263 F.3d 1106 | 9th Cir. | 2001
Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.
AMENDED OPINION
Police Officer Greg Rutherford fired a “less lethal” lead-filled “beanbag round” into the face of Richard Leo Deorle, an emotionally disturbed resident of Butte County, California, who was walking at a “steady gait” in his direction. He did so although Deorle was unarmed, had not attacked or even touched anyone, had generally obeyed the instructions given him by various police officers, and had not committed any serious offense. Rutherford did not warn Deorle that he would be shot if he physically crossed an undisclosed line or order him to halt. Rutherford simply fired at Deorle when he arrived at a spot Rutherford had predetermined. The projectile Rutherford fired removed Deorle’s eye and left lead shot implanted in his skull. We are presented on appeal with two questions: whether the force used was excessive; and, if so, whether Officer Rutherford is nevertheless entitled to qualified immunity because the law was not clearly established or because the officer made an objectively reasonable error in judgment. Both inquiries are a part of the qualified immunity issue on which the district court granted Rutherford summary judgment.
BACKGROUND
On September 9, 1996, in Butte County, California, Richard Deorle (Deorle), upset at being diagnosed with Hepatitis C, and having consumed a half-pint of vodka and some Interferon, his prescribed medication, began behaving erratically. By four o’clock, Deorle had become suicidal. According to Mrs. Deorle, having “lost control of himself,” Deorle began screaming and banging on the walls of their house. In search of someone to help her with her distressed husband, Mrs. Deorle dialed 911.
Her call was answered by the police, who dispatched Officer Mahon to the Deorle residence. Mrs. Deorle, accompanied by their children, left the house. Deorle did not hinder their departure. He did, however, rather angrily, refuse to let Mahon enter the house without a warrant. Mahon escorted Deorle’s family one block from their house, radioed for “Code 3 Backup,” and requested that more officers be sent quickly.
At least 13 officers responded to Ma-hon’s request for “backup.”
Deorle, though verbally abusive, was physically compliant and generally followed all the officers’ instructions. When a canine team “tested” his behavior by making their police dog bark aggressively at Deorle, he retreated towards his house. When a wooden board from the porch railings came away in his hands, Deorle dropped it at the officers’ command. Although shouting “kill me” and brandishing a hatchet at a police officer, he threw the hatchet away into a clump of trees when told to put it down. Still, Deorle remained agitated and continued to roam on or about the property but well within the police roadblocks. Officer Rutherford, who was at the scene for thirty to forty minutes, did not observe Deorle touch, let alone attack, anyone; nor had he received any report of any such action on Deorle’s part. He did, however, hear Deorle scream at him that he would “kick his ass.”
Rutherford was a member of the SIRT team. He was trained in the deployment of force against recalcitrant suspects and had arrived on the scene in response to Mahon’s Code 3 call. After a briefing by his superiors and consultation with another officer on the scene, he decided to reconnoiter closer to Deorle, although the negotiators assigned to handle the incident had not yet arrived. Accompanied by officers Estes and Nichols, Rutherford observed Deorle for about five to ten minutes from the cover of some trees before Deorle, carrying an unloaded plastic crossbow in one hand
In response to Deorle’s taunts, Rutherford shouted at him to put down the crossbow and Deorle “discarded” it.
walk[ed] directly at me at a steady gate [sic].... He didn’t run at me, he didn’t take his time getting to me, it was just a steady walk directly at me.... Once he started walking towards me I took a little wider stance with my feet to get a good stable base. As I leaned my weapon up against the tree to make it more stable and I focused on his lower right rib area as he was walking towards me for a target area.11
Rutherford had stationed himself in a garden adjacent to Deorle’s house and on its east side. He waited until Deorle, who was walking in an easterly direction on his own property, reached a predetermined point, then fired. He did not warn Deorle that he was going to shoot him. He did not ask him to drop the bottle or can. Nor did he order him to halt. The cloth-cased shot struck Deorle in the face, knocked him off his feet, and lodged “half out of his eye.” Deorle suffered multiple fractures to his cranium, loss of his left eye, and lead shot embedded in his skull. A team of negotiators was still en route at the time Rutherford shot Deorle.
Deorle sued Rutherford, Mick Grey (the Butte County Sheriff), the County of Butte, and Defense Technology Corporation (the manufacturer of the cloth-cased
STANDARD OF REVIEW
A court reviews de novo the district court’s determination regarding qualified immunity. See Robinson v. Prunty, 249 F.3d 862, 866-866 (9th Cir.2001). A district court’s decision to grant summary judgment is also reviewed de novo. See Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1043 (9th Cir.1996).
DISCUSSION
The Supreme Court has recently determined the manner in which courts are to proceed when, in an excessive force case brought under 42 U.S.C. § 1983, government officials assert the defense of qualified immunity. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A court must “consider[ ] in proper sequence” the “requisites of a qualified immunity defense.” Id. at 2155. First the court must determine, as a “threshold question,” whether the plaintiff has shown the deprivation of a constitutional right. Id. at 2156. See also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). If so, the court must then determine whether the right violated was clearly established in a “particularized ... sense: ... the relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Katz, 121 S.Ct. at 2156. Accordingly, we first examine whether the force used to subdue Deorle was excessive as a matter of law.
I. Excessive Force
We examine the use of force to effect an arrest in light of the Fourth Amendment’s prohibition on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Chew v. Gates, 27 F.3d 1432, 1440 (1994). The officer’s actions are measured by the standard of objective reasonableness. Graham, 490 U.S. at 397, 109 S.Ct. 1865. The reasonableness of the force used to effect a particular seizure, is determined by “careful[ly] balancing ... ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). As we have held, “[t]he force which [i]s applied must be balanced against the need for that force.” Liston v. County of Riverside, 120 F.3d 965, 976 (1997). See also Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir.1994).
A. Nature and Quality of Intrusion
We first assess the quantum of force used to arrest Deorle by considering “the type and amount of force inflicted.” Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1198 (9th Cir.2000) (internal quotation marks omitted) (quoting Chew, 27 F.3d at 1440). In the instant case, Rutherford shot Deorle using a lead-filled, “less-lethal” round.
The force used was obviously enough to cause grave physical injury. It knocked Deorle off his feet, and removed one of his eyes. The force applied through use of the cloth-cased shot can kill a person if it strikes his head or the left side of his chest at a range of under fifty feet. Such force is much greater than that applied through the use of pepper spray, see Headwaters Forest, 240 F.3d at 1203, or a painful compliance hold, see Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir.1994) (police force’s “pain compliance unit” dispersed demonstrators using “Orcutt Police Nonchakus” — two sticks of wood connected at one end by a cord — or using wrist- and arm-twisting and pressure point holds), and more likely to cause a life-threatening injury than most dog bites. See Vera Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir.1997).
However, the cloth-cased shot falls short of deadly force as defined in this circuit: “that force which is reasonably likely to cause death.” Vera Cruz, 139 F.3d at 663 (emphasis added).
B. Governmental Interests at Stake
We measure the governmental interests at stake by evaluating a range of factors: they include “ ‘(1) the severity of the crime at issue, (2) whether the suspect pose[d] an immediate threat to the safety of the officers or others ... (3) whether he [was] actively resisting arrest or attempting to evade arrest by flight,’ and any other ‘exigent circumstances [that] existed at the time of the arrest.’ ” Headwaters Forest, 240 F.3d at 1198-99 (quoting Chew, 27 F.3d at 1440-1441 & n. 5). These factors, however, are simply a means by which to determine objectively “the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.
The character of the offense is often an important consideration in determining whether the use of force was justified. See Chew, 27 F.3d at 1442 & n. 9; Headwaters Forest, 240 F.3d at 1204-1205 (same). In this case, the officers were initially on, or attempting to enter, Deorle’s property without a warrant. They arrived, not to arrest him, but to investigate his peculiar behavior. Deorle was clearly a deeply troubled, emotionally disturbed individual. Mrs. Deorle testified that pain, induced by a reaction to his medication, had driven Deorle “out of control. He just didn’t want to live any more.” Deorle repeatedly asked officers to shoot him. Lt. Estes reported that Deorle shouted he “ha[d] no reason to live ... that the pain was unbearable, and that he wanted to be done with the pain, and that there was no use in continuing.” Officer Johnson, Rutherford’s superior, heard Deorle asking other officers to kill him. Ultimately, Deorle was charged with nothing more than obstructing the police in the performance of their duties. See Cal.Penal Code § 69.
Rutherford observed Deorle at close proximity for about five to ten minutes before shooting him. His testimony is that he fired his shotgun as Deorle was walking towards him, at a steady gait, carrying only a bottle or a can in his hand.
A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury. There must be other significant circumstances that warrant the use of such a degree of force at the time it is used. See Headwaters Forest, 240 F.3d at 1203 (the fact that the police defendants were increasingly frustrated by the protesters — who had developed techniques such as lock-down devices to prolong nonviolent civil protests — is irrelevant under Graham). Rutherford testified in his deposition that he shot Deorle to prevent the latter from passing him and thereby posing a menace to Rutherford, the public and other officers.
Rutherford’s statements must be considered in light of the objective facts and circumstances. Among them are the following: Rutherford had consulted with his senior officers before deciding to reeonnoiter. He knew that roadblocks prevented Deorle leaving the area in front of his house — the area in which he was walking back and forth from time to time — and that a number of officers were stationed at each roadblock. During the forty minutes he had spent at the scene, Rutherford had not observed Deorle attack anyone; nor had he received any report that Deorle had engaged in any such conduct. Deorle had roamed about the area and shouted in an irrational manner, but had not harmed or attempted to harm anyone. Nor had he attempted to flee or escape. “[D]eputies trained in ... crisis negotiations ... [whose] role is essential to the successful resolution of critical incidents” were on their way. Rutherford was stationed in a secure position behind a tree, his line of retreat was clear, and Officer Nichols was stationed almost immediately behind him. Rutherford could easily have avoided a confrontation, and awaited the arrival of the negotiating team by retreating to his original position behind the roadblock. Nothing in the record before us suggests that Rutherford considered other, less dangerous, methods of stopping Deorle. See Headwaters Forest, 240 F.3d at 1204 (holding that, before deploying pepper spray, police “were required to consider ‘[w]hat other tactics if any were available’ to effect the arrest”); Chew, 27 F.3d at 1443.
C. Weighing the Conflicting Interests
Whether Rutherford’s shooting of Deorle was objectively reasonable requires us to consider whether the degree of force used was necessary, see Liston, 120 F.3d at 976, in other words, whether the degree of force used was warranted by the governmental interests at stake. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. Here, given all the circumstances — the large number of police officers present, the pending arrival of the negotiators “essential to resolve [such] critical incidents”; the nature of Deorle’s conduct (essentially disturbing the peace); Deorle’s compliance with the prior commands of the officers; the absence of any physical assault; Deorle’s having discarded the crossbow when told to do so and being unarmed at the time he was fired upon — the fact that Deorle was walking on his own property in Rutherford’s direction with a can or bottle in his hand is insufficient by any objective measure to justify the force deployed. Our conclusion is strongly supported by Rutherford’s failure to give Deorle any warning that he would be shot if he approached any closer, or any order to drop the can or bottle or stop where he was: Deorle certainly could not have been expected to comply with instructions that were never given to him.
The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has.recently committed a serious offense. In the former instance, increasing the use of force may, in some circumstances at least, exacerbate the situation; in the latter, a heightened use of less-than-lethal force will usually be helpful in bringing a dangerous situation to a swift end. In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis. See Alexander, 29 F.3d at 1366 (holding that the police used excessive force, considering all the circumstances, in “stormfing] the house of a man whom they knew to be a mentally ill ... recluse who had threatened to shoot anybody who entered”).
We also recognize that police officers’ decisions about the appropriate amount of force to use in a given circumstance “are often ... split-second judgments [made] in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865; see also Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir.1996). However, the situation here was far from that of a lone police officer suddenly confronted by a dangerous armed felon threatening immediate violence: Deorle was eventually charged only with the relatively minor crime of obstructing the police in their effort to subdue him. Rutherford and a host of other officers were at the scene for over half an hour before Rutherford shot the emotionally disturbed Deorle. Rutherford had had an opportunity to observe Deorle for a considerable period of time prior to firing at him. He also had the opportunity to consult with his superiors concerning the tactics to be employed. Compare Chew, 27 F.3d at 1442. Moreover, Rutherford possessed a clear line of escape from the position he assumed and a police roadblock or buffer zone had been established behind him. Rutherford and the other officers were awaiting the arrival of skilled negotiators, trained to persuade individuals like Deorle to submit peacefully. The negotiating team had left the station and was on its way to the scene. Nevertheless, Rutherford contemplated shooting Deorle with the “less lethal” round during the entire time Deorle was walking in his direction from the roadblock. In sum, with knowledge of all the relevant circumstances, Rutherford made a calculated and deliberate decision to shoot Doerle when Deorle reached a particular point in his peregrinations: and that is precisely what he did.
The absence of a warning or an order to halt is also a factor that influcences our decision. Shooting a person who is making a disturbance because he walks in the direction of an officer at a steady gait with a can or bottle in his hand is clearly not objectively reasonable. Certainly it is not objectively reasonable to do so when the officer neither orders the individual to stop nor to drop the can or bottle, and does not even warn him that he will be fired upon if he fails to halt. Appropriate warnings comport with actual police practice. Our cases demonstrate that officers provide warnings, where feasible, even when the force used is less than deadly. See Brewer v. City of Napa, 210 F.3d 1093, 1094-1095 (9th Cir.2000) (police officer gave warning before setting dog on suspect); Vera Cruz, 139 F.3d at 660 (same); Headwaters Forest, 240 F.3d at 1193-94 (police warned protesters before use of pepper spray). We do not hold, however, that warnings are required whenever less than deadly force is employed. Rather, we simply determine that such warnings should be given, when feasible, if the use of force may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test. In the present case, the desirability and feasibility of a warning are obvious. Deorle might never have passed the unannounced, pre-determined spot selected by Rutherford had Rutherford given him a warning or a command to halt. There was ample time to give that order or warning and no reason whatsoever not to do so.
II. Qualified Immunity
Rutherford, who was sued in his individual capacity for violating § 1983, has raised the affirmative defense of qualified immunity. The doctrine of qualified immunity insulates government agents against personal liability for money damages for actions taken in good faith pursuant to their discretionary authority. See Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). More specifically, “governmental officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. 2727.
Here, the test is not simply a reiteration of the Graham test which we applied, above: rather, we must determine whether, in using excessive force, the officer made a “reasonable mistake! ] as to the legality of [his] actions.” Katz, 121 S.Ct. at 2158. We assume, arguendo, that Rutherford thought that the force he used
Every police officer should know that it is objectively unreasonable to shoot — even with lead shot wrapped in a cloth case — an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals. Here, all those factors were present. Deorle had complied with the police officers’ instructions, had discarded his potential weapons whenever asked to do so, and had not assaulted anyone; in addition, a team of negotiators essential to resolving such situations was en route.
Although there is no prior case prohibiting the use of this specific type of force in precisely the circumstances here involved, that is insufficient to entitle Rutherford to qualified immunity: notwithstanding the absence of direct precedent, the law may be, as it was here, clearly established. See DeBoer v. Pennington, 206 F.3d 857, 864-865 (9th Cir.2000). Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct. When “the defendant’s] conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.” DeBoer, 206 F.3d at 864-865. This is such a case. No reasonable officer could have believed that Rutherford’s action in shooting Deorle with the “less lethal” lead-filled beanbag round was appropriate or lawful. To the contrary, “it would be clear to a reasonable officer that [Rutherford’s] conduct was unlawful.” Katz, 121 S.Ct. at 2158. Given all the circumstances, the error in judgment, such as it was, does not constitute a “reasonable mistake” of fact or law on Rutherford’s part. Viewing the facts in the light most favorable to the plaintiff, Rutherford was not entitled to qualified immunity for his use of excessive force.
CONCLUSION
Viewing the facts in the light we must, we conclude that, for purposes of summary judgment:
Rutherford’s use of force was excessive and the defense of qualified immunity is unavailing. The degree of force was plainly in excess of the governmental interest at stake. The law was clear that Rutherford’s shooting of Deorle was in violation of Deorle’s constitutional rights, and there was no reasonable basis for any factual or legal misperception on Rutherford’s part: no reasonable officer could have concluded that the force employed was appropriate or lawful.
REVERSED AND REMANDED.
.When we review an order granting summary judgment to the defendant, we must view the relevant facts in the light most favorable to the plaintiff. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). That standard also applies to our determination of the defendants' entitlement to qualified immunity as a matter of law. See Moran v. Washington, 147 F.3d 839, 844 (9th Cir.1998).
. Mrs. Deorle testified that, when she dialed 911, Deorle was "just screaming. I don't remember any words, just screaming like in pain.” She picked up the phone intending to get medical help, dialed 911, and left the phone on the dresser.
. Rutherford claims there were between five and ten police officers at Deorle’s residence. Appellees’ evidence in support of their summary-judgment motion suggests that at least thirteen officers were at the scene when
. According to the affidavit testimony of various police witnesses, the police secured the area along Crestón Road in front of Deorle’s house by establishing two roadblocks, one at the intersection of Crestón and Sherwood, where Officers Mahon, Muldown, and Collins were stationed, and one at the intersection of Crestón and Skyway, staffed by at least two officers, including Officer Hard, but possibly also Sergeant Estes and Officer Johnson. Various officers observed Deorle, who walked up and down Crestón Road from one police roadblock to the other and periodically returned to his property or his house.
. Butte County Sheriff's Department Special Incident Response Team Tactical Manual at 9, 2.
. The dissent says that it is unclear whether the crossbow was loaded. If it were unclear, we would be required to assume for purposes of summary judgment that it was not loaded. Here, however, Rutherford, himself, acknowledged that tire crossbow was unloaded when he observed Deorle. See Transcript of Deposition of Greg Rutherford, dated July 29, 1998 at 60:25-26.
.In his deposition, Rutherford testified at various times that he observed a plastic bottle in Deorle's hand, but stated equally unequivocally at other points that it was a can that he observed. He also stated that it was lighter fluid that Deorle was cariying because he could tell that from the type of container in Deorle's hand. Indeed, in his deposition, Rutherford said that he could distinguish what type of lighter fluid it was — charcoal lighter fluid rather than that used to fill cigarette lighters — because of its container (apparently, whether that container was a can or a plastic bottle). We also note that Rutherford observed the can or bottle at a distance of more than thirty feet.
. The shot is enveloped in cloth to prevent its spreading and peppering the target. The shot, thus encased, is expelled from a twelve-gauge shotgun at a speed of between 280 and 300 feet per second, and delivers a force sufficient to knock someone off his feet and render him incapable of resistance.
. Transcript of Deposition of Greg Rutherford, dated July 29, 1998, at 99:23-24.
. Nowhere in the record is there any mention of any other instruction or order given by Rutherford, or any suggestion that Rutherford told him to drop the bottle or can.
. In a statement given to Sergeant Nickelson of Oroville Police Department on the day in question, Rutherford stated that just prior to shooting Deorle he observed him at a distance of forty feet. Deorle was returning to the grounds of his house from the Sherwood roadblock situated to the west of the house. Rutherford had positioned himself behind a tree in a garden on the east side of the house, between Deorle's property and the Skyway roadblock. According to Sgt. Nickelson, Rutherford told him that he was concerned about "a hostage possibility.” “He [Rutherford] said that he was not going to retreat, he knew that he was in a good, secure position. ... He could not tell if the crossbow was loaded ... Deputy Rutherford said he already believed that less than lethal rounds would be reasonable use of force in this situation. ... Deputy Rutherford observed the suspect throw the cross bow to the ground ... [T]he suspect kept coming closer to him and when the suspect went passed [sic] a similar sized tree, approximately 30 feet away from him, he decided that the subject had approached and was in an uncomfortable position for him. Deputy Rutherford felt he was in jeopardy and if he passed the tree, that he would shoot the subject. Deputy Rutherford said the weapon had already been aimed at the suspect when he noticed him approaching with the cross bow. He said that when the subject got passed [sic] the tree, he shot the round at the subject.” Although, after discarding the crossbow, Deorle still possessed a bottle or a can, it appears from Nickelson's report that Rutherford was unable to determine the nature of the container’s contents at the time he shot Deorle, and that (be it a bottle or a can) Deorle's possession of the item did not constitute a factor, let alone a significant one, in Rutherford's decision to shoot.
. The excessive-force claim against Officer Rutherford, which reaches us in the form of a challenge to the court's qualified immunity ruling, is the only issue on appeal.
. The appellees also call the cloth-cased shot a "beanbag” round. That euphemism grossly
. See the affidavit of Peter A. Reedy, a Sergeant with the Sacramento Department Force for 20 years, dated March 16, 1999, and filed in support of Deorle’s opposition to defendants’ motion for summary judgment.
. The extremely high deadly-force standard enunciated in Vera Cruz is unique to this circuit. See id. at 662-663. In other circuits the standard is "a substantial risk of causing death or serious bodily injury.” See id. at 661 (emphasis in original), at 663 (citing Ryder v. City of Topeka, 814 F.2d 1412, 1416 n. 11 (10th Cir.1987); Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n. 10 (11th Cir.1985); Robinette v. Barnes, 854 F.2d 909, 912-913 (6th Cir.1988)).
. See, e.g., Student "Who Lost Eye Was Shot by Police Using "Non-Lethal Weapon", S.F. Chron., Apr. 10, 2001 at D 6 (The student was simply observing a riot that occurred following the loss of an NCAA final four basketball game by the University of Arizona when an officer shot him with a "beanbag” round).
. Sergeant Reedy offered his expert opinion that ”[i]t would be unreasonable for an officer to use an impact weapon on an unarmed person.”
. Deorle was wearing no shirt or shoes, only a pair of cut-off jeans shorts. There was nowhere for him to secrete any weapons.
. We note that there are certain conflicts between the reasons Rutherford provided to Sergeant Nickelson on the day of the shooting and those that he provided during his deposition. In particular, he initially told Sgt. Nick-
. We note, incidentally, that other officers used a police dog to provoke Deorle: a "police tactic that needlessly or unreasonably creates a dangerous situation necessitating an escalation in the use of force,” and a course of action this circuit has expressly refused to endorse. See Cunningham v. Gates, 229 F.3d 1271, 1291 n. 23 (9th Cir.2000).
. In fact, we suggested that the plaintiff could properly argue at trial "that if the police had halted their activities and then gotten an arrest warrant, this too might have avoided the final tragic confrontation. Given the delay attendant in obtaining the warrant, the police might well have sent the gathered city officials away, and then, without the pressure of their presence, and without the expectation that an inspection could be conducted any time soon, might have allowed events to unfold more slowly.”. Id. at 1365. In other words, we suggested that the waiting period was likely to diffuse a potentially violent situation and prevent loss of life, rather than the contrary.
. Rutherford does not remember giving a warning; nor do any of the other eleven witnesses mention his doing so when describing the events they saw or heard. At oral argument, appellee's counsel claimed that it was Rutherford’s usual practice to give a warning, where possible, before shooting. While Rutherford’s testimony to that effect would not have changed our analysis, there is no evidence in the record before us that supports counsel’s claim, and certainly no foundational
. To examine the prospects of serious injury, as does the dissent, on the basis of the assumption that a shot from a shotgun will hit the precise part of the body at which it is aimed by the shooter, is not only unsupported by the record, but contrary to the experience and training of law enforcement agencies. It is hardly unusual for bullets or lead-filled beanbags fired from shotguns to be off the mark.
Dissenting Opinion
dissenting:
The essential facts are not disputed. Plaintiff Richard Deorle was deranged and out of control when Deorle’s wife made her 911 call to the police. When Deorle saw his wife on the telephone calling for help, he told her that they would have to come kill him.
After the first deputy sheriff (Mahon) arrived at the scene, Deorle was observed holding a two-by-six board with nails protruding from the end of it. According to Mrs. Deorle’s taped-recorded statement on the day in question, Deorle “was so angry, that he just started lifting up the porch, you know the board, it has a railing and he lifted up the railing and he was like swinging it” like a baseball bat. At her deposition held three years later, Mrs. Deorle stated that he was “screaming” but not swinging the board around. Either way, the undisputed fact is that Deorle, while screaming and on a rampage, was in possession of a board with protruding nails, and that he finally dropped it when Mahon took his pistol out of his holster.
Mahon was able to get Deorle’s wife and children safely into his police ear. Mrs. Deorle told Mahon that Deorle was depressed, that he had been drinking, that he was in a rage caused by his medication, that he previously had been arrested for assaulting her in a domestic incident, and that he had been on probation.
It is undisputed that after dropping the board, Deorle picked up two hatchets and a crossbow. According to Mrs. Deorle, the crossbow was of the type used for recreational target shooting, not hunting, and that “it does look serious.” In her tape-recorded interview, she recalled that when the police on the scene asked her whether her husband had any weapons, she told them, “No, except he has a crossbow.”
Lt. Estes heard Deorle say that he wanted to die and that he would kill anyone who came on his property. It was around this time that Deputy Rutherford arrived at the scene and was briefed on all of the above. Deorle dropped the hatchets, but continued to hold the crossbow in his right hand. In his left hand he was carrying a can of lighter fluid. He dropped the crossbow, advanced toward Rutherford and then said something to the effect of, “I’m going to kick your ass, motherfucker.”
It is undisputed that Rutherford was trained in the proper use of the so-called beanbag round, which is designed to knockdown and incapacitate a person so that an arrest can be effected. The majority is right; it is not a toy, but it is not designed to kill or injure. To the contrary, it is designed to prevent serious injury. Although virtually anything can cause death or serious injury under the right circumstances and the beanbag round is no exception, see Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir.1997), the undisputed evidence established that the firing of a beanbag round from a 12-gauge shotgun at a person’s “center mass” from a distance of 20 to 40 feet is not reasonably likely to cause death or
Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the first issue is whether, taken in the light most favorable to Deorle, the facts show that a constitutional right was violated. The undisputed facts show that it was not. Deorle may have been sick, he may have been deranged, but that did not make him any less dangerous to the officers who responded to Mrs. Deorle’s call for help. Deorle advanced toward Rutherford, threatening to harm him, while brandishing a quart can of lighter fluid. Rutherford had no duty to wait to be doused with a flammable liquid or to be set ablaze before acting to protect himself. The majority’s insistence on portraying Deorle as unarmed is simply incorrect. He was armed with a container of lighter fluid and was advancing toward Rutherford while threatening to kick his ass. Rutherford may not have had the right to use deadly force at that point, but he had every right to protect himself with a degree of force likely only to temporarily incapacitate. That is what he did.
True, Rutherford did not issue a warning before firing the beanbag round at the advancing Deorle, but there is no telling, even in hindsight, what Deorle might have done had a warning been issued. Only a short time earlier, Deorle told his wife that he wanted to die and that if the police came on his property they would have to kill him — and Rutherford knew that. Deorle might have surrendered, but he also might have attempted to set Rutherford on fire or engage in self-immolation. Deorle also might have kept on coming, and if he got closer than 20 feet away, the beanbag round could not have been used. Then hand-to-hand combat would have been inevitable, which is not without its own serious, sometimes life-threatening, risks to suspects and officers alike. Under the circumstances, it was not objectively unreasonable for Rutherford to attempt to safely and preemptively subdue him as he did. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As the Court said in Saucier, “If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.” 121 S.Ct. at 2158. Under Saucier, that should end the inquiry.
But even if Rutherford were mistaken about whether the amount of force he used was legal in the circumstances, the issue under the second part of the Saucier sequential analysis becomes whether the officer’s mistake was reasonable. Id. “An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Id. This turns on whether the officer’s conduct violated a “clearly established rule.” Id. at 2160.
The facts outlined above demonstrate that Rutherford’s response to Deorle’s threatening actions, even if excessive, even if mistaken, was not an unreasonable mistake. It did not violate any clearly established rule. It is undisputed that he deployed a degree of force that he was trained to use and that he reasonably be
Because I believe that Rutherford was entitled to qualified immunity, I would affirm the granting of summary judgment in his favor and in favor of the Sheriff of Butte County. Accordingly, I respectfully dissent.
. It is unclear whether the crossbow was loaded. However, two days after the incident, when asked in a recorded interview about whether the crossbow was loaded, Deorle replied, “Yeah, but shit, it wouldn't even put a hole in that wall right here.” He also stated that the crossbow fired a “little arrow” that "basically” had a standard point like on a normal arrow. There is nothing in the record to suggest that the crossbow was a child's toy or looked like one.
. It is interesting to note that the declaration of retired Sacramento Police Department Sgt. Peter A. Reedy, which is referred to twice in the majority opinion, contains not one word indicating that Sgt. Reedy has any experience, training or expertise with beanbag rounds.
