August 11, 2011
However, the court rephrased the question, as permitted under rule 8.548(f)(5). The Ninth Circuit had asked, “Whether under California negligence law, sheriff’s deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him.” The issue as restated by the Supreme Court is now, “Whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.”
As we noted, the procedural background of this case is unusual. In its request for an answer, the Ninth Circuit stated that “the outcome of the question here would normally be dictated by the holdings” of two California Court of Appeal opinions, but the three judges on the Ninth Circuit panel panel disagreed amongst themselves whether a 2009 Supreme Court decision “suggests that the California Supreme Court would not follow th[os]e holdings.” Indeed, the Ninth Circuit had earlier issued a divided opinion on the issue and referred the issue to the Supreme Court only after being asked to do so by the defendants in their rehearing petition.
This isn’t the only Ninth-Circuit-referred case where the federal court has an idea what the answer is to the question being asked, but just wants to make sure. In the prominent Prop. 8 case that will be argued in a few weeks, the Ninth Circuit referral order cited a California Court of Appeal opinion and relevant dictum in a California Supreme Court opinion, but stated that only a direct holding from the state’s high court will do.