Tonja AMES, Plaintiff-Appellee, v. KING COUNTY, WASHINGTON, Defendant, and Heather R. Volpe, member of the King County Sheriff‘s Department; Christopher Sawtelle, member of the King County Sheriff‘s Department; Daniel L. Christian, member of the King County Sheriff‘s Department, Defendants-Appellants.
No. 14-36035
United States Court of Appeals, Ninth Circuit.
January 13, 2017
846 F.3d 340
TALLMAN, Circuit Judge
Argued and Submitted December 7, 2016, Seattle, Washington
II.
We therefore consider Okafor‘s argument that he is entitled to equitable tolling. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Okafor has failed to meet this burden. Even if, as Okafor contends, his counsel delivered his claim to FedEx for overnight delivery before the close of business on June 4, FedEx‘s purported delivery delay does not constitute the kind of extraordinary circumstance that we have found to justify equitable tolling. We have noted that an attorney‘s filing by mail shortly before a deadline expires constitutes routine negligence. Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). We “do not recognize run-of-the mill mistakes as grounds for equitable tolling because doing so ‘would essentially equitably toll limitations periods for every person whose attorney missed a deadline.‘” Id. at 647 (quoting Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007)).
The district court did not err in holding that Okafor was not entitled to equitable tolling. Accordingly, we AFFIRM the district court‘s denial of Okafоr‘s Rule 41(g) motion.
Darryl Parker (argued), Civil Rights Justice Center PLLC, Seattle, Washington, for Plaintiff-Appellee.
Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN B. CHRISTEN, Circuit Judges.
OPINION
TALLMAN, Circuit Judge:
This interlocutory appeal requires us to address the reasonableness of actions taken by King County Sheriff‘s Deputies functioning in their community caretaking capacities during a life-and-death medical emergency. We reverse the district court‘s denial of qualified immunity on Appellee‘s excessive force and unlawful seаrch claims because we conclude the deputies’ actions were objectively reasonable in light of the urgent need to deliver life-saving care to an overdose victim, and to ensure the safety of everyone at the scene.
I
The events leading up to the use of force and search at issue in this case are largely undisputed.1 On February 6, 2013, at 6:30 p.m., Tonja Ames called 911 to summon an ambulance for her 22-year-old son, Colin Briganti. Briganti lived in a converted garage apartment attached to his mother‘s home and suffered from heart and lung problems as a result of prior drug abuse. Upon arriving homе from work that day, Ames found Briganti in his bedroom “slumped over on the couch drooling” and incoherent. She also found what appeared to be a suicide note and feared Briganti may have overdosed on one of his medications. Ames called her neighbors, William and Linda Eby, who came over to help.
As Ames, Deputy Volpe, and Lieutenant Nevistic arrived at the doorway, Ames refused entry to Deputy Volpe. Ames told Deputy Volpe that only the aid crew could enter the apartment. According to Ames, Deputy Volpe replied, “If I can‘t enter the home, then you get no service,” and directed the aid crew to exit the apartment. Firefighter/EMTs Mezzone and Laurent withdrew from the apartmеnt; they had not yet engaged with Briganti but Laurent had observed that he was sitting in a chair, “semi-conscious” and “lethargic,” and that he “barely could keep his eyes open.”
Neither Deputy Volpe nor any member of the aid crew had ever encountered a situation where the person who called 911 would not allow police to enter with the emergency medical personnel responding to the call. Because Ames‘s refusal was unusual, and because the call involved a possible suicide attempt, Deputy Volpe became concerned for the safety of the responders on the scene and what might have happened inside the apartment. Together, Deputy Volpe and the aid crew retreated to their vehicles parked at the curb. Deputy Volpe radioed to inform dispatch and her patrol supervisor, Sergeant Kevin Johannes, that Ames was refusing to let police enter and the aid crew was refusing to work on Briganti inside the apartment. Deputy Volpe requested backup and waited, further advising dispatch that Briganti had overdosed on pills and was semi-conscious and very lethargic. Deputy Volpe had specialized training as a Drug Recognition Expert Instructor with knowledge of various medications and their effects. She was concerned that Briganti would die. Ames had listed Briganti‘s medications for Deputy Volpe when the aid crew first arrived, and Deputy Volpe recognized most of them as Central Nervous System depressants.
Before leaving Briganti‘s apartment, the aid crew did not tell Ames that they could treat her son outside the apartment or that they would wait outside for him. When the first responders withdrew, Ames and her neighbors had remained in Briganti‘s apartment. Ames panicked—thinking the aid crew was going to leave—and enlisted her neighbors to help her carry Briganti outside and load him into her piсkup truck parked in the driveway so she could drive him to the nearest hospital. Deputy Volpe watched as Ames and her neighbors carried Briganti, apparently unconscious, out from behind the house. She assumed Ames would now let the aid crew work on Briganti in the driveway but, once she observed their efforts to load Briganti into Ames‘s truck, Deputy Volpe radioed
Deputy Volpe yelled at Ames as she approached the truck, telling Ames that she needed to let the EMTs take Briganti and that it was unlawful for Ames to leave with him. When Deputy Volpe refused to move her patrol car, Ames became angry, pointed her finger at Deputy Volpe, and yelled: “Move your f-ing vehicle. I‘m taking my son to the hospital. You guys left. You won‘t help him. Gеt out of my way.” She continued climbing into the driver‘s seat, then placed the suicide note she had retrieved from the apartment in between the truck seats and put the keys in the ignition while reaching out with her left arm to close the driver‘s-side door. Simultaneously, Deputy Volpe reached the driver‘s side of the truck and used her body to block the door from closing. She then attempted to pull Ames from the truck cab. Ames grabbed the steering wheel tightly with her right hand and Deputy Volpe employed a hair hold to distract Ames and loosen her grip so the officer could remove Ames from the truck. Deputy Volpe took Ames down to the ground into a prone handcuffing position. According to the County‘s police practices expert, a hair hold is a low-level distraction and minor pain compliance technique that is at the lower end of takedown options in relative level of force. Essentially, Deputy Volpe grasped Ames‘s hair close to her scalp, causing Ames to release the steering wheel and reach up towards her scalp, whereupon Deputy Volpe was able to pull Ames out of the cab of the truck and down to the ground.
Ames landed on the ground with her right arm pinned under her body. Deputy Volpe held onto Ames‘s hair with one hand and pushed her knee into Ames‘s back while she handcuffed Ames‘s left arm. She ordered Ames to provide her right arm for cuffing and, according to Ames, slammed Ames‘s head into the ground three times as Ames tried to explain that her arm was pinned and that she suffered from a back injury. Deputy Volpe was then able to pull Ames‘s right arm behind her back, handcuff her, and radio that she had her pinned on the ground. In all, 97 seconds elapsed between Sergeant Johannes‘s instruction that Deputy Volpe keep Ames from leaving the scene and Deputy Volpe‘s report that she had Ames subdued on the ground. The first baсkup unit did not arrive on the scene until a little under a minute after Deputy Volpe had subdued Ames.
The aid crew rushed to assist Briganti as soon as Deputy Volpe removed Ames from the truck. They first moved Briganti from the truck into the aid car and then drove approximately 100 yards down the street for initial assessment because they were concerned about the potential for further confrontations. Based on their assessment of the severity of Briganti‘s condition and the shallowness of his breathing, the aid crew called for a nearby advanced life support medic unit to transport Briganti to the hospital in case airwаy support was required en route to keep him alive.
Deputy Christopher Sawtelle, the first backup officer to reach the scene, arrived shortly after the aid crew had begun to treat Briganti. Deputy Sawtelle observed Ames handcuffed on the ground near the
Briganti was transported in the advanced life support unit to the emergency room at Evergreen Hospital Medical Center, located some distance away. Ames was released from her handcuffs and gave a statement to Sergeant Johannes, who had by then arrived at the scene. A photograрh of Ames taken by Sergeant Johannes at the time of her statement shows abrasions on Ames‘s right palm. Ames reported to Sergeant Johannes that she was experiencing pain in her right palm, her wrist, her right knee, and her rib cage.2 Ames then followed Briganti to the hospital to have her injuries checked. Briganti survived his overdose and no charges were filed against Ames or Briganti.
II
Ames brought a number of claims against King County and Deputies Volpe, Sawtelle, and Christian under
On summary judgment, the district court granted qualified immunity to Deputy Volpe on all but the excessive force claim (and the related state law assault and battery claims), denied qualified immunity to Deputies Sawtelle and Christian on the unlawful search claim, and dismissed the deliberate indifference claim against King County.4 Specifically, the district court ruled that it could not resolve as a matter of law whether the amount of force used during Ames‘s arrest and the scope of the search of her truck were
Deputies Volpe, Sawtelle, and Christian timely appealed the district court‘s denial of qualified immunity on the excessive force and unlawful search claims. The district court stayed the case pending resolution of the deputies’ appeal now before us. We have jurisdiction under
III
We review a denial of qualified immunity de novo, viewing the facts and drawing reasonable inferences in the light most favorable to the party opposing summary judgment. Wilkinson, 610 F.3d at 550 (citing Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). Where the district court has determined the parties’ evidence presents genuine issues of material fact, such determinations are not reviewable on interlocutory appeal. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). However, we may adjudicate “legal” interlocutory appeals; that is, we may properly review a denial of qualified immunity where a defеndant argues—as the deputies argue here—that the facts, even when considered in the light most favorable to the plaintiff, show no violation of a constitutional right, or no violation of a right that is clearly established in law. See A.K.H. v. City of Tustin, 837 F.3d 1005, 1010 (9th Cir. 2016) (“A defendant who appeals a denial of qualified immunity on the ground that his conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law has raised legal issues that may be properly heard in an interlocutory appeal.” (internal quotation marks and alterations omitted) (quoting Plumhoff v. Rickard, 572 U.S. 765, 771-73, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014))).
IV
“In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer‘s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). We may exercise discretion in deciding which of the two prongs to address first. Id.
“A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Mullenix v. Luna, 577 U.S. 7, 11-12, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). “We do not require a case to be directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). The “clearly established” inquiry, however, “‘must be undertaken in light of the specific context of the сase, not as a broad general proposition,‘” and factual specificity is “especially important in the Fourth Amendment context.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” Stanton v. Sims, 571 U.S. 3, 6, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (quoting al-Kidd, 563 U.S. at 743, 131 S.Ct. 2074).
With these principles in mind, we review whether Deputies Volpe, Sawtelle, and Christian are entitled to qualified immunity in this case. We conclude that they are.
A
Use of force is a seizure that is subject to the Fourth Amendment‘s reasonableness requirement. Wilkinson, 610 F.3d at 550. Under the Fourth Amendment, officers may use only such force as is “objectively reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Accordingly, we must determine, in light of the particular facts and circumstances Deputy Volpe faced at the scene of Briganti‘s apparent suicide attempt, whether the actions she took in subduing Ames were objectively reasonable. See Scott, 550 U.S. at 381, 127 S.Ct. 1769. We make this determination “from the perspective of a reasonable officer on the scene” and not “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Additionally, we recognize “that police officers are often forced to make split-second judgments—in circumstances that are tensе, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers, violates the Fourth Amendment.” Id. at 396, 109 S.Ct. 1865 (internal quotation marks and citation omitted).
In order to determine whether a use of force was objectively reasonable, courts balance “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests” against the “countervailing government interests at stake.” Id.; see also Scott, 550 U.S. at 383, 127 S.Ct. 1769. Proper application of the test “requires careful attention to the facts and circumstances of each particular сase, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The second of these so-called Graham factors—whether there is an immediate threat to the safety of the arresting officer or others—is the most important. See Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc).
For purposes of our analysis, we accept Ames‘s description of Deputy Volpe‘s use of force. Wilkinson, 610 F.3d at 550. Accordingly, we must determine whether, in preventing Ames from obstructing efforts to save Briganti, it was objectively reasonable for Deputy Volpe to execute three head slams and use her knee to pin Ames to the ground. Applying the Graham factors to the particular facts and circumstances of this case, we conclude that Deputy Volpe‘s use of force was objectively reasonable.
The government interest in subduing Ames here was substantial. The first Graham factor speaks of the “severity of the crime at issue,” but we think the district court applied this factor too narrowly when it focused on Ames‘s misdemeanor obstruction of Deputy Volpe rather than the nature of the ongoing emergency exacerbated by Ames‘s resistance. Deputy Volpe was аcting in her community caretaking capacity, “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” when she responded to the 911 call for help. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); see also United States v. Staf-
The second—and most important—Graham factor examines whether Ames presented an immediate danger to Deputy Volpe or others. On this record, we have no difficulty in concluding that she did. In Deputy Volpe‘s words, as Ames and the Ebys loaded Briganti into Ames‘s truck, Deputy Volpe “continued to be highly concerned for Mr. Briganti‘s immediate survival” because he “appeared completely unconscious” and “needed immediate help.” Deputy Volpe, still waiting for backup, and acting on instructions from her patrol supervisor to prevent Ames and Briganti from leaving so that the aid crew could commence treating Briganti at the scene, faced a rapidly escalating situation. After Deputy Volpe blocked Ames‘s truck with her vehicle, commanded Ames to stop, and declined to move her vehicle, Ames yelled at the Deputy to “Move your f-ing vehicle” and “Get out of my wаy” as she started to put her keys in the ignition and reached to close the truck door.
Ames admitted she was “panicked,” and testified that she “got angry” when Deputy Volpe told her she could not leave with Briganti. Deputy Volpe was concerned that Ames would further delay Briganti‘s access to urgently needed medical care. In light of these circumstances, a reasonable officer on the scene could conclude, as Deputy Volpe did here, that Ames presented an immediate danger. As a result, the second Graham factor weighs in favor of Deputy Volpe.
The third Graham factor also favors Deputy Volpe because undisputed evidence in the record demonstrates Ames was actively interfering with Briganti‘s medical treatment, physically resisting arrest, and attempting to evade Deputy Volpe by flight. Ames admits Deputy Volpe told her it was unlawful to leave with Briganti and that Ames responded by yelling obscenities and indicating her intent to drive away with him. Ames also testified she grabbed the steering wheel with her right hand when Deputy Volpe began pulling her out of the truck. Finally, Ames described being unable to give Deputy Volpe her right arm to be cuffed despite Deputy Volpe‘s repeated requests. Even if this was because Ames‘s arm was pinned beneath her body, from Deputy Volpe‘s persрective it reasonably appeared that Ames was still refusing to comply with her requests as part of her ongoing resistance to the officer‘s commands. On these facts, the use of force to effect her arrest may have been mistaken, but was not unreasonable.
On balance, we conclude the government interests at stake—here, Briganti‘s urgent need for life-saving emergency medical care and the need to protect the first responders and other motorists from potential harm—outweighed any intrusion on Ames‘s Fourth Amendment rights. We think Deputy Volpe‘s use of force in this case was reasonablе in response to the
B
Deputies Sawtelle and Christian are also entitled to qualified immunity from Ames‘s unlawful search claim under the “emergency doctrine.” We previously have recognized that officers acting in their community caretaking capacities and responding to a perceived emergency may conduct certain searches without a warrant or probable cause. See Stafford, 416 F.3d at 1073-74. To determine whethеr the emergency exception applies to a particular warrantless search, we examine whether: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search‘s scope and manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). Here, the deputies’ search of Ames‘s truck falls within the emergency exception.
Deputy Sawtelle had an objectively reasonable basis for concluding Ames‘s truck needed to be searched in order to protect Briganti from serious harm—in this instance, the life-threatening harm Briganti faced as a result of his drug overdose.5 When Deputy Sawtelle arrived on the scene in response to Deputy Volpe‘s request for backup, he understood the truck to be a possible overdose scene based on the fact that Briganti had been in the pickup prior to Deputy Sawtelle‘s arrival and his knowledge of the presence of the suicide note inside the truck. Deputy Sawtelle explained that it is common practice for officers responding to an attempted suicide call involving a drug overdose to search locations associated with the suicide victim in order to find out what drugs were used in the suicide attempt. The County‘s expert further explained: “When a patient has ingested an unknown drug or combination of drugs the need to identify toxins and other potential health hazards is a top priority and is very time sensitive.” We agree with the district court that, given what Deputy Sawtelle knew when he first arrived at the scene, he had an objectively reasonable basis for concluding there was an immediate need to search the truck to find the medications Briganti took in his overdose.
We part wаys with the district court on the question whether the scope of the truck search was reasonable to meet the need Deputy Sawtelle identified. We conclude it was reasonable for Deputy Saw-
Ames has put forward no evidence to contradict Deputy Sawtelle‘s testimony, nor to suggest he was searching her truck for any purpose other than to assist the emergency care for Briganti‘s suicide attempt. Instead, Ames claims that if Deputy Sawtelle were really motivated by such a purpose, he would have searched Briganti‘s apartment as well. This argument—in essence, that the deputies’ search was unreasonably narrow in scope—is insufficient to defeat summary judgment because it is not evidence that creates a genuine dispute of material fact. The deputies’ search of the truck in furtherance of their duties to assist in resolving an active medical emergency, including the search of the glove compartment, did not violate the Fourth Amendment.
V
Deputy Volpe‘s use of force while discharging her community caretaking function was objectively reasonable in light of the unfolding emergency with which she was faced. As the lone law enforcement officer on the scene, responsible for assuring the safety of Briganti, Ames, the first responders, and other motorists, Deputy Volpe needed to act quickly to disable the clearly panicked mother from leaving with her gravely ill son and enable the aid crew immediately to treat Briganti. The level of force Deputy Volpe employed to remove Ames from the truck and apply handcuffs did not rise to the level of a constitutional violation under these circumstances. Likewise, Deputies Sawtelle and Christian did not violate Ames‘s Fourth Amendment rights when they searched her truck in an attempt to find the medications Briganti had ingested in his overdose. The deputies’ actions were reasonable under the emergency doctrine and they are entitled to qualified immunity from suit.
That portion of the district court‘s order denying qualified immunity on Ames‘s excessive force and unlawful search claims is REVERSED and the case is REMANDED to the district court for entry of an order of dismissal.
Each party shall bear its own costs.
No. 13-70520
United States Court of Appeals, Ninth Circuit.
Submitted April 7, 2014
Withdrawn from Submission August 19, 2014
Resubmitted July 30, 2015 San Francisco, California
Filed January 18, 2017