ARTHUR J. PORTER; CHRISTIE L. PORTER v. ARTHUR J. OSBORN and JOSEPH WHITTOM
No. 07-35974
United States Court of Appeals, Ninth Circuit
October 20, 2008
546 F.3d 1131 | 14579
Before: Dorothy W. Nelson, A. Wallace Tashima and Raymond C. Fisher, Circuit Judges. Opinion by Judge Fisher.
D.C. No. CV-05-00142-A-JWS. Appeal from the United States District Court for the District of Alaska. John W. Sedwick, District Judge, Presiding. Argued and Submitted August 6, 2008—Anchorage, Alaska.
Ruth Botstein, Assistant Attorney General, Anchorage, Alaska, for the defendant-appellant.
Mark D. Osterman, Mark D. Osterman Law Office, Kenai, Alaska, for the plaintiffs-appellees.
OPINION
FISHER, Circuit Judge:
This case raises the question of the appropriate standard of culpability to apply to a police officer who kills a suspect in
The plaintiffs and appellees are Arthur J. and Christie L. Porter (collectively “the Porters“), who brought this suit after their adult son, Casey Porter, was fatally shot in a brief but tragic confrontation with two Alaska State Troopers. Among several federal and state claims, the Porters principally claimed that their Fourteenth Amendment right of association was violated by the way in which defendant-appellant Arthur J. Osborn (“Osborn“) and his fellow trooper Joseph Whittom (“Whittom“) handled the roadside incident that resulted in Casey‘s death. As we discuss in more detail later, the troopers were responding to a call about an apparently abandoned vehicle parked in a highway pull-out area. Osborn, who arrived on the scene first, discovered the car was in fact occupied by Casey, who apparently had been asleep in the driver‘s seat. In a rapidly escalating confrontation, the troopers shouted at a startled and confused Casey to get out of his car. When he failed to comply, both troopers quickly exited their cars and drew their guns, with Osborn taking the lead in approaching the car to get Casey to comply. When Casey rolled down his window but did not move to get out, Osborn pepper sprayed him through the open window. Casey reacted
The district court dismissed all state law claims and all claims against Whittom, none of which are before us on this appeal. As to the Fourteenth Amendment claim, the district court found that there were enough disputed facts to preclude granting Osborn summary judgment on qualified immunity grounds, concluding that a jury could find that Osborn‘s conduct shocked the conscience under a clearly established “deliberate indifference” standard of culpability.
Osborn has appealed, arguing that his actions did not violate a constitutional standard, but even if they did, the deliberate indifference standard was not clearly established at the time. We conclude that a different and more demanding standard of culpability than deliberate indifference applies. Rather, in an urgent situation of the kind involved here, the established standard is whether Osborn acted with a purpose to harm Casey without regard to legitimate law enforcement objectives. Whether a jury could find Osborn violated that standard is not clear on the record before us. Although Osborn appears to have helped create and even exacerbate the confrontation he then ended by deadly force, the parties and the district court will need to readdress Osborn‘s summary judgment motion under the more stringent purpose to harm standard. We therefore reverse the court‘s denial of qualified immunity and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Many of the relevant facts are contested or ambiguous, but on Osborn‘s motion for summary judgment any doubts must be resolved in favor of the Porters’ version of events. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). There is no dispute that it took very little time — probably no more than five minutes — for the entire tragic encounter to play out. Around 2:00 a.m. on January 4, 2003, Trooper Whittom received a call from dispatch regarding a vehicle reported by a highway department employee. The reported vehicle had been parked for about two and a half hours at the Kenai Keys pullout, a large parking lot sized area just off the Sterling Highway in a lightly populated part of the Kenai Peninsula southwest of Anchorage. There was a light snow covering the parking area, and no other vehicles around. The car‘s lights had been turned on and off whenever the highway employee passed. Trooper Osborn also heard the call and arrived at the scene before Whittom. When Osborn found the car, he initially thought it may have been abandoned, so he turned on his headlights and got out of his car to investigate. He returned to his patrol car to call in the license plate number when “somebody sat up . . . in the drivers seat . . . very — very fast . . . and grabbed the steering wheel and was looking right at me.” Osborn testified in his deposition that although it was very dark outside, his headlights were shining eye-level with the driver, Casey, and were bright enough to illuminate the inside of the car. A few seconds later, Casey started slowly steering his car to go around Osborn. At this point, Osborn turned on his overhead flashing blue and red lights “because [Casey] was trying to leave,” which Osborn was not prepared to allow “because we were investigating a suspicious vehicle.”1 He admitted that the call to dispatch was the only information at the time indicating Casey‘s conduct required police intervention.
When Casey did not stop, Osborn moved his car a few inches forward to try to block him. Casey continued to turn,
Casey‘s car finally stopped about a car‘s length away from Whittom, at which point both officers shouted orders at him to get out of the vehicle. Whittom did so from either behind or directly in front of his patrol car door with his service weapon out, whereas Osborn did so from within touching distance of Casey‘s door with his gun in his hand. In the heat of the moment, Whittom ordered Casey to both get in and get out of his vehicle, and he later acknowledged that it may have been confusing to have had two people yelling at once. While the troopers were ordering Casey out of the car, Casey rolled his window down. Osborn did not answer Casey when he asked “what‘s wrong, sir?” He explained he thought Casey was just “buying time” with this question, that at this point “the contact had already dissolved to a point where he had shown me by his actions that he was going to ignore anything but a command such as get out of the car” and that “[a]t this point he was eluding a police officer.” Osborn continued to order him to get out while attempting to enter the car through the front and rear doors.
Then [Casey‘s] head snaps up, straight up, and his face is looking straight forward, both of his hands actually reach up and grab the wheel like — like you would grab a steering wheel if you wanted to tear it off the steering column. I mean grabbed it. I mean [I] remember seeing his white knuckles and skin stretched, both hands on the wheel, right and left, lit up in Trooper Whittom‘s headlights. Then I — and he looked stone cold straight forward. Obviously [he] had ignored every command up to that point, you know, he . . . was not obeying any commands. And then instantly [the] engine revved what sounded to me like full throttle and the tires were spinning and his lights were lighting up Trooper Whittom‘s uniform from his last known position knowing he‘s behind the door, I remember seeing blue in the lights. And I fired my weapon until the — I heard the engine down rev and the vehicle was obviously stopped.
Less than a minute elapsed between the pepper spray and the shooting. Whittom admitted that most people try to leave an area once they have been pepper sprayed and that Casey‘s car never directly hit Whittom; instead, he felt an impact from his own car, whose front brace was hit by Casey‘s car. In his deposition, Whittom described the impact as something that “wasn‘t hard, it was just kind of a like a little push on my leg and — and I took a step back. It wasn‘t like something hit me.
After the accident, around 6:45 a.m., Whittom was interviewed at a nearby post by Dane Gilmore, an investigator with the Alaska State Troopers. He told the investigator that he did not think deadly force was necessary because he was shielded by his vehicle. He explained:
[M]y initial thought was uh . . . the shock . . . I couldn‘t . . . couldn‘t believe that shots were fired in . . . in a situation like this.
* * *
Um . . . you know . . . I guess from my . . . my perspective, I didn‘t see uh . . . that shots were warranted in this situation. Um . . . I didn‘t feel any danger to myself when the sus . . . when the driver of the . . or the suspect vehicle decided to um . . . gun it. Um . . . you know he‘d already been sprayed and uh . . . and with the conditions that were . . . were there um . . . I don‘t think that uh . . . you know it was . . . was good use of force. . . . In . . . in . . . in my own . . . uh perspective. And . . . and that‘s why I didn‘t return fire or . . . or shoot when . . . um . . . when I saw the vehicle coming towards me. . . . Because I was shielded by my vehicle.
Later, after talking with another investigator, Whittom
Originally filed in state court, the Porters’ suit was ultimately removed to federal district court. As is pertinent to this appeal, their amended complaint alleged that Osborn violated their Fourteenth Amendment “fundamental liberty interest” in the society of their child, entitling them to relief under
STANDARD OF REVIEW
A district court‘s denial of qualified immunity is reviewed de novo. See Kennedy, 439 F.3d at 1059. We must view the facts in the light most favorable to the nonmoving party. See id. “If a genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003).
[1] To determine whether Osborn is entitled to qualified immunity, the first question is whether the facts show a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). “[I]f a violation could be made out on a favorable view of the [non-moving] parties’ submissions, the next, sequential step is to ask whether the right is clearly established.” Id.5
[2] Here, the potential constitutional violation involves the Porters’ Fourteenth Amendment due process right to associate with their son, Casey. See Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (“The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child . . . .“); see also Moreland v. Las Vegas Metro. Police Dep‘t, 159 F.3d 365, 371 (9th Cir. 1998). Whether Osborn committed a constitutional violation under the first step of Saucier‘s qualified immunity analysis presents two issues. First, we must decide the appropriate standard of culpability to apply to Osborn‘s conduct to determine whether it “shocks the conscience” under the Fourteenth Amendment‘s Due Process Clause. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Second, it must be determined whether Osborn‘s conduct met that standard of culpability, particularly given his role in creating the emergency that led to his fatally shooting Casey. Because we disagree with the district court‘s determination of the first question and conclude that a stricter standard of culpability applies, we remand so the district court may decide the second issue of whether Osborn‘s conduct met the stricter standard.
[3] We begin by clarifying the standard of culpability for a due process right to familial association claim. The parties mistakenly suggest that the choice is between “shocks the conscience” and “deliberate indifference” as the governing standard, when in fact the latter is one subset of the former. The Supreme Court has made it clear, as the district court correctly recognized, that only official conduct that “shocks the conscience” is cognizable as a due process violation. Lewis, 523 U.S. at 846 (citing Rochin v. California, 342 U.S. 165, 172-73 (1952)). The relevant question on the facts here is whether the shocks the conscience standard is met by showing that Trooper Osborn acted with deliberate indifference or requires a more demanding showing that he acted with a purpose to harm Casey for reasons unrelated to legitimate law enforcement objectives. See id. at 836. In our cases following the Supreme Court‘s enunciation of the shocks the conscience test in Lewis, we have distinguished the “purpose to harm” standard from the “deliberate indifference” standard, recognizing that the overarching test under either is whether the officer‘s conduct “shocks the conscience.” See, e.g., Moreland, 159 F.3d at 372.
B.
We hold, following Supreme Court precedent and our cases, that the purpose to harm standard must govern Osborn‘s conduct. Thus, viewing the facts in the light most favorable to the Porters, they must demonstrate that Osborn acted with a purpose to harm Casey that was unrelated to legitimate law enforcement objectives.
[4] The Supreme Court‘s decision in Lewis, and several of our cases following it, involved high speed police chases that led to the injury of the plaintiffs or their survivors. The evolution of the case law in this area of the Fourteenth Amendment — perhaps unsurprisingly — has been deferential to officer
[5] In Lewis, the Supreme Court recognized that law enforcement officers confront a variety of circumstances that may lead to the use of force, and drew a distinction between situations that evolve in a time frame that permits the officer to deliberate before acting and those that escalate so quickly that the officer must make a snap judgment. Thus, “[a]s the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical.” Lewis, 523 U.S. at 851. Factually, Lewis involved a high speed police chase of a motorcyclist that resulted in a crash, killing the cyclist‘s teenage passenger. See id. at 837. The teenager‘s survivors alleged that police conduct during the chase violated due process. See id. The Supreme Court refused to apply the deliberate indifference standard to high speed police chases, analogizing to cases involving prison riots. “Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to
The Court relied principally on Whitley v. Albers, 475 U.S. 312 (1986), an Eighth Amendment prison riot case involving a guard who had intentionally shot a prisoner to disperse the rioters. Whitley held that under such circumstances, “a much higher standard of fault than deliberate indifference has to be shown for officer liability” — that is, ” ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.’ ” Lewis, 523 U.S. at 852-53 (quoting Whitley, 475 U.S. at 320-21) (emphasis added).6
The Porters argue that Lewis applies only to “unintentional” or “inadvertent” killings — such as the motorcycle accident involved there or other innocent bystander types of cases. See, e.g., Moreland, 159 F.3d at 372 (characterizing Lewis as involving the “unintentional killing of an individual by law enforcement officers“); but see Whitley, 475 U.S. at 316 (applying purpose to harm standard to prison officers who intentionally fired shots at inmates). Although intentionality is relevant, intent was not central to the Court‘s analysis in either Whitley or Lewis as to which standard to apply. Both
[6] In Moreland, police officers responded to a gun fight in a crowded parking lot, a patently fast paced and urgent threat to public safety. See Moreland, 159 F.3d at 368. We applied the purpose to harm standard because the officers had to “address a life-threatening situation” in which they faced competing obligations, namely whether to allow the shooters to continue firing or to fire upon the shooters to end the threat. Id. at 372. Similarly, in Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir. 1999), we held that the purpose to harm standard also applies when bystanders, not the suspects themselves, are harmed during a high speed chase. Analogizing directly to Lewis and Moreland, we again emphasized the officer‘s competing obligations in the “split-second” decision to give chase. See id. at 1171. Most recently, and after the district court ruled here, we concluded that high speed chases are inherently emergency situations and declined to break them into “emergency” and “non-emergency” situations in which the latter would be evaluated under the deliberate indifference standard. See Bingue v. Prunchak, 512 F.3d 1169, 1175-77
At the other end of the spectrum are situations, like the Eighth Amendment prison cases discussed in Lewis, where “extended opportunities to do better are teamed with protracted failure even to care.” Lewis, 523 U.S. at 853. Then, “indifference is truly shocking.” Id. Similarly, we have held that where officers have ample time to correct their obviously mistaken detention of the wrong individual, but nonetheless fail to do so, the suspect‘s family members need only plead deliberate indifference to state a claim under the due process right to familial association. See Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001).
[7] Placed along this spectrum, we are compelled to conclude that the purpose to harm standard must apply here. Osborn faced an evolving set of circumstances that took place over a short time period necessitating “fast action” and presenting “obligations that tend to tug against each other.” Lewis, 523 U.S. at 853. The approximately five-minute altercation between Casey and Osborn that ended in Casey‘s shooting was obviously fast paced — and much shorter in duration than the typical car chase like those in Lewis, Onossian and Bingue. The situation was also quickly evolving and escalating, prompting “repeated split-second decisions.” Bingue, 512 F.3d at 1176. The case the district court found persuasive, Lee, 250 F.3d at 684 (applying deliberate indifference standard to a wrongful incarceration), is quite different, involving as it did a completely controlled situation in which the police committed an obvious and easily detectable mistake of identity that they had time to detect and correct. The dis
[8] In sum, once Casey‘s evasive actions began the officers had to react quickly. Under such circumstances, whether Osborn‘s conduct shocks the conscience must be evaluated under the purpose to harm standard of culpability. That is Lewis’ teaching as applied in this circuit. See Bingue, 512 F.3d at 1175 (discussing Lewis, Moreland and Onossian as requiring purpose to harm where officers must react to an urgent situation and decide whether to pursue a suspect).
C.
[9] For the Porters to show that Osborn‘s shooting of Casey shocks the conscience under the purpose to harm standard of culpability they must prove that his purpose was “to cause harm unrelated to the legitimate object of arrest.” Lewis, 523
Although our cases contain guidance mostly about officers’ intentions and actions that do not evidence a purpose to harm, a close reading of Lewis and our cases following it indicates what kind of conduct does reveal a purpose to harm. In Lewis itself, the Supreme Court held that a purely reactive decision to give chase evidenced no intention to “induce . . . lawlessness, or to terrorize, cause harm, or kill.” Lewis, 523 U.S. at 855. The Supreme Court left open the possibility that liability can still attach under Lewis where a plaintiff proves particularly objectionable conduct. See Davis, 190 F.3d at 172-73 (McKee, J., concurring). We agree with Judge McKee‘s concurring opinion in Davis, a Third Circuit police chase case, which reasons that where force against a suspect is meant only to “teach him a lesson” or to “get even” then ”Lewis would not shield the officers from liability even though they were ultimately effectuating an arrest.” Id. Lewis contemplates such “rare situations where the nature of an officer‘s deliberate physical contact is such that a reasonable factfinder
This reasoning is entirely consistent with our cases interpreting Lewis. In Bingue, we held that an officer did not act with purpose to harm where the officer believed he was ”responding to an emergency.” 512 F.3d at 1177 (emphasis added). In Moreland, 159 F.3d at 373, we examined officer conduct under the purpose to harm standard and held that “because the officers were responding to the extreme emergency of public gunfire” they did not intend any harm unrelated to law enforcement objectives. When an officer creates the very emergency he then resorts to deadly force to resolve, he is not simply responding to a preexisting situation. His motives must then be assessed in light of the law enforcement objectives that can reasonably be found to have justified his actions.
This is the kind of analysis applied in the analogous jurisprudence governing constitutional claims of excessive force under the Fourth Amendment, in cases involving claims by or on behalf of the victim himself. In such a case, the Fourth Amendment‘s reasonableness test applies, see Scott v. Harris, 127 S. Ct. 1769, 1777 (2007), tempered by the special constitutional rules governing deadly force. See Tennessee v. Garner, 471 U.S. 1, 11 (1985); Price v. Sery, 513 F.3d 962, 966-67 (9th Cir. 2008). Although a different standard of culpability applies to the Porters’ due process claim, this context implicates precisely the same delicate balancing act between citizens’ rights to be free from undue police force and the legitimate safety concerns of officers who make these life and death decisions. Thus, in both contexts, courts reviewing deadly force in response to a supposed public safety threat are presented with a “factbound morass,” especially when on first glance an officer‘s use of deadly force appears disproportionate to the nature of the threat. Price, 513 F.3d at 974, 978 (Fisher, J., concurring) (describing a 24-second confrontation in which an officer approached a parked car and fatally shot
[10] Nonetheless, there are several facts relevant to an unlawful purpose to harm that need to be considered on remand — that is, to assess whether under the totality of the circumstances a jury could infer that Osborn was acting for purposes other than legitimate law enforcement. First is the nature of the suspicious car and driver Osborn found in the pull-out near the Sterling Highway. The lone car was stationary and posed no overt threat to officer safety at the outset. Once Casey started moving the car, he created at least a minimal threat to safety, although hardly on the level of a car chase. Trooper Whittom reported that he did not feel threatened by Casey‘s car, but he and Osborn nevertheless drew their guns. Second is the nature of the back and forth between Casey and the troopers. In response to Casey‘s rolling his window down and refusing to exit the vehicle, Osborn precipitously sprayed him with pepper spray, an action that could be viewed as punishing or harassing when it is unclear whether Casey even knew he was dealing with law enforcement. Whittom‘s testimony suggests Casey‘s attempt to drive away may have been a normal effort to escape further spraying, making Osborn an active participant in triggering Casey‘s flight. Third and most important is Osborn‘s severe and sudden escalation of the situation: where Casey‘s only violation was noncompliance, Osborn‘s extraordinary response was to fire five shots, which shocked even Whittom.
CONCLUSION
[11] We hold that the purpose to harm standard governs the applicable level of culpability needed to shock the conscience here, because Osborn faced a fast paced, evolving situation presenting competing obligations with insufficient time for the kind of actual deliberation required for deliberate indifference. We remand to the district court to review Osborn‘s conduct under the proper Fourteenth Amendment standard and determine whether the facts, when taken in the light most favorable to the Porters, show that Osborn‘s actions shock the conscience because he acted with a purpose to harm for reasons unrelated to legitimate law enforcement objectives.
REVERSED AND REMANDED.