Wilkinson v. Torres

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT WILKINSON, in his individual 

capacity and as Executor of the

Estate of Jason Scott Wilkinson;

ALISHA WHITE, an individual; No. 09-35098

ESTATE OF JASON SCOTT WILKINSON,

Plaintiffs-Appellees,  DC No.

CV 08-5281 BHS

v. OPINION

RICK TORRES, individually and as

City of Vancouver Police Officer,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

January 15, 2010—Seattle, Washington

Filed July 6, 2010

Before: A. Wallace Tashima and Richard C. Tallman,

Circuit Judges, and Consuelo B. Marshall, District Judge*

Opinion by Judge Tashima;

Dissent by Judge Marshall

*The Honorable Consuelo B. Marshall, United States District Judge,

Central District of California, sitting by designation.

9541

WILKINSON v. TORRES 9545

COUNSEL

Beau D. Harlan, Vancouver, Washington, for the plaintiffs-

appellees.

Stewart A. Estes, Keating, Bucklin & McCormack, Seattle,

Washington, for the defendant-appellant.

OPINION

TASHIMA, Circuit Judge:

On May 8, 2005, Defendant-Appellant Rick Torres

(“Torres”) shot and killed Jason Scott Wilkinson

(“Wilkinson”) as Wilkinson was driving a stolen minivan in

a residential yard where the officers were on foot. Plaintiffs-

Appellees Scott Wilkinson, Alisha Wilkinson, and the estate

of Jason Scott Wilkinson (collectively, “Plaintiffs”) brought

an action against Torres and others, alleging that their consti-

tutional rights under the Fourth and Fourteenth Amendments

were violated by Torres’ use of deadly force. Torres moved

for summary judgment on the issue of qualified immunity, but

the district court denied the motion, citing disputed issues of

material fact. Torres appeals, arguing that he is entitled to

qualified immunity because his use of force was reasonable as

a matter of law. We agree and therefore reverse.

9546 WILKINSON v. TORRES

BACKGROUND

On May 8, 2005, at approximately 11:20 a.m., City of Van-

couver Police Officer John Key (“Key”) was on patrol when

he saw a minivan parked near a known drug house. Key

checked the license plate on his mobile data center (i.e., an in-

car computer) and confirmed over the radio that the vehicle

was stolen. Key yelled at the driver to get his attention, but

the driver, instead of responding, leaned down out of Key’s

sight. After half a minute to a minute, the driver sat up, started

the car, and started driving away. Key pursued the minivan in

his car.

While this was happening, Torres, another Vancouver

Police Officer, was on duty nearby. Torres heard Key’s

request on the radio to check the plate. According to Torres,

he “could tell by the tone of [Key’s] voice that something was

up.” Torres joined the pursuit with his siren on and eventually

took the lead in order to execute a Pursuit Immobilization

Technique (“PIT”) maneuver on the minivan.1 The pursuit

proceeded at a moderate speed — five to ten miles over the

speed limit. After the minivan entered a “T” intersection, Tor-

res executed the PIT maneuver, causing the minivan to spin.

The minivan kept going, however, and Torres executed a sec-

ond PIT maneuver, causing the minivan to enter a yard on the

northwest corner of the intersection.

After entering the yard on the eastern side, the minivan

regained control and accelerated in a southwest direction back

toward the road. At this point, Clark County Deputy Sheriff

Scott Schanaker (“Schanaker”), who had arrived at the scene,

positioned his car in the minivan’s path to block the escape.

The minivan swerved and hit a telephone pole next to

Schanaker’s car.

1

A PIT maneuver is a law enforcement procedure whereby a police offi-

cer bumps the rear quarter panel of the suspect’s vehicle with the front

quarter panel of the officer’s vehicle, sending the suspect vehicle into a

spin.

WILKINSON v. TORRES 9547

Key and Torres got out of their patrol cars and approached

the minivan on foot. Torres yelled at the driver to show his

hands. Key attempted to open the driver-side front door and

fell on the ground about the same time as the minivan started

moving in reverse.2 The front of the minivan swung toward

the driver side, and the rear of the minivan swung toward the

passenger side. The wheels on the minivan were spinning and

throwing up mud. After one to two seconds, according to

Plaintiffs’ witness, Key got up and “walked[ ] or jumped out

of the way . . . so he wouldn’t get ran (sic) over.”

Once he saw Key fall down, Torres yelled at the driver to

stop. Torres believed that Key had been run over. The

minivan continued to back up, and Torres began shooting

through the passenger-side window. After a slight pause dur-

ing which he assessed the situation, Torres continued firing at

the driver of the minivan. The minivan continued to arc

around Torres, but eventually straightened out and slowed

down. Torres called in that shots had been fired. Evidence

later showed that Torres had fired eleven rounds of a fifteen-

round magazine. According to radio logs, the elapsed time

between the final PIT maneuver and the radio call after the

shots had been fired was nine seconds.

The driver of the minivan died of multiple gunshot wounds

and was later identified as Wilkinson. Plaintiffs brought this

42 U.S.C. § 1983 action against Torres and others. The dis-

trict court denied Torres’ motion for summary judgment

based on qualified immunity. Torres timely appeals.

JURISDICTION AND STANDARD OF REVIEW

Although an appellate court generally does not have juris-

diction over an interlocutory appeal from the denial of a

2

The parties dispute whether Key slipped on the grass or was knocked

over by the minivan. This dispute is immaterial to our determination of

this case.

9548 WILKINSON v. TORRES

motion for summary judgment, an order denying qualified

immunity is immediately appealable. Scott v. Harris, 550 U.S.

372, 376 n.2 (2007). Our jurisdiction to review an interlocu-

tory appeal of a denial of qualified immunity, however, is lim-

ited exclusively to questions of law. Sanchez v. Canales, 574

F.3d 1169, 1173 (9th Cir. 2009). Where disputed issues of

material fact exist, we must assume the version of facts pres-

ented by the plaintiff. Id.

We review a denial of qualified immunity de novo. Porter

v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). In doing so,

we must “view the facts and draw reasonable inferences ‘in

the light most favorable to the party opposing the [summary

judgment] motion.’ ” Scott, 550 U.S. at 378 (alteration in

original) (citations omitted). However, when the facts, as

alleged by the non-moving party, are unsupported by the

record such that no reasonable jury could believe them, we

need not rely on those facts for purposes of ruling on the sum-

mary judgment motion. Id. at 380.

DISCUSSION

Plaintiffs claim that Torres violated Wilkinson’s Fourth

Amendment right to be free from excessive force and Scott

Wilkinson and Alisha White’s Fourteenth Amendment due

process right to familial association. We analyze each claim

in turn.

I. Fourth Amendment Claim

[1] Apprehension by deadly force is a seizure subject to

the Fourth Amendment’s reasonableness requirement. See

Graham v. Connor, 490 U.S. 386, 395 (1989). However, an

officer using deadly force is entitled to qualified immunity,

unless the law was clearly established that the use of force

violated the Fourth Amendment. See Brosseau v. Haugen,

543 U.S. 194, 198 (2004). The qualified immunity inquiry

consists of two parts: (1) “whether the facts that a plaintiff has

WILKINSON v. TORRES 9549

alleged . . . or shown . . . make out a violation of a constitu-

tional right,” and (2) “whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct.”

Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009) (citation

omitted).

[2] Case law has clearly established that an officer may not

use deadly force to apprehend a suspect where the suspect

poses no immediate threat to the officer or others. Tennessee

v. Garner, 471 U.S. 1, 11 (1985). On the other hand, it is not

constitutionally unreasonable to prevent escape using deadly

force “[w]here the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to

the officer or to others.” Id.

In assessing reasonableness, the court should give “careful

attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at

396. “The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id.

(citation omitted). In addition, “[t]he calculus of reasonable-

ness must embody allowance for the fact that police officers

are often forced to make split-second judgments — in circum-

stances that are tense, uncertain, and rapidly evolving —

about the amount of force that is necessary in a particular situ-

ation.” Id. at 396-97.

Whether the use of deadly force is reasonable is highly

fact-specific, see Scott, 550 U.S. at 383 (“Although respon-

dent’s attempt to craft an easy-to-apply legal test in the Fourth

Amendment context is admirable, in the end we must still

slosh our way through the factbound morass of ‘reasonable-

ness.’ ”), but the inquiry is an objective one, Graham, 490

U.S. at 397 (“[T]he question is whether the officers’ actions

9550 WILKINSON v. TORRES

are ‘objectively reasonable’ in light of the facts and circum-

stances confronting them . . . .” (citation omitted)). A reason-

able use of deadly force encompasses a range of conduct, and

the availability of a less-intrusive alternative will not render

conduct unreasonable. Scott v. Henrich, 39 F.3d 912, 915 (9th

Cir. 1994).

[3] Here, Torres did not violate a constitutional right. Even

construing the facts in the light most favorable to Plaintiffs,

a reasonable officer in Torres’ position had probable cause to

believe that Wilkinson posed an immediate threat to the safety

of Key and himself.3 When he fired the shots, Torres was

standing in a slippery yard with a minivan accelerating around

him. The driver of the minivan had failed to yield to police

sirens as well as to direct commands to put his hands up and

to stop the vehicle. Cf. Brosseau, 543 U.S. at 200 (finding that

“shoot[ing] a disturbed felon, set on avoiding capture through

vehicular flight, when persons in the immediate area are at

risk from that flight” was not a clearly established Fourth

Amendment violation). The minivan was accelerating, its tires

were spinning, mud was flying up, and a fellow officer was

nearby either lying fallen on the ground or standing but disori-

ented. The situation had quickly turned from one involving a

crashed vehicle to one in which the driver of a moving vehi-

cle, ignoring police commands, attempted to accelerate within

close quarters of two officers on foot. In this “tense, uncer-

tain, and rapidly evolving” situation, a reasonable officer had

probable cause to believe that the threat to safety justified the

use of deadly force.

[4] Plaintiffs argue that the declaration of Anthony Davis,

a bystander witness, creates triable issues of fact as to whether

Key was in harm’s way during the shooting, and whether Key

and Torres were in each other’s line of sight moments before

3

Torres also argues that Wilkinson posed a risk to the public at large.

Because the threat to the safety of Key and Torres was enough to justify

the use of deadly force, we need not reach this argument.

WILKINSON v. TORRES 9551

the shooting. This argument cannot support the denial of sum-

mary judgment. Although Davis stated that Key immediately

jumped back to his feet after falling, he also stated that he was

worried that Key would get run over, because Key was in

shock after getting up. More importantly, we must view the

facts from Torres’ perspective at the time he decided to fire.

Even if Key was in fact out of harm’s way by the time of the

shooting and Key and Torres were in each other’s line of sight

before the shooting, the critical inquiry is what Torres per-

ceived. Torres’ testimony that he saw Key fall, thought Key

had been run over, and was afraid that the van would arc back

around toward Key, is uncontradicted by any evidence in the

record. To the contrary, the evidence shows that the van was

still moving in the midst of the officers who were trying to

stop it when the fatal shots were fired.

Furthermore, Plaintiffs’ sanitized version of the incident

cannot control on summary judgment when the record as a

whole does not support that version. Plaintiffs state: “Key

stood in front of the minivan as it backed slowly away . . . .

Torres then walked to the front passenger window . . . and fire

(sic) his weapon into the minivan at the driver . . . .” While

perhaps true as far as it goes, this version omits the urgency

of the situation. After all, the record is uncontroverted that

this entire episode occurred in less than nine seconds. Cf.

Scott, 550 U.S. at 378-79 (“Indeed, reading the lower court’s

opinion, one gets the impression that respondent, rather than

fleeing from police, was attempting to pass his driving test

. . . .”). Torres had just run up to the side of the minivan and

put his hand on the window when the vehicle started moving

again after having crashed into a telephone pole. He could

hear the engine revving and the wheels spinning. Although

the vehicle was moving at a slow rate of speed because of the

slippage, it could have gained traction at any time, resulting

in a sudden acceleration in speed. Torres was not observing

the minivan from a distance as Davis was, but was standing

in the partially enclosed yard with a driver desperate to

escape.

9552 WILKINSON v. TORRES

Plaintiffs argue that this court should follow the Eighth Cir-

cuit’s decision in McCaslin v. Wilkins, 183 F.3d 775 (8th Cir.

1999), and the Second Circuit’s decision in Cowan ex rel.

Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003), and

find summary judgment inappropriate. These cases, however,

are distinguishable.

In McCaslin, the decedent’s truck had slid over an embank-

ment into a ditch during a high-speed vehicular pursuit.

McCaslin, 183 F.3d at 777. Although police stated that the

truck started driving back up the embankment toward them

before they fired any shots, two witnesses stated that the gun-

shots began almost immediately after the truck left the road,

and one of the witnesses stated that the tire tracks did not indi-

cate that the truck had ever started back up the embankment.

Id. The Eighth Circuit, finding that the disputed facts were

material, affirmed the denial of summary judgment for the

defendant. Id. at 779.

In Cowan, the defendant fired twice at the driver of an

approaching car from the side of a highway, claiming that he

feared he was in danger of being run over. Cowan, 352 F.3d

at 758-59. The plaintiff presented evidence, however, show-

ing that the car was traveling slowly and that the officer was

not in the vehicle’s path but off to the side. Id. at 759. Further-

more, the officer did not state that the second shot was fired

because of any danger to himself, but rather because he was

trained to fire twice. Id. at 763.

[5] Here, unlike in McCaslin and Cowan, there are no

material disputed facts. Torres, the other witnesses, and even

Plaintiffs’ experts agree that the minivan was backing up in

an arc when Torres fired the shots. Because the van could

have arced around to run over Key or Torres, or stopped and

pulled forward with the same effect, Torres’ fear for the

safety of himself and others was reasonable.

WILKINSON v. TORRES 9553

[6] To the extent that Cowan requires an officer to reevalu-

ate whether a deadly threat has been eliminated after each

shot, we disagree that it should be applied in the circum-

stances of this case. Such a requirement places additional risk

on the officer not required by the Constitution. Torres did not

shoot mindlessly, but responded to the situation by ceasing

fire after he perceived that the van had lost power and that the

threat had been eliminated. Cf. Elliott v. Leavitt, 99 F.3d 640,

643 (4th Cir. 1996) (concluding that the firing of multiple

shots “does not suggest the officers shot mindlessly as much

as it indicates that they sought to ensure the elimination of a

deadly threat”). Because we conclude as a matter of law that

deadly force was authorized to protect a fellow officer from

harm, it makes no difference in this case whether Torres fired

seven rounds or eleven.4

[7] The district court based its denial of summary judg-

ment partially on the following testimony by Torres:

I thought what happened was I fired four rounds,

and [Wilkinson] kept going, and he was — and then,

I fired . . . made a quick assessment, and he had

stopped, and I fired . . . I fired two more. That’s what

I think I did.

(Emphasis added.) The single phrase “he had stopped,”

implying that Wilkinson had stopped before Torres fired the

4

The dissent asserts that two seconds intervened between Torres’ first

and second volley of shots. Dissent at 9561. We do not decide whether a

two-second pause between rapid-fire volleys may be enough time for an

officer to reevaluate the need for deadly force. On the record here, no evi-

dence supports a two-second pause between the volleys. Torres testified

that the second volley immediately followed the first, and Davis himself

did not distinguish one volley from another. Although the radio log shows

a two-second interval between a call of “shots fired” and “shots code 3,”

there is no evidence that these two log entries represent the two volleys

of shots. To the contrary, a review of the audio log suggests that at least

one “shots code 3” call was made by a speaker other than Key.

9554 WILKINSON v. TORRES

second volley, cannot alone support summary judgment

where Torres repeatedly testified — in that same sentence,

multiple times during the same interview, and in a separate

interview — that Wilkinson did not stop until after Torres

began firing his second volley. See Scott, 550 U.S. at 380

(“Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genu-

ine issue for trial.” (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal quo-

tation marks omitted) (emphasis added)). The quoted sentence

from Torres’ deposition is ambiguous because a literal read-

ing of the sentence does not make sense — Torres states that

Wilkinson “kept going” just before he says Wilkinson “had

stopped.” Therefore, in this context, the phrase “had stopped”

is an insufficient basis for the denial of summary judgment.

Cf. Hart v. Parks, 450 F.3d 1059, 1068 (9th Cir. 2006) (find-

ing that a single, arguably ambiguous statement did not raise

a triable issue of fact).

Plaintiffs next argue that Torres fired at least three rounds

into Wilkinson after power was no longer being supplied to

the minivan and any safety risk had been eliminated. This

interpretation of the evidence also cannot support the denial

of summary judgment because, even if it were true, there is

no evidence that Torres had immediately perceived the decel-

eration of the minivan. To the contrary, it suggests that Wil-

kinson had not stopped before Torres began firing the second

volley. Torres testified that he wondered if he had missed

Wilkinson, because Wilkinson did not appear to react after the

first volley. The entire time that elapsed between the time of

the PIT maneuver and the radio call after the last shot was

fired was nine seconds. The shots themselves happened so

fast that Davis does not appear to have distinguished the two

volleys. Torres stopped firing after he perceived that Wilkin-

son had gone limp and the van had straightened out. As the

Fourth Circuit noted in Elliott, “the Fourth Amendment does

not require omniscience,” and absolute certainty of harm need

not precede an act of self-protection. Elliott, 99 F.3d at 644.

WILKINSON v. TORRES 9555

[8] A reasonable police officer confronting this scene

could reasonably believe that the minivan posed a deadly

threat to Key and himself. Thus, Torres’ use of deadly force

on Wilkinson was constitutional.

Because we conclude that Torres did not violate a constitu-

tional right, we need not reach the question of whether that

right was clearly established. See Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled in part by Pearson v. Callahan,

129 S. Ct. 808.

II. Fourteenth Amendment Claim

[9] This circuit has recognized that parents have a Four-

teenth Amendment liberty interest in the companionship and

society of their children. Curnow ex rel. Curnow v. Ridgecrest

Police, 952 F.2d 321, 325 (9th Cir. 1991). Official conduct

that “shocks the conscience” in depriving parents of that inter-

est is cognizable as a violation of due process. Porter, 546

F.3d at 1137. In determining whether excessive force shocks

the conscience, the court must first ask “whether the circum-

stances are such that actual deliberation [by the officer] is

practical.” Id. at 1137 (quoting Moreland v. Las Vegas Metro.

Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998) (internal quo-

tation marks omitted)). Where actual deliberation is practical,

then an officer’s “deliberate indifference” may suffice to

shock the conscience. Id. On the other hand, where a law

enforcement officer makes a snap judgment because of an

escalating situation, his conduct may only be found to shock

the conscience if he acts with a purpose to harm unrelated to

legitimate law enforcement objectives. Id. at 1140. For exam-

ple, a purpose to harm might be found where an officer uses

force to bully a suspect or “get even.” Id.

[10] In Porter, this court found that actual deliberation was

not practical where a five-minute altercation between the offi-

cers and victim evolved quickly and forced the officers to

make “repeated split-second decisions.” Id. at 1139. The court

9556 WILKINSON v. TORRES

noted that “deliberation” should not be interpreted in the nar-

row, technical sense, reasoning that the Supreme Court had

rejected the deliberate indifference standard even in cases

where an officer giving chase could have deliberated while

pursuing the suspect. Id. at 1139-40. Instead, the heightened

purpose-to-harm standard applies where a suspect’s evasive

actions force the officers to act quickly. Id. at 1140.

Here, application of the purpose-to-harm standard is clearly

appropriate. Within a matter of seconds, the situation evolved

from a car chase to a situation involving an accelerating vehi-

cle in dangerously close proximity to officers on foot. Ulti-

mately, Wilkinson’s act of accelerating in reverse despite

repeated warnings to stop forced Torres to make a split-

second decision. As opposed to the five minutes which

elapsed in Porter, the entire sequence of events here from the

PIT maneuver to the final shot occurred in less than nine sec-

onds.

[11] Applying this standard, no evidence shows that Torres

had a purpose to harm Wilkinson apart from legitimate law

enforcement objectives. Plaintiffs argue that Torres’s intent to

harm Wilkinson was apparent because as the minivan slowly

backed up from the telephone pole, Torres walked up to Wil-

kinson and “executed” him. However, no intent to harm sepa-

rate from a legitimate law enforcement objective is evidenced

by the mere fact that Torres shot Wilkinson, especially in the

escalating situation with Key having fallen down, the engine

revving, and the tires throwing up mud. No one could predict

how quickly the minivan would gain traction. Furthermore,

because Torres was in a rapidly evolving situation requiring

him to make “split-second judgments,” we need not scrutinize

as closely as the district court did Torres’ decision about how

best to minimize the risk to his own safety and the safety of

others. See Porter, 546 F.3d at 1139. In sum, Plaintiffs have

not established a substantive due process claim.

WILKINSON v. TORRES 9557

CONCLUSION

[12] For the reasons stated above, we reverse the district

court’s interlocutory order denying Torres’ motion for sum-

mary judgment and remand to the district court with instruc-

tions to grant the motion for summary judgment based on

qualified immunity.

REVERSED and REMANDED.

MARSHALL, District Court Judge, dissenting:

I respectfully dissent on the ground that the majority today

decides as a matter of law what I believe is a question of fact

properly reserved for the jury. The reasonableness of an offi-

cer’s use of excessive force pursuant to the Fourth Amend-

ment is a fact-intensive inquiry for the jury, which if raised on

summary judgment, must be evaluated in the light most favor-

able to the victim. See gen. Jeffers v. Gomez, 267 F.3d 895,

905-06 (9th Cir. 2001) (collecting cases). Similarly, where the

same disputed facts also give rise to both a Fourth Amend-

ment claim and a Fourteenth Amendment “purpose to harm”

claim, material and triable issues of fact exist as to both. See

Porter v. Osborne, 546 F.3d 1131, 1137 (9th Cir. 2008).

JURISDICTION

I find we lack jurisdiction to review Torres’s appeal that he

is entitled to qualified immunity because there are material

issues of fact in dispute. See Johnson v. Jones, 515 U.S. 304,

317-20 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)

(holding that a “district court’s denial of a claim of qualified

immunity” is immediately appealable only to “the extent it

turns on an issue of law”); see also Jeffers, 267 F.3d at 905-

06 (concluding that jurisdiction extends only to whether,

based on the undisputed facts , the officer is entitled to immu-

9558 WILKINSON v. TORRES

nity as a matter of law); Collins v. Jordan, 110 F.3d 1363,

1370 (9th Cir. 1997). Torres asks us to: (1) accept his version

of the events on the morning of May 8, 2005; and then (2)

enter judgment in his favor as a matter of law. See id.; Armen-

dariz v. Penman, 75 F.3d 1311, 1317 (9th Cir. 1996) (en

banc); Cowan v. Breen, 352 F.3d 756, 763 (2d Cir. 2003)

(“Although [the officer] purports to rely on the undisputed

evidence . . . his brief . . . is replete with his own version of

the . . . to the extent [his version] is disputed by [the victim’s,]

[his] forms no proper basis for this appeal.”) (internal cita-

tions omitted).

A reviewing court may not resolve questions of fact in

order to reach the legal questions. See id. at 762 (“in order to

accept [the officer]’s argument that, as a matter of law, his

actions were objectively reasonable, one would have to

accept, as a matter of fact, that [the victim posed an immedi-

ate threat].”) (emphasis in original). A “defendant, entitled to

invoke a qualified immunity defense, may not appeal a district

court’s summary judgment order insofar as that order deter-

mines whether or not the pretrial record sets forth a genuine

issue of fact.” Johnson, 515 U.S. at 319-20. Accordingly, we

cannot rely on Torres’s version of the events. See Cowan, 352

F.3d at 762; see also McCaslin v. Wilkins, 183 F.3d 775, 779

(8th Cir. 1999) (reasoning that a genuine issue of material fact

with regard to the threat the victim posed prevented a finding

that the officer’s conduct was reasonable as a matter of law).

Based on the foregoing, I would dismiss the appeal for lack

of jurisdiction.

QUALIFIED IMMUNITY ON FOURTH

AMENDMENT CLAIM

If I were to accept jurisdiction of this case, I would none-

theless affirm the district court’s denial of summary judg-

ment.

WILKINSON v. TORRES 9559

The use of deadly force is constitutional only in the most

limited of circumstances. See Tennessee v. Garner, 471 U.S.

1, 9-11 (1985). Because the reasonableness of the use of

deadly force is an extremely fact intensive inquiry, “the pro-

priety of a particular use of force is generally an issue for the

jury.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1995); see

also Reed v. Hoy, 909 F.2d 324, 329-30 (9th Cir. 1989) cert.

denied, 501 U.S. 1250 (1991).

Reasonableness is “judged from the perspective of a rea-

sonable officer on the scene”. Graham v. Connor, 490 U.S.

386, 396 (1989). The inquiry is objective, rather than subjec-

tive. An officer’s own motivations and intentions are irrele-

vant to the Fourth Amendment analysis, see id. at 397,

because deadly force cases “pose a particularly difficult prob-

lem” as “the officer defendant is often the only surviving eye-

witness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 2004).

Thus, courts should consider “circumstantial evidence that, if

believed, would tend to discredit the police officer’s story”.

Id.

The case law requires us to consider whether Torres’s use

of deadly force was reasonable in light of the facts most

favorable to the Wilkinsons, see Jeffers, 267 F.3d at 905-06,

which includes testimony from non-officer eye-witnesses. See

id. (courts must protect against chance that the officer will

“tak[e] advantage of fact that the witness most likely to con-

tradict [the officer’s] story — the victim — is unable to testi-

fy.”); see also Cowan, 352 F.3d at 762 (“[W]here the versions

of the facts differ, we must consider [the victim]’s version and

make all permissible inferences in [his] favor.”). Here, the

only non-officer eye-witness, and the one most likely to con-

tradict Torres’s story, is Anthony Davis. See McCaslin, 183

F.3d at 778 (affidavits from non-party eyewitnesses can create

material issues of fact).

Statements made by eyewitness Davis who watched the van

drive into the sideyard, ER at 307, suggest both that the van

9560 WILKINSON v. TORRES

never hit Key, ER at 313-316, 320, and that Wilkinson put the

van into reverse to prevent hitting Key. ER at 314 (“He was

trying to turn around and go the other direction, because he

didn’t want to run over the cop”), 316 (“He wasn’t, like, being

erratic . . . He was looking for a direction to go . . . Like,

‘Whoa, where do I go?’ ”).

Davis consistently stated — both to the police in an inter-

view that took place just after the shooting and in his affidavit

— that he saw Key:

[S]lip[ ] on the wet grass, f[a]ll on his back side, was

on the ground for only a second or two, then jump[ ]

back on his feet, walk[ ] toward the front of the

[ ]van . . . [and] st[and] in front of the [ ]van as it

backed slowly away from [him].

ER at 307. Davis reiterated on at least three different occa-

sions during his interview with police that: (1) he saw Key

walk to the front of the vehicle; and (2) that Key was standing

at the front of the vehicle when it started to move slowly

backwards. ER at 314, 320, 324.

Then, according to Davis, Torres and Key “made eye con-

tact and appeared to acknowledge each other” and Torres

began firing. ER at 308. Davis states that when Torres began

firing, the “van was moving in almost the opposite direction

from where the officer first stood . . . nowhere near the

[ ]van’s path of travel and not in harm[’s] way.” ER at 308.

Davis’s statement that the “van was traveling at such a slow

rate of speed that the officer was able to walk in pace with [it]

as he repeatedly fired at the driver”, is corroborated by the

undisputed forensic evidence that the vehicle moved back-

wards at about ten miles per hour. Id.

Davis’s declaration and statement to the police create a

material issue of fact as to whether Torres had probable cause

to believe Wilkinson posed a threat of serious physical harm

WILKINSON v. TORRES 9561

to officer Key. See McCaslin, 183 F.3d at 778. “Looking at

only [Davis]’s version of the events,” no reasonable officer

who could see his colleague standing in front of the van

would have “believed that at th[at] crucial moment use of

deadly force was necessary.” Cowan, 352 F.3d at 763

(emphasis in original). Thus, as in McCaslin, the “[h]ow and

what transpired after [the vehicle hit the pole] is the essence

of this case and there remains a genuine issue [of] material

fact as to what happened . . . and how the officers responded”.

183 F.3d at 779 (internal citation omitted). Whether Torres

and Key acknowledged each other and whether Key stood in

front of the van before the shooting are material questions that

cannot be resolved on summary judgment.

Reasonableness is determined from the moment the alleg-

edly deadly shot is fired. Id. at 763 (considering whether sec-

ond, deadly round, was reasonable); Hopkins v. Andaya, 958

F.2d 881, 887 (9th Cir. 1992). Accordingly, whether Torres’s

second round was justified is also a question for the jury.

Davis told police that immediately after the first volley of

shots, he saw Wilkinson slump into his seat and Wilkinson’s

hands drop from the steering wheel to his side. Id. at 316.

Torres shot again.

Here, the evidence suggests that two seconds intervened

between Torres’s first and second volley of shots. First, Tor-

res stated that he made a “quick assessment [after he fired the

first shot], and [Wilkinson] had stopped, and . . . I fired two

more”. ER at 213. Second, the transcript of the audio “radio

traffic” indicates that Officer Key transmitted a call of “Shots

Fired” at 11:24:41 a.m. ER at 169. Another call of “Shots.

Code 3” was transmitted at 11:24:43 a.m. Based on this tran-

script and Torres’s own statement, a jury could infer that two

seconds elapsed before Torres fired again.

Two seconds is sufficient time from which a jury could find

that a reasonable officer on the scene could have glanced over

9562 WILKINSON v. TORRES

at the vehicle, seen that Wilkinson had been shot and that his

hands were no longer on the wheel, and forgone the use of

deadly force. Thus, based on the record before it, the district

court was correct in holding that there were material issues of

fact with respect to whether the second round of deadly shots

was reasonable.

Furthermore, although the reasonableness analysis discour-

ages courts from second-guessing officers who must make

split-second decisions, Graham, 490 U.S. at 396-97, Torres’s

statement that he quickly assessed the scene after he fired the

first shot “and [Wilkinson] had stopped, and I fired [again]”,

ER at 213, creates a question of fact as to whether Wilkinson

had stopped the vehicle before Torres fired the second time.

Thus, I conclude that while “factual conflicts concerning

the sequence of events and the true nature of the threat con-

fronting [Officers Key and Torres] might be resolved in [Tor-

res]’s favor at trial, it is neither our job nor the job of the

district court to resolve these conflicts”. Andaya, 958 F.2d at

888. The issue of reasonableness presents material questions

of fact which must be resolved by the jury. Gates, 27 F.3d at

1443.

QUALIFIED IMMUNITY ON FOURTEENTH

AMENDMENT CLAIM

Next, I agree with the district court that the disputed facts

preclude summary judgment in favor of Torres on the Wilkin-

son’s Fourteenth Amendment claim.

Where “actual deliberation” by a police officer prior to

using force is impractical, a “purpose of harm” standard

applies to due process familial association claims. Porter, 546

F.3d at 1131. “View[ed] in the light most favorable [to the

parents asserting the claims], [the facts] must demonstrate that

[the officer] acted with a purpose to harm [the child] that was

unrelated to legitimate law enforcement objectives.” Id.

WILKINSON v. TORRES 9563

Although I agree with the majority that the purpose to harm

standard applies, I conclude that the disputed facts, including

Anthony Davis’s portrayal of the events, prevent us from

deciding that Torres did not intend to harm Wilkinson as a

matter of law. Whether Torres’s conduct “shocks the con-

science”, id. at 1136, is for the jury to decide.