Police Wrongful Death Suit Revived by the 9th

(CN) - A California girl whose suicidal father was killed by police deputies can continue her wrongful death claim, the 9th Circuit ruled.

The confrontation erupted after the San Diego County Sheriff's Department responded to a 911 call on Sept. 17, 2006, about a disturbance at the Hayes house.

Shane Hayes' girlfriend, Geri Neill, told Deputy Mike King that she had argued with Hayes over his attempt to kill himself with exhaust fumes earlier in the evening.

When King and fellow deputy Sue Geer entered the home, they did not know that Hayes had been taken into protective custody four months earlier for trying to kill himself with a knife.

King later testified that he told Hayes to "show me his hands." Hayes raised his hands to reveal a knife, stepping toward the deputies. They each shot him twice.

Neill testified that Hayes was not "charging" the officers and instead had a "clueless" expression on his face, "like nothing's working upstairs."

Through her guardian ad litem, Hayes' minor daughter Chelsea sued the department, Geer and King for wrongful death, negligent hiring and supervision, and violations of the Fourth and 14th Amendments. She had been 12 on the night of the shooting.

A federal judge sided with the deputies on summary judgment, and the 9th Circuit asked the California Supreme Court in 2011 to consider whether the deputies could be found liable under state law. This past August, the high court answered yes .

On Monday, a somewhat divided panel of the 9th Circuit remanded the case to the District Court for a determination of whether Chelsea could assert a survival claim based on the alleged violation of her father's Fourth Amendment rights.

Chelsea did not convince the court that her own 14th Amendment due process rights were violated by the shooting death of her father.

"There is no evidence that the deputies fired their guns for any purpose other than self-defense," Judge Alfred Goodwin wrote for a three-judge panel.

The court did, however, allow Chelsea to advance her wrongful-death claim.

"Although Hayes was walking towards the deputies, he was not charging them, and had not been ordered to stop. He had committed no crime and had followed all orders from the deputies at the time he was shot," Goodwin wrote.

Writing in dissent, Judge Johnnie Rawlinson said that the District Court had "correctly concluded that no constitutional violation occurred."

"An officer need not wait for the assailant to strike a blow before acting to ensure his safety and the safety of others," Rawlinson wrote.

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