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Media Alerts - A.K.H. v. City of Tustin - Ninth Circuit
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November 1, 2016
  A.K.H. v. City of Tustin - Ninth Circuit
Headline: The Ninth Circuit panel affirmed the district court's denial of qualified immunity to a Tustin police officer in an action brought under 42 U.S.C. § 1983 alleging that the officer used excessive force when he shot and killed an unarmed man suspected of a domestic violence dispute during an investigatory stop.

Area of Law: Constitutional Law; 42 U.S.C. § 1983

Issue Presented: Whether a Tustin Police officer is entitled to summary judgment based on qualified immunity pursuant to 42 U.S.C. § 1983 applying the Graham factors when he shot and killed an unarmed man during an investigatory stop.

Brief Summary: After a theft and domestic violence report from Benny Herrera's ("Herrera") ex-girlfriend Hilda Ramirez ("Ramirez"), police were dispatched to where Herrera was walking to take a bus to his home. Dispatch initially informed the officers that Herrera was not known to carry weapons, but that Herrera was "shown in house" to be a member of the Southside Gang, that Herrera was on parole for a state drug possession crime, and Herrera possibly had a $35,000 traffic warrant out for his arrest.

Officer Miali ("Miali") was the first to spot Herrera. As Miali drove up to Herrera, Miali turned on the red lights of his vehicle. Herrera then put his right hand in his sweatshirt pocket and refused three orders from Miali to "get down," opting to stay on his feet and continue to move down the road at about the same speed as Miali's vehicle. Officer Villarreal ("Villarreal") was second at the scene and did not hear Miali's commands. Villarreal positioned his car so as to "box" Herrera in and immediately shouted, "[g]et your hand out of your pocket." Within less than a second of ordering Herrera to take his hand out of his pocket and without warning, Villarreal fired two shots in rapid succession killing Herrera as Herrera moved to comply with Villarreal's command.

Herrera's relatives filed suit against Villarreal and the City of Tustin under 42 U.S.C. § 1983 claiming that excessive force was used in the incident. Claiming qualified immunity, Villarreal moved for summary judgment, which the district court denied. Villarreal took an interlocutory appeal of the denial of his summary judgment motion.

The Ninth Circuit panel used the two-prong analysis from Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010), which asks: (1) viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment and (2) if Villarreal used excessive force, did he violate a clearly established right. As to the first prong, the Ninth Circuit panel held that, based on the totality of the circumstances and viewing the evidence in the light most favorable to the plaintiffs, Herrera's interests substantially outweighed the government's interest in using deadly force. Thus, Villarreal's fatal shooting of Herrera violated Herrera's Fourth Amendment rights. As to the second prong, the Ninth Circuit panel held that, viewing the evidence in the light most favorable to the plaintiffs, Villarreal violated clearly established Fourth Amendment law when he killed Herrera because Villarreal had no articulable basis to believe that Herrera was armed, except to say that Herrera had one hand "concealed."

The Ninth Circuit panel therefore affirmed the district court's denial of summary judgment in Villarreal's favor based on qualified immunity and remanded to the district court.

Significance: A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.

Extended Summary:
Benny Herrera's ("Herrera") ex-girlfriend Hilda Ramirez ("Ramirez") called 911 and reported that Herrera had stolen her phone. Ramirez told police that Herrera did not carry any weapons and that it was his first time using violence against her. Ramierz also informed dispatch that Herrera had left the scene and was "walking down El Camino Real...towards Red Hill" likely trying to take a bus home as he had neither a car nor friends in the area. Ramirez later modified her story to include that Herrera hit her in the head while Ramierz and Herrera were arguing about Ramirez's phone.

The dispatcher's general call to Tustin Police reported that Herrera stole Ramirez's phone, left the scene, was trying to catch the bus, had no access to a vehicle, did not have friends in the area, and was not known to carry weapons. After Ramirez modified her story to the dispatcher, the dispatcher reported that Ramirez claimed that Herrera had struck Ramirez's head. The dispatcher also reported that Herrera was "shown in-house to be a member of the Southside Gang," was on parole for a state drug possession crime, and possibly had a $35,000 traffic warrant out for his arrest.

Officer Miali ("Miali") encountered Herrera first. As Miali turned on the red lights of his police vehicle, Herrera put his right hand in his shirt pocket and began to skip, walk, and run backwards facing the Miali. Miali told Herrera to "get down" three times, but Herrera did not comply.

Officer Villarreal ("Villarreal") was second on the scene and did not hear Miali's commands to Herrera. Using his patrol car, Villarreal "boxed in" Herrera and told Herrera to, "[g]et your hand out of your pocket." While Herrera was taking his hand out of his pocket, Villarreal fired two shots in quick succession without warning, killing Herrera.

At a deposition, Miali testified, "there was something in [Herrera's sweatshirt] that appeared to be heavy." Villarreal testified in his deposition that Herrera "charged [him]" and that probably "three to five seconds" passed between the time Villarreal commanded Herrera to remove his hands from his pocket and when he shot. However, Miali's dashboard camera showed Villarreal's command and his shots were almost simultaneous and that the entire encounter from the time that Miali initially made contact with Herrera to when Villarreal killed Herrera was less than one minute.

Herrera's relatives filed a claim under 42 U.S.C. § 1983 alleging that Villarreal used excessive force against Herrera when Villarreal shot Herrera two times, killing him during an attempted investigatory stop. Villarreal moved for summary judgment on grounds of qualified immunity which was denied. Villarreal filed an interlocutory appeal.

On the preliminary issue of whether the interlocutory appeal was proper, the Ninth Circuit panel noted that while summary judgment motions are not normally appealable as they are not final judgments, there is an exception for appeals based on a denial of a motion for summary judgment based on qualified immunity (Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). The Ninth Circuit panel held that Villarreal had properly brought an interlocutory appeal over which the Ninth Circuit panel had jurisdiction because "[a] defendant who appeals a denial of qualified immunity on the ground that his 'conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law" has "raise[d] legal issues" that may be properly heard in an interlocutory appeal. Plumhoff, 134 S.Ct. at 2019.

Moving to the merits of the appeal, the Ninth Circuit panel used a two-pronged approach to determine whether Villarreal was entitled to summary judgment based on qualified immunity under § 1983. "First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment?" Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). "Second, if Villarreal used excessive force, did he violate a clearly established right?" Id.

Excessive Use of Force

In analyzing excessive force claims under the Fourth Amendment, the question is whether the actions of the officers were "objectively reasonable." Graham v. Connor, 490 U.S. 386, 388 (1989). The nature and quality of the intrusion of individual's Fourth Amendment right is balanced against the interest the government alleges justifies the intrusion. Tennessee v. Garner, 471 U.S. 1, 7 (1985). Courts must evaluate the "totality of the circumstances" (Id. at 8), paying close attention to factors such as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight" (Graham, 490 U.S. at 396). The "most important" of these factors is "whether the suspect posed an 'immediate threat to the safety of the officers or others.'" Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). Moreover, deadly force is permissible only "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm" Garner, 471 U.S. at 11.

The Ninth Circuit panel noted that under Garner, the "nature and quality of the intrusion" by Villarreal on Herrera's Fourth Amendment interests was extreme because the use of deadly force implicates the highest level of Fourth Amendment interests. As such, the panel held that the government's interests were insufficient to justify the use of deadly force because: (1) the "crime at issue" was a domestic dispute that ended before police became involved; (2) domestic disputes do not necessarily justify the use of even intermediate let alone deadly; and (3) the use of force is especially difficult to justify when "the domestic dispute is seemingly over by the time the officers begin their investigation.

The Ninth Circuit panel further held that Villarreal could not have reasonably believed Herrera was a threat to the safety of officers or others because: (1) the domestic altercation was over; (2) Herrera posed no threat to the safety of the officers as he had no weapon; (3) officers had little, if any, reason to believe that Herrera was armed; (4) the dispatcher told the officers that Herrera was "not known to carry weapons;" (5) Herrera never displayed a weapon and Villarreal admitted that he never saw a weapon; and (6) the traffic warrant and drug possession conviction were relatively minor crimes, neither of which entailed violence or gun possession.
The panel thereafter held that, even it was accepted that (1) Herrera was "actively resisting" or "attempting to evade" an investigatory stop and (2) an arrest and an investigatory stop were equal, this factor only slightly favored the government because Herrera never attempted to flee from the officers. Moreover, Villarreal did not hear Miali's commands for Herrera to "get down." Therefore, when viewing the evidence in the light most favorable to Herrera, this factor did not weigh heavily in the government's favor to determine whether the use of deadly force was justified.

Finally, the Ninth Circuit panel noted that Villarreal had escalated to deadly force very quickly. Less than one second elapsed from Villarreal's command for Herrera to remove his hand from his pocket and the shots fired. There was no warning and insufficient time for Villarreal to make a determination whether Herrera had a weapon. Moreover, Villarreal conceded that he never saw a weapon in Herrera's hand, Herrera never threatened the officers, and Villarreal had other reasonable options. As such, and based on the totality of the circumstances and the balancing of both sides, the panel concluded that the intrusion on Herrera's interests substantially outweighed any governmental interest in using deadly force and held that Villarreal's fatal shooting of Herrera violated Herrera's Fourth Amendment rights.

Clearly Established Right

After holding that Villarreal's actions violated the Fourth Amendment, the Ninth Circuit panel considered whether Villarreal violated a right that was clearly established at the time of the violation. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 532 (9th Cir. 2010). To determine whether such a right was violated, the panel looked to "cases relevant to the situation [Villareal] confronted" (see Brosseau v. Haugen, 543 U.S. 194, 200 (2004)), mindful that there need not be a case "directly on point" (see Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013).

The panel found the Court's decision in Garner to be instructive because, as in Herrera's case: (1) the crime at issue did not involve the use of deadly force; (2) Garner fled from police after an officer told him to "halt"; and (3) the officer in Garner had no reason to suspect that the suspect was armed.

Viewing the evidence in the light most favorable to the non-moving party, the panel held that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera because Villarreal had no reason to suspect that Herrera was armed since: (1) the dispatcher expressly told the officers that Herrera was "not known to carry weapons;" (2) Villarreal never saw a gun; and (3) Villarreal could provide no basis for his belief that Herrera was armed except to say that Herrera had one hand "concealed."

Viewing the evidence in the light most favorable to the plaintiffs, the panel held that Villarreal clearly violated clearly established Fourth Amendment law when he"seize[d] an unarmed, nondangerous suspect by shooting him dead" and affirmed the district court's denial of qualified immunity.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-55184.pdf

Panel: William A. Fletcher, Mary H. Murguia, and John B. Owens, Circuit Judges.

Argument Date: Argued and Submitted March, 7, 2016

Date of Issued Opinion: September 16, 2016

Docket Number: 14-55184

Decided: Affirmed and Remanded.

Counsel: M. Lois Bobak (argued), Robert L Kaufman, and Daniel K. Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa, California, for Defendant-Appellant Officer Villarreal.

No appearance by Defendant-Appellant City of Tustin.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellees.

Author of Opinion: Judge W. Fletcher, Circuit Judge.

Case Alert Author: Krysta Maigue

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 04:42 PM     9th Circuit  

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