George v. Morris, 736 F.3d 829

March 6, 2009: Santa Barbara County deputies respond to a domestic disturbance with a firearm at the George residence; Donald George, on the back patio with a loaded pistol and walker, is seen by deputies; nine shots are fired, Donald dies two hours later; Carol George sues under 42 U.S.C. §1983 alleging excessive force and unreasonable seizure against Morris, Schmidt, Rogers, and Hudley; district court denied qualified immunity based on disputed material facts and found potential constitutional violation; deputies appeal for qualified-immunity review and Carol cross-appeals on seizure claim.
District court concluded there were genuine issues of material fact about threat level and Donald’s ability to threaten deputies; the court did not reach prong two (clearly established law).
On interlocutory appeal, the Ninth Circuit reviews only whether a reasonable jury could find a Fourth Amendment violation assuming disputes resolved in plaintiff’s favor, and whether the officers are entitled to qualified immunity as a matter of law.
The majority holds the deputies could be found to have violated the Fourth Amendment, and the cross-appeal is dismissed for lack of jurisdiction; the court affirms in part and dismisses in part.
The concurrence would grant qualified immunity to the deputies and remand for entry of summary judgment in their favor, arguing Scott v. Harris supports reviewing courts resolving the record as a matter of law when facts are not genuinely disputed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fourth Amendment excessive-force claim viability	George: officers violated by deadly force	Morris/Schmidt/Rogers: force reasonable given threat	Yes, potential Fourth Amendment violation; not clearly established at the time
Clearly established right inquiry	George argues right was clearly established	Defendants contend right not clearly established	Not reached as decisive; court examines prong one and leaves prong two for later
Interlocutory cross-appeal jurisdiction	Carol only seeks seizure claim review	Cross-appeal improperly framed at interlocutory stage	Cross-appeal DISMISSED for lack of jurisdiction
Scope of Scott v. Harris v. Johnson v. Behrens framework	Record facts may be reviewed de novo on appeal	Interlocutory review limited to legal issues; not reweighing facts	Court limited review to legal questions; did not reassess factual disputes
Evidentiary/material-disputed-facts impact	Disputed facts could support plaintiff	Disputes immaterial or unproven; not enough for trial	Disputes not material to the constitutional question; summary judgment possible

Graham v. Connor, 490 U.S. 386 (U.S. 1989) (non-exhaustive factors for reasonableness of force)
Tennessee v. Garner, 471 U.S. 1 (U.S. 1985) (deadly force guidance when suspect poses threat)
Scott v. Harris, 550 U.S. 372 (U.S. 2007) (record viewed as whole; if no genuine issue, judge may grant summary judgment at appellate review)
Behrens v. Pelletier, 516 U.S. 299 (U.S. 1996) (pure legal questions on appeal; not factual reweighing)
Johnson v. Jones, 515 U.S. 304 (U.S. 1995) (interlocutory review limited to pure legal questions; avoid fact-finding on appeal)
Ortiz v. Jordan, 131 S. Ct. 884 (U.S. 2011) (clarifies scope of immediate appeal in qualified-immunity cases)