985 F.3d 726
9th Cir.2021Background
- Officer John Marsh pursued Wayne Anderson after observing high speeds; after a short chase Anderson crashed into a fence and remained in his stuck vehicle.
- Marsh exited his patrol car with his weapon drawn, ordered Anderson to show his hands, and then testified Anderson made a furtive reach toward the passenger side.
- Marsh fired two rounds without warning; one bullet entered the car and paralyzed Anderson. No weapon was found and Marsh did not report a weapon to arriving officers.
- The dashboard camera failed to record; a nearby blurry surveillance video showed positions but not interior movements; Marsh was shown that video before a later interview.
- The district court denied Marsh’s summary-judgment motion for qualified immunity, finding the record (viewed in the Estate’s favor) could permit a jury to conclude Anderson did not make a threatening reach and thus deadly force was excessive.
- The Ninth Circuit majority dismissed Marsh’s interlocutory appeal for lack of jurisdiction, concluding he challenged only the sufficiency of the evidence on a factual dispute; a dissent argued Plumhoff and later Supreme Court decisions permit review and urged clarification.
Issues
| Issue | Estate's Argument | Marsh's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction to hear Marsh’s interlocutory appeal from denial of qualified immunity when the denial rests on a disputed factual finding (did Anderson reach for a weapon?). | Jurisdiction lacking under Johnson v. Jones and Ninth Circuit precedent because Marsh’s appeal attacks evidence sufficiency on a factual dispute. | Marsh contends the record does not contradict his account and asks the court to accept his version for qualified-immunity review. | Dismissed for lack of jurisdiction: appeal raises an evidence-sufficiency factual dispute, not a pure legal question. |
| Whether Marsh is entitled to qualified immunity on his account (i.e., if Anderson made a furtive reach). | If a jury finds no reach, deadly force was excessive and immunity is unavailable. | If Anderson did reach as Marsh says, use of deadly force was reasonable and immunity applies. | Merits not reached on interlocutory appeal (court lacked jurisdiction to decide). |
| Proper application and scope of Johnson, Plumhoff, and Ninth Circuit precedents governing interlocutory review of qualified-immunity denials. | The Estate relies on Ninth Circuit line (Foster, Pauluk, George) limiting interlocutory review of evidence-sufficiency disputes. | Marsh (and dissent) argue Plumhoff and subsequent Supreme Court decisions allow appeals in cases like this; the scope is contested. | Majority follows Ninth Circuit precedent limiting jurisdiction; dissent urges Supreme Court clarification and broader reviewability. |
Key Cases Cited
- Johnson v. Jones, 515 U.S. 304 (1995) (orders denying summary judgment that decide only evidence-sufficiency factual disputes are not immediately appealable)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (addressing interlocutory appeals in qualified-immunity cases; Court exercised jurisdiction and decided merits)
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence may blatantly contradict plaintiff’s version such that no reasonable jury could believe it)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified-immunity analysis requires viewing disputed facts in the light most favorable to the plaintiff at summary judgment)
- Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018) (explaining Johnson limits interlocutory review of evidence-sufficiency disputes in qualified-immunity appeals)
- George v. Morris, 736 F.3d 829 (9th Cir. 2013) (court lacked jurisdiction to review factual sufficiency challenge to district court’s denial of qualified immunity)
- Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016) (distinguishing purely legal questions from evidence-sufficiency disputes on interlocutory appeal)
- Advanced Building & Fabrication, Inc. v. California Highway Patrol, 918 F.3d 654 (9th Cir. 2019) (reiterating inability to review fact-related disputes on interlocutory qualified-immunity appeals)
- Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (use-of-force framework: imminent threat is central to Fourth Amendment deadly-force analysis)