*1 Now, and him gentlemen, finger- rights ladies of his under the Sixth Amend- obviously are an area some prints ment. specialized training, is

expertise, some required. why they people That’s have CONCLUSION them, go compare trained to out and above, explained For the reasons we them, analyze things they to do the do. reverse the denial of the petition and re- expert, I’m not an Counsel] [Defense mand to the district court for an evidentia- expert, probably you not an none are ry hearing to determine to the answers experts. opinion. identified this questions expert What we have had is an with a long history long experience get up and PART; AFFIRMED IN REVERSED testify say and doubt there is no IN PART and REMANDED.

that there is a match.

Now, prosecution is on the the burden prove

to its And I believe the case. that.

prosecution clearly has done But argu-

when the defense attacks these

ments, words, just puffery. that’s that’s have made the What would difference? ROBINSON, F. James Plaintiff- The difference would have been had the Appellant, expert gotten defense called an who had up on that stand said to- COUNTY; Cauwells, Brian SOLANO Honor, I’m [Defense Counsel]: Your County Deputy Solano Sheriffs Offi objecting. improper argument, That is cer; Gary Faulkner, Solano attempt

and that’s an shift the bur- Deputy Officer, Sheriffs Defendants- den. It’s contravention to 260 and 261 Appellees. relying which the defense people’s state of the evidence. No. 99-15225. reflect, clearly The record does not how- United States Appeals, Court of ever, attorney whether Schell’s in fact con- Ninth Circuit. sulted a fingerprint expert and whether gave report. Al- expert favorable Argued and Submitted Feb. though right Schell does not come out and July Filed him, attorney accuse lying his imply claims that this is the case. Without Sept. As Amended information, however, fully developed we are unable to determine whether Schell’s

attorney adequately prepared for trial and

effectively represented during Schell

stage of the proceedings. We therefore

remand this issue the district court with evidentiary

instructions to include

hearing closely related issue of wheth-

er Schell’s trial competently counsel acted and, not, -respect, this if whether the prejudiced

deficiencies Schell’s trial. We

respectfully request in the interest of

bringing litigation to a conclu- prompt

sion that this determination be made even

if the trial court should determine that the

conflict of which complains deprived Schell *3 Oakland, California, M. Simpich,

William plaintiff-appellant. for the Porter, Scott, Cassidy, Terrence J. Wei- Sacramento, Delehant, California, berg & defendant-appellee. for the conversation, FLETCHER, CANBY, after which Robinson and heated Jr. Before: O’SCANNLAIN, home. Judges. returned Circuit Reyes back into her Ms. went house FLETCHER; by Judge Opinion police. sent out phoned by Judge O’SCANNLAIN. Dissent a man dispatch regarding carrying radio FLETCHER, Judge: Circuit shotgun just dogs who had shot two yelling “is in the middle of the street brought suit James F. Robinson officers, appellee time.” The as well Brian County and Officers Cau- Solano officers, re- as a number of other ar- Gary alleging Faulkner false wells and to the call and sponded parked rest, and the use of imprisonment, false proper- road in front of Robinson’s public arresting him. Robin- excessive force *4 ty- pre- appeals from the district court’s son summary for the grant judgment

trial Robinson, apparently who was at that on the state law defendants-appellees with wife discussing moment his the need magistrate judge’s post- claims and authorities, saw vehi- police to call the six a matter law grant judgment trial pull up cles outside his home. He decided force claim. We on the federal excessive go explain to the incident to them. Wear- remand for a new trial. reverse and pair shirt and a ing an unbuttoned jeans, Robinson walked the 135 feet from and Background I. Factual his front door to the street. He asserts History Procedural officers were able to see him that Robinson, F. Plaintiff-Appellant James they his approach, and that observed that American, is a retired San an African was calm. He also states that demeanor police Francisco officer. When the events as he kept guns the officers their holstered place, at issue in this case took he was 64 and Faulk- approached. Officers Cauwells years old. however, ner, ap- contend that Robinson they peared agitated, and that unholstered on a Robinson lives a farmhouse set seeing him. guns upon their first in the semi-rural area of parcel five acre Fairfield, California, he raises live- street, neared the Officer As Robinson cattle, ducks, including turkeys, stock Cauwells, police with the who had been and chickens. He has fenced his geese, nine months at that approximately property keeps shotgun protect and time, him. Robin- walked forward to meet morning his livestock. he saw two One said, I’m “My name is Robinson and son killing his livestock. dogs attacking and dogs.” involved with the the man that was shotgun He took his and shot both out his pointed officer Cauwells point, At the other. dogs, killing wounding one and head from a distance gun at Robinson’s looking then went for the wound- Robinson took six feet. Officer Faulkner also about public His took him to the dog. ed search gun pointed his and it at Robinson. out fronting property, road his and he walked his hands put told Robinson to Cauwells along the road car- approximately 50 feet putting was over his head. As Robinson rying shotgun. he asked the officers “What’s up, his hands answering ques- going on?” Without looking Robinson was on the road

While tion, command and repeated his Cauwells dog, neighbor Reyes, for the Sarah forward, to Robin- stepped according and dogs, came out of her house. owner of the son, from three or four feet thrust his Robinson, standing According to he was police offi- head. As a former Robinson’s Reyes approximately 160 feet from Ms. cer, aware of the immediate Robinson was yelled dogs. when she to him about the danger posed by gun pointed dogs, physical angry was that he had shot her She range; blank he testi- point his head from explain that he did not and he tried fied that he feared for his life. dogs were hers. The two had know claim, holding named in this the federal excessive force officers not Two immu- they were entitled to shoved him Robinson and suit handcuffed nity. patrol car.1 seat of into the back car grant summary Robinson was confined appeals Robinson judgment on the state law claims and the Reyes to Ms. officers talked while the judgment as a matter of law on grant approx- was The interval neighbors. other claim. the federal excessive force Both agree minutes. sides imately 15-30 explain attempted that Robinson II. Jurisdiction and Standard of Review officers, they re- but situation to jurisdiction The’ court had district to him. The officers re- fused to listen §§ to 28 1331 and 1343. pursuant U.S.C. they after ascertained leased Robinson jurisdiction pursuant court has to 28 This law. had not violated the that Robinson § 1291. We review a district U.S.C. no time—from asserts that at Robinson as a post grant judgment court’s trial original detention to release —did Marcy matter of law de novo. See any weapons, him for officers search (9th Airlines, Delta officers, carrying he was none. Cir.1999). We also review a district hand, they searched other testified de grant summary judgment court’s However, Reed, parties agree Robinson. novo. See Robi v. *5 — (9th Cir.), denied, U.S. —, cert. 120 failed to notice that Rob- that the officers (1999). 375, 145 S.Ct. L.Ed.2d 293 utility knife attached wearing inson was a belt, they never removed the to his Qualified Immunity III. person. parties The also knife from Magistrate Judge Nowinski found that that none of the officers ever asked agree entitled to im- qualified officers were his version Robinson for a statement of munity force from Robinson’s excessive the events. they dependable claim because “have no charged Robinson was never with guidance upon the constitutional limita- that that happened crime for the events tions, any, upon display if a mere threat or day. He filed a federal court complaint a of force effect seizure.” federal alleging both state and claims “ Qualified immunity ‘shield[s] and Solano against the individual officers liability [government agents] from for civil County. Judge Chief District Karlton damages insofar as their conduct does not granted summary judgment with partial clearly statutory violate or con established against respect to all claims Solano rights stitutional of which a reasonable ” against and all state law claims the individ- would have known.’ v. person Behrens However, ual the district defendants. Pelletier, 299, 305, 834, 116 S.Ct. grant summary judgment court declined to (1996) v. (quoting 133 L.Ed.2d 773 Harlow 800, 818, against on the 1983 claims Fitzgerald, 457 U.S. 102 S.Ct. (1982)). 2727, L.Ed.2d 396 73 To evaluate stipulated to parties officers. The then claim, a we follow jury trial on federal claims before 1) two-step analysis: we ask whether the Magistrate Judge Nowinski. law governing official’s conduct was jury length The found that the of Robin- 2) established; so, clearly if we ask wheth reasonable, son’s detention was but divided er, law, that under reasonable officer of whether the question four to four have the conduct could believed was law was rea- employed seize Robinson States, ful. Katz v. 194 F.3d See United jury sonable. After the had deadlocked (9th Cir.1999) (citing 967 Somers dismissed, Magistrate Judge and was (9th Cir.1997) Thurman, 109 F.3d 617 granted appellees’ Nowinski Rule 50 Up!/Portland Bagley, and Act 988 (9th Cir.1993)). judgment motion for a matter of law appeal complaint alleged Robinson does that rul- that the hand- claim and not Robinson’s However, cuffing involved force. excessive ing. district handcuffing court dismissed down, A. Clearly Established Law thrown but he does assert that the “ officers’ actions they demonstrate right ‘clearly In order for a to be ” posed knew that he no risk of harm prior established’ its “contours' must be suffi ciently clear that the time of the al to their [at use of force. These different cir leged a reasonable official would conduct] change analysis cumstances do not our doing understand that what he is violates put whether McKenzie officers on notice Creighton, right.” Anderson putting suspects to a gun head 635, 640, U.S. 97 L.Ed.2d point range blank can constitute excessive (1987). “If weapons force. new or tactics are right of the at contours issue sufficiently similar in design, purpose, ef sufficiently this case were clear fect, or weapons proce otherwise to or conduct, alleged time of the December unconstitutional, dures have been held right 1995. Robinson had a to be free so that a reasonable officer would have from excessive The law is force. clear holding known that a court’s of unconstitu holding gun this circuit that to a sus tionality would be extended to the new pect’s may head constitute tactic, weapon or then qualified immunity Lamb, force.2 See McKenzie v. 738 F.2d Gates, will not apply.” Chew v. (9th Cir.1984) (plaintiff had a (9th Cir.1994). The absence of claim for excessive force where officers precedent addressing an identical factual suspects,- handcuffed threw them to the right scenario does not mean that the pressed floor and service revolvers clearly “Specific prece established. heads); see also McDonald v. Has required dent is not in order to overcome a (7th Cir.1992) kins, (holding 966 F.2d 292 defense, qualified immunity but the law in 9-year to head of old child and threat question ening pull may sufficiently must be clear that trigger be excessive force); Petta, supra; Stephens, supra. unlawfulness of the action would have been *6 apparent Chew, to a reasonable official.” It is true that the facts McKen 1447; 27 F.3d at Layne, see also Wilson v. There, zie are different. in addition to 603, 615, 526 U.S. 119 S.Ct. 143 pointing their guns appellants, at the the ” (1999) (“ ‘clearly L.Ed.2d 818 established’ wall, against forced them a hand purposes for of them, Here, qualified immunity does cuffed threw and them down. “ Robinson does not claim that he was not mean that ‘an official action is pro- reject facts); appellees’ argu ing Hinojosa City 2. We the and dissent's of v. Terrell to its pointing 181, 185, (3rd ment that a a Stephens, service revolver at Black v. 662 F.2d 193 suspect never 1981) can constitute excessive force. (sustaining jury plaintiffs Cir. verdict for They opinions cite Third and Fifth Circuit plain-clothes police pointed re officer support position. of their See Sharrar v. Fals plaintiffs during investigatory volver at an (3rd Cir.1997) (no. ing, 128 F.3d 810 Fourth Holding stop). pointing a service revolv Amendment violation where told four er can never constitute excessive force would plaintiffs, being who were arrested for a vio precedents contravene our and undermine the episode gun, lent with a to lie down and principle engage that we case-by- must in a them); pointed guns Hinojosa City at v. analysis. case Terrell, (5th Cir.1988) 834 F.2d 1230 3. A member the court has called to the (no pointed excessive force claim when officer Vines, panel, attention of v. Fuller 36 F.3d gun plaintiff.during fight). at a street Con (9th Cir.1994) bearing 65 we ori the issue trary appellees' to both the and dissent's contention, decide here. We conclude it does not. Its both Third and Fifth Circuits entirely focus was on whether there awas may have found an officer’s conduct consti seizure, not whether excessive force was used. pointed tute excessive where the force officer Fuller, Rivera, officer never intended to suspect. a at arrest revolver a See Petta v. . (5th Cir.1998) only angry to subdue when he became ('"police 143 F.3d him 905 threatening and made moves toward the offi- by officer who terrorizes a civilian brandish dog. ing gun a cers who had shot his The court held cocked in front of that civilian’s accordingly may physical injury, face there was no seizure and did no not cause but he has analysis certainly building laid the a fourth amendment as to ex- blocks for section whether against limiting 1983 claim him’ the hold- cessive force was used. 1036 an the officers’ defense and an unless the element of by qualified tected “ previously has been

very question case, action and plaintiffs element our ‘in unlawful.’”) v. (quoting Anderson held quiry as the officers to whether are enti 3034). 640, 107 at Creighton, 483 U.S. S.Ct. qualified immunity tled to for the use of Block, 27 F.3d In v. Mendoza the inquiry excessive force is the same as (9th Cir.1994), we stated that our circuit on merits of the excessive force ” for analyzing has set a means exces- forth Katz, at (quot claim.’ 194 F.3d 967-968 “applies arrest sive force cases Los Angeles, Alexander used, force is whether situation where (9th Cir.1995)); 1315, 1322 see also restraint, baton, use of a physical involves Riverside, v. County Liston Thus, dog.” of a “no gun, use of a or use (9th Cir.1997). 965, 976 n. 10 necessary a case law particularized has deputy know that judge the reasonableness We sics a on deputy been a canine used when an of force “from per officer’s use fully who has sur- handcuffed arrestee spective of a reasonable officer on completely under control.” rendered and is scene, rather than with the vision of 20/20 Id. Graham, hindsight.” at 490 U.S. therefore, conclude, We the clear S.Ct. 1865. To detei'mine whether governing pointing of the law contours reasonable, force employed was the fact guns suspects put at reasonable officers finder a “careful balancing conducts of ‘the unreasonably pointing notice nature of the intrusion quality head would guns Robinson’s violate individual’s Fourth Amendment interests’ rights. constitutional countervailing governmental Connor, interests at stake.” Graham B. of the Conduct Reasonableness 386, 394, person Pointing at a can (1989). L.Ed.2d In conducting cause trauma. It is psychological severe “(1) balancing, the fact finder considers: “put your tantamount to a death threat — (2) issue, severity of the crime at you.” I will hands in air or shoot suspect poses whether the an immediate Indeed, a crimi pointing gun constitutes safety threat of the officers or oth nal assault in California. See Cal.Penal ers, (3) actively resisting whether he is 240; Daniels, Code People 18 Cal. (1993). or App.4th Cal.Rptr.2d attempting by arrest to evade arrest posed by pointed gun And Chew, the threat flight.” 27 F.3d at 1440. This list just theoretical; we are all aware *7 exhaustive; is not the fact finder may also in many guns the incidents which tragic consider as other factors such “whether causing are accidentally, fired death be armed, plaintiff resisted or was wheth stumble, finger, cause a slip of the of a or more er than one arrestee or officer was other mishap. involved, sober, plaintiff whether the was course, are Of there circumstances dangerous exigent whether other or cir under an officer must pre which take the cumstances existed at the time of ar drawing caution her service revolver or Id. rest.” at n. 5. pointing suspect. a But drawing it at case, In this neither party dis pointing steps gun a are serious that are that putes responding the officers were circumstances, not all warranted under a alleging a call that a man with shotgun and officers can be held liable under do, was a road. walking public They § 1983 a pointing suspect a however, dispute the circumstances do whether officers be not warrant Whether, such a use of force. under posed lieved that Robinson a threat case, in this circumstances the officers’ them or to the Robinson public. alleges conduct reasonable is a question was that, him, when first saw he was fact. in walking toward them a calm and collect they ed He that am manner. states had case, In an force the rea carry- time to that he was ple sonableness of an officer’s conduct is both observe shotgun he had carried earlier. Although qualified immunity may Thus, claims, in they many he could instances be not have decided as a matter law, thought he posed risk harm. The

officers, however, claim that ap- genuine Robinson [i]f issues of material fact as to him, peared agitated they used, when first saw amount of force or the circum- that might justify that he could have been stances concealing weap- the amount of used, on, prevent a court from posed potential and that he con- threat. cluding aas matter of law that the force Robinson also states that none of the reasonable, objectively was then a mate- guns officers drew their as he walked to- rial issue of fact necessarily exists as to them, indicating they ward did not objectively whether an reasonable offi- perceive themselves to be in imminent cer could have believed the amount of danger. They only drew weapons force used was lawful. And, he introduced po- himself. after the Katz, Thus, 194 F.3d at 969. we must Robinson, they lice officers had handcuffed jury send the case to a if we cannot decide did not a pat-down conduct search to de- on the record before us whether offi- carrying weap- termine whether he was cers’ conduct was reasonable. officers, hand, on. The on the other claim Here, disputed go very facts to the they weapons upon drew their first heart of the question of whether offi- Robinson, seeing they pat and that cers’ conduct was reasonable. A reason- searched him immediately. jury considering able all the facts could party Neither seems to contest determine the officers’ conduct was Robinson could not be considered to be a reasonable, and that they are entitled to risk; flight he neither resisted arrest nor hand, qualified immunity. On the other attempted to evade arrest. On the con- jury reasonable could determine that the trary, up he walked to the voluntari- unreasonable, conduct was and find for ly Further, story. order to tell his we circumstances, Under Robinson.4 these note the fact that plaintiff was com- inappropriate to decide the case as a pletely by police, surrounded which Katz, matter of law. See 194 F.3d at 968- greatly diminished both the potential threat may posed he have as well as his We remand for retrial jury so that a Chew, flight risk. See 27 F.3d at 1443. may decide whether the use of force was reasonable. Because was raised the context of a Rule 50 IV. State Law Claims motion, evidence “[t]he must be viewed We also reverse the district court’s light most favorable nonmoving to the grant summary judgment on Robinson’s party, and all reasonable inferences must arrest, state law claims for false im- false be party.” drawn favor of that La prisonment, battery, assault and negli- Riverside, Londe v. *8 gence gross negligence. and The district 947, (9th Cir.2000). 959 Judgment as a granted summary court judgment on all matter of law proper is not unless the grounds state law because held that evidence permits only one reasonable con grants immunity California to both the Connell, clusion. See Amarel v. 102 F.3d individual appellees county. and the (9th Cir.1996) 1494, (amended 1521 opin ion). And where “conflicting inferences As to county, the court found facts, may be drawn from the the case that Robinson provide had failed to evi LaLonde, go jury.” must to the support municipal liability dence to under at 959. in Dep’t rule set out Monell v. fact, previous jury hung In precisely point. four to four this

1038 658, 820.4, Servs., 690, public employees 98 section not 436 U.S. S.Ct. are Social (1978). However, 2018, 611 56 L.Ed.2d in immunity entitled suits ar- false rule, rejected the has Monell California or As imprisonment. rest false set forth county may be in under held liable which above, where the officers are immune if it has an only adopted §a 1983 suit suit, County. from neither is Solano illegal policy unconstitutional or custom. or the district We therefore reverse court’s holds counties liable for acts of California grant summary judgment on Robinson’s re- employees under doctrine of state law claims the individual offi- grants immunity and spondeat superior, County. cers and against Solano public only employee counties immune from liability. would also be See REMANDED and for a REVERSED 815.2; see Cal. Gov’t Code also Scott new trial. Angeles, 27 County Cal.App.4th Los (“Un 125, 643, (1994) Cal.Rptr.2d 650 32 O’SCANNLAIN, Judge, Circuit 815.2, section der Code subdi Government dissenting: (a), County is liable and vision for acts court granted district sheriffs employees omissions of its under the doc deputies qualified in immunity this case superior respondeat trine of to the same concluding “[p]oliee after have no de- employer. private extent as a Under sub pendable [regarding] the guidance consti- (b), County is from division immune limitations, any, upon tutional if a mere if, if, only and is liability employee] [the or display threat of force to effect a sei- immune.”); Orange, White reverses, zure.” This court now finding Cal.App.3d Cal.Rptr. that clearly put established law the officers (1985) (“in governmental tort cases ‘the potential on notice to the illegality liability, rule is is the ex [and] ” their conduct. Because the majority finds ception’ applied only to be where statuto mandated). “clearly rily established law” where ex- none ists, I respectfully must dissent.

Although public employees are “resulting suit immune from from [their] I act or where the act omission or omission was the result of the exercise of the discre proceeding specific Before to the facts of [them],” tion vested Cal. Gov’t Code case, a few brief observations regard- § 820.2, they are not immune from immunity are order. For in this case. claims raised Robinson’s purposes qualified immunity analysis, assault, battery, claims for negligence if right clearly established “the contours gross negligence from arise his excessive right sufficiently of the clear [are] that a claim, force immuni and California denies reasonable would official understand that ty to police officers where the counties what he doing right.” violates arresting officers used excessive 635, 640, Creighton, Anderson v. suspect. Mary M. v. City See Los (1987). 97 L.Ed.2d 523 We Angeles, 285 Cal.Rptr. 54 Cal.3d previously scope have described of the (1991) (“a governmen P.2d doctrine following in the terms: tal entity vicariously can be held liable qualified immunity [T]he “defense” has when acting officer in the course broadly: been quite pro- defined “[I]t and scope employment uses excessive ample protection vides to all but conduct”); force or engages assaultive plainly incompetent or those who know- Scruggs Haynes, Cal.App.2d *9 ingly the law.... [I]f violate officers of (“California (1967) 355, Cal.Rptr. cases would competence disagree reasonable have consistently held that a officer peace or not a specific th[e] [whether issue making an arrest is liable to person constitutional], force.”). action immunity was using arrested for unreasonable Also, should recognized.” under California Government Code be 839, Washington, II Moran Malloy Briggs, (quoting Here, majority defines the right 89 L.Ed.2d 271 S.Ct. right issue—“the to be free from excessive (1986)). qualified immunity Although force”—at such a high generality level of appear fairly straight- to be inquiry would that the resulting qualified immunity anal- forward, defining the of scope our cases ysis relationship ‘objec- no to the “bear[s] pellucid. the defense are less than This is legal tive reasonableness’ that is the touch- large part difficulty in due to the of select- stone of Harlow.” Id. at 107 S.Ct. of appropriate generality level 3034. The question here is not whether qualified immunity analysis. purposes enjoys “right Robinson free be from Fortunately, Supreme Court has rec- force,” which, course, he does ognized difficulty provided this the fol- (doesn’t rather, everyone?); the issue is lowing guidance: whether, law, “in light pre-existing standard, however, operation The of this deputies’ specific unlawfulness ac- [of depends substantially upon the level of apparent.” was] tions Id. at generality “legal at which the relevant added). (emphasis on our Based rule” example, is to be identified. For cases, as well as those of our sister cir- right process quite clearly to due cuits, I must conclude that unlawful- such Clause, by established the Due Process any apparent. ness—if far from in any thus there is sense which —was (no action that violates that Clause mat- Although the in majority is correct not- may par- ter how unclear it be that the ing that necessary very it is not for the violation) ticular action is a violates a in question actions to have been held un- clearly right. established Much the lawful, the state of the law must be “suffi- same could be said of other constitu- ciently clear that a reasonable official statutory tional or violation. But if the would doing understand that what he is “clearly test of established law” were to violates I requisite [the law].” Id. find the applied be at this generality, level clarity sorely in lacking this case. We relationship “objec- would bear no to the have never squarely addressed the extent legal tive reasonableness” that is the merely to which pointing weapon at a touchstone of Harlow. would Plaintiffs suspect, unaccompanied by the use of be able to convert the rule of force, physical § can give rise to 1983 lia- immunity virtually ... into a rule of bility for violating the Fourth Amend- unqualified liability simply by alleging prohibition against ment’s unreasonable extremely violation of rights. abstract majority seizures. upon relies Harlow would be from a transformed Lamb, McKenzie guarantee into a rule of (9th Cir.1984), proposition for the sum, pleading. approach, an Such pointing suspect a service revolver at a destroy by would [the balance struck may constitute excessive force. The facts of qualified immunity]. doctrine McKenzie, however, very are different Anderson, 483 U.S. at 107 S.Ct. 3034. from those in the case at bar. The Thus, cases, qualified immunity the cru panel McKenzie a grant reversed of sum- cial inquiry should not be the somewhat mary judgment favor of officers question academic we define “how do in a 1983 action of ex- alleging the use (such right allegedly violated” as the case, cessive force. In contrast general “right rather to be free from ex where a weapon pointed was at Robinson force”). Rather, key question cessive physical but no force was used challenged “did actions fall short of him, pointing weapons McKenzie reasonableness,” objective legal such that accompanied by significant was force: Po- “in light pre-existing law the unlawful lice officers “burst into the hotel room with appar ness the official’s actions [of was] 640, 107 drawn, ent.” Id. at weapons appellants against S.Ct. 3034. forced *10 1040 them, III wall, them and threw handcuffed

the 1010 add- (emphases Id. at to the floor.” by the of Robinson While treatment ed). of the additional conduct light of In certainly regrettable, defendant officers is accompanied officers in McKenzie plaintiff for an attractive does sympathy suspect, weapons at the pointing justify distorting qualified not law of clearly or not McKenzie does establish — immunity. to how imagine It is difficult actions of the officers otherwise—that alleged can be held for police officers liable illegal. might case be failure to adhere to law that was so “clear- that not even our district ly established” Furthermore, authority from persuasive respect- can I courts divine its contours.2 proposition supports circuits other fully dissent. at a does merely weapon person a pointing violat- liability rise 1983 for give not to prohibition Amendment’s Fourth See, e.g., Sharrar force.

against excessive Cir.1997) (3d Felsing, F.3d 810

v. Amendment violation (finding no Fourth AGENCY, BIRTH HOPE ADOPTION plaintiffs to lie face required officers when INC., corporation, an Arizona heads); dirt, guns at their down with Plaintiff-Appellant, (7th May, v. Wilkins Cir.1989) (“[T]he officer police action of a not, in and person a at a is pointing gun HEALTH ARIZONA CARE COST CON itself, the Fourth [under actionable SYSTEM, agency TAINMENT an Amendment].”); Hinojosa v. Ter- City of Arizona, aka, Arizona the State Cir.1988) (5th rell, 1223, 1229-31 834 F.2d Sys Health Containment Care Cost an offi- (overturning jury against a verdict tem, AHCCCS; Chen, aka Mabel constitutionally use of cer for Director of the Arizona Health Care force, say stating unwilling that “we are System Cost Containment Administra merely grossly was pointing tion; Kelly, Acting Director John H. action”). disproportionate to need for of the Arizona Health Care Cost Con light precedents, In the district these System Administration, tainment De following in reaching court correct was fendants-Appellees. dependable “Police have no conclusion: 99-16057 No. guidance [regarding] constitutional

limitations, upon a threat or any, if mere of Appeals, United States Court seizure, to effect display a Ninth Circuit. entitled to accordingly defendants are Argued from suit.” This con- April Submitted particular clusion sense in a case makes July Filed one, suspect like this where the to be seized was known to be possession weapon he had used

deadly recently

(even only dogs).1 if quite distinguishable case therefore head of the officer had cause to This man no Haskins, (7th believe wife “in the from McDonald 966 F.2d armed—with man’s Cir.1992), precise pointed gun at line to shoot. an officer his of fire”—and threatened where nine-year-old the head child who was judges disagree suspected being crime or of armed. It 2. “If thus on constitutional subject very Stephens, question, from mon- also different Black is unfair (3d 1981), damages ey picking losing Cir. an of the side Layne, controversy.” unidentified officer Wilson v. “brandisbfed] (1999). only eighteen away revolver” from the 143 L.Ed.2d 818 inches