The opinion and dissent filed in this case on July 30, 2013, and reported at 724 F.3d 1191, are hereby amended. An amended opinion and an amended dissent are filed concurrently with this order.
With these amendments, Judges O' Scannlain and Clifton have voted to deny the petition for rehearing. Judge Trott has voted to grant the petition for rehearing. Judges O' Scannlain and Clifton have voted to deny the petition for rehearing en banc. Judge Trott has recommended granting the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing and the petition for rehearing en banc are
O'SCANNLAIN, Circuit Judge:
We must decide whether a reasonable jury could determine that three sheriff's
At half past five, on the morning of March 6, 2009, Carol George awoke. Her husband Donald needed food.
Carol called 911. Because she used her cell phone, the call went to the Ventura California Highway Patrol. On the audio recording in evidence, she can be heard exclaiming "No!" and "My husband has a gun!" The highway patrol dispatcher could only determine that she lived somewhere in Santa Barbara. Her husband wanted her to hang up, so she did. The dispatcher then contacted a Santa Barbara County 911 operator who called Carol back and obtained her complete address.
Deputies were dispatched to the residence for a domestic disturbance involving a firearm. Santa Barbara Sheriff's Deputies Jarrett Morris and Jeremy Rogers responded first. Carol met them at the front door. She asked them to be quiet and not to scare her husband, while also advising that he was on the patio with his gun.
The deputies decided to establish a perimeter around the house. They crossed the driveway toward a gate on the east side of the property. Morris was in the lead, with Schmidt and Rogers following. They carried two AR-15 rifles in addition to their service revolvers. Unable to spot Donald, and concerned that he might use a door on the west side of the house to exit, Rogers turned back to cover that side. Morris tried to assume a position out of sight and Schmidt lay down in ice plants at the bottom of a steep slope near the southeast corner of the house. From his position on the ground, Schmidt could see the back of the house, which had an outdoor balcony on the second floor with a patio.
The district court concluded there was a dispute as to which officer made contact with Donald first. Morris said that Schmidt had—announcing "I see the suspect" on the radio—while Schmidt claimed that it was Morris who initially saw Donald. According to an uncontroverted police-dispatch log, at 8:08 a.m., Donald opened the door to the balcony. Once he appeared in view of the deputies, Schmidt identified himself as law enforcement and instructed Donald to show him his hands. Hearing yelling, Rogers left his post out front and headed into the backyard.
Dispatch was told that Donald had a firearm in his left hand. Morris testified to seeing Donald "carrying [a] silver colored pistol in his left hand, while holding" what he described "as a walker or a buggy."
Carol sued a year later under 42 U.S.C. § 1983 asserting two constitutional claims.
After an evidentiary hearing, the district court concluded that based on the admissible evidence, "whether Mr. George presented a threat to the safety of the deputies is a material fact that is genuinely in dispute."
Morris, Rogers, and Schmidt timely appeal the denial of summary judgment. Carol timely cross appeals, seeking review of the district court's grant of summary judgment to the deputies on her unreasonable seizure claim.
Because Morris, Rogers, and Schmidt challenge the denial of qualified immunity we have jurisdiction over the denial of summary judgment, an interlocutory decision not normally appealable. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, the scope of our review over the appeal is circumscribed. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059-60 (9th Cir. 2006). Any decision by the district court "that the parties' evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal." Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). Stated differently, "we may not consider questions of eviden[tiary] sufficiency, i.e., which facts a party may, or may not, be able to prove at trial." CarePartners, LLC v. Lashway, 545 F.3d 867, 875 (9th Cir. 2008) (internal quotation marks omitted).
Noting that we do have authority to consider the materiality of a fact, Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996),—the issue of whether disputed facts "might affect the outcome of the suit under the governing law"—the deputies argue that Carol's disputed facts are ancillary, and therefore immaterial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In that respect, they claim that a review of the district court's "reasoning establishes that rather than delineating actual material disputed facts, [the court] commingled a group of insignificant discrepancies in statements" in order to conclude that a dispute existed about what had transpired during Donald's final minutes. Although couched in the language of materiality, their argument actually goes to the sufficiency of George's evidence. At bottom, their contention is that Carol could not "prove at trial" that Donald did not turn and point his gun at deputies. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).
In cases where the best (and usually only) witness who could offer direct testimony for the plaintiff about what happened before a shooting has died, our precedent permits the decedent's version of events to be constructed circumstantially from competent expert and physical evidence, as well as from inconsistencies in the testimony of law enforcement. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Santos v. Gates, 287 F.3d 846, 852 (9th Cir. 2002) ("Nowhere in our cases have we held that police misconduct may
Because this inquiry, under Scott v. Henrich and its progeny, concerns genuineness—namely "the question whether there is enough evidence in the record for a jury to conclude that certain facts are true"—we may not decide at this interlocutory stage if the district court properly performed it. Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc); see Abdullahi v. City of Madison, 423 F.3d 763, 772 n. 8 (7th Cir. 2005) (discussing the Ninth Circuit's approach). The dissent, however, would have us effectively cast off the interlocutory-review framework. Dissent at 848-50. It tells us we may do so under the banner of Scott v. Harris, a case in which not a single Justice of the Supreme Court "discussed the limits of the collateral order doctrine in qualified immunity cases" or even cited the Court's prior authorities on the subject. Blaylock v. City of Philadelphia, 504 F.3d 405, 413-14 (3d Cir. 2007) ("[n]either the majority nor the dissent in Scott cited Johnson or Behrens").
In Johnson, a unanimous Supreme Court told us these interlocutory appeals involving qualified immunity (1) would be suited to our comparative expertise as appellate judges, centering on "abstract issues of law," as opposed to "the existence, or nonexistence, of a triable issue of fact" and (2) would spare us from pouring over "affidavits, depositions, and other discovery materials." Johnson, 515 U.S. at 316-17, 115 S.Ct. 2151. If we could exercise the same plenary review as the district judge below, or if we were jurors called upon to weigh the evidence, the arguments of our able colleague in dissent might persuade us. Yet, his scrutinizing of the record cannot be squared with the Johnson paradigm.
Our decision not to assume Scott v. Harris implicitly abrogated a line of precedent also accords with the Supreme Court's later guidance. In a more recent section 1983 case, the Court reaffirmed that "immediate appeal from the denial of summary judgment on a qualified immunity plea is available when the appeal presents a `purely legal issue.'" Ortiz v. Jordan, ___ U.S. ___, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011); see also id. at 893 (explaining that "[c]ases fitting that bill typically involve contests not about what occurred, or why an action was taken or omitted, but disputes about the substance and clarity of pre-existing law" (citing Behrens and Johnson)).
Thus, in this appeal, we are confined to the question of "whether the defendant[s] would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff's favor." Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012).
The deputies' appeal touches on two questions of qualified immunity. First, the deputies claim the shooting did not violate
Usually we can start with the second prong of qualified immunity if we think it advantageous. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Here, though, we are not satisfied that the deputies have adequately pursued that argument. As Carol observes, the district court concluded that the deputies had not "argue[d] that the constitutional right was clearly established at the time of the alleged misconduct." Our review of the record reveals that while they made passing references to this defense, they did not develop it in their briefing below. At an oral hearing on the motion for summary judgment, they made absolutely no reference to prong two either. "Although no bright line rule exists to determine whether a matter [has] been properly raised below, an issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it." In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (internal quotation marks omitted).
We need not definitely decide, however, whether they waived the argument at the district court. On appeal, the deputies have not advanced an argument as to why the law is not clearly established that takes the facts in the light most favorable to Carol. See Adams v. Speers, 473 F.3d 989, 991 (9th Cir. 2007) ("The exception to the normal rule prohibiting an appeal before a trial works only if the appellant concedes the facts and seeks judgment on the law."). We will not "do an appellant's work for it, either by manufacturing its legal arguments, or by combing the record on its behalf for factual support." W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012).
Although the deputies' "briefs lapse into disputing [Carol's] version of the facts" as to the threshold constitutional violation as well, we discern enough of a distinct legal claim to entertain that first-prong qualified immunity contention. Adams, 473 F.3d at 990.
As to whether the deputies violated the Fourth Amendment, two Supreme Court decisions chart the general terrain. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), defines the excessive force inquiry, while Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), offers some guidance tailored to the application of deadly force.
"Graham sets out a non-exhaustive list of factors for evaluating [on-the-scene] reasonability: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape." Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012). In Garner, the Supreme Court considered (1) the immediacy of the threat, (2) whether force was necessary to safeguard officers or the public, and (3) whether officers administered a warning, assuming it was practicable.
The district court applied the Graham factors and found that the first and third unmistakably weighed in Carol's favor. "It is undisputed that Mr. George had not committed a crime, and that he was not actively resisting arrest or attempting to evade arrest by flight." The deputies do not challenge these conclusions on appeal. They correctly observe, however, that the "`most important' factor under Graham is whether the suspect posed an `immediate threat to the safety of the officers or others.'" Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). As to this third key factor, while the deputies certainly aver feeling threatened before they shot George, such a statement "is not enough; there must be objective factors to justify such a concern." Id. When an individual points his gun "in the officers' direction," the Constitution undoubtedly entitles the officer to respond with deadly force. Long v. City & Cnty. of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007). In Scott, we likewise recognized that officers firing their weapons at a defendant who "held a `long gun' and pointed it at them" had not been constitutionally excessive. 39 F.3d at 914.
Taking the facts as we must regard them, that specific circumstance is not present in this case. In Glenn v. Washington County, we found that in a 911 scenario without flight or an alleged crime, the officers' decision to shoot an individual holding a pocket knife, "which he did not brandish at anyone," violated the Constitution. 673 F.3d 864, 873-78 (9th Cir. 2011). Reviewing Long and Scott, we explained that the fact that the "suspect was armed with a deadly weapon" does not render the officers' response per se reasonable under the Fourth Amendment. Id. at 872-73; see also Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997) ("Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.").
This is not to say that the Fourth Amendment always requires officers to delay their fire until a suspect turns his weapon on them. If the person is armed—or reasonably suspected of being armed—a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat. On this interlocutory appeal, though, we can neither credit the deputies' testimony that Donald turned and pointed his gun at them, nor assume that he took other actions that would have been objectively threatening. Given that version of events, a reasonable fact-finder could conclude that the deputies' use of force was constitutionally excessive. Contrary to the dissent's charge, we are clear-eyed about the potentially volatile and dangerous situation these deputies confronted. Yet, we cannot say they assuredly stayed within constitutional bounds without knowing "[w]hat happened at the rear of the George residence during the time Mr. George walked out into the open on his patio and the fatal shot." Dissent
The deputies argue that the reasonableness of their actions is enhanced because they were told to expect a domestic disturbance. Sitting en banc, this court recently identified this circumstance as a "`specific factor[ ]' relevant to the totality of the[ ] circumstances." Mattos, 661 F.3d at 450. Domestic violence situations are "particularly dangerous" because "more officers are killed or injured on domestic violence calls than on any other type of call." Id. At the same time, we explained in Mattos that the legitimate escalation of an officer's "concern[ ] about his or her safety" is less salient "when the domestic dispute is seemingly over by the time the officers begin their investigation." Id. Years before that we had held—in another en banc decision—that a husband's criminal abuse of his spouse "provide[d] little, if any, basis for the officers' use of physical force" because when law enforcement "arrived [the husband] was standing on his porch alone and separated from his wife." Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc). That distinguishing feature from Smith and Mattos is present here. Carol was unscathed and not in jeopardy when deputies arrived. Donald was not in the vicinity; instead he was said to be on the couple's rear patio.
Today's holding should be unsurprising. If the deputies indeed shot the sixty-four-year-old decedent without objective provocation while he used his walker, with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson, 555 U.S. at 227, 129 S.Ct. 808.
Owing to the obligation to be satisfied of our jurisdiction, we asked the parties to address at oral argument whether Carol's cross appeal had been well taken. Her counsel conceded it had not. In contrast to the situation in which an officer denied immunity finds himself, Carol will not lose any right by having appellate review of her unreasonable seizure claim deferred
We therefore lack appellate jurisdiction over Carol's cross appeal in its entirety.
For the foregoing reasons, the cross appeal is
TROTT, Circuit Judge, Concurring in small part and Disagreeing in large part:
Mrs. George has been through a painful set of circumstances, and she deserves not to be subjected to these facts again and again. Nevertheless, with the advice of counsel, she has chosen to sue the deputies who responded to her emergency call, and they, too, are entitled to fair and proper treatment under the law. To render these deputies subject to this misguided lawsuit misapprehends the hazardous situation in which they found themselves, and it devalues case law on the dangers of domestic disputes such as the failed physical attempt by Mrs. George to disarm her angry and dangerous husband.
Moreover, the majority opinion misperceives an important aspect of the doctrine of qualified immunity as explained by the Supreme Court in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), an aspect since embraced by the Third, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits—not to mention our own. The Court's holding in Scott v. Harris and the principle upon which it rests ensures that government officials will not be required to defend themselves in court if it appears to an appellate court from the record taken as a whole that the plaintiff has no case, and therefore as a matter "of law," id. at 381 n. 8, 127 S.Ct. 1769 (emphasis added), the lawsuit cannot survive summary judgment. Thus, the majority opinion inadvertently dilutes an essential public interest the doctrine protects: the ability of government officials to perform their responsibilities without paralyzing fear of inappropriate personal lawsuits and potential civil liability.
Let's make one thing clear. The outcome of the rapidly evolving events on March 6, 2008, was not a success. Why? Because Mr. George died, and the best result of interventions like this is to resolve them with no loss of life or other injury. No reasonable law enforcement agency or deputy could disagree with this assessment. On the other hand, fortunately neither the first responders nor anyone else was harmed.
With all respect to my colleagues, I disagree with their and the district court's conclusion that Mr. George did not pose an immediate threat "to the safety of the officers" called to the scene by his distraught and terrified wife in a 9-1-1 emergency call, or an immediate threat to the safety "of others." Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). This factor is central to this case because, in the calculus of whether or not the force used by police to respond to a hazardous tactical situation was unreasonable and excessive, it is the "most important." Id. We must get this right before we go any further.
I begin with undisputed facts.
This tragic series of events began at 7:44 a.m. on Thursday, March 6, 2008, when Mrs. George, the decedent's wife, placed a 9-1-1 emergency call which was received by the Ventura Branch of the California Highway Patrol ("CHP"). A recording of the call indicates that Mrs. George was hysterically screaming, indeed shrieking almost incomprehensively as loud as any human being could. Repeatedly she is heard amidst the background din of the call yelling, not "exclaiming" but yelling, at the top of her lungs. She says, "No, No, No" and "My husband has a gun!" The 911 operator attempts unsuccessfully to calm her down. A male voice—most certainly her husband's—can be heard in the background saying, "nothing," to which she says "okay." A moment of calm during which she said she was in Santa Barbara is interrupted by more sudden blood curdling screaming and shrieking, "No, No, No, Stop it.", and the phone on Mrs. George's end went dead. This is indisputable evidence that a serious domestic dispute was in progress, a heated quarrel between a desperate wife and a defiant husband over a firearm.
The Ventura CHP dispatch operator then immediately called Santa Barbara Sheriff's emergency and advised that dispatch operator of Mrs. George's call. Santa Barbara was told that Ventura CHP had received a call from a woman in Santa Barbara "screaming that her husband has a gun." Ventura CHP also advised that the operator was unable to get a complete address. Santa Barbara said, "Okay we'll give her a call."
The following conversation then occurred between the CHP 9-1-1 dispatcher and the Santa Barbara 9-1-1 dispatcher:
The Santa Barbara dispatcher operator then called Mrs. George. Throughout this
At this point, the dispatcher indicated in her deposition that she thought Mr. George had hung up the phone. The dispatcher called back:
At 7:51 a.m., Sheriff's deputies were sent to the location, arriving at 7:56 a.m., just 12 minutes after Mrs. George's first 9-1-1 call. They had been advised by dispatch (1) of a domestic violence incident in progress ("415 D"), (2) that a firearm was involved, (3) that Mr. George had hung up the phone during the 9-1-1 calls, (4) that Mr. George had cancer, (5) that Mr. George was the person with the firearm, and (6) that he had registered firearms in his residence. This constellation of facts and circumstances amounted to "probable cause to believe that [Mr. George] pose[d] a significant threat of death or serious physical injury to the officers or others." Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). For all the deputies knew, Mrs. George herself was in harms way.
Here, I elaborate on what went on in the George household immediately before the first 9-1-1 call. These facts come from Mrs. George's own words recorded by the Sheriff's Department roughly only four hours after the incident, i.e., "Carol's version." Maj. Op. at 832, n. 1. After his brain surgery, Mr. George became an angry man.
(Emphasis added).
When questioned about her knowledge that the gun was loaded, Mrs. George said, "Yeah, he had stuck a pin in it, I saw him do that." (Emphasis added). When asked what she meant by "pin," she said, "That clip, something ... yeah, I saw him do that because it wasn't loaded in the car, and I saw him pull it out from a different place and he stuck it in, and I said `just give it to me, no.' And I started trying to pull him, pretty strong, I couldn't do it." (Emphasis added). When Mr. George's gun was recovered, it was loaded with hollow-point bullets.
Parenthetically, Mrs. George's attorney now claims that Mr. George was so impaired by his condition that he was not physically able to point his gun at Deputy Rogers. During oral argument, counsel said, "In particular, Deputy Rogers says that [Mr. George] lifted it up standing with two hands standing and pointing it at him. Mrs. George's statement was that he was physically incapable of doing that at that time.... The manner in which he was pointing at the officer being directly contradicted by what his wife...." These factual assertions and claims by counsel are irreconcilable with Mrs. George's detailed description just four hours after the shooting of her husband's behavior that morning. He was ambulatory, obdurate, "pretty strong" enough to resist his wife's "yanking" attempt to stop him, threatening to use his gun, and dexterous enough to load a clip into an automatic pistol—an action that takes two hands to accomplish. Moreover, she was not a witness to the shooting. Months later, now in litigation, and even though she saw her husband load a clip into his firearm on the morning of the shooting, she declares "under penalty of perjury" that he "was unable to stand on his own without holding his walker and hold a gun with both hands in front of him." It will be quite interesting on cross-examination when she is asked to demonstrate for the jury how her husband loaded the clip into his gun. This situation is a close cousin to our "sham affidavit" rule that a "party cannot create an issue of fact
In addition, we have the testimony of Mr. George's friend, Lawrence Kaehn. Mr. Kaehn, a cancer survivor, and Mr. George frequently discussed Mr. Kaehn's cancer treatment. On one occasion before Mr. George fell ill, he said, "Well, I know what I would do if I came down with cancer. I would get a gun, call the sheriff and have them shoot me." Mr. Kaehn, having considered becoming a sheriff at one time, was "appalled." He said, "It wouldn't be very fair to the sheriff." Mr. George then "gazed off," "stared for a while," and changed the subject. Unfortunately, "suicide by cop" is a well-documented, terrible phenomenon always present when law enforcement responds to a "man with a gun" call.
On top of all of this, Mrs. George's cry for help was accurately conveyed by the dispatcher to the deputies as one involving armed domestic violence. That is what the deputies were told, and, according to Mrs. George's own words, that is what it was. I repeat, he had threatened to use the gun and struggled physically with his wife over its possession. These 9-1-1 calls are a textbook case of what local law enforcement confronts when receiving such a 9-1-1 request for help. In this respect, "we must view the facts [from the deputies'] perspective at the time [they] decided to fire." Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010).
In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), in connection with our discussion of the appropriateness of force in that case, we had much to say about what law enforcement faces when it responds to a 9-1-1 domestic dispute call. We did so in consideration of "the additional `specific factors' relevant to the totality of [the relevant] circumstances." Id. at 450 (quoting Bryan, 630 F.3d at 826). We said,
Mattos, 661 F.3d at 450 (emphasis added).
Against this grim backdrop, the majority says, as did the district court, that when he was on the balcony (1) Mr. George had not committed a crime, (2) he was not actually resisting arrest or trying to flee, (3) the domestic disturbance was over, and (4) thus, Mr. George did not pose an immediate threat to the safety of the officers or to others that would have justified the use of force. With all respect, to portray this incident in this fashion is to expose the
Mr. Parker appears in his sanitized version of these events not to be familiar with California Penal Code Section 246.3 which makes it a crime for any person willfully to discharge a firearm in a grossly negligent manner which could result in injury or death to a person. People v. Leslie, 47 Cal.App.4th 198, 54 Cal.Rptr.2d 545 (1996) describes this crime as a "serious felony." Section 417 of the Penal Code makes it a crime to draw or to exhibit a firearm in a threatening manner. Finally, the City of Santa Barbara Municipal Code (S.B.M.C.) makes it unlawful to discharge any firearm of any description in that city. S.B.M.C. Ch. 9.34.020. To the extent that the abstract legal landscape of this incident is minimally material, these are the laws that applied to Mr. George's actual and intended behavior that morning.
More about Parker and his declarations later.
Mr. George had terminal brain cancer and was clearly suicidal. He had armed himself with a loaded gun, he was not thinking clearly, he was threatening to use it; and his wife, who had tried unsuccessfully to disarm him, was terrified. She did not call Mr. George's doctor, his pastor, her neighbor, or his friend Mr. Kaehn—
Like the Eleventh Circuit in Harris v. Coweta County, my colleagues place undue emphasis on the absence of the circumstances specifically identified in Graham, even though we have clearly labeled them non-exhaustive: "These factors, however, are not exclusive. Rather, we examine the totality of the circumstances and consider `whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Bryan, 630 F.3d at 826 (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). We must understand this situation for what it was, not for what it was not. A plaintiff's "sanitized version of the incident cannot control on summary judgment when the record as a whole does not support that version." Wilkinson, 610 F.3d at 551. I suppose pursuant to the irrelevant and immaterial idea in the abstract that Mr. George's possession of the gun was lawful and that he had not committed a crime, we could say the same about John Hinkley before he shot President Reagan, Jared Loughner before he gunned down United States District Judge John Roll and United States Representative Gabrielle Giffords, Adam Lanza before the Sandy Hook massacre, and James Holmes before the Aurora Colorado slaughter. Mr. George certainly wasn't in their category, but armed people who are combative, furious, angry, and mentally unstable—whatever the reason—are dangerous, period. When we send law enforcement out to cope with them, it is wrong to proclaim that the personnel doing so are not in danger. And, as the United States Supreme Court said in Graham, we must consider that these deputies were responding and reacting to "tense, uncertain, and rapidly evolving" situation requiring them to make split second decisions involving—in this case— life and death. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Bryan, 630 F.3d at 818 (Tallman dissenting from denial of reh'g en banc). Mrs. George tried unsuccessfully to disarm her husband. What might have happened had she tried again? Moreover, once Mr. George started firing his weapon outside his home, no telling where the bullets might have gone. I note with some irony that we continue to search nationally for ways to keep firearms out of the hands of mentally unstable persons.
Regrettably, our federal courts have had extensive experience with domestic disputes involving angry and quarreling spouses, and we have written many opinions on this subject—including Mattos v. Agarano—on which law enforcement personnel are entitled to rely. Here is an example of what we have said.
1. United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (emphasis supplied).
2. United States v. Brooks, 367 F.3d 1128, 1137 (9th Cir. 2004).
3. Tierney v. Davidson, 133 F.3d 189, 198 (2nd Cir. 1998) (emphasis added).
4. Fletcher v. Town of Clinton, 196 F.3d 41, 50-51 (1st Cir. 1999).
5. Fletcher v. Town of Clinton, 196 F.3d 41, 52 (1st Cir. 1999).
I turn to what is the core issue in this case: What happened at the rear of the George residence during the time Mr. George walked out into the open on his patio and the fatal shot fired by Deputy Rogers? Did they gun down a sick man who did not even know they were there? Or, did they fire only when he pointed a gun at one of them? Scott v. Harris requires that we examine what the evidence shows, not raw speculation and guesswork, but the evidence. Has Mrs. George tendered a case sufficient to survive summary judgment or to support a verdict in her favor? Or, does her case fail before trial as a matter of law for want of evidence?
Before I tackle this question, however, let's put in proper analytical focus the "facts" we must view in the light most favorable to the nonmoving party. Here, notwithstanding my colleagues belief to the contrary, the Supreme Court has told us that we are not automatically bound on interlocutory appeal by a district court's statement that a genuine dispute of material facts exists such as to require a trial. In Scott v. Harris, the Court said,
550 U.S. at 380, 127 S.Ct. 1769 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (footnote & alteration omitted) (emphasis added).
The Court continued:
Id. (internal quotation marks & citations omitted) (emphasis in original). In its opinion, the Court once again noted the importance of resolving qualified immunity issues as soon as possible, because "it is effectively lost if a case is erroneously permitted to go to trial." Id. at 376 n. 2, 127 S.Ct. 1769 (internal quotation mark omitted). In Scott v. Harris, the Court looked at the "record taken as a whole," id. at 380, 127 S.Ct. 1769, and it overrode the district court's and the Eleventh Circuit's explicit conclusions that a genuine dispute of material facts precluded the denial of summary judgment for the defendant officers. Id. at 380-81, 127 S.Ct. 1769. The Eleventh Circuit said, "We reject the defendant's argument that Harris' driving must, as a matter of law, be considered sufficiently reckless to give Scott probable cause to believe that he posed a substantial threat of imminent physical harm to motorists and pedestrians. This is a disputed issue to be resolved by a jury." Harris v. Coweta County, 433 F.3d at 815. The Court dismissed Justice Stevens's dissenting view that the issue of unreasonable and therefore excessive force was "best reserved for a jury," and that
Id. at 381 n. 8, 127 S.Ct. 1769 (citation omitted) (emphasis in original).
Three years after Scott v. Harris, we followed this jurisdictional and legal guidance in Wilkinson where we looked past the district court's conclusion that summary judgment was inappropriate because of the perceived existence of "disputed issues of material facts." Wilkinson, 610 F.3d at 548.
Some observations about my colleagues concerns arising from their understanding of Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In this respect, Judge O'Scannlain writes, "Any decision by the district court `that the parties' evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal.'" Maj. Op. at p. 834 (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)) (emphasis added). This categorical understanding might have been correct before Scott v. Harris, but it is no longer.
First, the Court decided Johnson in 1995, Scott v. Harris in 2007. In deciding Scott v. Harris, the Court no doubt was aware of Johnson, but my colleagues are correct, it was not mentioned. Thus, I read the two cases not as in conflict, as the Supreme Court surely understood, but plainly compatible. Noting clearly that Jones did offer sufficient information to support a verdict in his favor, 505 U.S. at 307-08, 112 S.Ct. 2482, Johnson held that we will not on interlocutory appeal revisit that issue, id. at 313, 112 S.Ct. 2482. Scott v. Harris, on the other hand simply says, but if after examining the "record as a whole" it becomes clear to an appellate court that the plaintiff has no case sufficient to survive Rule 50(c), the unique preemptive purpose of qualified immunity prevails, and the case shall be dismissed now, not later. 550 U.S. at 380, 127 S.Ct. 1769. I repeat what the Court said in Scott v. Harris about the plaintiff's alleged facts: they must be "supportable by the record." 550 U.S. at 381 n. 8, 127 S.Ct. 1769 (emphasis omitted). In our case, the complaint's allegations find no factual support in the record. Accordingly, as defined by Scott v. Harris, the record taken as a whole issue is a quintessential issue of law, not just of disputed facts.
I do not stand alone in my understanding of Scott v. Harris. To begin with, we have the Wilkinson opinion in our own circuit. Furthermore, other circuits have weighed in on this issue. The Third Circuit described Scott as marking "the outer limit of the principle of Johnson v. Jones— where the trial court's determination that a fact is subject to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so, even on interlocutory review." Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3rd Cir. 2007). The Sixth and Tenth Circuits view Scott as an exception to Johnson's jurisdictional limitation. In Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009), the Sixth Circuit described Scott v. Harris as recognizing "an apparent exception to [Johnson's] jurisdictional limitation when its considered and rejected a district court's denial of summary judgment even though the district court had found genuine issues existed as to material facts." Id. at 370. The court then said, "In trying to reconcile
The Fourth, Eighth, and Eleventh Circuits view Scott as simply "reinforc[ing] the unremarkable principle that at the summary judgment stage, facts must be viewed in a light most favorable the nonmoving party when there is a genuine dispute as to those facts." Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 277 (4th Cir. 2011) (internal quotation marks omitted); Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010) ("Although we view the facts and any reasonable inferences in the light most favorable to [the plaintiff], we cannot ignore evidence which clearly contradicts [the plaintiff's] allegations." (citation omitted)); Morton v. Kirkwood, 707 F.3d 1276, 1284-85 (11th Cir. 2013) (recognizing that a circuit court may "discard[ ] a party's account when the account is inherently incredible and could not support reasonable inferences sufficient to create an issue of fact," but holding that the defendants evidence did not completely discredit the plaintiff's version of events (internal quotation marks omitted)).
Furthermore, Scott v. Harris's rule does not apply only to situations where a videotape demolishes a plaintiff's case. Although some of the cases I refer to did benefit from a videotape, Scott v. Harris clearly did not create a videotape-specific rule. Instead, it established a principle to be applied where it is applicable. The whole record there made that principle applicable as a matter of law, as I believe it does here—as a matter of law. The Court referred to the videotape as "an added wrinkle," not as a prerequisite to the application of the articulated principle. 550 U.S. at 378, 127 S.Ct. 1769. Wilkinson did not rely on a videotape either, but we followed Scott v. Harris nevertheless. 610 F.3d at 549-51.
In summary, Johnson remains viable, but only where the case involves a genuine issue of material fact, not when it does not.
I return to the case at hand. Noting that not a single percipient witness contradicts this evidence, I start with Deputy Rogers's description of this event:
Deputy Rogers's first-person description of his use of a firearm is corroborated by Deputy Schmidt:
Next, I turn to Deputy Morris:
Lawrence Hess was Schmidt's, Rogers's, and Morris's supervisor. He heard the initial dispatch call to the George residence and arrived shortly after his deputies. This is his input:
In addition to the deputies' declarations, we have bystander citizen information
The unchallenged department log of real-time radio broadcasts from the deputies in the field reveal how quickly these events unfolded. At 8:04:22 a.m. (Deputy Schmidt), the log reports "... no visual on the subject." At 8:08:04 a.m. (Deputy Morris), "Subj on the second floor to the rear of residence just opened the door to balcony (sic) no vosual (sic)." 8:11:51 a.m. (Deputy Schmidt), "Subj with a firearm in left hand." Twelve seconds later, at 8:12:03 a.m. (Deputy Schmidt), "Shots fired." Thirteen seconds later at 8:12:16 a.m. (Deputy Rogers), "Subj down." These radio broadcasts and this timeline corroborate the deputies' version of the events. The elapsed time from Mr. George's appearance on the balcony to "shots fired" was a mere twelve seconds. Twelve seconds is roughly fifteen normal heartbeats. That is how precipitously this encounter transpired.
Finally, Deputy Rogers's shot that hit Mr. George entered into the front of his body and emerged through the rear. This evidence indicates that Mr. George had turned to face Deputy Rogers—who was stationed to the left side of Mr. George when he walked onto the patio. I note that the photographs in the record are consistent with the deputies' descriptions of their locations at the time of the shooting.
Was Mr. George suicidal? Was he planning that morning to use his gun? Mrs. George thought so. Pam Plesons, her friend and neighbor, recounts this conversation with her on the morning immediately after the shooting:
Against the combined force of this compelling evidence, the district court concluded nevertheless that the defendant's motion must fail. On what did the district court rely? (1) A textbook example of a self-serving declaration from Mr. George's wife who did not see the shooting, a declaration prepared during litigation which is impeached by her own words, (2) disputed facts that are not material, and (3) a demonstrably flawed report from an ex-FBI Agent full of irrelevant inadmissible speculation.
The fatal problems with Mrs. George's manufactured declaration have been discussed in Part II of this opinion. Thus, let's examine the district court's "disputed facts."
Here the court cited to differences between the deputies' memories as to who "made the decision to set up a perimeter around the house." Remembering that this entire event took only a few minutes and that it was fluid and rapidly evolving, who set up the perimeter is utterly immaterial. No one disputes that the deputies set up a perimeter. Who gave the order is of no moment. Moreover, the record and the deputies' declarations previously quoted reveal that two perimeters were established, the first when Morris and Rogers arrived, and the second when Schmidt arrived, saw Mr. George emerge on the patio, and the deputies then moved and surrounded the rear of the house. I repeat, the perimeter changed when Mr. George appeared on the patio.
The next "disputed fact" seized upon by the district court was who saw Mr. George first and how he was holding the gun. Again, the deputies were not together, and who saw him first and how he was holding the gun is inconsequential. To quote the district court, "Deputy Morris stated that it was Deputy Schmidt who first made contact with Mr. George. However, Deputy Schmidt stated that Deputy Morris was the first one to see Mr. George." Under these kaleidoscopic circumstances, who saw Mr. George first is immaterial to the question of whether the deputies' use of force was reasonable or excessive. So is how he was holding the gun when he emerged on the patio. Everyone, everyone agrees he was carrying a loaded gun in his hands.
In summary, these "disputed facts" add nothing to the plaintiff's case. To give them probative weight violates a central principle of summary judgment law: "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Next, we get to whether Mr. George provoked the shooting because instead of dropping his gun as commanded, he pointed it at Deputy Rogers. Here, the district court relied on an opinion, purported to be an expert opinion, offered after the fact by Thomas Parker. Parker says he did not believe Deputy Schmidt could see Mr. George and therefore Deputy Schmidt could not tell whether or not Mr. George had a gun. Again, Mr. George did have a gun, and second, it is news to me that a witness can testify as an expert that from point A, he doesn't believe someone can be fully seen from point B. This isn't "expert testimony." And here, it is no more than rank and inadmissible result-oriented speculation. Did Parker simply disregard
Mr. Parker's opinion on the key issue of whether Mr. George pointed his gun in Deputy Roger's direction is no better. Parker's report makes no mention of the violent struggle the Georges had over the gun before the deputies arrived. Parker incompletely describes Mr. George as handicapped with a right side and arm that were "extremely weak."
Moreover, Parker claims a special ability to read body language and to divine who is "lying" and who is not. He claims by virtue of his education, training, knowledge, and experience that he is aware of a "truism of the law enforcement profession that law enforcement officers lie ... [in an attempt] to justify inappropriate, unethical, and illegal actions taken by them." Fortunately for all of us, we resolve cases and controversies with evidence, not self-aggrandizing "truisms." His offerings as to whether a witness is telling the truth will not be admissible as expert—or even lay—opinion. His report is rife with rank guesswork.
Parker goes on to opine that Mr. George probably could not have coherently said what the deputies say he said because he had aphasia. Was not Mr. Parker aware of the pre 9-1-1 conversation between husband and wife? Mr. George's voice can be heard clearly on the 9-1-1 call recording, which Parker claims he listened to when preparing his declaration. Or of Mrs. George's description of his responses to her pleas? Now, Parker is a speech pathology expert in aphasia. Undaunted, he goes in to guess that Mr. George "had no idea whatsoever that the deputies were in his yard or issuing commands to him." I assume this is part of the "evidence" the district court struck from the record when the court concluded that Parker was not a qualified "medical expert."
More fundamentally, however, Parker's report—which is a classic example of Monday morning quarterbacking—is of restricted value in this setting. His report suffers most of the problems identified by us in Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996), overruled in part on other grounds by Acri v. Varian Assoc., Inc., 114 F.3d 999 (9th Cir. 1997) (en banc). There, we said, "The fact that an expert disagrees with an officer's actions does not render the officer's actions unreasonable. The inquiry is not `whether another reasonable or more reasonable interpretation of events can be constructed ... after the fact.' Rather, the issue is whether a reasonable officer could have believed that his conduct was justified." Id. at 1170 (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Id. We also said, "The fact that [the expert] disagrees with the steps [taken by the deputy] is not enough to create a genuine issue of material fact regarding the reasonableness of [the deputy's] conduct." Id.; see also Tennessee v. Garner, 471 U.S. at 20, 105 S.Ct. 1694 (warning against "inappropriate second-guessing of police officers' split-second decisions").
Parker also paints a naive picture of domestic calm in the George residence when the officers arrived, leaving out why Mrs. George called 9-1-1, focusing instead to the exclusion of everything else in her statements that "everything is fine," and that "he won't do anything." Probably Parker is unaware of our jurisprudence regarding domestic trouble in connection with police intervention. This might be because the F.B.I. where he was employed for most of his career does not respond to local 9-1-1 calls involving this challenging problem, where danger always lurks and where frightened spouses cannot always be expected to give a reliable picture of what had happened to provoke the call.
Simply put, there is no competent admissible direct or circumstantial evidence in this record to prove or even to suggest under rigorous Scott v. Henrich
What we are inexorably left with is a situation (1) where the deputies had incontrovertible cause to believe Mr. George posed "a threat of serious physical harm, either to the officer[s] or to others," (2) where he had threatened them with a weapon, and (3) where he had been given a warning to drop the gun. Tennessee v. Garner, 471 U.S. at 11-12, 105 S.Ct. 1694.
These are life and death encounters. Focusing on inconsequential details out of context distorts the totality of the facts and leads one to errant conclusions. No reasonable factfinder could conclude on this record that the disputed use of force was unreasonable or excessive. A jury verdict in favor of the plaintiff could not survive Rule 50(a). The plaintiff's theory that the deputies simply gunned down a harmless man is nothing more than groundless conjecture. The plaintiff's evidence in this case examined "as a whole" is no better than the plaintiff's evidence in Scott v. Harris or in Wilkinson v. Torres. Her case is not "supportable by the record." Scott v. Harris, 550 U.S. at 381 n. 8, 127 S.Ct. 1769 (emphasis omitted); Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ("[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.") This is not just a case where something like a videotape demolishes the plaintiff's factual allegations, it is a situation where the plaintiff has no case at all, because, among other deficiencies, her own words spoken just four hours after the shooting undercut what her lawsuit now claims. Her statement in the main was the compelling evidentiary equivalent of the videotape in Scott v. Harris. Coble v. City of White House, Tenn., 634 F.3d 865, 869 (6th Cir. 2011) ("The Scott opinion does not focus on the characteristics of a videotape, but on `the record.'").
Why does all of this matter? It matters because the doctrine of qualified immunity
The Supreme Court's rationale for this doctrine finds it roots in the Court's recognition that a rule to the contrary would have significant and undesirable costs "to society as a whole." Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949)) (brackets in original).
This doctrine is not of recent vintage. In an article cited in a footnote by the Court in Harlow, 457 U.S. at 814 n. 22, 102 S.Ct. 2727, we discover that
Peter H. Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 S.Ct. Rev. 281 (quoting Respublica v. Sparhawk, 1 Dall. 357, 363, 1 L.Ed. 174 (Pa.Sup.Ct. 1788)). Scott v. Harris follows inexorably from the preemptive purpose of the doctrine and wisely calibrates Johnson v. Jones accordingly.
Thus, we must remand with instructions to grant the motion for summary judgment based on qualified immunity and enter judgment for the defendants. Mr. Kaehn had it right: To do otherwise is not fair to the sheriffs.
Our colleague in dissent also contends that none of the opinions of the police practices expert are admissible. See Dissent at 855-56. We will not join issue on this point because the deputies expressly disclaim an evidentiary challenge to Parker's opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Although Wilkinson cited Scott v. Harris in service of that approach, its author (Judge Tashima) has taken the position that Wilkinson did not "address[ ] the jurisdictional defect that ... [fact-related] issues potentially raise under Johnson." Conatser v. N. Las Vegas Police Dep't, 445 Fed.Appx. 932, 933 (9th Cir. 2011) (per curiam) (a panel including Judge Tashima dismissed for lack of appellate jurisdiction officer-defendants' claim that "the evidence cannot support the inference that [the decedent] never attacked them"). We agree that this is the fairest reading of Wilkinson. And, because "unstated assumptions on non-litigated issues are not precedential holdings binding future decisions," that case does not dictate how this appeal ought to be resolved. Proctor v. Vishay Intertech., Inc., 584 F.3d 1208, 1226 (9th Cir. 2009).
In Billington, we explained that intervening caselaw, since Alexander v. City & Cnty. of San Francisco, 29 F.3d 1355, 1366-67 (9th Cir. 1994), "prevent[s] a plaintiff from avoiding summary judgment by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless." 292 F.3d at 1189. Then, harmonizing Alexander "with the Supreme Court's admonition in Graham," we explained that a plaintiff cannot "establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided." Id. at 1190. At most, Carol's cited failings amount to negligence. Only when "an officer intentionally or recklessly provokes a violent response, and [when] the provocation is an independent constitutional violation" will that conduct color the subsequent excessive force inquiry. Id. Moreover, her proposed alternative measures are plagued with the sort of hindsight bias the Supreme Court has forbidden. See id. at 1191.
