Carol George v. Jarrett Morris

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROL ANN GEORGE, No. 11-55956

Plaintiff-Appellee,

D.C. No.

v. 2:09-cv-02258-

CBM-AGR

DEPUTY JARRETT MORRIS; DEPUTY

JOSEPH SCHMIDT; DEPUTY JEREMY

ROGERS,

Defendants-Appellants.

THE COUNTY OF SANTA BARBARA;

DEPUTY HARRY HUDLEY; DEPUTY

LARRY HESS,

Defendants.

CAROL ANN GEORGE, No. 11-56020

Plaintiff-Appellant,

D.C. No.

v. 2:09-cv-02258-

CBM-AGR

JARRETT MORRIS; JOSEPH SCHMIDT;

JEREMY ROGERS,

Defendants-Appellees, OPINION

and

2 GEORGE V. MORRIS

THE COUNTY OF SANTA BARBARA;

HARRY HUDLEY; LARRY HESS,

Defendants.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted

February 7, 2013—Pasadena, California

Filed July 30, 2013

Before: Diarmuid F. O’Scannlain, Stephen S. Trott,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Trott

GEORGE V. MORRIS 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment

denying qualified immunity to sheriff’s deputies and

dismissed plaintiff’s cross appeal for lack of jurisdiction in

these actions arising from the shooting by the deputies of an

armed homeowner on his patio.

The panel held that drawing all reasonable inferences in

plaintiff’s favor, as it was required to do at this interlocutory

stage, the specific circumstances did not indicate that the

decedent posed an immediate threat to the safety of the

officers or to others. The panel stated that 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. Defendants

therefore were not entitled to qualified immunity.

The panel dismissed the cross appeal brought by

decedent’s wife after her counsel conceded at oral argument

that the cross appeal had not been well taken.

Judge Trott concurred in small part and dissented in large

part. He disagreed with the majority’s conclusion that

decedent did not pose an immediate threat to the safety of the

officers called to the scene by decedent’s distraught and

terrified wife in a 9-1-1 emergency call, or an immediate

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 GEORGE V. MORRIS

threat to the safety of others. Judge Trott agreed with the

majority’s disposition of the cross appeal.

COUNSEL

Michael Maury Youngdahl, County of Santa Barbara, CA,

argued the cause for the defendants-appellants/cross-

appellees. Kelly Duncan Scott, Deputy County Counsel, filed

the briefs. With her on the briefs was Dennis A. Marshall,

County Counsel.

Stephen K. Dunkle, Sanger Swysen & Dunkle, Santa Barbara,

CA, argued the cause and filed the briefs for the plaintiff-

appellee/cross-appellant. With him on the briefs were Robert

M. Sanger and Catherine J. Swysen, Sanger Swysen &

Dunkle, Santa Barbara, CA.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a reasonable jury could

determine that three sheriff’s deputies violated the

Constitution when they fatally shot an armed homeowner on

his patio.

GEORGE V. MORRIS 5

I

A

At half past five, on the morning of March 6, 2009, Carol

George awoke. Her husband Donald needed food.1 Donald

had a terminal case of brain cancer and, as a result of his

chemotherapy, ate frequently to manage headaches. His wife

brought him a snack and then, not having slept well, returned

to bed. Shortly after, George took the keys to the couple’s

truck from the night stand and went downstairs. Concerned

for his well-being, Carol followed him. She witnessed him

retrieve his pistol from the truck and load it with ammunition.

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

1

We adopt Carol’s “version of the facts,” as she is the non movant.

Scott v. Harris, 550 U.S. 372, 378 (2007). Part II of our opinion explains

why we cannot agree with our dissenting colleague that we are at liberty

to prefer the deputies’ version in this interlocutory appeal.

6 GEORGE V. MORRIS

and not to scare her husband, while also advising that he was

on the patio with his gun.

The deputies decided to established 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.

Four minutes later, 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.”2

Rogers stated that when George came into view, he was

2

A silver Walther pistol was recovered from Donald after the incident.

GEORGE V. MORRIS 7

holding a gun with the barrel pointing down. Carol does not

dispute that Donald exited onto the balcony with his walker

and holding his firearm. However, the district court

concluded that Carol’s evidence, which included an expert

witness’s report,3 called into question whether Donald ever

manipulated the gun, or pointed it directly at deputies.4

Soon after the deputies broadcast that Donald had a

firearm, the dispatch log records “shots fired.” Donald fell to

the ground, and Rogers continued to shoot. Together the

three deputies fired approximately nine shots. They then ran

to assist him, applied first aid, and called an ambulance.

3

Although various medical opinions of his were stricken by the district

court, Thomas R. Parker (a former FBI agent and California police officer)

provided an expert report. It gave perspective on how the deputies’

accounts compared with typical police behavior and contained opinions

about how the physical layout of the property may have influenced the

deputies’ and Donald’s on-the-scene perceptions.

4

Morris offers a vivid account of Donald’s final moments that we

cannot credit because the district court found it to be genuinely disputed.

See infra Part II. According to him, although Donald initially had the

pistol braced against his walker, soon after, Donald reached for what

Morris thought was its safety and grasped the gun with both hands. Then

in Morris’s words:

[Donald] made the final motion at the rear of the pistol

and I said to myself . . . if he raises that gun any higher

he’s going to be aiming at [Schmidt] and . . . I gotta

[sic] take that shot and . . . at that moment as he’s

raising, he doesn’t get higher th[a]n the wall he

immediately turns straight east and raises it and is now

pointing it directly at me and I had nowhere to go. I’m,

I’m crouched down and I’m, I remember seeing the, the

black hole actually looking down the barrel as it’s

pointed right at me and that was when, that was when

I fired my first shot.

8 GEORGE V. MORRIS

Donald died two hours later at the hospital following surgery

and admission to the intensive care unit.

B

Carol sued a year later under 42 U.S.C. § 1983 asserting

two constitutional claims.5 Against Morris, Schmidt, and

Rogers she claimed a violation of her late husband’s right to

be free from excessive force under the Fourth Amendment, as

incorporated.6 In a claim chiefly implicating Deputy Harry

Hudley, Carol asserted that her own Fourth Amendment right

against unreasonable seizure was violated when Hudley kept

her from the crime scene in the shooting’s aftermath and

when she was briefly stopped from visiting Donald in the

hospital. The deputies and their supervisors moved for

summary judgment invoking qualified immunity, mainly

arguing that neither Donald’s nor Carol’s constitutional rights

had been violated.

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

5

She also raised a variety of state-law causes of action. Because it is

undisputed “that resolution of the federal constitutional claims would

necessarily dictate the resolution of the state law claims,” we do not

address them separately.

6

“A claim under 42 U.S.C. § 1983 survives the decedent if the claim

accrued before the decedent’s death, and if state law authorizes a survival

action.” Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1093 n.2

(9th Cir. 2006) (citing 42 U.S.C. § 1988(a)). Carol’s complaint alleges

that she is the personal representative of her husband’s estate in full

compliance with California law. She therefore may litigate his Fourth

Amendment claim. See id.; Cal. Civ. Proc. Code §§ 377.30, 377.32.

GEORGE V. MORRIS 9

fact that is genuinely in dispute.”7 This meant a constitutional

violation could be proven and the court denied qualified

immunity on that basis. Concluding that the deputies had not

argued for its application, the court did not address the second

prong of qualified immunity—the clearly established inquiry.

That asks whether “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012)

(en banc). As to Carol’s seizure claim, the district court

decided there was no constitutional violation and, in the

alternative, that “the right at issue was not clearly

established.” It therefore granted summary judgment to

Hudley and the other deputies.

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.

II

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 (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

7

Like the dissent, in the context of the district court’s preceding

analysis, we understand this statement for what it is: a determination that

the facts about how Donald and the deputies had behaved prior to the

shooting were contested. See Dissent at 32–33.

10 GEORGE V. MORRIS

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 (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 (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 (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)

GEORGE V. MORRIS 11

(“Nowhere in our cases have we held that police misconduct

may be proved only through direct evidence.”).8 The district

court applied this principle. It parsed the deputies’ testimony

for inconsistencies, found that medical evidence (and Carol’s

declaration) called into question whether Donald was

physically capable of wielding the gun as deputies described,

and found parts of Carol’s expert’s testimony probative.

There were genuine disputes of fact such that a reasonable

jury could “disbelieve the officers’ testimony” and rely on

record evidence to conclude that Donald had not ignored

commands to drop the gun, or taken other threatening

measures such as pointing the weapon at deputies.

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

40–45. 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,

8

Other circuits emulate this approach. See, e.g., Lamont v. New Jersey,

637 F.3d 177, 181–82 (3d Cir. 2011); Abdullahi v. City of Madison,

423 F.3d 763, 772 & n.8 (7th Cir. 2005) (describing the role of a police

practices expert and explaining the centrality of inferences “when the

plaintiff’s sole eyewitness is dead”).

12 GEORGE V. MORRIS

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.

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.9 Even accepting for

the sake of argument, though, that Scott v. Harris is meant to

establish an exception to the rules for interlocutory review,

9

Our conclusion that the Johnson principle still applies today is by no

means idiosyncratic. In the years since Scott v. Harris (a 2007 decision),

we have consistently held that our court lacks the power to reassess facts

on interlocutory review. The 2009 Eng decision could not be clearer

about what our circuit’s law prescribes, see Dissent at 42, and there are

many other precedents to the same effect. See, e.g., Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1067–68 (9th Cir. 2012) (explaining

that “[u]nder the collateral order doctrine[,] . . . . [w]here there are

disputed issues of material fact, our review is limited to whether the

defendant would be entitled to qualified immunity as a matter of law”);

Conner v. Heiman, 672 F.3d 1126, 1130 n.1 (9th Cir. 2012) (explaining

that under Johnson it is only when the “disputes involve what inferences

properly may be drawn from . . . historical facts that are not in dispute”

that an interlocutory appeal will lie (alteration in original) (internal

quotation marks omitted)); Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.

2011) (jurisdiction existed because appellants were “not contesting the

district court’s conclusion that genuine issues of fact exist for trial” but

instead were “appealing the purely legal issue of whether they violated

Alston’s clearly established federal rights”).

GEORGE V. MORRIS 13

the dissent does not fit within that case’s terms either. It

points to no videotape, audio recording, or similarly

dispositive evidence that “blatantly contradict[s]” or “utterly

discredit[s]” Carol’s side of the story. Scott, 550 U.S. at

380.10

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, 131 S. Ct. 884, 891 (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

10

After reciting the summary judgment standard, the Scott v. Harris

Court explained “[t]here is, however, an added wrinkle in this case:

existence in the record of a videotape capturing the events in question.

There are no allegations or indications that this videotape was doctored or

altered in any way, nor any contention that what it depicts differs from

what actually happened. The videotape quite clearly contradicts the

version of the story told by respondent and adopted by the Court of

Appeals.” 550 U.S. at 378. While the dissent frames a bystander’s

recollection as that sort of smoking gun, all it might establish is that a

warning was uttered. Dissent at 51–52. Still crucial (and unknown) is

how Donald responded.

Our colleague in dissent also contends that none of the opinions of the

police practices expert are admissible. See Dissent at 58. 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 (1993).

14 GEORGE V. MORRIS

or omitted, but disputes about the substance and clarity of

pre-existing law” (citing Behrens and Johnson)).11

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).

11

Unlike the dissent we are not convinced that Wilkinson v. Torres,

610 F.3d 546, 550 (9th Cir. 2010) is necessarily to the contrary, for there

we confirmed that “[o]ur jurisdiction to review an interlocutory appeal of

a denial of qualified immunity . . . is limited exclusively to questions of

law.” The panel chiefly “looked past the district court’s conclusion,”

Dissent at 42, with respect to the legal significance to be assigned

plaintiff’s facts. See, e.g., Wilkinson, 610 F.3d at 552 (“While perhaps

true as far as it goes, [plaintiff’s] version omits the urgency of the

situation.”). Admittedly, though, other parts of the opinion do read as

though the appeal arose from the grant of summary judgment. See id. at

553.

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 F.

App’x 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).

GEORGE V. MORRIS 15

III

The deputies’ appeal touches on two questions of

qualified immunity. First, the deputies claim the shooting did

not violate the Constitution. Second, they assert that even if

Donald’s Fourth Amendment rights were violated, they did

not violate law clearly established at the time they acted.

A

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 (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

16 GEORGE V. MORRIS

(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 990.12

B

As to whether the deputies violated the Fourth

Amendment, two Supreme Court decisions chart the general

terrain. Graham v. Connor, 490 U.S. 386 (1989), defines the

excessive force inquiry, while Tennessee v. Garner,

471 U.S. 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

12

Our decision on the clearly established issue does not prevent the

deputies from appropriately raising the second prong of qualified

immunity at a subsequent stage in the litigation, such as in a Rule 50

motion for judgment as a matter of law. See Tortu v. Las Vegas Metro.

Police Dep’t, 556 F.3d 1075, 1080–81 (9th Cir. 2009); Ortiz, 131 S. Ct.

at 889.

GEORGE V. MORRIS 17

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. See

Scott v. Harris, 550 U.S. 372, 381–82 (2007). Yet, “there are

no per se rules in the Fourth Amendment excessive force

context.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

2011) (en banc).13

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

13

See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (courts

must “examine the totality of the circumstances and consider whatever

specific factors may be appropriate in a particular case, whether or not

listed in Graham”) (internal quotation marks omitted), and Harris,

550 U.S. at 382 (“Garner did not establish a magical on/off switch that

triggers rigid preconditions whenever an officer’s actions constitute

‘deadly force.’”).

18 GEORGE V. MORRIS

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

GEORGE V. MORRIS 19

constitutional bounds without knowing “[w]hat happened at

the rear of the George residence during the [four minutes

between when] Mr. George walked out into the open on his

patio and the fatal shot.” Dissent at 40. That is, indeed, “the

core issue in this case.” Id.

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.

20 GEORGE V. MORRIS

Katz, 533 U.S. 194, 201 (2001), overruled on other grounds

by Pearson, 555 U.S. at 227.14

IV

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

14

Carol advances another argument about the unconstitutionality of the

shooting which necessarily fails and should be excluded at trial.

Specifically, she faults the deputies for (1) not gathering intelligence from

her before heading to the backyard, (2) bringing assault rifles, and (3)

failing to “set up a non-confrontational, ‘soft’ perimeter around the

house.” Although at one time Ninth Circuit law did permit these kind of

considerations to inform the subsequent excessive force inquiry, “[w]e

have since placed important limitations” on that line of argument.

Billington v. Smith, 292 F.3d 1177,1188 (9th Cir. 2002); see also Espinosa

v. City & Cnty. of San Francisco, 598 F.3d 528, 547–49 (9th Cir. 2010)

(Wu, J., dissenting) (detailing how our law has receded).

In Billington, we explained that intervening caselaw, since Alexander

v. City & County 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.

GEORGE V. MORRIS 21

right by having appellate review of her unreasonable seizure

claim deferred until final judgment. See LaTrieste Rest. &

Cabaret, Inc. v. Vill. of Port Chester, 96 F.3d 598, 599 (2d

Cir. 1996) (per curiam).15

We therefore lack appellate jurisdiction over Carol’s cross

appeal in its entirety.

V

For the foregoing reasons, the cross appeal is

DISMISSED for lack of jurisdiction. We also conclude that

the facts, as we must regard them, show that Santa Barbara

Sheriff’s Deputies Morris, Rogers and Schmidt could be

found to have violated the Fourth Amendment’s prohibition

on excessive force. They are therefore not entitled to

qualified immunity on that basis.

AFFIRMED IN PART, DISMISSED IN PART. The

parties shall bear their own costs on appeal.

15

“All circuits that have considered whether the collateral order doctrine

confers appellate jurisdiction over appeals arising from a grant of partial

summary judgment based on qualified immunity have universally held

that such a judgment is not immediately appealable.” Id. (collecting

cases). Pendent appellate jurisdiction might be exercised over non-

reviewable interlocutory decisions that raise issues “inextricably

intertwined” with matters properly appealed. Cunningham v. Gates,

229 F.3d 1271, 1284 (9th Cir. 2000). But as Carol’s counsel rightly

appreciated, the claim that deputies unconstitutionally seized Carol

involves different facts and legal standards from those germane to whether

deputies used excessive force when they shot Donald. See id. at 1285.

22 GEORGE V. MORRIS

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 (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 (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?

GEORGE V. MORRIS 23

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.

I

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. Mac Pherson, 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.1

II

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.

1

I do agree with my colleagues’ disposition of Mrs. George’s cross

appeal.

24 GEORGE V. MORRIS

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:

Sheriff’ Dispatcher (“S.D.”): 9-1-1

emergency.

CHP Dispatcher (“CHP”): I had a caller that

was a female caller. The only thing I have is

the number [number omitted].

S.D.: 805-[number omitted]

GEORGE V. MORRIS 25

CHP: [number omitted]. And I got three – the

first three of her address is [address omitted],

and she says she’s in Santa Barbara. She’s

screaming that her husband has a gun.

S.D.: Okay, but you don’t have an address?

CHP: No.

S.D.: And where are you calling from?

CHP: From Ventura CHP.

S.D.: Ventura CHP, okay. I don’t know,

okay, I guess, was she actually in Santa

Barbara City?

CHP: It’s showing off of Cathedral Oaks.

S.D.: Okay, all right, we’ll give her a call.

The Santa Barbara dispatcher operator then called Mrs.

George. Throughout this call, Mrs. George is breathing very

heavily and periodically talking to a man in the background,

presumably her husband. She is anything but calm and

collected. The dispatcher described her as sounding “scared.”

S.D.: Hi, this is the Sheriff’s Department.

Where are you?

Male voice: It’s fine, everything is fine.

S.D.: Ma’am, where are you?

26 GEORGE V. MORRIS

Mrs. George: I’m at home. He said

everything is fine.

S.D.: What is your address?

Mrs. George: I gave it to you earlier.

S.D.: What’s your address ma’am, what’s

your address?

Mrs. George: He said everything is fine.

S.D.: Okay, well, tell me your address.

Male voice: (unintelligible)

Mrs. George: (Apparently addressing her

husband) I’m not talking. (Responding to the

dispatcher’s question) [street address and

name omitted] is my address.

S.D.: [address omitted]?

Mrs. George: Yes. He wants to talk.

At this point, the dispatcher indicated in her deposition

that she thought Mr. George had hung up the phone. The

dispatcher called back:

Mrs. George: Hello.

S.D.: Hi ma’am, it’s the Sheriff’s Department.

Mrs. George: Yeah?

GEORGE V. MORRIS 27

S.D.: We have help on the way, can you talk?

Mrs. George: Yes, he’s outside right now. He

says he won’t do anything. He has cancer and

he just pulled a gun out. I thought all of them

were hidden. He has one, and he says he

won’t do anything but he just wants to have

the – I don’t know. If somebody comes,

please don’t have fire engines.

S.D.: No, we are sending Sheriff’s

Department out.

Mrs. George: All right. I’ll talk to someone at

the front door.

S.D.: Ma’am, what is your name?

Mrs. George: Carol George

S.D.: Carol George?

Mrs. George: Yes I’ve got to go back inside.

S.D.: If you need anything else, let me know,

okay?

Mrs. George: Thank you.

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

28 GEORGE V. MORRIS

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

(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 5, n.1. After his

brain surgery, Mr. George became an angry man.

[H]e kept on saying I don’t want to live like

this, I don’t want to live like this, I’m going to

be a vegetable. He was angry to the point

where we locked the guns that were in the

house. . . . So there’s a closet that has a lock

on it . . ., there was one handgun in the bed

stand, which I took out, because for a few

weeks he could not go up stairs so, I made

sure that was locked in the closet as well and

I had the key, but we told him Jamie had the

key. . . . And so last night, when he went to

bed he was furious because he couldn’t go to

the bathroom. . . . Very, very angry, and he

goes I’m not going to live like this. And then

this morning I saw that he had gotten this

drawer, in the bed stand had a nail through it

and so nobody else, that’s also where we kept

GEORGE V. MORRIS 29

the jewelry and stuff, you know, because

nobody could get to it. I noticed it was open.

So I got scared and he was very angry and

wanted me to leave, he wanted me to leave the

house. . . . So finally he went downstairs and

I followed him, and he said he wanted me to

leave, he wanted me to leave in my car and I

knew someplace in the trunk there was a gun

hidden, but I had looked for it a couple of

days ago and I could not find it, I don’t know

where it was, and somehow he got the keys to

the car this morning, opened the trunk, pulled

out the gun and I am yanking at him and am

screaming at the top of my lungs and I started

panicking and I called 9-1-1. And he got

furious that I called 9-1-1 and he said “if you

don’t stop it, I will use this gun.” I said “no,

just put it down.” So finally he says, well lets

go in the house. So I walk in the house and

he’s carrying this loaded gun now. . . . Yeah,

I know it was loaded. . . .

(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.

30 GEORGE V. MORRIS

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 by

an affidavit contradicting . . . prior deposition testimony.”

Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.

1991). As we said in Kennedy, “if a party who has been

examined at length on deposition could raise an issue of fact

simply by submitting an affidavit contradicting his own prior

testimony, this would greatly diminish the utility of summary

judgment as a procedure for screening out sham issues of

fact.” Id. (alteration & internal quotation marks omitted).

GEORGE V. MORRIS 31

After Scott v. Harris, this common sense rule takes on added

significance.

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

32 GEORGE V. MORRIS

additional ‘specific factors’ relevant to the totality of [the

relevant] circumstances.” Id. at 450 (quoting Bryan, 630 F.3d

at 826). We said,

We have observed that “[t]he volatility of

situations involving domestic violence”

makes them particularly dangerous. United

States v. Martinez, 406 F.3d 1160, 1164 (9th

Cir. 2005). “When officers respond to a

domestic abuse call, they understand that

violence may be lurking and explode with

little warning. Indeed, more officers are

killed or injured on domestic violence calls

than on any other type of call.” Id. (internal

quotation marks and citation omitted). We

have also “recognized that the exigencies of

domestic abuse cases present dangers that, in

an appropriate case, may override

considerations of privacy.” United States v.

Black, 482 F.3d 1035, 1040 (9th Cir. 2007)

(internal quotation marks omitted).

Mattos, 661 F.3d at 450 (emphasis added).

III

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 irrelevance of the

GEORGE V. MORRIS 33

“missing factors” to these events and a misunderstanding of

domestic disputes, especially those involving firearms.2 If the

majority opinion’s inert view of the events at the George

residence is correct, should the officers have simply left the

scene? After all, Mr. George had not committed a crime, his

wife was supposedly safe, he was not resisting arrest or

attempting to flee, and he was entitled by the Second

Amendment to have a loaded gun on his own property. This

reasoning is illogical, as is George’s purported expert’s,

Thomas Parker, statement in his declaration that the deputies

“apparently did not take into account the fact that under

California law, it is no crime to keep or carry a firearm in

one’s own home or on one’s property as long as it is not fired

and no one is threatened.” In elaboration on this irrelevancy,

Parker, instead of discussing the actual incident, said,

2

The Eleventh Circuit in Harris v. Coweta County, 433 F.3d 807 (11th

Cir. 2005), made the same analytical mistake in its run-up to the Supreme

Court, focusing not on the facts and circumstances of the case before it,

but on phantom facts and circumstances that were not relevant. I quote

from its opinion. “[T]aking the facts from the non-movant’s viewpoint,

Harris remained in control of his vehicle, slowed for turns and

intersections, and typically used his indicators for turns. He did not run

any motorists off the road. . . . Nor was he a threat to pedestrians in the

shopping center parking lot, which was free from pedestrian and vehicular

traffic as the center was closed. Significantly, by the time the parties were

back on the highway and Scott rammed Harris, the motorway had been

cleared of motorists and pedestrians allegedly because of police blockades

of the nearby intersections.” Id. at 815–16. The court continued to

highlight similar irrelevancies in a footnote, saying, “accepting Harris’

version of events, Harris did not attempt to ram, run over, side-swipe, or

swerve into any of the officers. . . .” Id. at 816 n.11. Not one of these

irrelevant observations deterred the Supreme Court from its holding

granting immunity to the officers who rammed Harris’s car in order to

stop him.

34 GEORGE V. MORRIS

In this incident, there was no evidence that

Mr. George had broken any laws prior to the

arrival of the deputies arrival [sic] on scene,

nor that he had threatened anyone. . . . To my

knowledge, and from my years of law

enforcement experience, I know that there is

no state or Federal law in California

prohibiting an individual from possessing or

carrying a non-fully automatic firearm in their

[sic] own house or on their [sic] own property,

absent any illegal discharge of same or threat

to harm an individual. Neither existed in this

case.

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, 54 Cal. Rptr. 2d

545 (Cal. Ct. App. 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,

GEORGE V. MORRIS 35

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—she called law enforcement. She

knew what a dangerous situation she had on her hands, as we

plainly did in Mattos, but we waive it off as not dangerous?

Minutes later, a residential neighborhood was the scene of

gunfire and a dead body. This situation could not be “safe”

for anyone until Mr. George no longer had a loaded gun.

Mrs. George certainly understood this, even though Mr.

Parker does not. So do the friends and families of officers

killed or injured responding to this category of 9-1-1 calls.

Contrary to my colleagues’ view, this dispute was not

“seemingly over” when the deputies arrived; and she was

clearly still in jeopardy with an armed, suicidal, defiant, and

angry husband in the house.

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

36 GEORGE V. MORRIS

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 a “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 (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).

The volatility of situations involving

domestic violence make them particularly

GEORGE V. MORRIS 37

well-suited for an application of the

emergency doctrine. When officers respond

to a domestic abuse call, they understand that

“violence may be lurking and explode with

little warning.” Fletcher v. Clinton, 196 F.3d

41, 50 (1st Cir. 1999). Indeed, “more officers

are killed or injured on domestic violence

calls than on any other type of call.”

Hearings before Senate Judiciary Committee,

1994 WL 530624 (F.D.C.H.) (Sept. 13, 1994)

(statement on behalf of National Task Force

on Domestic Violence).

2. United States v. Brooks, 367 F.3d 1128, 1137 (9th Cir.

2004).

Brooks contends that even if there were

probable cause and exigent circumstances to

justify Perez’s warrantless entry, once Perez

heard from Bengis that she was unharmed, the

exigency dissipated and Perez, by staying to

question longer, violated Brooks’s Fourth

Amendment rights. . . .

We disagree. In Perez’s experience, as he

testified in the district court, it was “very

common” for victims of domestic abuse

initially to deny that they had been assaulted.

This view could be credited by the district

court. We, too, agree that a victim of

domestic violence may deny an assault,

especially when an abuser is present. Perez’s

decision to stay and ask more questions was a

reasonable police procedure. A potential

38 GEORGE V. MORRIS

victim in Bengis’s situation with justification

may fear that by complaining to police, he or

she might expose himself or herself to likely

future harm at the hands of a hostile aggressor

who may remain unrestrained by the law.

3. Tierney v. Davidson, 133 F.3d 189, 198 (2nd Cir. 1998)

(emphasis added).

Indeed, it may have been a dereliction of

duty for Davidson to have left the premises

without ensuring that any danger had passed.

See Barone, 330 F.2d at 545. And Davidson

could not tell that the danger had passed

unless he found the other participant in the

dispute. See State v. Raines, 55 Wash.App.

459, 778 P.2d 538, 542-43 (1989) (“[T]he fact

that the occupants appeared to be unharmed

when the officers entered did not guarantee

that the disturbance had cooled to the point

where their continued safety was assured.

Until they had an opportunity to observe [the

boyfriend] and talk to him, they had no

knowledge of his condition and state of

mind.”).

4. Fletcher v. Town of Clinton, 196 F.3d 41, 50–51 (1st Cir.

1999).

The balanced choice the officers must

make is protected by qualified immunity . . . .

Such immunity is given not only for the

protection of the officers, but also to protect

victims of crime. In the domestic violence

GEORGE V. MORRIS 39

context, immunity is given so that officers

will not have strong incentives to do nothing

when they believe a domestic abuse victim is

in danger. Permitting suit against officers

who have acted reasonably when there is

reason to fear would create exactly the wrong

incentives. Indeed, if the officers had done

nothing, and Fletcher had been injured, they

would have faced the threat of suit. In either

event, their choice would be protected if it

was objectively reasonable in light of clearly

settled law.

5. Fletcher v. Town of Clinton, 196 F.3d 41, 52 (1st Cir.

1999).

In domestic violence situations, officers may

reasonably consider whether the victim is

acting out of fear or intimidation, or out of

some desire to protect the abuser, both

common syndromes. See United States v.

Bartelho, 71 F.3d 436, 438 (1st Cir. 1995)

(noting that officers are often trained not to

take the statements of abuse victims at face

value, but instead to consider whether the

victims are acting out of fear). Indeed, one

commentator has estimated that domestic

violence victims are uncooperative in eighty

to ninety percent of attempted criminal

prosecutions against their batterers.

40 GEORGE V. MORRIS

IV

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?

A.

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,

When the moving party has carried its burden

under Rule 56(c), its opponent must do more

than simply show that there is some

metaphysical doubt as to the material facts.

. . . Where the record taken as a whole could

not lead a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue

for trial.’

GEORGE V. MORRIS 41

550 U.S. at 380 (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (footnote

& alteration omitted) (emphasis added).

The Court continued:

[T]he mere existence of some alleged factual

dispute between the parties will not defeat an

otherwise properly supported motion for

summary judgment; the requirement is that

there be no genuine issue of material fact.

When opposing parties tell two different

stories, one of which is blatantly contradicted

by the record so that no reasonable jury could

believe it, a court should not adopt that

version of the facts for purposes of ruling on

a motion for summary judgment [on a

question of qualified immunity].

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 (internal quotation

mark omitted). In Scott v. Harris, the Court looked at the

“record taken as a whole,” id. at 380, 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. 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

42 GEORGE V. MORRIS

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 the

Court was “usurping the jury’s factfinding function.” In

answer to his concerns, the Court said,

At the summary judgment stage, . . . once we

have determined the relevant set of facts and

drawn all inferences in favor of the non-

moving party to the extent supportable by the

record, the reasonableness of [the officer’s]

actions . . . is a pure question of law.

Id. at 381 n.8 (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.

B.

Some observations about my colleagues concerns arising

from their understanding of Johnson v. Jones, 515 U.S. 304

(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 9–10

(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.

GEORGE V. MORRIS 43

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, Johnson

held that we will not on interlocutory appeal revisit that issue,

id. at 313. 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. 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

(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

44 GEORGE V. MORRIS

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 Scott with the Supreme Court’s

edict in Johnson, this [c]ourt has concluded that 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 appeal.’” Id. (quoting

Blaylock, supra); Lewis v. Tripp, 604 F.3d 1221, 1225–26

(10th Cir. 2010) (“[W]hen the ‘version of events’ the district

court holds a reasonable jury could credit ‘is blatantly

contradicted by the record,’ we may assess the case based on

our own de novo view of which facts a reasonable jury could

accept as true.” (quoting Scott, 550 U.S. at 380)). Both

circuits have relied on their understanding of Scott v. Harris

in thorough, unpublished opinions. Rodriguez v. City of

Cleveland, 439 F. App’x 433, 456–57 (6th Cir. 2011);

Blackwell v. Strain, 496 F. App’x 836, 845–847 (10th Cir.

2012). In each case, the circuits granted qualified immunity

to the defendants on appeal notwithstanding the district

courts’ statements regarding the existence of genuine disputes

of material fact.

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

GEORGE V. MORRIS 45

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. 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.

C.

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:

We decided to set up a perimeter around

the house to contain the threat of the man with

46 GEORGE V. MORRIS

the gun. I took the “1-2” corner of the house

which covers the front door and east side of

the house, Deputy Schmidt took position in

the “2-3” corner of the house, and Deputy

Morris covered the “3-4” corner of the house.

While holding my position I asked Deputy

Hudley to determine if there are any exits on

the west side of the property. Deputy Hudley

advised that there is a door on the west side,

and he agreed to cover that portion of the

house.

At approximately 8:11:17 a.m. I heard

Deputy Schmidt try to contact me over the

radio and then I heard him broadcast that he

saw a door opening. At this time I decided to

leave my position at the “1-2” corner to assist

Deputies Schmidt and Morris. I walked down

the northeast corner of the house towards the

backyard, and there I saw the suspect with a

gun in his hand and pushing a walker or

buggy walk out of a door onto a patio. I

immediately crouched down behind a tree

with no foliage.

At approximately 8:11:51 a.m. I heard

Deputy Schmidt broadcast over the radio that

the subject (Donald George) was on the back

patio with a firearm in his left hand.

I heard Deputy Schmidt shouting

commands to the suspect, such as, “Drop the

GEORGE V. MORRIS 47

gun,” “Show me your hands,” and “Sheriff’s

Department.”

I observed the suspect manipulating the

rear portion of the gun as if to rack a round or

remove the safety while Deputy Schmidt was

still shouting commands. The suspect held

the gun down towards the yard and began to

scan the backyard. I also heard the suspect

talking, and what appeared to be in response

to Deputy Schmidt’s orders. He said, “No” a

few times and something that sounded like,

“No you won’t.”

The suspect then turned east toward me,

raised his gun and pointed it directly at me. I

saw the barrel of his gun pointed at me, and

fearing for my safety I fired my weapon at

him.

The suspect did not fall down after my

first shot and the barrel of his gun was still

pointed at me. Still fearing for my safety I

fired my weapon five times until I no longer

perceived the threat of serious bodily harm or

death.

Deputy Rogers’s first-person description of his use of a

firearm is corroborated by Deputy Schmidt:

Deputies Morris and Rogers told me that

Mrs. George reported her husband was last

seen on the back patio with a firearm. The

48 GEORGE V. MORRIS

three of us walked down the driveway and

through a side gate that led to the backyard.

We decided to set up a perimeter around

the house to contain the threat of the man with

the gun. Deputy Rogers took the “1-2” corner

of the house which covered the front door and

east side of the house, I took position in the

“2-3” corner of the house, and Deputy Morris

covered the “3-4” corner of the house.

Once I arrived at the “2-3” corner in the

backyard I stayed in position, gathering

information and broadcasting my observations

over the radio. I stayed in this position for

approximately seven minutes when at 8:11:17

a.m. I saw the door to the patio open, and then

at 8:11:51 a.m. the suspect came out on the

patio with a firearm in his left hand. I

immediately broadcast this information over

the radio.

I saw Deputy Rogers take position to the

east of the patio about 10–12 feet from where

the suspect stood, and Deputy Morris moved

his position closer to my west side.

I began to shout commands to the suspect,

such as: “Sheriff’s Department,” “Show me

your hands,” and “Drop the gun.”

At this time the suspect held the gun down

towards the yard, and he appeared to be

GEORGE V. MORRIS 49

scanning the backyard looking for the

direction of my voice.

I saw the suspect manipulate the gun with

his right hand in what appeared to me a move

to take off the safety on his gun. I heard the

suspect say, “No you won’t.”

I then saw the suspect lift his gun and

point it directly at Deputy Rogers. Fearing for

the safety of Deputy Rogers I shot at the

suspect.

After firing two shots I saw the suspect

fall to the ground. I immediately began to run

towards the patio. I heard one more shot.

When I got closer to the patio I saw the

suspect lying on the ground with his gun lying

on the center of his chest.

Next, I turn to Deputy Morris:

Once I arrived at the “3-4” corner in the

backyard I stayed in position, gathering

information and broadcasting my observations

over radio. I stayed in this position for

approximately seven minutes until Deputy

Schmidt announced (over the radio) at 8:11:51

a.m. that he saw the suspect on the back patio

with a firearm in his left hand.

Once I heard Deputy Schmidt’s report, I

moved closer to the patio to aid Deputy

Schmidt. I positioned myself to the west of

50 GEORGE V. MORRIS

Deputy Schmidt. From that position I was

able to see the suspect with the gun in his

hand, and he appeared to be pushing a buggy

or a bicycle.

I saw Deputy Rogers take a position to the

east of the patio where the suspect stood.

At this time the suspect held the gun down

towards the yard, and I heard Deputy Schmidt

shouting commands to him, such as, “Drop

the gun,” “Show me your hands,” and

“Sheriff’s Department.” The suspect

appeared to be scanning the backyard looking

for the direction of Deputy Schmidt’s voice.

I then saw the suspect lift his gun, turn

eastward, and point his gun directly at Deputy

Rogers. Fearing for the safety of Deputy

Rogers I fired at the suspect.

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:

I arrived at [address omitted] at

approximately 8:06:51. I parked my vehicle

on San Antonio Creek Road, north of Via

Gennita. I walked down Via Gennita and I

found Deputy Hudley talking with a woman,

Carol George, behind his patrol vehicle.

Deputy Hudley told me Mrs. George was the

reporting party, that her husband was

GEORGE V. MORRIS 51

depressed, recently had brain surgery to

remove a tumor, and that she had secured all

of the firearms that she could find in the home

because of his depression. Mrs. George

explained that her husband had been

frustrated, angry and argued with her that

morning. He produced a handgun and she

called 9-1-1 for help.

I used Deputy Hudley’s cell phone to call

the George’s house telephone. Mr. George

did not answer but an answering machine

activated. I repeatedly called out to Mr.

George over the telephone and into the

answering machine to come to the phone in an

attempt to open dialogue with him. Mr.

George did not answer.

During this attempted phone call I heard

one of the deputies in the backyard shouting

commands, such as “Drop it” and “Put it

down.” I next heard several gun shots.

Shortly thereafter I heard radio

transmissions advising “Shots fired” and

“Suspect down” with medical assistance

requested. I quickly walked to the backyard

and instructed Deputy Hudley to stay with

Mrs. George.

In addition to the deputies’ declarations, we have

bystander citizen information from Karla MacDuff

corroborating their description of the sequence of events and

the deputies’ warnings before the shooting started. MacDuff

52 GEORGE V. MORRIS

was a guest and a friend of the Georges who was living in the

lower apartment level of the house. According to MacDuff,

she was awakened at approximately 7:45 a.m. that morning

by someone excitedly shouting “Drop the gun.” She heard

this command two times. After these commands, then she

heard “quite a few gunshots.” There is nothing relevant in the

record that challenges her information.

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:

A. . . . So as a result of his stroke he was

incontinent that night and apparently

woke up very depressed, and Carol told

me that he asked her to leave the house,

and she said that she did not want to leave

him alone and she was afraid for him

because she thought that he might commit

suicide. And she told me that she didn’t

believe there were any guns in the house,

but apparently he had gone to the truck in

the driveway and there was a gun in the

glove compartment of the truck, and that

he had come back in the house with it.

GEORGE V. MORRIS 53

Q. Okay. Did Carol tell you that she was

concerned about Don was suicidal?

A. She told me that one of the doctors they

were working with had warned her that he

thought he might become suicidal or was

suicidal and to make sure that anything

that was of danger to him in the house was

removed.

Q. Did Carol tell you that she had locked up

or she had thought she locked up all the

guns?

A. Uh-huh, that’s why she didn’t think that

there was anything that he could get to.

Q. Did Carol tell you why she thought Don

asked her to leave that morning?

A. He said that he just wanted to go out and

sit on the back patio and enjoy the

morning. She said that she felt that he

was going to commit suicide.

V

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

54 GEORGE V. MORRIS

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.

GEORGE V. MORRIS 55

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 (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 Karla McDuff’s statements that she heard

the deputies shouting “drop the gun!”?

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

56 GEORGE V. MORRIS

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

GEORGE V. MORRIS 57

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 (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 (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.

In summary, Mr. Parker cannot be allowed as an “expert”

to surmise or speculate or opine (1) that the deputies are

lying, (2) that he doesn’t believe Mr. George knew the

deputies were in his backyard or that he could hear the

deputies commands, (3) that Mr. George could not have

uttered any coherent words in response to the deputies

commands, and (4) that Deputy Schmidt could not see a gun

in Mr. George’s hands when Deputy Schmidt was yelling at

him on the patio. What is left of Mr. Parker’s report that is

relevant or material to the issues of excessive force?

58 GEORGE V. MORRIS

Nothing. There is no such thing as an expert on these issues

short of medically-trained personnel familiar with Mr.

George’s senses. Apparently Mr. George was coherent and

responsive—if not rational—in his conversations with his

wife, but Mr. Parker appears to believe that capacity

evaporated when he walked onto his patio.

VI

Simply put, there is no competent admissible direct or

circumstantial evidence in this record to prove or even to

suggest under rigorous Scott v. Henrich3 review that Mr.

George did not point his gun at Deputy Rogers before he was

shot. The disputes cited by the district court are not material,

and the remainder of the plaintiff’s evidence is demonstrably

not competent either to resolve the ultimate issue of excessive

force or the deputies’ credibility.

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.

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

3

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Santos v. Gates,

287 F.3d 846, 852 (9th Cir. 2002).

GEORGE V. MORRIS 59

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 (emphasis

omitted); Anderson, 477 U.S. at 249 (“[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.

VII

Why does all of this matter? It matters because the

doctrine of qualified immunity requires the judiciary to

refrain from inappropriately intruding into and interfering

with the assigned responsibilities of the executive branch of

government. The Supreme Court has repeatedly stressed this

concern and determined it to be so substantial that qualified

immunity is not just a “mere defense to liability,” but an

“immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) (emphasis in original). Fleshing out this defense, the

Court has called it “an entitlement not to stand trial or face

the other burdens of litigation . . . .” Id. Moreover, the Court

also emphasized that the immunity “is effectively lost if a

case is erroneously permitted to go to trial.” Id. at 526–27. It

is for this reason that a district court’s denial of qualified

immunity is immediately appealable. Id. This reasoning

60 GEORGE V. MORRIS

distinguishes denials of normal interlocutory decisions which

are not immediately appealable, and this interlocutory

decision which is.

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 (1982).

These social costs include the expenses of

litigation, the diversion of official energy

from pressing public issues, and the

deterrence of able citizens from acceptance of

public office. Finally, there is the danger that

fear of being sued will “dampen the ardor of

all but the most resolute, or the most

irresponsible [public officials], in the

unflinching discharge of their duties.”

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,

we discover that

the Lord Mayor of London, in 1666, when

that city was on fire, would not give directions

for, or consent to, the pulling down 40

wooden houses, or to removing the furniture,

&c, belong to the Lawyers of Temple, then on

the Circuit, for fear he should be answerable

for tresspass; and in consequence of this

conduct half that great city was burnt.

GEORGE V. MORRIS 61

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 (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.