MARIA VENTURA, individually and on behalf of the Estate of Omar Ventura and the Heirs of Omar Ventura; O. V., Maria Ventura, as guardian ad litem; J. V., Maria Ventura, as guardian ad litem, Plaintiffs-Appellants, v. JENNIFER RUTLEDGE, Officer; CITY OF PORTERVILLE, Defendants-Appellees.
No. 19-16626
United States Court of Appeals for the Ninth Circuit
October 22, 2020
D.C. No. 1:17-cv-00237-DAD-SKO
FOR PUBLICATION
Appeal from the United States District Court for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted September 2, 2020*
Pasadena, California
Filed October 22, 2020
Before: Sandra S. Ikuta and Mark J. Bennett, Circuit Judges, and Douglas P. Woodlock,** District Judge.
Opinion by Judge Bennett
SUMMARY***
Civil Rights
The panel affirmed the district court‘s grant of summary judgment to a police officer, on the basis of qualified immunity, in an action brought pursuant to
The district court found that no controlling precedent had clearly established that Omar‘s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as he advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and while defying specific police orders to stop.
The panel held that the Supreme Court‘s decision in Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) showed that, as of 2010, there was no clearly established law demonstrating that Officer Rutledge‘s use of deadly force was unconstitutional. The panel further held that the cases cited by appellant subsequent to Kisela did not “squarely govern” the facts here. Omar was advancing with a knife toward a woman whom he had reportedly just assaulted. He ignored Officer Rutledge‘s repeated commands to stop and a warning that she would shoot. None of the cases plaintiff cited involved an officer acting under similar circumstances as Officer Rutledge, and therefore, plaintiff failed to show that it was clearly established that Officer Rutledge‘s actions amounted
COUNSEL
Bruce D. Praet (argued), Ferguson Praet & Sherman, Santa Ana, California, for Defendants-Appellees.
OPINION
BENNETT, Circuit Judge:
Maria Ventura, individually and on behalf of the Estate of Omar Ventura and the Heirs of Omar Ventura, appeals the district court‘s grant of summary judgment to Officer Jennifer Rutledge and the City of Porterville based on qualified immunity. The only issue before us is whether the district court properly determined that Officer Rutledge is entitled to qualified immunity from Ventura‘s Fourth Amendment claim stemming from the shooting of her son, Omar Ventura (“Omar“). We have jurisdiction under
I.
The following facts are undisputed. On December 24, 2015, Martha Andrade, the mother of Omar‘s children, called 911 and reported that Omar had hit Andrade and his mother, Plaintiff Ventura, and had smashed Andrade‘s vehicle‘s window. Officer Rutledge responded to the 911 call, which was classified as a violent domestic disturbance. When Officer Rutledge arrived at the home, Omar was not present. While Officer Rutledge interviewed Andrade, Omar started walking up the street toward the home. Andrade identified Omar to Officer Rutledge, pointing to him and exclaiming “that‘s him.” Andrade moved behind trash cans in the driveway as Omar continued to approach. Officer Rutledge issued several orders for Omar to “stop.” Despite these orders, Omar continued to advance toward Andrade and took out a knife from his pocket. Continuing to approach Andrade with knife in hand, Omar asked, “Is this what you wanted?” Officer Rutledge then shouted a warning to Omar to “[s]top or I‘ll shoot.” When Omar did not stop, Officer Rutledge fired two shots at him. The shots killed Omar. At oral argument before the district court, the parties agreed that Omar got within 10-15 feet of Andrade before Officer Rutledge fired.
The district court found that no controlling precedent had “clearly establish[ed] that Omar‘s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as he advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and while defying specific police orders to stop.” We agree.
II.
“We review de novo both the grant of summary judgment and the conclusion that a[n officer] is entitled to qualified immunity.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). We view the evidence and draw all inferences in the light most favorable to the non-moving party to determine whether any issues of material fact remain and whether the district court correctly applied the law. See id.
We consider two questions in determining whether an officer is entitled to qualified immunity: (1) whether the facts “taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right” and (2) whether “the right was clearly established at the time of the alleged violation.” Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal quotation marks and brackets omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). We may consider the two questions in any order. Id. We consider only the second question here.
The undisputed facts establish that (1) Officer Rutledge was responding to a violent domestic disturbance where Andrade had called 911 to report that Omar had hit her and Omar‘s mother and had smashed the window of Andrade‘s car; (2) Omar was approaching Andrade with a knife drawn; (3) Omar continued his advance while ignoring multiple commands from Officer Rutledge to stop and a warning that Officer Rutledge would shoot; and (4) Omar had advanced to within 10-15 feet of Andrade when Officer Rutledge fired.
The Supreme Court in Kisela considered a similar situation. It concluded that, as of 2010, it was not clearly established in the Ninth Circuit that the use of deadly force was unconstitutional where the decedent “was armed with a large knife,” had advanced “within striking distance” of another individual, and was ignoring the officer‘s orders to drop the knife. Kisela, 138 S. Ct. at 1154. The Supreme Court also found that even though the decedent appeared calm and the other woman present did not feel endangered, the shooting officer did not violate clearly established law and was therefore entitled to qualified immunity. Id. at 1151, 1154.
Omar posed at least as much of a threat as the decedent in Kisela. Officer Rutledge was responding to a violent domestic dispute rather than the simple “check welfare” call in Kisela. Id. at 1155 (Sotomayor, J., dissenting). Omar had reportedly just assaulted Andrade and his own mother and had smashed the window of Andrade‘s car. He ignored Officer Rutledge‘s repeated orders to stop and continued to advance toward Andrade with a knife. Kisela shows that, as of 2010, there was no clearly established law demonstrating that Officer Rutledge‘s use of deadly force was unconstitutional.
The degrees of apparent danger in these cases do not “squarely govern” the facts here. Omar was advancing with a knife toward a woman whom he had reportedly just assaulted. He ignored Officer Rutledge‘s repeated commands to stop and a warning that she would shoot. None of the cases Ventura cites involved an officer acting under similar circumstances as Officer Rutledge, and therefore, Ventura fails to show that it was clearly established that Officer Rutledge‘s actions amounted to constitutionally excessive force. See Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (holding officer was entitled to qualified immunity because plaintiff “fail[ed] to identify sufficiently specific constitutional precedents to alert [the officer] that his particular conduct was unlawful“).
Officer Rutledge is entitled to qualified immunity.1
AFFIRMED.