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August 24, 2017
  S.B. v. County of San Diego
Headline: Ninth Circuit panel, in reversing district court's denial of qualified immunity from Fourth Amendment liability in use of excessive force, takes to heart the U.S. Supreme Court's recent admonishment - particularly to the Ninth Circuit - "not to define clearly established law at a high level of generality" in holding that the officer in question was entitled to qualified immunity because he was not put on "clear notice," by any specific case, that using deadly force "in these particular circumstances" would be excessive.

Areas of Law: Criminal Law, Constitutional Law, Civil Rights.

Issues Presented: Whether the panel could identify a case where an officer, acting under similar circumstances as the officer alleged to have violated plaintiff' under similar circumstances, was held to have violated the Fourth Amendment.

Brief Summary: Police officers responded to a call about an individual who was intoxicated and acting aggressively. When the police officers arrived on the scene, they observed the suspect with knives in his pockets. After being told to place his hands on his head, the man reached for a knife, and a police officer used deadly force to end the situation. The district court granted summary judgment in favor of the plaintiff, holding that that the officer did not have qualified immunity. The county appealed the summary judgment and the Ninth Circuit panel reversed the district court.

Significance: In light of the U.S. Supreme Court's recent admonition in White v. Pauly, 137 S. Ct. 548 (2017) "not to define clearly established law at a high level of generality, the denial of qualified immunity to a police officer who uses deadly force is improper where the court cannot identify a specific case that put the officer on "clear notice that using deadly force in these particular circumstances would be excessive."

Extended Summary: On August 24, 2013, Deputies Moses and Vories overheard a "5150" radio call about family members concerned for their safety because an individual, David Brown, with mental issues was intoxicated and acting aggressively. The two deputies went to Brown's house where another deputy, Billieux, met them.

All three deputies entered the home, looking for Brown. The deputies could hear cabinets or drawers opening and closing from the kitchen area. Deputies Moses and Vories entered the kitchen and saw Brown standing with kitchen knives sticking out of his pockets. After Brown initially complied with the deputies demands of raising his hands in the air and kneeling to floor, Brown then looked at Deputy Vories, and reached back with his right hand to grab a knife. Brown then moved in a manner that caused deputies to believe he was trying to stand up. Deputy Moses, believing that Deputy Vories was in imminent harm, shot Brown three or four times, resulting in Brown's death.

Plaintiffs filed action against the defendants under a 42 U.S.C. ยง 1983 claim for excessive force in violation of the Fourth Amendment and a wrongful death claim under California law. In August 2015, the district court heard arguments on defendants' motion for summary judgment. Plaintiffs urged that the court deny the motion due to inconsistencies in the deputies' depositions. The district court agreed and denied the motion for three inconsistencies: (1) whether Brown was on his knees or attempting to stand when he grabbed the knife and was shot; (2) whether Moses could see the other officers clearly when he fired his weapon; and (3) the distance between Brown and Vories when Brown grabbed the knife. The district court also found inconsistencies over whether Moses's conduct violated clearly established law, making qualified immunity inappropriate. Defendants then filed an interlocutory appeal to challenge the denial of qualified immunity to Moses.

In determining whether an officer is entitled to qualified immunity, the court used the rule set forth by C.V. by & through Villegas v. City of Anaheim, 823 F.3d 1252 (9th Cir. 2016), that courts will consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct. The panel started their opinion by first looking at whether a constitutional right was violated.

In addressing the first issue, the panel stated that the Fourth Amendment permits law enforcement to use "objectively reasonable" force and articulated the following factors for evaluating reasonableness including: (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect actively resisted arrest or attempted to escape. However, the court declared that the most important factor to be considered is whether the suspect posed an immediate threat to the safety of the officers or others.

When viewing the facts in the light most favorable to the plaintiffs, the court determined that a reasonable jury could find that Brown was on his knees when shot, Moses could not see other officers at the time of the shooting, officers did not order Brown to drop the knife when he went to grab it, etc. Based on these findings, the panel concluded that a reasonable jury could conclude that Moses's use of deadly force was not objectionably reasonable and thus violated Brown's Fourth Amendment right against excessive force.

Next, the court looked to the second element of whether qualified immunity should have been granted: whether the constitutional right was clearly established at the time of the officer's alleged misconduct. The court declared that to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right.

Addressing the second issue, the panel "acknowledge[d] the U.S. Supreme Court's recent frustration with failures [of the lower court's] to heed its holdings" and its admonition "not to define clearly established law at a high level of generality." City & County of San Francisco v. Sheehan, 135 S. Ct. 1765 at 1775-76. Noting the Supreme Court's statement in White v. Pauly, 137 S. Ct. 548, 551 (2017) that "n the last five years, [the Supreme Court] has issued a number of opinions reversing federal courts in qualified immunity cases," the panel stated that it "hear[d] the Supreme Court loud and clear" that, "before a court can impose liability on Moses, we must identify precedent as of [the night of the shooting] that put Moses on clear notice that using deadly force in these particular circumstances would be excessive." The Panel could not find such precedent. The panel distinguished on the facts closest analogous case. In Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011), the individual was a suicidal man who was intoxicated and threatened to kill himself while holding a knife to his throat. Brown's "grabbing the knife from his pocket despite orders to place his hands on his head was more threatening" to Moses. "If the person is armed . . . [then] a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat." George v. Morris, 736 F.3d 829, (9th Cir. 2013).

Accordingly, the panel reversed the district court's denial of summary judgment finding that it was not clearly established that using deadly force in this situation, even viewed in the light most favorable to plaintiffs, would constitute excessive force under the Fourth Amendment.

To real the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/05/12/15-56848.pdf

Panel: Before: Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Edward R. Korman, District Judge.

Argument Date: February 17, 2017.

Date of Issued Opinion: May 12, 2017

Docket Number: 15-56848

Decided: Reversed

Case Alert Author: Kyle Case

Counsel: James Chapin (argued), Senior Deputy County Counsel; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendants-Appellants.
Megan R. Gyongyos (argued) and Bryan T. Dunn, The Cochran Firm California, Los Angeles, California, for Plaintiffs-Appellees.

Author of Opinion: Judge Owens

Circuit: Ninth

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/24/2017 07:04 PM     9th Circuit  

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