Torres v. City of Madera

range sentencing based pie, determine by § specified an offense level 2D1.1 history category specified

and a criminal 4B1.1, § here. as occurred Waters guidelines of these

sentenced under both properly so.

provisions—and that he is therefore correct

Waters the crack part based on co-

sentenced §in 2D1.1 that guidelines

caine have now Nonetheless, ineligible he is

been revised.

for a reduction of sentence because ap-

“Amendment 706 has no effect on his Wesson, range.”

plicable guideline

F.3d at 732.

Conclusion

A reduction Waters’ sentence would with applicable policy

not be “consistent Sentencing issued

statements Com- 3582(c)(2). §

mission.” 18 U.S.C. properly

district court therefore dismissed

his motion for a reduction of sentence for jurisdiction.

lack of

AFFIRMED. Torres,

Maria in- TORRES Melchor

dividually and as Administrators Torres,

the Estate of Everardo Plain-

tiffs-Appellants, MADERA; Marcy Noriega, in-

CITY OF

dividually and as a member of the Department;

Madera Police Does 1-

50, Defendants-Appellees.

No. 09-16573. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Feb. Aug.

Filed Nichols, Brill, Young A. & Bak-

Thomas ersfield, CA, plaintiffs-appellants. for the Praet, Ferguson, Praet & Bruce D. CA, Sherman, Ana, for the defen- Santa dants-appellants. FLETCHER, BETTY B.

Before: SILER,* E. and MICHAEL EUGENE HAWKINS, Judges. DALY Circuit HAWKINS; Opinion by Judge by Judge SILER. Concurrence OPINION HAWKINS, Judge: Senior Circuit handcuffed in the back seat of While (“Everardo”) car, patrol Everardo Torres mortally wounded when Madera (“Officer Marcy Noriega No Police Officer him in the chest with her riega”) shot pistol, believing it at Glock semiautomatic gun. the time to be her Taser M26 stun family filed this survival action 1983, asserting § exces under U.S.C. sive force in violation of the Fourth Amendment, appeals and now from an ad grant summary judgment. verse Con Fourth decision sistent with the Circuit’s Purnell, Henry 2011) (en July WL 2725816 Cir. banc),1 we reverse and remand for trial. * that, Siler, ing The Fourth Circuit held Eugene E. Circuit arrest. The Honorable Senior Circuit, sitting by designa- Judge viewing light favor- for the Sixth the evidence in the most nonmovant, tion. the officer's actions able to the objectively and further- There, were not intending deploy a Taser an officer prohib- law more violated device instead drew and fired his service deadly against suspects suspect iting the weapon, wounding unarmed flee- use force mass, AND put

FACTS PROCEDURAL Everardo’s center her left hand gun, pulled trigger, HISTORY under all looking without at the her hand. Background2 I. safety She had turned off the to her Taser responding course of to a com- the evening, enabling earlier that her to use it 27, 2002, on plaint of loud music October quickly. parties agree more The that Offi City Madera Police officers arrested Ever- Noriega had intended to reach for her Mejia (“Mejia”), ardo and Erica hand- Taser, kept thigh which she in a holster them, placed cuffed and them in the back immediately below her holstered Glock on patrol approximately of a car. After seat side, right her dominant and that she had thirty forty-five (during minutes which intended to her use Taser dart-tase asleep), Mejia time Everardo had fallen than rather touch-tase mode.5 Everardo from the car replaced was removed and evening died later that from gunshot the another arrestee. Everardo awoke at this wound. began yelling kicking time and and the This was not the first time Officer No inside, though par- rear car door from riega mistakenly had wrong drawn the dispute yelling, whether he was “Get ties weapon, though never before with such car,” simply me out of the that his consequences. dire The City Madera Po tight. handcuffs were too Department lice first issued Officer Norie Noriega, Officer one of several Taser, ga it, and certified her to use evening, standing officers site sometime the winter of less than directly patrol a few feet behind the car year one before shooting. Everardo’s Her first yelling. when she heard Everardo training certification a single consisted of telling recalls her fellow officers that She class, three-hour during which she fired whoever was closest should tase Everardo weapon only given once. She was injure because he could himself if he right-side holster for her Taser in and it through glass kicked window. As just it structed to wear below her Glock. out, Noriega turned herself was There was no during discussion this train closest, Upon she the car. approached so ing session a recent incident in which a door, reaching the rear driver’s side she Sacramento had mistaken his hand it opened with her left hand.3 She then gun for his Taser.6 right reached down with her hand to her side, holster, Nonetheless, right her unsnapped removed soon came Glock, weapon’s experience aimed the laser4 firsthand the risk of confus- pose significant by Mejia's deposition who no threat of death or are contradicted testi- physical injury Henry, mony. serious to others. 533-35, 536-37, 2011 WL Noriega's 4. Both Officer Glock and Taser *6, *8. equipped laser-sighting were with devices. appeal 2. Because this comes to us on sum- MacPherson, generally Bryan 5. See mary judgment, accept plaintiff’s version (9th Cir.2010) (describing & nn. 2-4 Estrada, of facts as true. See Liberal v. type applied and amount of force (9th Cir.2011). 1068 n. 1 mode). Taser used in dart-tase yelled weapon 3. Officer instance claims she This confusion occurred warning stop kicking subject at Everardo to or he on March 2001 and became the tased, stop would be but that he did not a different lawsuit. See Yount Sac- ramento, opened Cal.Rptr.3d kicked the car door into her as she it. 43 Cal.4th facts, (2008). Family disputes these which 183 P.3d my gun “I would have both ing and of as follows: weapons, both all-black the two ing The first incident I weight. my in their holsters. And similar size and taser half month and a after taser, about a occurred I my would draw and then would the Taser when she was first issued my my thinking gun. draw And mind jail weapons her back putting was at a taser, taser, taser, gun, gun, taser. Just mistakenly put her holsters. She their draw, draw, way so I would practicing holster, realizing her into the Taser Glock In the five or so times she used draw.” right” did not “sit error when the field, again in the never did she her Taser about wrong holster. Concerned weapons, night until the confuse her two mistake, sergeant, she notified shooting. previous all occa- On Lawson, instructed her who to Sergeant sions, however, only she had touch-tased in proper each its practice putting subjects, required the which her first to drawing them. practice to holster and safety cartridge. remove the Taser’s Nev- later, Noriega Officer one week Just anyone, er before had she dart-tased as dur- weapons, her this time again confused she had intended to do to Everardo. Seeking call. to touch-tase a ing a field who refused kicking fighting suspect and History II. Procedural car, patrol seat of a get into the back parents, Maria and Melchor pulled out her Noriega Officer instead (“the Family”), Torres Torres as adminis Only unsuccessfully when tried Glock. she estate, brought of his this action trators cartridge, to remove the which would have § 42 asserting under U.S.C. viola not a present been on her Taser but was tion of Everardo’s Fourth Amendment Glock, did she realize she feature on her right against unreasonable seizure and holding wrong weapon “and it was was seeking damages Noriega.7 from Officer head, pointing partner’s at[her] initially granted The court district Officer pointing laser was at his head.” [Glock’s] summary Noriega’s judgment, motion for by this second incident of Frightened determining by Everardo not “seized” narrowly weapon confusion and how Noriega’s her unintended use of mistake, potentially fatal she had averted no Glock therefore Fourth Amend Lawson, again Sergeant informed ex- ment violation occurred. my plaining pulled gun that she “had out reversed, thinking my Again, interlocutory appeal, it Taser.” Ser- On geant keep instructed her “to concluding Lawson under the Ninth Circuit’s practicing doing doctrine, like he’s been longstanding “continuing seizure” having everybody he’s do.” meaning Everardo was seized within Fourth Amendment the time months, leading up For the next nine Madera, shooting. Torres v. 524 day tragic shooting, of Everardo’s Offi- (“Torres Cir.2008) in- sergeant’s cer followed I”).8 Noriega’s We held con structions, practicing drawing her two governed by duct was therefore Fourth daily, weapons both before work and dur- analysis, and Amendment reasonableness ing throughout downtime each shift. Offi- daily cer described her self-train- we remanded for the district court to con- plaintiffs' throughout in the None of other claims are at issue ues the time the arrestee is custody here. arresting Robins v. officers.” Harum, (9th Cir.1985). “continuing adopt approach. See Tor provides Not all circuits this seizure” doctrine occurred, I, that "once a seizure has it contin- res 524 F.3d at 1056 nn. 3 & 4. DISCUSSION instance whether Officer in the first sider using her Glock rath- “ mistake Noriega’s Qualified immunity ‘an is entitle objectively unrea- Taser was than her er ment not to stand trial or face the other ” Everardo sonable, only then would Katz, litigation.’ Saucier v. burdens injury. Id. a constitutional have suffered at 1056-57. (2001) (quoting L.Ed.2d 272 Mitchell v. Forsyth, 472 U.S. remand, court found Offi the district On (1985)), abrogated part L.Ed.2d 411 as a was reasonable mistake Callahan, grounds on other Pearson she was matter of law and determined 808, 817-18, any event qualified entitled to (2009). Accordingly, L.Ed.2d 565 we must have been clear to a because it would not “immunity questions resolve at the earliest that a mistaken Pearson, stage litigation.” possible force violated the Fourth Amend use of at 815. Family again appeale ment. The d.9 An officer will be denied (1) § only in a 1983 action if the alleged, light facts taken in the most favor OR REVIEW STANDARD party asserting injury, able to the show that the officer’s conduct violated a consti summary of grant A district court’s (2) right, right tutional and the at issue novo, is reviewed de as is its judgment established at the time of the an ac- of whether officer’s determination incident such that a reasonable officer immunity. entitle her to tions would have understood her conduct to be Park, City Ramirez v. Buena 560 F.3d of Saucier, unlawful in that situation. 533 (9th Cir.2009). 1012, Summary judg- 1019 201-02, 2151; at 121 v. U.S. Liberal if, only taking the appropriate ment is Estrada, 1064, 632 F.3d Cir. all reasonable inferences evidence and 2011). “development To assist the of con favor- light drawn therefrom the most precedent,” we exercise our stitutional non-moving party, there are no able to the “sound discretion” to follow Saucier’s con material fact and the genuine issues of two-step procedure ventional and address judgment as a moving party is entitled Family al first whether the Torres has Bennett, of law. Corales v. matter right. violation of a constitutional leged the (9th Cir.2009). 554, the Where Pearson, 129 See an objective reasonableness of officer’s of materi- disputed conduct turns on issues I. of Violation Constitutional fact, it “a of fact best re- question al is Right by jury,” v. Oak- solved Wilkins of Legal A. Standard (9th Cir.2003); land, 949, 955 only disputes in the absence of material is objectively An unreasonable use of Harris, law,” pure question constitutionally it “a Scott v. vio force is excessive and 8, 1769, 372, prohibition 381 n. 127 S.Ct. 167 lates the Fourth Amendment’s 550 U.S. (2007). seizures. v. against unreasonable Graham L.Ed.2d 686 18, jurisdic- We judgment in vember therefore have 9. The district court entered final § and notwithstanding § of defendants on the 1983 claim favor tion under 28 U.S.C. appeal pursuant to certified this matter for remaining pendency state law claims. 54(b) Procedure on No- Federal Rule of Civil 386, 394-96, Standing in the Connor, 109 S.Ct. shoes the “reasonable 490 U.S. officer,” severity (1989); we then ask whether the Tekle 104 L.Ed.2d 443 States, applied of force was balanced the need Cir. United considering totality 2007). for such force Determining the reasonableness (1) circumstances, including fact-inten- the severi- highly is a an officer’s actions (2) issue, ty per are no se of the crime whether for which there sive task Scott, posed an immediate threat to the suspect 127 S.Ct. rules. (3) others, safety of the or “police officers officers recognize 1769. We judg- suspect actively resisting split-second make whether are often forced to tense, attempting arrest or to evade arrest that are ments—in circumstances Graham, flight. uncertain, evolving U.S. rapidly —about 1865; Cnty., in a necessary is Sacramento amount of force Blanford (9th Cir.2005). Graham, situation,” at F.3d particular judg- and that these Analysis B. by errors ments are sometimes informed surrounding actual perception of the question that confronts us now facts. is whether Officer conduct mistakenly applying deadly force to Ever perception Not all errors objectively ardo was unreasonable under however, judgment, are reasonable. While totality of the circumstances. Jen judge we do not the reasonableness of sen, held that officer’s actions “with the vision of 20/20 [i]f, complaint, in the alleged [the as is 1865, 396, hindsight,” id. at 109 S.Ct. nor defendant] shot Officer Jensen forgive does the Constitution an officer’s a three times the back from distance every Maryland mistake. v. See Garri of three feet in conditions in which he son, 79, 1013, 11, n. 480 U.S. 87 107 S.Ct. recognize should have been able to that (1987). Rather, 72 we adopt 94 L.Ed.2d figure shooting he was was a fellow “the of a officer on perspective n officer, a such use of force would be ... in light the scene of the facts and unreasonable. confronting circumstances Gra [her].” added). ham, 396, at 109 145 at (emphasis 490 U.S. S.Ct. 1865. Simi here, particular larly an officer’s use of force if knew or Where fact, on a should have that she is based mistake ask known Taser, have or held was a Glock than a whether reasonable officer would rather and accurately that fact. had that about perceived should have thus been aware she was to Oxnard, unarmed, discharge deadly v. 145 F.3d force on an Jensen (9th Cir.1998) (mistaken shooting non-fleeing pose arrestee who did not significant physi fellow officer was unreasonable if it threat of death or serious others, injury in which the officer cal to then her application occurred conditions that recognize should have been able to force was unreasonable. See Tennes Garner, him); Wilkins, 1, 3, 105 figure before see also 350 see U.S. (1985). Garrison, (same); F.3d at 955 480 U.S. 85 L.Ed.2d 1 That she intended to cf. (validity consequence apply 107 S.Ct. 1013 of warrant- lesser force is of no inquiry, objective less search that from a mistake of our reasonableness resulted premises regard turned on whether the officers must be determined “without known, intent or motiva underlying “had or should have known” about [the officer’s] error). Graham, precipitating the condition tion.” 490 U.S. weapons Just as officer’s evil intentions confusion prompted “[a]n had her to not make a Fourth Amendment viola-

will practice drawing weapons, she lacked objectively of an tion out reasonable use of training “formal potential this mistake force[,] good nor will an officer’s intentions weapons if both were worn on the domi- objectively make unreasonable use of (3) side”; nant and Everardo’s conduct in (citing force constitutional.” Id. Scott v. kicking the door into Officer Noriega as States, 128, 138, United opened it “forced” her to “make a (1978)). 1717, 56 L.Ed.2d 168 split-second judgment tense, in a uncer- guide To the determination of whether tain, rapidly and evolving situation about should have known she firing weapon.” The district court con- holding wrong weapon, we identi- cluded that “[a]ll factors least tilt to- fied five factors for consideration finding ward [Officer] mis- I: take was reasonable.” (1) training the nature of the the officer summary The standard on judgment re to prevent had received incidents like requires view that we “draw all reasonable (2) happening; this from whether the inferences in favor Family], of[the Torres officer acted accordance with that nonmoving party,” prohibits us (3) training; following whether from “substituting] judgment [our] con training would have alerted the officer cerning weight of the evidence for the (4) holding a handgun; [s]he was jury’s.” Raad v. Fairbanks N. Star Bor height- whether the defendant’s conduct Dist., ough Sch. 323 F.3d the officer’s of danger; ened sense Cir.2003); see also Hauk v. JP Morgan (5) whether the defendant’s conduct USA, Chase Bank 552 F.3d 1123-24 caused the officer to act with undue (9th Cir.2009) (citing Liberty Anderson v. inconsistently haste and with that train- Inc., Lobby, ing. (1986)). 91 L.Ed.2d 202 Because the Purnell, (citing Henry reasonableness “nearly always standard Cir.2007)). requires jury through disputed to sift The district court considered these fac- contentions, factual and to draw inferences (1) tors and Noriega found: Officer “did therefrom, many we have on held occa act inconsistently prac- with what she had that summary judgment judgment sions or (2) [Everardoj’s ticed”; “to the extent own a as matter of law excessive force cases conduct a heightened created sense of dan- granted sparingly.” should be Santos v. ger, that danger sense of was focused on Gates, (9th Cir.2002) [Everardoj’s himself, danger any to not Riverside, (citing Cnty. Liston of personal danger Noriega [Officer] felt for (9th Cir.1997)). 976 n. 10 safety others”; her own safety or the (3) there was a “lack of evidence from Here, jury a reasonable weigh could Noriega actually [Officer] that she felt significance of Noriega’s Officer risk danger that hastily.” she had to act daily awareness and practice differently way from the in which the district court

Nevertheless, the district court chose to weighed First, those factors. to the extent factors, relying discount these instead the district court found it relevant that (1) following findings: Officer Norie- Officer formal Noriega’s training contained ga’s training formal minimal and con- weapon no discussion of the risks of confu- tained no discussion of “other incidents sion, jury a reasonable could that weapons”; where officers confused their find (2) although previous her two instances of experiences Officer two confus- of materi genuine But a issue should have S.Ct. 1865. and the Taser

ing the Glock involved, even as to whether this was the to the risks al fact exists alerted her Second, it while evolving” discussion. situation to type “rapidly formal absent the first weight” to “give[ much Noriega ] did not referred. Officer which Graham incident, even the dis- weapon confusion that Everardo’s conduct did not testified that “this inci- acknowledged trict court safety for her own or cause her to fear general a confusion dent does show only others. Her stated concern that of having weapons both Noriega [Officer] a well-being, for Everardo’s own but Third, side.” on the dominant holstered question the reasonableness of jury might impor- court minimized the district 1,200 electricity10 choosing to send volts daily Noriega’s “informal” tance of Officer alleged when the concern through person a distinguishing it from “formal practice safety. person’s is for that explaining the relevance training,” without addition, finding instead which arbitrary distinction—one of such “forced Norie [Officer circumstances I. not intend to invite we did judgment” a ga] split-second to make drawing Noriega’s daily practice firing weapon, jury about reasonable pursuant weapons the two was conducted judg poor could conclude that her own instructions, and, Sergeant Lawson’s as to preparedness lack of caused her ment and Family argues, the definition of the Torres See, e.g., to act with undue haste. Deorle necessarily “training” require does not su- Rutherford, 272 skill, and can include “the knowl- pervision Cir.2001) (distinguishing where Graham by ... in- edge, experience acquired to opportunity officer had observe sus struction, discipline, or drill.” Merriam pect period “for a considerable of time Dictionary Collegiate Webster’s him,” prior firing “opportunity to to ed.2004). jury Accordingly, reasonable concerning with fellow officers consult” totality from of this could conclude employed, and a clear line of tactics be had trained evidence escape). being fleeing suspect Far from specifically prevent nine months inci- danger may to others be whose risk of like this from dents of confusion ascertain, hand hard to Everardo was not act in accor- happening, she did sitting cuffed and the back seat of a on the practiced dance with what she had car, patrol and Officer both knew evening shooting, and that Everardo’s kicking that he was the door and intended so, done death could had she him ap to tase when she first started to have been avoided. Thus, proach the car. it is unclear wheth jury A could also differ from changed way er conduct in a Everardo’s weighing the court in the contribu district evolving” “rapidly that created conditions tory of The dis role Everardo’s conduct. require Noriega such as would Officer to trict court reasoned Officer change her course of conduct mid-stream. daily prepare did not her to avoid practice Noriega weapon drawn her Had Officer “tense, uncertain, weapon confusion the door, opening jury the car could rapidly evolving” circumstances before that the conditions would have been infer she encountered in the field that October practice much more akin to her conditions. night, finding that Everardo’s conduct there genuine dispute, There remains a kicking Noriega the door into Officer as fore, as to whether opened it her sense of dan she escalated Graham, 396-97, have waited to draw her ger. position 109 her would See U.S. Taser). voltage Bryan, (describing of delivered See 630 F.3d at 824 n. 4 the amount Qualified Immunity II. beginning open until to the weapon after door, unnecessarily creating her perhaps We must next consider whether Officer urgency. own sense of Noriega qualified is nonetheless entitled to Finally, the district court seemed immunity alleged because the unlawfulness swayed by the lack of evidence Officer clearly of her conduct was not established shot Everardo Noriega’s mistake when she “inquiries as October for the anything other than an honest one.” “was qualified immunity for and excessive force however, Graham, earlier, noted under As Saucier, remain distinct.” U.S. whether the mistake was honest one is 121 the While constitutional concern, only not the whether it was prong violation concerns reasonable- Graham, 490 reasonable one. See U.S. fact, ness of the officer’s mistake Taking into account 109 S.Ct. 1865. prong concerns the rea- facing all and circumstances the facts Offi- of the sonableness officer’s mistake law: at the time of the mistaken The concern of the inquiry is jury shooting, a reasonable could find that acknowledge that reasonable mistakes her mistake was unreasonable because her legal can be made as to the constraints prior weapon own incidents of confusion particular police on conduct. It is some- put repetition, her notice of risk times difficult for an officer to determine daily practice drawing weapons at her doctrine, how the relevant legal here sergeant’s equipped instruction her with force, excessive apply will to the factual incidents, training to avoid such situation the officer confronts. An offi- non-exigent surrounding circumstances cer might correctly perceive all of the deadly shooting did not war- relevant facts but have a mistaken un- hasty heightening rant such conduct derstanding particular as to whether a Wilkins, risk of error. Cf. legal amount is those circum- offorce Jensen, 955; F.3d at 145 F.3d at 1086. stances. If the officer’s mistake as to Here, dispute there is no that Everardo reasonable, requires what the law is offense, had no though committed serious however, the officer is entitled to the out, acting no posed immediate threat immunity defense. Noriega’s safety or that anyone Saucier, 121 S.Ct. 2151 else, and, far from “attempting to evade added); Wilkins, (emphasis see also by flight,” sitting arrest handcuffed in (at F.3d at 955 step, second the court a patrol the back seat of car. The amount inquire must “whether the officer was rea- ultimately applied of force awas lethal sonable his belief that his conduct did handgun. shot from a semiautomatic Constitution”); not violate the Curley v. Thus, jury if a were to find Officer Norie- Klem, (3d Cir.2007). ga’s holding mistaken belief that she was Thus, purposes of determining whether her Taser rather than her Glock unreason- is entitled to im- able, her use of force in this situation was munity prong, under Saucier*s second excessive and violated Everardo’s Fourth “correctly perceived assume all of the rights. Amendment Because there remain relevant facts” and ask whether dispute material factual in on issues which reasonably could have believed at the time jury finding, a could make such a actually that the force used lawful was Family properly alleged has under the circumstances. a right, violation of constitutional and sum- of case fall in mary judgment based on failure to do so The facts this do not “ improper. ‘hazy was ac- border between excessive and 1128 ” Cir.2007) (denying qualified matter. legal as a See

ceptable force’ 201, 194, 543 U.S. Haugen, suspect’s nondangerousness Brosseau where and of- (2004) 596, (per L.Ed.2d 583 125 160 S.Ct. shooting ficer’s failure to warn before curiam) Saucier, at 533 U.S. (quoting “within the placed squarely case obvi- 2151). This is not a case a where ous”). Noriega applied deadly may may not suspect’s actions fleeing unarmed, nondangerous to an force sus- probable cause to believe have established and there could be no reasonable pect, See, danger e.g., to others. id. posed he a pro- mistake that this use of force was (not 200-01, clearly es Wilkins, scribed law. See 350 F.3d at a shooting that disturbed felon tablished 955. jeop car chase high-speed of a the course court The district nonetheless deter- others violated the ardizing safety of mined Officer entitled to was Amendment); Blanford, 406 F.3d Fourth qualified immunity in 2002 because law (not clearly using established that clearly did not establish that an unreason- sword, carrying man a deadly against force able mistaken use of force violated the instructions, officers’ who did not heed Fourth Amendment. But in we de- breaking to be into a resi appeared who holding clearly cided a case it established dence, and whom officers feared was a safety allegedly violated the Fourth that an threat to others’ unreasonable mistake Amendment); Markgraf, A.D. v. identity resulting deadly the use of force cf. Cir.2011) (not clearly against a fellow officer violated that split-second that decision to right. officer’s Fourth Amendment See in the course deadly high- use force of a Jensen, Garrison, 1086-87; 145 F.3d at cf. chase, suspect using speed where (lawful- 85-86, 480 U.S. at 107 S.Ct. 1013 car the conscience in weapon, as shocked wrong apartment ness of search of turns process). violation of substantive due factual reasonableness officers’ mis- take); California, Hill v. Rather, this is a case where the 803-04, arrested, 28 L.Ed.2d handcuffed, suspect already (1971) (same a patrol wrong and in the back seat of car. for arrest of individu- al). that suggestion There is no Everardo was principle We later reaffirmed this armed, fleeing, that or that he was he identity, holding another case of mistaken posed any anyone a threat officers or clearly January 11, it established as of locating else. While the outer contours of Wilkins, 350 F.3d at See may the Fourth Amendment times be cases, both we focused our murky business, things few our case law immunity inquiry not on what the officer are the principle as established as do, intended to but on the level of instead unarmed, may that an officer not “seize an actually force used. nondangerous suspect shooting him materially are Jensen and Wilkins indis- “probable dead” the absence cause to tinguishable purposes from this case for [fleeing] suspect poses believe qualified immunity. Although those two harm, threat of physical serious either to identity, cases involved mistakes where- Garner, the officer or to others.” weapon, as here deal with a mistake of 1694; Brosseau, accord required prior case “on all we have never (reaffirm 197-99, 125 543 U.S. at S.Ct. 596 particular manifesta- prohibiting fours ing the rule of and explaining Gamer tion of unconstitutional conduct” to find a provides it sufficient “fair of a warning” Deorle, “clearly cases); right established.” constitutional violation in “obvious” 1286; Creigh- Speers, Adams v. F.3d at see also Anderson 640, 3034, ton, 635, 2002,” 107 S.Ct. 97 ed the Fourth Amendment in Offi- (1987); Mitchell, 472 U.S. at L.Ed.2d cer Noriega is still entitled to 2806; Bryan, 535 n. 105 S.Ct. 630 F.3d immunity because “the law remained un- Baca, 833; 431 F.3d at Moreno clear on if how to determine a mistaken (9th Cir.2005). contrary, To the we have use force was reasonable or unreason- repeatedly stressed that officials can still proper able.” But this is not the “level of warning” have “fair that their conduct vio- generality at which the relevant ‘legal rule’ lates established law “even novel factual [defined],” Anderson, is to be 483 U.S. at Pelzer, circumstances,” Hope 536 U.S. 639, were, 107 S.Ct. for if it then 153 L.Ed.2d 666 qualified immunity would foreclose trial (2002), “a and even when novel method is in any objective case where the reason- Block, injury,” inflict used to Mendoza v. ableness of the officer’s conduct turned on (9th Cir.1994). See, 27 F.3d disputes material of fact. The standard Deorle, (officer e.g., F.3d 1285-86 judging objective for reasonableness of when, right violated a an long officer’s actions has been re- warning, without he shot a lead-filled bean- today mains “totality of the circum- bag mentally round in the face of a or totality stances.” The of the circum- disturbed, emotionally unarmed man who stances, however, will inevitably vary from offense, had committed no serious and who case, case to and the five factors we identi- posed flight danger no to the risk fied in I merely are some of the Fiorino, others); officers or Oliver v. circumstances we found relevant here. (11th Cir.2009) (same 907-08 for repeatedly a compliant, officer who tased require granular Were we to such speci- crime, suspected any unarmed man not ficity prong, under the second Saucier factually even in absence of case law effectively would of all meaning wrench point). Supreme Court’s admonition that “offi- can cials still be on notice that their con- Wilkins, that,

In Jensen and we held duct violates established law even novel had the defendant officers realized that the Hope, factual circumstances.” 536 U.S. at targets they were about to shoot were 741, 122 S.Ct. 2508. While the test of rather than fellow officers armed civilians, right “clearly whether a is established” they reasonably “could not have deadly important believed the use of force was law- must not be so broad that the Jensen, 1087; ful.” qualified immunity see Wil- shield of is rendered kins, here, Anderson, 955. Likewise had meaningless, U.S. realized that she was nor can it be so narrow chest, pointing a Glock at Everardo’s that the is from transformed one reasonably “could not have been mistaken “qualified” nature to one absolute. as to the actions.” legality Wil- [her]

kins, 350 F.3d at 955. Jensen and Wilkins CONCLUSION adequately put Noriega on notice that an unreasonable mistake the use of jury might ultimately While a find Offi- unarmed, deadly against an force nondan- mistake of to have gerous suspect violates the Fourth Amend- reasonable, inappropriate been it was ment. court district to reach this conclusion disputes in the face of material of fact. At

The district court nonetheless reasoned stage proceeding, if that an this of the Officer Norie- the law was clear “[e]ven quali- violat- ga unreasonable mistaken use of force has not shown entitlement to (en banc) found majority Henry in summary judgment immunity, fied granted. clearly Tennessee v. improperly established law from was therefore Garner, and REMANDED. REVERSED (1985), that an officer who L.Ed.2d SILER, concurring: Judge, Circuit fleeing suspect violates the sus shoots a if rights there pect’s Fourth Amendment majority opinion herein. I concur in the that the probable cause to believe was no original However, I was on the because threat of death Henry suspect posed significant in v. Fourth Circuit panel in the (4th Cir.2010), Purnell, va- injury F.3d 323 to the officer or others. physical Purnell, by Henry v. superceded Moreover, in majority cated this case Id. 524, 2011 WL 2725816 Cir. 652 F.3d clearly was the suggests bar Gamer 2011) (en banc), explain I should July law at the time of the conduct established that the officer was why agreed Henry I in prepared go in our I am not case. immunity, but the offi- entitled to so, far, and I think we need not do because protec- not in this case does have from and Jensen precedent Wilkins tion. clearly established the federal law for the states, majority correctly police As the to be followed in this case. Ninth Circuit qualified immunity is entitled officer’s conduct §a 1983 action unless the right, a constitutional and the

violated clearly

right at issue was established the incident so that a reason-

the time of

able officer would have understood in that

conduct to be unlawful situation. Katz, 194, 201-02,

See Saucier (2001). 150 L.Ed.2d America, UNITED STATES Plaintiff-Appellee, my opinion, In unlike the case law the Fourth Circuit the time of the conduct in effect in the Ninth Henry, law in this case was CASTELLANOS-BARBA, Circuit Fernando Oakland, City 350 F.3d Wilkins v. Castellanos, Rafael Barba a/k/a a/k/a (9th Cir.2003), and Jensen v. Franco, Rigoberto Javier Castel- a/k/a Oxnard, Cir. lanos, Ramirez, De- Jose Orozco a/k/a 1998). Jensen, it was both Wilkins and fendant-Appellant. in which one officer anoth- a situation shot No. 10-1238. thinking er the officer who was shot was Thus, someone else. both were situations Appeals, United States Court fact, which the officer had mistake Tenth Circuit. thinking the victim was a criminal offend- er. July

Moreover, bar, person in the case at killed, Torres, already

who was se- in the In con-

cured and cruiser.

trast, Henry the circumstances were that custody being pursued

was not but was Purnell,

on foot had an who Henry.

arrest warrant for

Case Details

Case Name: Torres v. City of Madera

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 22, 2011

Citation: 648 F.3d 1119

Docket Number: 09-16573

Court Abbreviation: 9th Cir.