Police Officers’ Duty of Reasonable Care
**Melanie need caption
Last month our Washington Supreme Court distinctly recognized that police officers owe a duty of reasonable care just like any other private individual when they interact with others. In other words, officers have a duty to act just like a similarly situated person (another police officer) would in their shoes. In Beltran-Serrano et al. v. City of Tacoma, Tacoma Police Officer Michel Volk noticed Cesar Beltran-Serrano, a mentally ill homeless man, on the street and approached him with the intent to educate him about the City’s panhandling laws. 95062-8, 2019 WL 2455660 (Wash. June 13, 2019). When Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging a hole. Officer Volk observed Beltran-Serrano pull out an old soda container, take a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer.
Rather than wait for a Spanish-speaking officer, Officer Volk attempted to engage Beltran-Serrano in conversation in English. Beltran-Serrano could not understand and, of course, did not respond. About 30 seconds later, as Officer Volk moved closer to Beltran-Serrano, he became scared and started to run away. Officer Volk shot him in the back with a stun gun. When Beltran-Serrano continued to run away, Officer Volk then pulled out her gun and fired multiple shots until Beltran-Serrano fell to the ground.
After suit was filed, the superior court dismissed the negligence action by holding that the sole avenue for recovery must be an intentional tort claim for assault and battery. The Washington Supreme Court disagreed and held that under Washington common law negligence, the City owes a duty to avoid causing foreseeable harm in the course of law enforcement interactions with individuals. For example, if an officer recognizes that an individual is suffering from mental illness or cannot speak English, de-escalation requires taking into account these concerns and following standard de-escalation police practices. Among the evidence that could be presented to the jury is that the City failed to follow its own accepted practices in Officer Volk’s interactions with Beltran-Serrano and that this negligence (here, Volk’s failure to wait for a Spanish speaking officer or recognize Beltran-Serrano’s mental illness) resulted in Beltran-Serrano’s injuries.
This decision confirms the merit of cases moving forward against the police for excessive use of force under common law negligence in Washington State. Plaintiffs may argue that an officer failed to use ordinary care by failing to stop the escalation of the situation, ultimately resulting in excessive or deadly force. My hope is that the Court’s opinion and acknowledgment reduces disproportionate policing that targets populations that suffer from mental illness, language barriers, cultural differences, and mistrust.
Meanwhile, a case that may be affected by Beltran-Serrano, Charleena Lyles v. the City of Seattle, is pending at least partially in the Washington State Court of Appeals. Over two years ago on June 18, 2017, the pregnant mother of four was suffering from a mental health episode when she called the Seattle Police Department to report a burglary. The result of the police response was that Charleena Lyles was shot seven times. She died in her apartment with three of her children present. We asserted a Washington common law negligence claim – that the officers failed to recognize her mental health when they should have based on the standards of their own police department.