Assance v. Lincoln County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

TRISTAN ASSANCE, CV 24—-9-M—DWM

Plaintiff,

V. ORDER

LINCOLN COUNTY, BRANDON

HOLZER, JAMES KIRK KRAFT, and

DOES 1-10,

Defendants.

On December 3, 2024, Defendant Brandon Holzer appealed this Court’s

November 7, 2024 Order rejecting his qualified immunity defense on the

pleadings, (see Doc. 35). (Doc. 40.) Holzer then moved unopposed to stay the

case pending the resolution of that appeal. (Doc. 42.) That request was granted

and the matter stayed. (Doc. 44.) Subsequently, Plaintiff Tristan Assance filed the

present motion, asking that Holzer’s appeal be certified as frivolous. (Doc. 47.)

Holzer opposes, arguing both that Assance waived his objection by agreeing to the

stay and that interlocutory appeal is appropriate as a matter of law. (Doc. 51.)

Because the law permits an interlocutory appeal in this instance, Assance’s motion

is denied.

A district court’s denial of qualified immunity is a narrow exception to the

rule that the denial of motion to dismiss is not immediately appealable. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Behrens v. Pelletier, 516 U.S. 299,

307 (1996) (clarifying that exception also applies to rulings on the pleadings).

“The reasoning behind this departure from the general rule is that qualified

immunity is ‘an immunity from suit rather than a mere defense to liability; . . . it is

effectively lost if a case is erroneously permitted to go to trial.’” Padgett v.

Wright, 587 F.3d 983, 985 (9th Cir. 2009) (per curiam) (quoting Mitchell, 472 U.S.

at 530). Interlocutory appeal of an order denying qualified immunity divests the

district court of jurisdiction to proceed, unless the district court certifies that the

appeal is frivolous or forfeited. Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.

1992) (citing Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989)). The district

court’s power to certify that an appeal is frivolous “must be used with restraint.”

Apostol, 870 F.2d at 1339.

Holzer’s appeal presents a close question. Holzer’s argument for qualified

immunity was denied because clearly established law prohibited him from

shooting an erratically behaving individual that did not pose an immediate threat to

either himself or others. (See Doc. 35 at 14-16.) Thus, Holzer’s bid for qualified

immunity was denied both on the facts of Assance’s pleading and an assessment of

the law in existence at the time of the incident. Holzer challenges both

determinations. While Holzer’s position was rejected by this Court, (see Doc. 35),

it is not so baseless that it fails to invoke the jurisdiction of the court of appeals.

As to the first prong of the qualified immunity analysis, Holzer insists that

his conduct was objectively reasonable under the facts as alleged by Assance.

Contrary to Assance’s argument, that determination can be reviewed by the

appellate court. See Behrens, 516 U.S. at 309 (explaining that at the dismissal

stage, “it is the defendant’s conduct as alleged in the complaint that is scrutinized

for ‘objective legal reasonableness”); see also Wilkins v. City of Oakland, 350

F.3d 949, 951 (9th Cir. 2003) (explaining that while the appellate court cannot

resolve factual disputes on interlocutory appeal, it may “determine if the denial of

qualified immunity was proper by assuming the version of events offered by the

non-moving party”). And, as argued by Holzer, Assance indeed pled that Holzer

was responding to the sound of what he thought was a gun shot. (See Doc. 1 at

{ 37.) Assance’s concern that Holzer’s relies on either disputed facts or facts not

contained in the Complaint is assuaged by the fact that the appellate court’s

jurisdiction does not extend to resolving factual disputes. See Behrens, 516 U.S. at

309. In assessing the reasonableness of Assance’s conduct, the appellate court will

have to assume the facts as pled. Jd.

As to the question of clearly established law, to defeat qualified immunity, a

“plaintiff[] must cite functionally identical precedent that places the legal question

‘beyond debate’ to ‘every’ reasonable officer.” Zadeh v. Robinson, 902 F.3d 483,

498 (5th Cir. 2018) (Willett, J., concurring). Holzer maintains that the fact that he

was responding to the sound of what he thought was a gun shot, (see Doc. 1 at

{ 37), takes this case outside existing precedent. Thus, even if Assance is correct

that Holzer’s conduct was objectively unreasonable or that any and all factual

disputes would be resolved in Assance’s favor, Holzer insists that the law was not

clearly established. Compare with Wilkins, 350 F.3d at 955 (rejecting qualified

immunity appeal due to factual dispute where “there is no question whether the

officers’ actions .. . violated clearly established law”) and Toscano v. City of

Fresno, 2015 WL 6163205 (E.D. Cal. Oct. 19, 2015) (certifying qualified

immunity appeal as frivolous where parties disputed whether the officer

intentionally or accidentally struck the decedent with his patrol vehicle). The

Ninth Circuit has jurisdiction over that purely legal claim. See Jsayeva v.

Sacramento Sheriff's Dep’t, 872 F.3d 938, 945—46 (9th Cir. 2017) (emphasizing

that the appellate court can consider whether an officer’s conduct violated clearly

established law).

Ultimately, while Assance persuasively argues that civil rights actions such

as this should proceed on the merits,’ the law favors Holzer. See Behrens, 516

' Qualified immunity itself is a judge-made doctrine that, despite its moniker,

insulates unconstitutional misconduct. See Zadeh, 902 F.3d at 498 (Willett, J.,

concurring) (“[I]t’s immaterial that someone acts unconstitutionally if no prior case

held such misconduct unlawful.”). That injustice is then compounded by the fact

that defendants asserting a qualified immunity defense have the right to bring more

than one interlocutory appeal of any adverse immunity determination. See

Behrens, 516 U.S. at 311.

U.S. at 311 (“As we have said, an order denying qualified immunity, to the extent

it turns on a ‘issue of law,’ Mitchell, 472 U.S. at 530, is immediately appealable.”).

Absent preexisting cases dealing with this question, I would hold the appeal here is

a waste of judicial resources. Somehow, shooting an unarmed person, out of fear

or otherwise, does not seem to comport with the reasonable use of force when the

facts of the complaint are accepted as true.

Because Assance’s motion fails on the merits, the Court does not reach

Holzer’s waiver argument.

Based on the foregoing, IT IS ORDERED that Assance’s motion to certify

Holzer’s appeal as frivolous (Doc. 47) is DENIED.

DATED this Kw of February, 2025. .

United States [District Court