Lerette v. County of Hawaii

FILED

NOT FOR PUBLICATION

NOV 4 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIN LERETTE, et al., No. 23-3175

Plaintiffs-Appellants, D.C. No.

1:20-cv-00202-JAO-RT

v.

COUNTY OF HAWAI’I, et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

Jill A. Otake, District Judge, Presiding

Argued and Submitted October 9, 2024

Honolulu, Hawaii

Before: MURGUIA, Chief Judge, and GRABER and MENDOZA, Circuit Judges.

Vincent Burton died seventeen days after an encounter with police officers

pursuant to a DUI arrest. His surviving sister and sons (“Plaintiffs”) appeal the

district court’s dismissal of their excessive force claim against the officers. The

district court ruled on summary judgment that the officers did not violate the

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Constitution and, in the alternative, that they are shielded by qualified immunity. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm on the second prong of

qualified immunity alone (“clearly established law”).1

1. “We review a district court’s grant of summary judgment de novo.”

Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (en banc). In an

excessive force case where the only witness, other than the officers involved, is dead,

“we carefully examine ‘all the evidence in the record, such as medical reports,

contemporaneous statements by the officer and the available physical

evidence, . . . to determine whether the officer’s story is internally consistent and

consistent with other known facts.’” Id. at 795 (ellipsis in original) (quoting Scott v.

Heinrich, 39 F.3d 912, 915 (9th Cir. 1994)).

The only accounts in the record of the event in question are from the

deposition testimony and declarations of police officers. The officers’ account of

what occurred is simple: when an officer opened the door of his service vehicle,

Burton “popped” out of the vehicle with his hands handcuffed in front of him,2

shoved the officer, and attempted to flee. The officer grabbed Burton, bear-hugged

him, and brought him to the ground. They fell, the officer climbed on top of Burton,

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The district court also dismissed Plaintiffs’ state law claims, which Plaintiffs do

not address in their appellate briefing and therefore waive.

2

Plaintiffs argue that the notion that Burton moved his hand to his front after the

officers handcuffed his hands behind him is an “implausible fiction.” But Plaintiffs

offer no reason to doubt the officers’ account other than speculation.

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and Burton acquiesced. After four nights in custody where Burton obtained daily

medical attention for scrapes, he was released on May 8, 2018.

Three days later, on May 11, 2018, Burton sought admission to the Hilo

Medical Center (“HMC”) due to pain in his ribs, vomiting blood, inability to urinate,

and other symptoms. Upon admission, doctors determined that Burton had rib

fractures and that he was in sepsis. Although Burton told HMC medical providers

that he had been “beaten” by the officers, this statement is too vague and contradicted

by the overall record to genuinely discredit the officers’ accounts. See Scott v.

Harris, 550 U.S. 372, 380 (2007). Burton died on May 20, 2018 “as a result of

sepsis and multiorgan failure, secondary to subacute rib fractures sustained during

an altercation with police,” according to an autopsy report.

2. “Qualified immunity protects government officials from liability under

§ 1983 ‘unless (1) they violated a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was clearly established at the time.’” Cuevas v. City

of Tulare, 107 F.4th 894, 898 (9th Cir. 2024) (quoting Waid v. County of Lyon, 87

F.4th 383, 387 (9th Cir. 2023)). “Either prong can be adjudicated on appeal by taking

the facts as most favorable to the plaintiffs and applying the pertinent legal standards

to those facts.” Isayeva v. Sacramento Sheriff ’s Dep’t, 872 F.3d 938, 945 (9th Cir.

2017). “[A] negative answer at either step would entitle defendants to qualified

immunity.” Sabbe v. Washington Cnty. Bd. of Commissioners, 84 F.4th 807, 819 (9th

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Cir. 2023). “A government official’s conduct violates clearly established law when,

at the time of the challenged conduct, the contours of a right are sufficiently clear

that every reasonable official would have understood that what he is doing violates

that right.” Cuevas, 107 F.4th at 898. (brackets, citations, and internal quotation

marks omitted).

Here, the officers were confronted with a suspect who was attempting to

escape custody and who had tried to flee twice before the officers took him into

custody. Plaintiffs urge that the officers used “deadly force” and tailor their proffer

of clearly established law to that characterization of events. We disagree that the

degree of force at issue here should be characterized as deadly force.

Neither the Supreme Court nor we have ever held that a police officer violates

the Fourth Amendment by restraining an arrestee in similar circumstances with a

similar use of force (grabbing, a bear hug, or tripping to bring a fleeing arrestee to

the ground). The cases that Plaintiffs offer in support are out-of-jurisdiction, involve

uses of force far more severe, or involve uses of force against compliant suspects.

See, e.g., Bryan v. MacPherson, 630 F.3d 805, 826–28 (9th Cir. 2010) (use of a taser

on a suspect who was not a threat and did not attempt to flee); Deorle v. Rutherford,

272 F.3d 1272, 1279–80 (9th Cir. 2001), as amended, (Nov. 19, 2001) (use of “lead-

filled ‘less-lethal’ round” from thirty feet on a suspect not attempting to flee); Hogan

v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Plaintiffs’ citation to generalized cases

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such as Graham v. Connor, 490 U.S. 386, 394 (1989), and Tennessee v. Garner, 471

U.S. 1, 7 (1985), is unavailing, because the Supreme Court has “repeatedly told

courts—and the Ninth Circuit in particular—not to define clearly established law at

a high level of generality.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam)

(quoting City & County of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015)).

Though our analysis discussed factors relevant to whether Officer Watkins’ use of

force was reasonable, we reach no conclusion on that issue and rest our holding on

the second prong of qualified immunity alone. See Isayeva, 872 F.3d at 953 (citing

Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

AFFIRMED.

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