Ernest Foster, Sr. v. Jeremy Hellawell
908 F.3d 1204
| 9th Cir. | 2018Background
- Officer Jeremy Hellawell responded to an anonymous recorded 911 tip that a man matching Ernest Foster’s description was walking toward a shopping plaza with a concealed handgun. Hellawell located Foster near the reported location.
- Hellawell identified himself, told Foster to show his hands; Foster ran. Hellawell pursued, deployed a Taser (one dart hit but did not incapacitate), and fired his service weapon, striking Foster three times in the back; Foster later died.
- Witness statements conflicted: some civilians and a second officer said Foster turned and may have had something in his hand; other witnesses said Foster was facing away and unarmed when shot.
- Plaintiffs sued under 42 U.S.C. § 1983 for violation of Foster’s Fourth Amendment (unlawful stop; excessive force in drawing gun; excessive deadly force in shooting) and the family’s Fourteenth Amendment (purpose to harm) rights; defendants moved for qualified immunity.
- The district court denied summary judgment on most claims, finding genuine factual disputes. Hellawell appealed interlocutorily. The Ninth Circuit panel dismissed in part and reversed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Did the 911 tip and Hellawell’s corroboration provide reasonable suspicion for an investigatory stop? | The tip was unreliable and similar to J.L.; not enough to justify a Terry stop. | The recorded 911 tip gave eyewitness detail, predicted location/movement, and was corroborated by Hellawell’s on-scene observations, supplying reasonable suspicion. | Reversed district court: a reasonable officer could rely on the 911 tip and corroboration; Hellawell entitled to qualified immunity for the stop. |
| 2. Did Hellawell violate the Fourth Amendment by approaching/unholstering his gun during the stop? | Pointing a gun (or unholstering in this context) was excessive and violated clearly established law. | Record lacks evidence that Hellawell pointed his gun at Foster; unholstering alone is not established as unconstitutional. | Reversed district court: unholstering, without evidence of pointing/threat, did not violate clearly established law; qualified immunity applies. |
| 3. Did the fatal shooting violate the Fourth Amendment (shooting a fleeing suspect in the back) or the Fourteenth Amendment (purpose to harm)? | Plaintiffs argue Foster was fleeing/unarmed and was shot in the back, so use of deadly force was unlawful; jury could find purpose to harm. | Hellawell contends evidence shows Foster turned and pointed a gun, justifying deadly force; any contrary witness statements are insufficient on interlocutory review. | Dismissed in part: appellate court lacks jurisdiction on interlocutory review to reweigh factual disputes about sufficiency of evidence regarding the shooting and plaintiffs’ Fourteenth Amendment claim; those portions of the appeal dismissed. |
| 4. Procedural scope: May this court review factual-evidence sufficiency on interlocutory qualified-immunity appeal? | N/A (plaintiffs defended district court fact findings). | Hellawell urges courts to reject plaintiffs’ witness declarations as sham or otherwise re-evaluate evidence. | Held: Under Johnson v. Jones and George, the court cannot resolve fact-disputes or reweigh evidence on interlocutory qualified-immunity review; only pure legal questions may be decided. |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (use of deadly force against fleeing suspect unlawful when suspect poses no immediate threat)
- Plumhoff v. Rickard, 134 S. Ct. 2012 (interlocutory appeals of qualified immunity denials are generally reviewable)
- Johnson v. Jones, 515 U.S. 304 (district-court factual-determinations about evidence sufficiency are not reviewable on interlocutory appeal)
- Florida v. J.L., 529 U.S. 266 (anonymous tip lacking basis for knowledge insufficient to justify stop)
- Navarette v. California, 572 U.S. 393 (anonymous 911 tip that predicts movement and is contemporaneous can supply reasonable suspicion)
- United States v. Cortez, 449 U.S. 411 (reasonable-suspicion/Terry framework and totality-of-the-circumstances analysis)