Richard Leo Deorle v. Greg Rutherford, Butte County Deputy Sheriff Mick Grey, Butte County Sheriff County of Butte
272 F.3d 1272
9th Cir.
2001
Check Treatment
Docket

*1 1272 case, (1995). regulation In such

597 warning to en sufficient

gives public nobody mistakes the ambit

sure that the extent that penalties. its To

law or 3624(b), in section any ambiguity

there is through reason

the BOP has resolved lenity and the rule of interpretation,

able Davis, Lopez See apply.

does not 242, 714, 148 L.Ed.2d

U.S. (2001) def (recognizing that Chevron interpretation applies

erence BOP’s administers). that it statutes

AFFIRMED. DEORLE, Plaintiff-

Richard Leo

Appellant, RUTHERFORD,

Greg Butte Grey, Sheriff;

Deputy Mick Butte

County Sheriff; County Butte, De Of

fendants-Appellees.

No. 99-17188. Appeals,

United States Court

Ninth Circuit. Dec.

Argued Submitted

Filed March Opinion Aug.

Amended Filed Opinion Amended

Second 19, 2001

Filed Nov. *2 BRIGHT,* REINHARDT,

Before: SILVERMAN, Judges. Circuit REINHARDT; Opinion by Judge *3 by Judge Dissent SILVERMAN AMENDED ORDER AND OPINION REINHARDT, Judge: Circuit ORDER majority opinion filed March 1106], as August [263 amended 31, 2001 is further amended as follows: 1) 11965, in slip opinion p. On Na- paragraph following heading “A. Intrusion”, Quality replace ture and the citation “Headwaters Forest Def. Humboldt, County 240 F.3d of (9th Cir.2000) (internal quotation omitted) Chew, (quoting marks 1440)” with: County “Headwaters Forest Def Humboldt, Cir. 2000) (vacated and remanded on other grounds nom. sub Humboldt , — v. Headwaters Forest U.S. Def (2001)) -, 24,151 L.Ed.2d (internal omitted) quotation marks 1440).” Chew, (quoting 27 F.3d at 2) Replace paragraph beginning slip opinion p. the bottom of 11976 with: “Although pro- there no prior case Baumbach, L. Larry Law Offices of Lar- hibiting specific type use this Baumbach, Chico, California, ry L. for the in precisely the circumstances here plaintiff-appellant. involved, that is insufficient to entitle Deems, Stewart, R. Humpher- Michael qualified immunity: Rutherford to not- Sandelman, Chico, ys, Burchett & Califor- withstanding the pre- absence of direct nia, for the defendants-appellees. be, cedent, may here, the law itas was clearly established. See Anderson v. 635, 640, Creighton, 483 U.S. 107 S.Ct. (1987) (rejecting 97 L.Ed.2d 523 liability the notion that officer cannot * Myron Bright, sitting by designation. The Honorable Senior United Circuit, Judge Eighth Stales Circuit for the The full court was advised Peti- question action in very exist ‘unless unlawful’). En Banc. An Rehearing active been held tion previously has Otherwise, escape respon- on whether to re- judge requested officers would vote forms of egregious most The matter sibility for the hear the matter en banc. there was no simply because majority conduct of the votes of failed receive partic- prohibiting fours case on all con- judges the active favor of en banc unconstitutional manifestation of ular R.App. Fed. P. 35. sideration. ‘ con- defendants] “the conduct. When En Rehearing The Petition for Banc is of the consti- patently is so violative duct therefore denied. that reasonable officials right tutional from the guidance know without would OPINION *4 action was unconstitu- courts” that the Greg Police Rutherford fired a Officer tional, closely analogous pre-existing “beanbag lethal” lead-filled round” “less to show that the required case law is not Deorle, an into the face of Richard Leo clearly established.’ Mendoza v. law is emotionally disturbed resident of Butte (9th Cir.1994) Block, 27 F.3d California, County, walking at a who Pieschek, (quoting Casteel “steady in direction. He did so gait” his (7th Cir.1993)). This is such unarmed, not although Deorle was had could No reasonable officer a case. gen- had anyone, attacked or even touched that Rutherford’s action have believed by him erally obeyed given the instructions the ‘less lethal’ shooting Deorle with officers, had not com- various and appropri- round was beanbag lead-filled mitted serious offense. Rutherford contrary, lawful. To the ‘it would ate or did not warn Deorle that he would be shot officer that clear to a reasonable be an undisclosed line physically if he crossed unlawful.’ conduct was [Rutherford’s] simply him to halt. Rutherford or order Katz, 121 at 2158. It does not spot at a at Deorle when he arrived fired directly of this court matter that no case predetermined. pro- we weapons; the use of such addresses jectile Rutherford fired removed officer is not entitled ‘[a]n have held that implanted in his eye and left lead shot immunity grounds on qualified appeal with presented We are on skull. clearly the law is not established the force used was questions: whether two method used to every time a novel so, excessive; and, whether Officer Mendoza, at injury.’ inflict entitled to Rutherford is nevertheless circumstances, all the 1362. Given immunity because the law was qualified was, as it does judgment, error in such offi- or because the established mistake’ of not constitute ‘reasonable objectively reasonable error cer made an part. on Rutherford’s View- fact or law inquiries part are a light judgment. the facts in the most favorable Both Rutherford was not enti- on which the plaintiff, immunity to the issue qualified immunity for his use of qualified tled to Rutherford sum- granted district court force.” excessive mary judgment. deny has voted to Judge Reinhardt BACKGROUND1 Banc, En and Rehearing

Petition for 9, 1996, in Butte September On Judge Judge Bright has so recommended. California, Deorle Richard County, grant voted to the Petition Silverman has (Deorle), with being diagnosed upset En Banc. Rehearing defendant, we must mary judgment to the granting sum- review an order 1. When we C, having consumed a half- members are ... Hepatitis SIRT trained “arrest Interferon, pint of vodka and some suspects the most efficient and least medication, prescribed began behaving er- hazardous manner [and] arrest sus- o’clock, ratically. By four Deorle had be- pects] with a minimum amount of risk or Deorle, According to come suicidal. Mrs. danger suspect.” to the ... Negotiators himself,” having “lost control “[d]eputies specialized are trained began screaming banging on the walls negotiations.... area of crisis Their role of their house. In search of someone to negotiator as is essential to the successful husband, help her with her distressed Mrs. resolution of critical incidents as relates Deorle dialed 911.2 to conflict resolution.”5 by police,

Her call was answered Deorle, abusive, though verbally dispatched Mahon Officer to the physically compliant generally fol- Deorle, accompa- Deorle residence. Mrs. lowed all the officers’ instructions. When children, by nied their left the house. a canine team “tested” his behavior departure. Deorle did not hinder their He making police dog aggressively their bark did, however, angrily, rather refuse to let he retreated towards his house. enter the Mahon house without a warrant. When a wooden board from porch *5 Mahon family escorted Deorle’s one block hands, in railings away came his house, from their radioed for “Code 3 dropped it at the officers’ Al- command. Backup,” requested and that more officers though shouting “kill brandishing me” and quickly. be sent officer, police a hatchet at a he threw the away hatchet clump into a of trees when

At responded least 13 officers Ma- to Still, put told to it down. Deorle remained request “backup.”3 hon’s These offi- agitated cers set and continued to up roadblocks on the streets roam on or around property the house to ensure that Deorle about the but well within the escape,4 police Rutherford, had no avenue of and awaited the roadblocks. Officer Special arrival of a Response Incident who was at the thirty forty scene for to (“SIRT”) minutes, Team negotiators. touch, and a team of did not observe Deorle let light present view the relevant facts in the immediately most favor- before or after the shoot- plaintiff. Margolis Ryan, able to the ing. 850, (9th Cir.1998). F.3d That standard applies also to our determination of the defen- According 4. testimony to the affidavit of vari- qualified immunity dants’ entitlement to as a witnesses, police police ous secured the Washington, matter of law. See Moran v. along area Crestón Road in front of Deorle's (9th Cir.1998). roadblocks, by establishing house two one at Sherwood, the intersection of and Crestón that, 2. Mrs. Deorle testified when she dialed Mahon, Muldown, where Officers and Collins "just screaming. Deorle was I don't stationed, were and one at the intersection of words, just screaming remember like in Skyway, Crestón and staffed at least two pain.” picked up phone intending She to officers, Hard, including possibly Officer but get help, dialed medical and left the Sergeant also Estes and Officer Johnson. phone on the dresser. Deorle, Various officers observed who walked up police and down Crestón Road from one 3. Rutherford claims there were between five periodically roadblock to the other and re- and ten officers at Deorle's residence. property turned to his or his house. Appellees' support evidence in of their sum- mary-judgment suggests motion that at least Department Special thirteen officers were at 5. Butte Sheriff’s the scene when shot, police log Response Deorle was and a indicates Incident Team Tactical Manual at many may as as 24 officers have been 2. a appellees with what term gun loaded attack, received anyone; nor had he alone “beanbag” round. These “less-lethal” action on Deorle’s any such any report of of lead shot contained did, however, rounds are made hear Deorle He part. sack, to be enough and are small ass.” a cloth would his him that he “kick scream at “could shotgun.8 The rounds fired from a the SIRT a member of Rutherford was feet, thirty capabilities” lethal have deployment trained He was team. fifty feet.9 up lethal at to potentially are suspects and recalcitrant against of force taunts, Ruther- response In to Deorle’s response to on the scene had arrived put him to down the cross- ford shouted briefing by After a 3 call. Mahon’s Code Accord- “discarded” it.10 bow and Deorle with another and consultation superiors Rutherford, to Deorle: scene, recon- he decided to on the officer Deorle, directly steady gate at me at a although nego- walk[ed] noiter closer me, run at He didn’t didn’t [sic].... to handle incident assigned tiators me, just a it was getting take his time Accompanied by officers yet arrived. directly at me.... Once Nichols, steady walk Rutherford observed Estes me I took walking started towards from five to ten minutes Deorle for about my get with feet little wider stance trees before cover of some my weap- As I leaned good stable base. crossbow plastic an unloaded carrying tree to make more up against the a can on may what have been one hand6 other,7 right I on his lower focused in the stable and lighter fluid or a bottle me walking he was towards Ruther- rib area as shouting at officers. started target area.11 for a twelve-gauge shot- was armed with ford speed between 280 and gauge shotgun at a says that it is unclear whether dissent *6 second, unclear, a force per and delivers If it were 300 feet was loaded. the crossbow his required purposes knock someone off feet be to assume for sufficient to we would summary judgment incapable that it was not loaded. of resistance. render him of himself, however, Rutherford, Here, acknowl- when edged the crossbow was unloaded that Greg Deposition of Transcript of Ruther- 9. Transcript Depo- of See he Deorle. 29, 1998, observed ford, July at 99:23-24. dated 29, Rutherford, July 1998 Greg dated of sition 60:25-26. at any there men- in the record is 10. Nowhere given by or order tion other instruction of testified at deposition, Rutherford 7. In his Rutherford, any suggestion that Rutherford bottle plastic that he observed a various times drop bottle or can. him to the told hand, unequivo- equally but stated in Deorle’s he points it was a can that cally at other Sergeant given Nickelson to In a statement lighter that it was He also stated observed. day in Department on the of Oroville Police carrying he was because that Deorle fluid just prior to stated that question, Rutherford type of container in that from the could tell a shooting observed him at distance Indeed, deposition, in his hand. Deorle's returning the was to forty feet. Deorle of distinguish that he could said Rutherford the grounds house from Sherwood of type lighter fluid it was—charcoal what of the to the west of house. roadblock situated ciga- to fill rather than that used lighter fluid a positioned himself behind Rutherford (ap- its container lighters rette —because house, the garden east side of in a on the tree can or container was a parently, whether that Skyway property and the Deorle's between bottle). Ruther- We also note that plastic a Nickelson, According Sgt. to roadblock. or bottle at distance observed the can ford him that he was concerned told Rutherford thirty feet. than more hostage possibility.” "He [Ruther- about "a retreat, going he was not said that prevent ford] its enveloped in cloth shot is 8. The posi- good, secure that he was' in target. knew peppering The the spreading and if the crossbow encased, could not tell shot, tion .... expelled a twelve- He thus from Rutherford had stationed himself in a STANDARD OF REVIEW garden adjacent to Deorle’s house and on A court reviews de novo the district until its east side. He waited regarding court’s determination qualified walking easterly was an direction on his immunity. Prunty, See v. Robinson property, predetermined own reached a (9th Cir.2001). 862, A F.3d 865-866 dis point, then fired. He not warn Deorle did trict court’s grant summary decision to going that he was to shoot him. He did judgment is also reviewed de novo. See him drop not ask the bottle or can. Nor Racicot, Crow Tribe Indians v. did he order him to halt. The cloth-cased 1039, 1043(9th Cir.1996). face, shot struck Deorle knocked feet, him lodged off his “half out of his DISCUSSION eye.” Deorle suffered multiple fractures cranium, Supreme recently Court has eye, to his loss of his left and lead determined the manner in which embedded in his skull. A courts shot team of when, proceed are to negotiators still en an excessive force route the time 1983, brought § shot Deorle. case under gov U.S.C. ernment officials assert the defense of Rutherford, (the Grey Deorle sued Mick immunity. Katz, qualified See Saucier Sheriff), County Butte 533 U.S. 121 S.Ct. 150 L.Ed.2d Butte, Technology Corpora- and Defense (2001). A court must in] “consider[ (the tion manufacturer of the cloth-cased proper sequence” “requisites qual of a shot), for, among things, other excessive immunity ified defense.” Id. at 2155. violation of the fourth amendment. determine, First the court must as Grey Rutherford and qualified asserted question,” “threshold whether plaintiff immunity summary and moved for judg- has deprivation of a shown constitu ment. The district court held that Ruther- right. tional Id. 2156. See also Wilson qualified ford was entitled to immunity, Layne, 609, 119 526 U.S. he did not violate right to be (1999). so, force, L.Ed.2d 818 If free from excessive court and that there must then right was therefore no determine whether holding basis for other violated grant- “par defendants liable. The court established in a *7 summary judgment ed relevant, for defendants and ticularized ... ... sense: denied Deorle’s motion dispositive inquiry for reconsideration. ... is whether it would appeal This followed.12 be clear to a reasonable officer that his tree, Deputy was loaded . .. subject got passed Rutherford said he [sic] the he shot the already believed that less than subject.” Although, rounds round at the lethal after dis- crossbow, carding would be reasonable use possessed of force in this situa- Deorle still can, Deputy tion .... appears Rutherford observed the bottle or a it from Nickelson's suspect report ground throw the cross bow to the that Rutherford was unable to deter- suspect kept ... coming mine the nature of the [T]he closer to him container's contents at (be suspect passed and when went the time shot and that [sic] a tree, can) possession bottle approximately similar sized or a away 30 feet him, factor, item did not constitute a subject from he decided that let alone a had one, approached significant po- was in an Rutherford’s decision to uncomfortable Deputy sition for shoot. him. felt he Rutherford tree, jeopardy passed and if he subject. would Deputy shoot the against Rutherford 12. The excessive-force claim Officer Rutherford, weapon already said the been aimed at which reaches us in the form of a suspect approaching challenge when he noticed him qualified immunity to the court’s with tire bow. He ruling, only cross said that when the appeal. is the issue on

1279 — -, Def., Forest U.S. he Headwaters in the situation was unlawful conduct (2001)) (inter 24, Katz, 1 at 2156. Ac 122 151 L.Ed.2d 121 S.Ct. confronted.” omitted) whether the first examine cordingly, quotation (quoting we nal marks 1440). was excessive Chew, subdue Deorle force used to In 27 F.3d at the instant of law. as a matter case, using Rutherford shot Deorle a lead- filled, round.13 This cloth- “less-lethal” Excessive Force

I. shot, akin to a something cased which is force to effect an the use of examine We bullet, “long-range is defined as a rubber 14 Amendment’s of the Fourth light arrest weapon.” It is fired from a 12- impact seizures. on unreasonable prohibition stop gauge shotgun, and calculated Connor, 386, 490 U.S. 109 S.Ct. v. Graham are “people who are violent or hostile and (1989); 1865, v. L.Ed.2d 443 Chew 104 threatening injury or death to themselves (1994). Gates, 1432, 1440 The admis By or others.” Rutherford’s own by the stan actions are measured officer’s sion, shot potentially the cloth-cased Gra objective of reasonableness. dard at thirty lethal at feet and could be lethal ham, 397, at 109 S.Ct. 1865. 490 U.S. by Ruther up fifty distances feet. Also of the force used to effect reasonableness admission, area for target “[t]he ford’s own seizure, by “care is determined particular be the capabilities probably lethal would quali nature and fully] balancing ‘the impacted If it at the heart facial area.... the individual’s ty the intrusion on possibly the heart or tear a stop it could against interests’ Fourth Amendment artery.” shot at Deorle’s vital governmental interests countervailing round hit thirty torso from feet: Graham, 396, 490 U.S. stake.” Deorle in the head and removed his left Garner, Tennessee v. (quoting S.Ct. 1865 lodged pieces of lead shot eye 1, 8, 85 L.Ed.2d 105 S.Ct. U.S. skull. (1985)). held, force “[t]he As we have obviously enough The force used was must be balanced applied which [i]s It knocked grave physical injury. cause v. the need for that force.” Liston against feet, and removed one of his Deorle off his Riverside, 965, 976 County through use of eyes. applied The force (1997). City Alexander v. See also kill a if it person the cloth-cased shot can Francisco, County San or the left side of his chest strikes his head (9th Cir.1994). fifty feet. range at a of under Such Quality of Intrusion A. Nature and applied through greater is much than pepper spray, see Headwaters the use of quantum of force We first assess the Forest, painful or a com- 240 F.3d at by considering “the used to arrest hold, City San pliance see Forrester force inflicted.” type and amount of Cir.1994) (po- Diego, 25 F.3d Forest Headwaters *8 of Def. compliance unit” dis- “pain lice force’s Humboldt, 240 F.3d 1198 Cir. Police 2000) (vacated using “Orcutt persed demonstrators and remanded on other of wood connect- v. Nonchakus”—two sticks sub nom. Humboldt grounds of Reedy, a Ser- affidavit of Peter A. appellees the cloth-cased shot 14. See the 13. The also call "beanbag” euphemism grossly round. That Department Force geant with the Sacramento dangerousness projec- of this 16, 1999, underrates years, and filed 20 dated March for "hackey- tile. The round is not some sort of opposition to defen- support of Deorle's in inflicting projectile capable sack.” It is a of summary judgment. dants' motion death, injury chil- serious rather than some toy. dren's (2) by issue, ed at one end using cord-—or wrist- the crime at suspect whether the arm-twisting pressure and point pose[d] an immediate threat to the safety holds), likely (3) and more to cause a life- of the ... officers or others whether he threatening injury dog than most bites. actively resisting [was] attempt arrest or Escondido, See Vera City Cruz v. 139 ing to by flight,’ evade arrest any of (9th Cir.1997). F.3d ‘exigent other circumstances [that] existed ” at the time of the arrest.’ Headwaters However, the cloth-cased shot falls Forest, Chew, (quoting at 1198-99 deadly short of force as defined in this 5). 27 F.3d at 1440-1441 & n. These fac circuit: “that force which reasonably is tors, however, are simply by a means likely Cruz, to cause death.” Vera which to objectively determine “the added).15 (emphasis F.3d at 663 The shot amount of force necessary in a is not like a regular bullet—it does not Graham, particular situation.” U.S. normally rip through soft tissue and bone 396-97, 109 1865. on contact with body. the human It is designed target, to knock down a character of the render offense is often an resistance, incapable important individual in consideration determining (in without the normal whether deploy justified. course of the use of force was ment) Chew, resulting Nonetheless, 9; death. See at 1442 & n. Head- Forest, the cloth-cased shot constitutes force waters 240 F.3d at 1204-1205 (same). which capability has the of causing case, serious In this the officers were injury, some on, instances does initially so.16 enter, or attempting to According to the Sergeant affidavit of property without a warrant. Reedy, Continuum, “[t]he Use of Force arrived, as They him, not to arrest but to California, used would list an impact investigate peculiar behavior. Deorle weapon high on the schedule of force.”17 troubled, was deeply emotionally force, though Such deadly, less than is not disturbed individual. Mrs. Deorle testified deployed lightly. be put To it in terms that pain, by induced a reaction to his of the test we apply: degree of force medication, had driven Deorle “out of con- by used Rutherford is permissible only just trol. He didn’t want live strong governmental when a interest com more.” Deorle repeatedly asked officers pels the employment of such force. to shoot him. Lt. reported Estes Deorle shouted no “ha[d] reason to live

B. Governmental Interests at Stake unbearable, that the pain and that We measure governmental in he wanted to be done with the pain, and terests by at stake evaluating a range of that there was no use in continuing.” Offi- “ ‘(1) they factors: include the severity Johnson, cer Rutherford’s superior, heard extremely high See, 15.The deadly-force e.g., standard 16. Eye Student WhoLost Was Shot Chron., Using enunciated in Vera unique Weapon, Police to this Non-Lethal S.F. Cruz (The Apr. 2001 at D simply circuit. student See id. 662-663. In other circuits observing a following riot that occurred the standard is "a causing substantial risk of loss of an NCAA game by final four basketball bodily injury." death or serious See id. at 661 University of Arizona when an officer shot (emphasis original), (citing Ryder at 663 round). "beanbag” him with a City Topeka, 1416 n. 11 (10th Cir.1987); City Montgomery, Pruitt v. Sergeant Reedy *9 expert opinion offered his (11th Cir.1985); 111 F.2d 1479 n. 10 that "[i]t would be unreasonable for an officer Barnes, Robinette v. 912-913 impact weapon to use an on an unarmed 1988)). Cir. person.” ir- prolong protests to kill him. to nonviolent civil asking other officers Deorle —is Graham). charged with noth- relevant under Rutherford tes- Ultimately, Deorle was obstructing police in the tified in that he deposition more than his shot Deorle ing See Cal.Pe- prevent passing of their duties. the latter from him and performance Rutherford, § 69. thereby posing nal Code a menace to However, public other and officers.19 Deorle at close Rutherford observed simple by a statement an officer that he ten minutes for about five to proximity safety safety fears for his or the of others shooting testimony him. His before enough; objective not there must be shotgun walking as Deorle was he fired his short, In justify factors to such a concern. him, steady gait, carrying at a towards objectively an use of force must be officer’s a can in his hand.18 Ruth- only a bottle or contemporaneous reasonable based on his erford, supposed to be reconnoi- who was Here, knowledge of the facts. as Ruther- information for the tering gathering knew, ford Deorle discarded his cross- the nature of help team to determine SIRT following bow Rutherford’s instructions to instead concluded that he response, their so, only do and carried a bottle or a can that he would occupied position, a secure him A with at the time he was shot. and that he position, not retreat from thorough review of the record reveals that a cer- would shoot Deorle came within sufficiently the facts are unclear as to what against a range. tain He steadied himself Rutherford believed or feared —reasonable tree, until reached that and waited Deorle or not—that the determination must be then, stop a or point; without command not, fact, by made a trier of as the employed, warning a that force would be does, by portraying dissent the facts pulled trigger. light moving party. favorable to the most quickly po A a desire resolve Rutherford’s statements must be is not tentially dangerous situation objective light considered in of the facts that, stand type governmental interest them are the Among and circumstances. alone, force that justifies the use of following: Rutherford had consulted with There must be may injury. cause serious deciding officers before to recon his senior circumstances that war significant other prevent noiter. He knew that roadblocks force at degree rant the use of such a his leaving the area in front of ed the time it is used. See Headwaters For (the walking in which he was est, house—(cid:127)the area at 1203 fact that to time—and back and forth from time police increasingly defendants were frus that a of officers were stationed number by protesters trated had devel —who During forty each roadblock. minutes oped techniques such as lock-down devices shoes, approach thirty wearing only Deorle's to within feet. no shirt or from 18. Deorle pair jeans deposition, shorts. There was By of cut-off of his the time any weapons. nowhere for him to secrete potential hostage of a situa- made no mention tion, stating afraid Deorle instead that he was 19. We note that there are certain conflicts roadblock, approach police would staffed provided to between the reasons Rutherford officers, separated which a number of Sergeant day shooting Nickelson on the of the public. In addi- Deorle from members provided during deposi- those that he tion, firmly identified the can or bottle of he initially Sgt. Nick- particular, In he told tion. principal source of his fluid as the lighter might take elson that he believed that Deorle got anxiety, [Deorle] and he said that "if Furthermore, hostage. did neighbor he myself passed could harm ... me [sic] carrying, identify the can or bottle Deorle was officers,” neigh- well as as well as and other contents, any particu- placing its as him in bystanders. bors and rather, said, danger; the threat came lar *10 scene, spent fired, he had at the Rutherford had Rutherford governmental the inter- Deorle attack anyone; observed nor using est in capable force of causing seri- report had he received any injury ous was not substantial. engaged any such conduct. Deorle Weighing Conflicting C. the Interests had roamed about area the and shouted manner, an irrational but had not harmed Whether shooting Rutherford’s or attempted anyone. to harm Nor had he objectively Deorle was requires reasonable attempted to flee escape. “[DJeputies or us to consider degree whether the of force trained in ... negotiations crisis Liston, used was see necessary, role [whose] is essential to the successful words, at in other degree whether the resolution of critical incidents” were on of force used by gov was warranted the way. their Rutherford was stationed in a ernmental at interests stake. See Gra position tree, secure behind a his line of ham, 490 U.S. at 109 S.Ct. 1865. clear, retreat was Officer Nichols was Here, given all the circumstances —the immediately stationed almost behind him. large number of present, officers the Rutherford could easily have avoided pending arrival negotiators “essen confrontation, and the arrival awaited tial incidents”; to resolve critical [such] the negotiating by team retreating to his the nature of Deorle’s conduct (essentially original position behind the roadblock. disturbing peace); the compliance Deorle’s Nothing in the record before suggests us with prior officers; the commands of the other, that Rutherford considered less assault; absence of any physical dangerous, stopping methods of Deorle. having discarded the crossbow Forest, See Headwaters 1204 when told to do so and being unarmed at that, (holding deploying before pepper the time he upon was fired fact that —the spray, police “were required to consider walking Deorle was on his own property in other any ‘[w]hat tactics if were available’ Rutherford’s direction with a can or bottle arrest”); Chew, to effect the 27 F.3d at in his hand is any objective insufficient 1443.20 Rutherford any by- had not seen measure to justify deployed. force area; standers in the immediate as far as Our strongly conclusion is supported by aware, only neighbors in the Rutherford’s to give failure Deorle any vicinity, along with other police offi- warning that he ap would be shot cers, safely were behind the two road- proached closer, any or order to drop sum, blocks. In being crime commit- the can or bottle or stop where he was: ted, if any, danger and the minor Deorle certainly could not have been ex Rutherford and appears others to have pected to comply with instructions that minimal, been as was the risk flight. given were never to him. There was no immediate need to subdue problems posed Deorle before the negotiators by, who were thus part of response group employed could tactics to be against, arrive an un armed, and perform function”; their emotionally distraught “essential nor individual had those in charge made a who creating decision to a disturbance or resisting subject physical Deorle to the use of arrest are ordinarily different from those rather than await their arrival. Consider- involved law enforcement efforts to sub circumstances, all the time due an armed and dangerous criminal note, incidentally, force," 20. We that other .officers escalation in the use of and a course police dog used a provoke "po- Deorle: a of action this expressly circuit has refused to needlessly lice tactic that unreasonably Gates, cre- Cunningham endorse. See dangerous ates a necessitating Cir.2000). situation an 1291 n. 23 *11 Graham, 490 U.S. evolving.” rapidly and offense. a serious recently committed has 1865; 396-97, see also Wash at instance, increasing the use In the former Lambert, ington v. circumstances may, in some of force Cir.1996). However, here the situation situation; in the lat- least, the exacerbate officer police of lone far from that a was of less-than-lethal ter, use heightened a dangerous a by suddenly confronted bringing a in helpful be usually force will vio threatening immediate armed felon the In a swift end. situation to dangerous charged only eventually was lence: Deorle the persons, unbalanced mentally case of ob crime of relatively minor with the in the art trained and others officers use of to sub in their effort structing police the advisable, where ordinarily counseling is of a host other and of him. Rutherford due means feasible, the best may provide and half an for over at the scene officers were Alexander, a crisis. See ending of shot the emotion Rutherford hour before exces- police (holding that the used at 1366 had Rutherford ally disturbed force, all circum- considering the sive a observe Deorle to opportunity had an man of a stances, the house “storm[ing] in firing prior time to of period considerable ... mentally ill a to be they knew whom to opportunity had the him. also He any- shoot to had threatened who recluse concerning the superiors with consult entered”).21 an emo- Even when body who Chew, Compare employed. tactics to be “acting out” individual tionally disturbed Moreover, Rutherford F.3d at 1432. force deadly use officers to inviting and the escape line of from clear a possessed him, interest governmental the subdue police a roadblock and he assumed position the fact diminished force is using such behind established been or buffer zone confronted, awith not are that the officers officers and the other him. Rutherford crime a serious has committed person negoti arrival of skilled awaiting the were ill indi- others, mentally a but with against like individuals ators, to persuade trained rule adopt per a se do vidual. We negoti peacefully. Deorle to submit of classifications different establishing two was on the station and had left ating team and persons mentally suspects: disabled Nevertheless, Ruth scene. way to its the Instead, emphasize we criminals. serious with shooting Deorle contemplated erford apparent be it is or should that where entire during the round “less the lethal” involved that the individual the officers walking in his direction Deorle time that disturbed, a factor that is emotionally sum, knowl with In from the roadblock. determining, under be considered must circumstances, the of relevant edge all the force Graham, the reasonableness and deliber amade calculated employed. Deorle when to shoot Doerle decision ate officers’ police recognize that We also peregrina in his point particular reached amount appropriate the about decisions he did. what precisely that is tions: “are in a circumstance given use warning of a The absence judgments [made] split-second often influ- a factor also that uncertain, halt is tense, an order to that are circumstances expectation the presence, and without fact, their plaintiff suggested we In be conducted inspection could po- that an argue at trial "that properly could to un- soon, might have allowed events gotten time their then had halted activities lice In other slowly.” at 1365. Id. warrant, more fold might avoid- too have an this arrest words, waiting period suggested we Given tragic confrontation. ed final situa- warrant, potentially violent likely to diffuse obtaining the delay attendant life, than the rather loss prevent city tion gathered might well have sent contrary. then, pressure without the away, and officials cences our decision. Shooting person ous. might passed never have *12 unannounced, pre-determined spot select- making is a disturbance because he by ed given had Rutherford walks in the direction of an officer at a warning him a or a command to halt. steady with a gait can oh bottle his hand ample There was time to give that order or objectively is not reasonable. Cer- warning and no reason whatsoever not to tainly objectively it is not reasonable to do do so.22 so when the officer neither orders the individual to stop drop nor to the can or Viewing the presented by facts bottle, and not him must, does even warn that he the record in light the we we con clude that even though will if upon be fired he fails to halt. Rutherford used Ap- force that is classified in this circuit as propriate warnings comport with actual than deadly, less and that would have police practice. Our cases demonstrate well, been so classified in other circuits as that provide warnings, officers where feas- the force was compared excessive to the ible, even when the force used is than less governmental interests at stake. The dis deadly. City See Brewer v. Napa, 210 sent insists that the undisputed fact F.3d 1094-1095 Cir.2000)-(police that the against force used Deorle is not gave warning officer setting dog before on reasonably likely to injury. cause serious Cruz, suspect); Vera at 660 F.3d The “reasonably likely to cause serious (same); Forest, Headwaters 240 F.3d at injury” inquiry a part of the deadly- (police 1193-94 protesters warned before force determination in all other circuits pepper use of spray). hold, We do not that have defined “deadly force.” We however, warnings that are required when- have, not, wisely rejected the test all ever deadly less than employed. force is n.15, employ. others supra. See In any Rather, simply we determine that such event, us, in the case before question the warnings feasible, given, should be when is not whether the “deadly.” force was the use of may force result in serious The evidence in the record before us injury, and that giving the of a warning or that, it not, makes clear “deadly” or the the failure to do so is a factor to be by force used Rutherford is capable of considered in applying the Gmham balanc- causing injury shot, serious person case, In present test. the desira- and that such injury may occur in any bility and feasibility of a warning given are obvi- instance.23 force, Less than deadly 22. Rutherford giving does not remember a after the shot just likely was fired. It is as warning; nor do of the other Nichols, eleven wit that both officers heard Lt. who ad doing nesses mention his describing so when mitted that he shouted "less than lethal” after they the events saw or argu heard. At oral Rutherford fired the cloth-cased shot "so oth ment, appellee's counsel claimed that it was er officers would know what had occurred.” practice give Rutherford's warning, usual a cryptic That statement was insufficient possible, where shooting. before While Ruth target alert a deployed, force would be let testimony erford's to that effect would not shot, alone that particularly he would be as changed have analysis, our there is no evi was, purpose of the announcement as Lt. dence in the supports record before us that indicated, Nichols otherwise. claim, certainly counsel's no foundational evidence, many such as how times Rutherford 23. To prospects examine the injury, of serious most, people had shot past. dissent, in the At Ruther as does the on the basis of the. as- may ford have shouted sumption "less lethal." Officer shotgun that a shot from a will hit Estes claims to have heard Rutherford precise part shout body at which it is firing. shooter, "less-lethal” before by Officer Smith aimed only unsupported is not "less-lethal,” record, claims Rutherford shouted but contrary but experience to the cannot remember whether it was training before or agencies. of law enforcement It excessive; however, force, not that is not the may be used without was deadly like Rather, reason; rather, subject to is whether question it is issue. sufficient Chew, premised use of on test. Rutherford’s force was balancing the Graham deadly Less a reasonable belief that such force was at 1442. than lawful, or, Supreme recently may be used as Court injury to serious may lead put interest it: “whether be clear to strong governmental would only when use, reasonable officer that his conduct was circum its such warrants unlawful the situation he confronted.” warning, preceded by be should stances *13 explained at 2156. The Court also Id. at Under feasible. Id. 1442-1443. when immunity of the rule: purpose “[qualified objective-reason the fourth-amendment protect ... to from the operates officers standard, violated shooting ableness hazy excessive sometimes border between to be from unreason right free It acceptable force.” Id. at 2158. Graham, at See 490 U.S. able seizures. therefore, to helps, begin our discussion Garner, 396, 471 (applying 1865 S.Ct. that, with the observation on the basis of 1694). 8-9, now We S.Ct. U.S. discussed, facts we have this is no protected whether Rutherford is consider means a borderline It should have case. qualified immunity. of by the defense that, clear to officer been reasonable Qualified Immunity II. present, firing under the circumstances objectively Deorle was unreasonable. Rutherford, was sued § capacity violating individual for Every police officer know that should quali of has raised the affirmative defense objectively is unreasonable to shoot—even immunity. qualified wrapped doctrine of fied with lead shot in a cloth case—an agents insulates man who: seri- immunity government unarmed has committed no offense, money emotionally dam dis- against personal liability mentally for ous is or turbed, pursu given warning taken in faith has been no ages good for actions authority. significant degree See imminent use of such discretionary ant to their 800, 807, force, pres- no risk Fitzgerald, poses flight, 457 U.S. of of Harlow (1982). objectively no threat 102 S.Ct. L.Ed.2d 396 ents reasonable “governmental safety officials of officer or other individu- specifically, More Here, liability present. all those were generally are shielded from als. factors offi- damages complied their conduct Deorle had with the for civil insofar as instructions, poten- statuto cers’ had discarded his does not violate established so, do weapons of a rea tial whenever asked to ry rights or constitutional which at-818, addition, anyone; person would have known.” Id. had not assaulted sonable resolving negotiators team of essential was en route. such situations Here, simply a reit test is case ap Although prior we is no of the Graham test which there eration rather, specific type the use of this prohibiting above: we must determine plied, force, whether, circumstances here using precisely the offi excessive involved, as to that to entitle mistake[ ] cer made a “reasonable insufficient Katz, qualified immunity: not Rutherford legality [his] actions.” assume, arguendo, withstanding prece We that the absence of direct S.Ct. at 2158. here, be, dent, may thought the force he used the law as it was that hardly unusual for bullets or lead-filled mark. beanbags shotguns off the fired from to be

clearly established. See Anderson v. Rutherford’s use of force was excessive Creighton, 483 U.S. 107 S.Ct. and the defense of qualified immunity is (1987) 3034, 97 L.Ed.2d 523 (rejecting the unavailing. The degree of force was notion that officer liability cannot exist plainly in excess of the governmental very “unless the action in question has interest at stake. The law was clear unlawful”). previously been held Other- shooting Rutherford’s wise, escape officers would responsibility in violation of Deorle’s constitutional egregious the most forms of conduct rights, and there was no ba- reasonable simply because there was no case on ah sis for any factual legal misperception fours prohibiting particular manifesta- on part: Rutherford’s no reasonable of- tion unconstitutional conduct. When ficer could have concluded that the force “ ‘the defendants] conduct is so patently employed was appropriate or lawful. violative of the constitutional right that Accordingly, we grant reverse the of sum- reasonable officials know would without mary judgment and remand for further guidance from the courts’ that the action proceedings consistent with *14 opinion. this unconstitutional, was closely analogous REVERSED AND REMANDED. pre-existing case law required is not show that the law is clearly established.” SILVERMAN, Judge, Circuit Block, (9th Mendoza v. dissenting: Cir.1994) (quoting Pieschek, Casteel v. The essential facts are not disputed. (7th Cir.1993)). This is Plaintiff Richard Deorle deranged was such a case. No reasonable officer could out of control when Deorle’s wife her made have believed that Rutherford’s action in 911 call to police. the When Deorle saw shooting Deorle with the “less lethal” lead- his wife on the telephone calling for help, beanbag filled round appropriate was he told they her that would have to come lawful. To the “it contrary, would be clear kill him. to a reasonable officer that [Rutherford’s] (Mahon) After the first deputy sheriff Katz, was conduct unlawful.” 121 S.Ct. at scene, arrived at the Deorle was observed It does not matter that no case of holding two-by-six board with pro- nails this court directly addresses the use of truding from the end of it. According to weapons; such we held have that “[a]n Mrs. taped-recorded on statement officer is not qualified entitled to immunity day the in question, Deorle “was angry, so on grounds the law is not clearly the just that he started lifting up the porch, every established time a novel method is you board, know the it has a railing and he Mendoza, injury.” used inflict up lifted the railing he was like swing- at 1362. circumstances, Given all the the ing it” like a baseball bat. At her deposi- in judgment, was, error such as it does not later, tion held years three Mrs. Deorle constitute “reasonable mistake” of fact or stated that he was “screaming” but not law on part. Rutherford’s Viewing the swinging the board around. way, Either facts the light most favorable to the the undisputed Deorle, fact is that while plaintiff, Rutherford was not entitled to screaming and on a rampage, inwas pos- qualified immunity for his use of excessive session of a nails, with protruding board force.

and that he finally dropped it when Mahon pistol CONCLUSION took his out of his holster. Viewing the must, facts light the we Mahon get was able to Deorle’s wife and that, we conclude for purposes of summary children safely his police into car. Mrs. judgment: Deorle told Mahon that Deorle was de- see exception, he round is no Vera drinking, that Cruz that he had been pressed, medication, Escondido, City 139 F.3d 659 Cir. caused rage in a was 1997), undisputed had been arrested for evidence established previously that he incident, firing beanbag of a round from a her in a domestic that the assaulting probation. 12-gauge shotgun person’s on at a “center that he had been of 20 to 40 feet is mass” from distance dropping that after undisputed It is reasonably likely to cause death or board, up two hatchets and picked Deorle Furthermore, injury. serious evidence Deorle, Mrs. According to a crossbow. beanbag that the round uncontradicted for recre- type used crossbow right was fired at Deorle’s lower abdomen hunting, and shooting, not target ational suddenly up” that it “flew and unex but tape- her look serious.” In that “it does unintendedly hit Deorle in pectedly and interview, she recalled that when recorded the face.2 asked whether on the scene her she told weapons, her Katz, husband 194, 121 Under Saucier U.S. them, “No, he has a crossbow.”1 except (2001), 150 L.Ed.2d 272 whether, light first issue is taken heard Deorle say Lt. Estes favorable to the facts show most kill any- that he would wanted to die and right that a constitutional was violated. It was property. one who came on his that it not. undisputed facts show Deputy time that around this sick, may have Deorle have been may all and was briefed on arrived at the scene him deranged, that did not been but make hatch- dropped of the above. *15 any dangerous less to the officers ets, in to hold the crossbow but continued help. call responded to Mrs. Deorle’s for In his left hand he was right his hand. Rutherford, He toward lighter a can of fluid. Deorle advanced carrying crossbow, him, toward the advanced to harm while brandish dropped threatening something to the and then said fluid. ing quart lighter Rutherford a can of Ruther ass, of, your kick going “I’m to effect with duty ford had to wait to be doused no motherfucker.” liquid a flammable or to be set ablaze ma protect to himself. The acting before that was undisputed It is Rutherford as jority’s portraying insistence on Deorle in of the so-called proper trained use was simply unarmed incorrect. He is round, designed which is to beanbag lighter a fluid and armed with container person a so incapacitate knockdown while advancing toward was major that an arrest can be effected. The kick ass. Rutherford to threatening toy, not a it is not ity right; is is but deadly right had the to use may not have injure. kill or the con designed to To right point, every but he had force at that to serious trary, designed prevent it is degree with a force protect to himself can Although virtually injury. anything temporarily incapacitate. likely only to injury under the cause or serious death beanbag That is he did. and the what right circumstances a suggest the crossbow was to that whether the was record 1. It unclear crossbow However, toy looked like one. days child's or two after inci- loaded. dent, asked in a recorded interview when loaded, interesting that the It is to note declaration about whether the crossbow was shit, “Yeah, Department Sgt. of retired Police replied, but it wouldn’t Sacramento Deorle Reedy, to A. which is referred twice put right wall here.” He Peter even a hole in that majority opinion, not word contains one a “little also that the crossbow fired stated experience, Sgt. Reedy any indicating has “basically” point that that had a standard arrow” beanbag training expertise with rounds. nothing There like a normal arrow. on Trae, Rutherford did not issue warn- The facts outlined above demonstrate firing beanbag before round at the response Rutherford’s to Deorle’s advancing but there is no telling, actions, threatening excessive, even if even in hindsight, even what might Deorle have mistaken, not an mis unreasonable done had a warning Only been issued. take. It did any not violate clearly estab earlier, short time Deorle told his wife that lished rule. undisputed It is that he de wanted die and if the police ployed a degree of force that he was came property on his they would have to trained to use and that he reasonably be kill him—and Rutherford knew that. lieved would subdue the advancing might surrendered, Deorle have but he threatening Deorle without doing any sig might also attempted have to set Ruther- nificant harm. Neither Deorle nor the ford on or engage fire in self-immolation. majority, required by as the Supreme might have kept also on coming, Court, “has identified case demon and if he got closer than away, feet strating established prohibit rule beanbag round could not have been used. ing the officer acting from as did.” Id. Then hand-to-hand combat would have The majority admits that “there prior is no inevitable, been which is not without its prohibiting case the use of specific this serious, own sometimes life-threatening, type of precisely circum suspects risks to and officers alike. Under stances here involved.” Majority Op. at circumstances, it was not objectively fact, 1285. In the best the majority can unreasonable Rutherford to attempt to up come with is cases involving the use of safely and preemptively subdue him as he pain compliance techniques, self- Connor, did. See Graham 490 U.S. defense, but disperse protes nonviolent (1989). 109 S.Ct. 104 L.Ed.2d 443 (Forrester tors v. City Diego, San Saucier, As the Court said in “If an officer (9th Cir.1994); F.3d 804 Headwaters For but reasonably, mistakenly, believed that a est Humboldt, 240 F.3d Def. suspect likely back, fight for in- (9th Cir.2000)). Likewise, Alexander *16 stance, justified the officer would be City and County Francisco, San using more force than in fact was needed.” (9th 1355, 1366 Cir.1994) F.3d concerns the Saucier, S.Ct. at 2158. Under circumstances under which the police may should end inquiry. house, storm a not self-defense. Neither But if even Rutherford were mistaken Brewer City Napa, 210 about whether the amount of force he used Cir.2000) nor Headwaters Forest held that legal circumstances, in the the issue warnings required are before deploying under the part second of the Saucier se- did, force. But they even they which quential analysis becomes whether the offi- don’t, they were decided four years after cer’s mistake was reasonable. Id. “An Rutherford’s encounter with Deorle. officer might correctly perceive all of the Because I believe that Rutherford was relevant facts but have a mistaken under- qualified entitled to immunity, would af- I standing as particular whether firm the granting of summary judgment in amount of force legal in those circum- his favor and in favor of the Sheriff of stances. If the officer’s mistake as to County. Butte Accordingly, I respectfully what the requires reasonable, law how- dissent. ever, the officer is entitled the immunity defense.” Id. This turns on whether the

officer’s conduct “clearly violated a estab-

lished rule.” Id. at 2160.