A. K. H. Ex Rel. Landeros v. City of Tustin
2016 U.S. App. LEXIS 16961
| 9th Cir. | 2016Background
- On Dec. 17, 2011 officers responded to a 911 call reporting Benny Herrera had taken his ex‑girlfriend’s phone and had struck her; dispatcher said Herrera was “not known to carry weapons.”
- Officer Brian Miali followed Herrera in an SUV; Herrera walked on the road shoulder with his right hand in his sweatshirt pocket and sometimes faced or moved backward toward Miali’s vehicle.
- Officer Osvaldo Villarreal pulled his patrol car up beside Herrera with his gun drawn, ordered Herrera to remove his hand from his pocket, and less than a second after the command fired two shots as Herrera’s right hand came out of the pocket; Herrera was unarmed and died.
- Villarreal testified he shot because he believed Herrera had a weapon; Villarreal never saw a weapon. The only item in Herrera’s pocket was a cell phone.
- Plaintiffs sued under 42 U.S.C. § 1983 alleging excessive force. The district court denied Villarreal qualified immunity on summary judgment; Villarreal appealed interlocutorily and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether, viewing facts in plaintiffs’ favor, Villarreal used excessive force in violation of the Fourth Amendment | Shooting an unarmed, non‑dangerous subject who was complying (removing his hand) and posed no immediate threat was deadly, unreasonable force | Shooting was objectively reasonable because Villarreal reasonably believed Herrera had a weapon and was closing distance rapidly | Held: Viewing plaintiffs’ version of facts, the use of deadly force violated the Fourth Amendment |
| Whether Villarreal is entitled to qualified immunity because the law was not clearly established | Plaintiffs: precedent clearly prohibits shooting an unarmed, nondangerous suspect | Villarreal: no controlling precedent directly on point; his belief that Herrera was armed was reasonable | Held: The right was clearly established; qualified immunity denied |
| Whether appellate court has jurisdiction to review denial of qualified immunity on summary judgment | Plaintiffs: denial raises legal question suitable for interlocutory appeal | Villarreal: appeals legal grounds; factual disputes should block appeal | Held: Court has jurisdiction to decide the legal question whether conduct violated the Fourth Amendment |
| Whether factual disputes preclude summary judgment | Plaintiffs: disputes construed in plaintiffs’ favor permit denial of qualified immunity | Villarreal: facts as he asserts would entitle him to immunity | Held: On review court assumes plaintiffs’ version of material facts and denies immunity under that view |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (officers may not use deadly force against an unarmed, nondangerous fleeing suspect)
- Graham v. Connor, 490 U.S. 386 (excessive‑force claims judged by objective‑reasonableness under the Fourth Amendment)
- Plumhoff v. Rickard, 134 S. Ct. 2012 (interlocutory appeal principles for qualified immunity; distinguishes legal vs. factual questions)
- Mitchell v. Forsyth, 472 U.S. 511 (qualified immunity interlocutory appeal doctrine)
- Saucier v. Katz, 533 U.S. 194 (framework for deciding constitutional violation and clearly established law)
- Brosseau v. Haugen, 543 U.S. 194 (clearly established law assessed with respect to facts officer confronted)
- Ashcroft v. al‑Kidd, 563 U.S. 731 (need not be a case directly on point but must clearly establish law)
- Mattos v. Agarano, 661 F.3d 433 (en banc guidance that immediate threat is the most important Graham factor)