Than Orn v. City of Tacoma
949 F.3d 1167
9th Cir.2020Background
- Orn led officers on a slow, ~15-minute pursuit after failing to stop for headlights-off; he drove carefully (stopping at lights/signs) and evaded spike strips without endangering oncoming traffic.
- Officers anticipated Orn would return to his apartment complex; Officer Clark positioned his SUV across the single access lane near the north entrance; Orn entered from the south and drove slowly north.
- Orn attempted to squeeze between Clark’s parked SUV and another car at roughly 5 mph; his vehicle lightly struck Clark’s SUV and another patrol car while maneuvering.
- Clark (disputed) ran toward Orn’s vehicle and fired through the passenger-side windows and then the rear windshield as the car moved away; three of ten rounds struck Orn, one lodging in his spine and paralyzing him.
- Clark asserts he fired because Orn accelerated toward him and threatened to run him and possibly Officer Rose; Orn and other officers testified Clark was not in the vehicle’s path when he fired.
- Orn was criminally acquitted of assault and convicted only of failure to obey; the district court denied Clark qualified immunity and Clark appealed; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Clark's use of deadly force violated the Fourth Amendment | Orn: firing into side/rear of a vehicle moving away was excessive; Clark was never in vehicle's path and could have avoided harm | Clark: he was in the vehicle's path, feared being run over or pinned, and fired to protect himself and Officer Rose | A reasonable jury could find a Fourth Amendment violation; Clark's account conflicts with facts construed for plaintiff |
| Whether Clark is entitled to qualified immunity (clearly established law) | Orn: precedent clearly established that shooting into side/rear of a fleeing car that does not pose a serious threat is unlawful | Clark: facts should be viewed per his version (he was endangered), so immunity applies | Precedent in multiple circuits (and Ninth Circuit) made unlawfulness "beyond debate" for shooting into side/rear of a car moving away; denied qualified immunity |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (deadly force against fleeing suspect only if suspect poses probable-cause-level threat of serious physical harm)
- Graham v. Connor, 490 U.S. 386 (objective-reasonableness standard for excessive force under Fourth Amendment)
- Saucier v. Katz, 533 U.S. 194 (two-step qualified-immunity framework)
- Pearson v. Callahan, 555 U.S. 223 (courts may exercise discretion to skip Saucier steps)
- Brosseau v. Haugen, 543 U.S. 194 (in "obvious" cases, general Garner/Graham standards can suffice to deny immunity)
- Plumhoff v. Rickard, 572 U.S. 765 (collateral-order jurisdiction for interlocutory appeals; deadly-force analysis in high-speed chases)
- Kisela v. Hughes, 138 S. Ct. 1148 (importance of case-specific clearly established inquiry)
- Acosta v. City & County of San Francisco, 83 F.3d 1143 (9th Cir.: deadly force unreasonable where officer could avoid slow-moving car by stepping aside)
- Lytle v. Bexar County, 560 F.3d 404 (5th Cir.: use of deadly force unconstitutional where suspect did not pose sufficient threat to officers/others)
- Cordova v. Aragon, 569 F.3d 1183 (10th Cir.: recognized rule that shooting into side/rear of vehicle moving away is unreasonable; context-dependent immunity analysis)