graham v. Connor, 490 U.S. 386, 396 (1989). But in a negligence claim, the jury will be able to assess the officer’s conduct in the moments leading up to the use of excessive force. This is different—and more advantageous to a victim—than a Fourth Amendment excessive-force claim, in which the jury considers the reasonableness of the use of force at the moment the force was used. In contrast, a negligence claim allows a jury to hold an officer liable for conduct preceding even a lawful use of force.
Consider the seminal case of Grudt v. City of Los Angeles, 2 Cal. 3d 575 (1970). There, a street-clothed officer—carrying a double-barreled shotgun—approached a car, possibly causing the driver to think that he was being robbed or attacked. The driver accelerated the car towards another street-clothed officer, and then both officers opened fire on the driver, killing him. The California Supreme Court held that the trial court should have allowed a negligence claim to go forward against the officers. If examined in isolation, the shooting appeared justified, because right before the shooting, the victim was accelerating his car toward one of the officers. But presenting evidence that the officers’ pre-shooting conduct—including one officer’s approaching in plainclothes, while carrying a double-barreled shotgun—might persuade a jury to find that the officers acted negligently in shooting the driver.
Pre-shooting circumstances–whether the officers blundered tactically, or failed to follow generally accepted law-enforcement standards–might show that an otherwise reasonable use of deadly force was in fact unreasonable. Hayes v. Cty. of San Diego, 736 F.3d 1223, 1235-36 (9th Cir. 2013).