Torres v. City of Madera

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA TORRES and MELCHOR 

TORRES, individually and as

Administrators of the Estate of

Everardo Torres, No. 09-16573

Plaintiffs-Appellants, D.C. No.

v.  1:02-cv-06385-

CITY OF MADERA; MARCY NORIEGA, AWI-GSA

individually and as a member of OPINION

the Madera Police Department;

DOES 1-50,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted

February 24, 2011—Seattle, Washington

Filed August 22, 2011

Before: Betty B. Fletcher, Eugene E. Siler,* and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge Siler

*The Honorable Eugene E. Siler, Senior Circuit Judge for the Sixth Cir-

cuit, sitting by designation.

11317

11322 TORRES v. CITY OF MADERA

COUNSEL

Thomas A. Brill, Young & Nichols, Bakersfield, California,

for the plaintiffs-appellants.

Bruce D. Praet, Ferguson, Praet & Sherman, Santa Ana, Cali-

fornia, for the defendants-appellants.

OPINION

HAWKINS, Senior Circuit Judge:

While handcuffed in the back seat of a patrol car, Everardo

Torres (“Everardo”) was mortally wounded when Madera

City Police Officer Marcy Noriega (“Officer Noriega”) shot

him in the chest with her Glock semiautomatic pistol, believ-

ing it at the time to be her Taser M26 stun gun. Everardo’s

family filed this survival action under 42 U.S.C. § 1983,

asserting excessive force in violation of the Fourth Amend-

ment, and now appeals from an adverse grant of summary

judgment. Consistent with the Fourth Circuit’s decision in

Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir.

July 14, 2011) (en banc),1 we reverse and remand for trial.

FACTS AND PROCEDURAL HISTORY

I. Background2

1

There, an officer intending to deploy a Taser device instead drew and

fired his service weapon, wounding an unarmed suspect fleeing arrest. The

Fourth Circuit held that, viewing the evidence in the light most favorable

to the nonmovant, the officer’s actions were not objectively reasonable

and furthermore violated clearly established law prohibiting the use of

deadly force against suspects who pose no significant threat of death or

serious physical injury to others. Henry, ___ F.3d ___, 2011 WL 2725816,

at *6, *8.

2

Because this appeal comes to us on summary judgment, we accept

plaintiff’s version of facts as true. See Liberal v. Estrada, 632 F.3d 1064,

1068 n.1 (9th Cir. 2011).

TORRES v. CITY OF MADERA 11323

In the course of responding to a complaint of loud music

on October 27, 2002, Madera City Police officers arrested

Everardo and Erica Mejia (“Mejia”), handcuffed them, and

placed them in the back seat of a patrol car. After approxi-

mately thirty to forty-five minutes (during which time Eve-

rardo had fallen asleep), Mejia was removed from the car and

replaced by another arrestee. Everardo awoke at this time and

began yelling and kicking the rear car door from inside,

though the parties dispute whether he was yelling, “Get me

out of the car,” or simply that his handcuffs were too tight.

Officer Noriega, one of several police officers on site that

evening, was standing a few feet directly behind the patrol car

when she first heard Everardo yelling. She recalls telling her

fellow officers that whoever was closest should tase Everardo

because he could injure himself if he kicked through the glass

window. As it turned out, Officer Noriega herself was closest,

so she approached the car. Upon reaching the rear driver’s

side door, she opened it with her left hand.3 She then reached

down with her right hand to her right side, unsnapped her hol-

ster, removed the Glock, aimed the weapon’s laser4 at Everar-

do’s center mass, put her left hand under the gun, and pulled

the trigger, all without looking at the weapon in her hand. She

had turned off the safety to her Taser earlier that evening,

enabling her to use it more quickly. The parties agree that

Officer Noriega had intended to reach for her Taser, which

she kept in a thigh holster immediately below her holstered

Glock on her dominant right side, and that she had intended

to use her Taser in dart-tase rather than touch-tase mode.5

Everardo died later that evening from the gunshot wound.

3

Officer Noriega claims that she yelled a warning at Everardo to stop

kicking or he would be tased, but that he did not stop and kicked the car

door into her as she opened it. The Torres Family disputes these facts,

which are contradicted by Mejia’s deposition testimony.

4

Both Officer Noriega’s Glock and Taser were equipped with laser-

sighting devices.

5

See generally Bryan v. MacPherson, 630 F.3d 805, 824 & nn.2-4 (9th

Cir. 2010) (describing the type and amount of force applied by a Taser

used in dart-tase mode).

11324 TORRES v. CITY OF MADERA

This was not the first time Officer Noriega had mistakenly

drawn the wrong weapon, though never before with such dire

consequences. The Madera City Police Department first

issued Officer Noriega a Taser, and certified her to use it,

sometime in the winter of 2001, less than one year before

Everardo’s shooting. Her certification training consisted of a

single three-hour class, during which she fired the weapon

only once. She was given a right-side holster for her Taser

and instructed to wear it just below her Glock. There was no

discussion during this training session of a recent incident in

which a Sacramento officer had mistaken his handgun for his

Taser.6

Nonetheless, Officer Noriega soon came to experience

firsthand the risk of confusing the two weapons, both all-

black and of similar size and weight. The first incident

occurred about a month and a half after she was first issued

the Taser when she was at a jail putting her weapons back in

their holsters. She mistakenly put her Glock into the Taser

holster, realizing her error when the weapon did not “sit right”

in the wrong holster. Concerned about the mistake, she noti-

fied her sergeant, Sergeant Lawson, who instructed her to

practice putting each weapon in its proper holster and to prac-

tice drawing them.

Just one week later, Officer Noriega again confused her

weapons, this time during a field call. Seeking to touch-tase

a kicking and fighting suspect who refused to get into the

back seat of a patrol car, Officer Noriega instead pulled out

her Glock. Only when she tried unsuccessfully to remove the

cartridge, which would have been present on her Taser but

was not a feature on her Glock, did she realize she was hold-

ing the wrong weapon “and it was pointing at [her] partner’s

head, the [Glock’s] laser was pointing at his head.” Fright-

6

This instance of weapon confusion occurred on March 10, 2001 and

became the subject of a different lawsuit. See Yount v. City of Sacramento,

43 Cal. 4th 885, 889 (2008).

TORRES v. CITY OF MADERA 11325

ened by this second incident of weapon confusion and by how

narrowly she had averted a potentially fatal mistake, she again

informed Sergeant Lawson, explaining that she “had pulled

out my gun thinking it was my Taser.” Again, Sergeant Law-

son instructed her “to keep practicing like he’s been doing and

that he’s having everybody do.”

For the next nine months, leading up to the day of Everar-

do’s tragic shooting, Officer Noriega followed her sergeant’s

instructions, practicing drawing her two weapons daily, both

before work and during downtime throughout each shift. Offi-

cer Noriega described her daily self-training as follows: “I

would have both my gun and my taser in their holsters. And

I would draw my taser, and then I would draw my gun. And

in my mind thinking taser, taser, taser, gun, gun, taser. Just

practicing that way so I would draw, draw, draw.” In the five

or so times she used her Taser in the field, never again did she

confuse her two weapons, until the night of Everardo’s shoot-

ing. On all previous occasions, however, she had only touch-

tased the subjects, which required her first to remove the

Taser’s safety cartridge. Never before had she dart-tased any-

one, as she had intended to do to Everardo.

II. Procedural History

Everardo’s parents, Maria and Melchor Torres (“the Torres

Family”), as administrators of his estate, brought this action

under 42 U.S.C. § 1983, asserting violation of Everardo’s

Fourth Amendment right against unreasonable seizure and

seeking damages from Officer Noriega.7 The district court ini-

tially granted Officer Noriega’s motion for summary judg-

ment, determining Everardo was not “seized” by Officer

Noriega’s unintended use of her Glock and therefore no

Fourth Amendment violation occurred.

7

None of plaintiffs’ other claims are at issue here.

11326 TORRES v. CITY OF MADERA

On interlocutory appeal, we reversed, concluding that

under the Ninth Circuit’s longstanding “continuing seizure”

doctrine, Everardo was seized within the meaning of the

Fourth Amendment at the time of the shooting. Torres v. City

of Madera, 524 F.3d 1053, 1056 (9th Cir. 2008) (“Torres I”).8

We held that Officer Noriega’s conduct was therefore gov-

erned by Fourth Amendment reasonableness analysis, and we

remanded for the district court to consider in the first instance

whether Officer Noriega’s mistake in using her Glock rather

than her Taser was objectively unreasonable, for only then

would Everardo have suffered a constitutional injury. Id. at

1056-57.

On remand, the district court found Officer Noriega’s mis-

take was reasonable as a matter of law and determined she

was entitled to qualified immunity in any event because it

would not have been clear to a reasonable officer in 2002 that

a mistaken use of force violated the Fourth Amendment. The

Torres Family again appealed.9

STANDARD OR REVIEW

A district court’s grant of summary judgment is reviewed

de novo, as is its determination of whether an officer’s actions

entitle her to qualified immunity. Ramirez v. City of Buena

Park, 560 F.3d 1012, 1019 (9th Cir. 2009). Summary judg-

ment is appropriate only if, taking the evidence and all rea-

sonable inferences drawn therefrom in the light most

8

The “continuing seizure” doctrine provides that “once a seizure has

occurred, it continues throughout the time the arrestee is in the custody of

the arresting officers.” Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir.

1985). Not all circuits adopt this approach. See Torres I, 524 F.3d at 1056

nn.3 & 4.

9

The district court entered final judgment in favor of defendants on the

§ 1983 claim and certified this matter for appeal pursuant to Federal Rule

of Civil Procedure 54(b) on November 18, 2009. We therefore have juris-

diction under 28 U.S.C. § 1291, notwithstanding pendency of the remain-

ing state law claims.

TORRES v. CITY OF MADERA 11327

favorable to the non-moving party, there are no genuine issues

of material fact and the moving party is entitled to judgment

as a matter of law. Corales v. Bennett, 567 F.3d 554, 562 (9th

Cir. 2009). Where the objective reasonableness of an officer’s

conduct turns on disputed issues of material fact, it is “a ques-

tion of fact best resolved by a jury,” Wilkins v. City of Oak-

land, 350 F.3d 949, 955 (9th Cir. 2003); only in the absence

of material disputes is it “a pure question of law,” Scott v.

Harris, 550 U.S. 372, 381 n.8 (2007).

DISCUSSION

Qualified immunity is “ ‘an entitlement not to stand trial or

face the other burdens of litigation.’ ” Saucier v. Katz, 533

U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)), abrogated in part on other grounds by

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 817-18

(2009). Accordingly, we must resolve “immunity questions at

the earliest possible stage in litigation.” Pearson, 129 S. Ct.

at 815.

[1] An officer will be denied qualified immunity in a

§ 1983 action only if (1) the facts alleged, taken in the light

most favorable to the party asserting injury, show that the

officer’s conduct violated a constitutional right, and (2) the

right at issue was clearly established at the time of the inci-

dent such that a reasonable officer would have understood her

conduct to be unlawful in that situation. Saucier, 533 U.S. at

201-02; Liberal v. Estrada, 632 F.3d 1064, 1076 (9th Cir.

2011). To assist the “development of constitutional prece-

dent,” we exercise our “sound discretion” to follow Saucier’s

conventional two-step procedure and address first whether the

Torres Family has alleged the violation of a constitutional

right. See Pearson, 129 S. Ct. at 818.

11328 TORRES v. CITY OF MADERA

I. Violation of a Constitutional Right

A. Legal Standard

[2] An objectively unreasonable use of force is constitu-

tionally excessive and violates the Fourth Amendment’s pro-

hibition against unreasonable seizures. Graham v. Connor,

490 U.S. 386, 394-96 (1989); Tekle v. United States, 511 F.3d

839, 844 (9th Cir. 2007). Determining the reasonableness of

an officer’s actions is a highly fact-intensive task for which

there are no per se rules. Scott, 550 U.S. at 383. We recognize

that “police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation,” Graham, 490 U.S. at 397, and that

these judgments are sometimes informed by errors in percep-

tion of the actual surrounding facts.

[3] Not all errors in perception or judgment, however, are

reasonable. While we do not judge the reasonableness of an

officer’s actions “with the 20/20 vision of hindsight,” id. at

396, nor does the Constitution forgive an officer’s every mis-

take. See Maryland v. Garrison, 480 U.S. 79, 87 n.11 (1987).

Rather, we adopt “the perspective of a reasonable officer on

the scene . . . in light of the facts and circumstances confront-

ing [her].” Graham, 490 U.S. at 396. Where an officer’s par-

ticular use of force is based on a mistake of fact, we ask

whether a reasonable officer would have or should have accu-

rately perceived that fact. Jensen v. City of Oxnard, 145 F.3d

1078, 1086 (9th Cir. 1998) (mistaken shooting of fellow

police officer was unreasonable if it occurred in conditions in

which the officer should have been able to recognize the fig-

ure before him); see also Wilkins, 350 F.3d at 955 (same); cf.

Garrison, 480 U.S. at 86 (validity of warrantless search that

resulted from a mistake of premises turned on whether the

officers “had known, or should have known” about the condi-

tion precipitating the error).

TORRES v. CITY OF MADERA 11329

[4] Standing in the shoes of the “reasonable officer,” we

then ask whether the severity of force applied was balanced

by the need for such force considering the totality of the cir-

cumstances, including (1) the severity of the crime at issue,

(2) whether the suspect posed an immediate threat to the

safety of the officers or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by

flight. Graham, 490 U.S. at 396; Blanford v. Sacramento

Cnty., 406 F.3d 1110, 1115 (9th Cir. 2005).

B. Analysis

[5] The question that confronts us now is whether Officer

Noriega’s conduct in mistakenly applying deadly force to

Everardo was objectively unreasonable under the totality of

the circumstances. In Jensen, we held that

[i]f, as is alleged in the complaint, [the officer defen-

dant] shot Officer Jensen three times in the back

from a distance of three feet in conditions in which

he should have been able to recognize that the figure

he was shooting was a fellow officer, such a use of

force would be unreasonable.

145 F.3d at 1086 (emphasis added). Similarly here, if Officer

Noriega knew or should have known that the weapon she held

was a Glock rather than a Taser, and thus had been aware that

she was about to discharge deadly force on an unarmed, non-

fleeing arrestee who did not pose a significant threat of death

or serious physical injury to others, then her application of

that force was unreasonable. See Tennessee v. Garner, 471

U.S. 1, 3 (1985). That she intended to apply lesser force is of

no consequence to our inquiry, for objective reasonableness

must be determined “without regard to [the officer’s] underly-

ing intent or motivation.” Graham, 490 U.S. at 397. Just as

“[a]n officer’s evil intentions will not make a Fourth Amend-

ment violation out of an objectively reasonable use of force[,]

nor will an officer’s good intentions make an objectively

11330 TORRES v. CITY OF MADERA

unreasonable use of force constitutional.” Id. (citing Scott v.

United States, 436 U.S. 128, 138 (1978)).

To guide the determination of whether Officer Noriega

should have known she was holding the wrong weapon, we

identified five factors for consideration in Torres I:

(1) the nature of the training the officer had received

to prevent incidents like this from happening; (2)

whether the officer acted in accordance with that

training; (3) whether following that training would

have alerted the officer that [s]he was holding a

handgun; (4) whether the defendant’s conduct

heightened the officer’s sense of danger; and (5)

whether the defendant’s conduct caused the officer

to act with undue haste and inconsistently with that

training.

524 F.3d at 1057 (citing Henry v. Purnell, 501 F.3d 373, 383

(4th Cir. 2007)).

The district court considered these factors and found: (1)

Officer Noriega “did act inconsistently with what she had

practiced”; (2) “to the extent [Everardo]’s own conduct cre-

ated a heightened sense of danger, that sense of danger was

focused on [Everardo]’s danger to himself, not any personal

danger [Officer] Noriega felt for her own safety or the safety

of others”; and (3) there was a “lack of evidence from [Offi-

cer] Noriega that she actually felt danger and that she had to

act hastily.”

[6] Nevertheless, the district court chose to discount these

factors, relying instead on the following findings: (1) Officer

Noriega’s formal training was minimal and contained no dis-

cussion of “other incidents where officers confused their

weapons”; (2) although her two previous instances of weap-

ons confusion had prompted her to practice drawing her

weapons, she lacked “formal training on this potential mistake

TORRES v. CITY OF MADERA 11331

if both weapons were worn on the dominant side”; and (3)

Everardo’s conduct in kicking the door into Officer Noriega

as she opened it “forced” her to “make a split-second judg-

ment in a tense, uncertain, and rapidly evolving situation

about firing a weapon.” The district court concluded that

“[a]ll factors at least tilt toward finding that [Officer] Norie-

ga’s mistake was reasonable.”

The standard on summary judgment review requires that

we “draw all reasonable inferences in favor of [the Torres

Family], the nonmoving party,” and prohibits us from “substi-

tut[ing] [our] judgment concerning the weight of the evidence

for the jury’s.” Raad v. Fairbanks N. Star Borough Sch. Dist.,

323 F.3d 1185, 1194 (9th Cir. 2003); see also Hauk v. JP

Morgan Chase Bank USA, 552 F.3d 1114, 1123-24 (9th Cir.

2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)). Because the reasonableness standard “nearly

always requires a jury to sift through disputed factual conten-

tions, and to draw inferences therefrom, we have held on

many occasions that summary judgment or judgment as a

matter of law in excessive force cases should be granted spar-

ingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)

(citing Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10

(9th Cir. 1997)).

[7] Here, a reasonable jury could weigh the significance of

Officer Noriega’s risk awareness and daily practice differ-

ently from the way in which the district court weighed those

factors. First, to the extent the district court found it relevant

that Officer Noriega’s formal training contained no discussion

of the risks of weapon confusion, a reasonable jury could find

that Officer Noriega’s two experiences confusing the Glock

and the Taser should have alerted her to the risks involved,

even absent formal discussion. Second, while it did not

“give[ ] much weight” to the first weapon confusion incident,

even the district court acknowledged that “this incident does

show a general confusion by [Officer] Noriega in having both

weapons holstered on the dominant side.” Third, the district

11332 TORRES v. CITY OF MADERA

court minimized the importance of Officer Noriega’s “infor-

mal” daily practice by distinguishing it from “formal train-

ing,” without explaining the relevance of such an arbitrary

distinction—one which we did not intend to invite in Torres

I.

Officer Noriega’s daily practice drawing the two weapons

was conducted pursuant to Sergeant Lawson’s instructions,

and, as the Torres Family argues, the definition of “training”

does not necessarily require supervision and can include “the

skill, knowledge, or experience acquired by . . . instruction,

discipline, or drill.” Merriam Webster’s Collegiate Dictionary

1326 (11th ed. 2004). Accordingly, a reasonable jury could

conclude from the totality of this evidence that Officer

Noriega had trained for nine months specifically to prevent

incidents of weapon confusion like this from happening, that

she did not act in accordance with what she had practiced on

the evening of Everardo’s shooting, and that had she done so,

Everardo’s death could have been avoided.

[8] A reasonable jury could also differ from the district

court in weighing the contributory role of Everardo’s conduct.

The district court reasoned that Officer Noriega’s daily prac-

tice did not prepare her to avoid weapon confusion in the

“tense, uncertain, and rapidly evolving” circumstances that

she encountered in the field that October night, finding that

Everardo’s conduct in kicking the door into Officer Noriega

as she opened it escalated her sense of danger. See Graham,

490 U.S. at 396-97. But a genuine issue of material fact exists

as to whether this was the type of “rapidly evolving” situation

to which Graham referred. Officer Noriega testified that Eve-

rardo’s conduct did not cause her to fear for her own safety

or that of others. Her only stated concern was for Everardo’s

own well-being, but a jury might question the reasonableness

of choosing to send 1,200 volts of electricity10 through a per-

son when the alleged concern is for that person’s safety.

10

See Bryan, 630 F.3d at 824 n.4 (describing the amount of voltage

delivered by a Taser).

TORRES v. CITY OF MADERA 11333

[9] In addition, instead of finding that the circumstances

“forced [Officer Noriega] to make a split-second judgment”

about firing a weapon, a reasonable jury could conclude that

her own poor judgment and lack of preparedness caused her

to act with undue haste. See, e.g., Deorle v. Rutherford, 272

F.3d 1272, 1283 (9th Cir. 2001) (distinguishing Graham

where officer had opportunity to observe the suspect “for a

considerable period of time prior to firing at him,” “opportu-

nity to consult” with fellow officers concerning the tactics to

be employed, and a clear line of escape). Far from being a

fleeing suspect whose risk of danger to others may be hard to

ascertain, Everardo was handcuffed and sitting in the back

seat of a patrol car, and Officer Noriega both knew that he

was kicking the door and intended to tase him when she first

started to approach the car. Thus, it is unclear whether Everar-

do’s conduct changed in a way that created “rapidly evolving”

conditions such as would require Officer Noriega to change

her course of conduct mid-stream. Had Officer Noriega drawn

her weapon before opening the car door, a jury could infer

that the conditions would have been much more akin to her

practice conditions. There remains a genuine dispute, there-

fore, as to whether a reasonable officer in her position would

have waited to draw her weapon until after beginning to open

the door, perhaps unnecessarily creating her own sense of

urgency.

[10] Finally, the district court seemed swayed by the lack

of evidence that Officer Noriega’s mistake when she shot

Everardo “was anything other than an honest one.” As noted

earlier, however, under Graham, whether the mistake was an

honest one is not the concern, only whether it was a reason-

able one. See Graham, 490 U.S. at 397. Taking into account

all the facts and circumstances facing Officer Noriega at the

time of the mistaken shooting, a reasonable jury could find

that her mistake was unreasonable because her own prior inci-

dents of weapon confusion put her on notice of the risk of rep-

etition, her daily practice drawing weapons at her sergeant’s

instruction equipped her with the training to avoid such inci-

11334 TORRES v. CITY OF MADERA

dents, and the non-exigent circumstances surrounding Everar-

do’s deadly shooting did not warrant such hasty conduct

heightening the risk of weapon error. Cf. Wilkins, 350 F.3d at

955; Jensen, 145 F.3d at 1086.

[11] Here, there is no dispute that Everardo had committed

no serious offense, though acting out, posed no immediate

threat to Officer Noriega’s safety or that of anyone else, and,

far from “attempting to evade arrest by flight,” was sitting

handcuffed in the back seat of a patrol car. The amount of

force ultimately applied was a lethal shot from a semiauto-

matic handgun. Thus, if a jury were to find Officer Noriega’s

mistaken belief that she was holding her Taser rather than her

Glock unreasonable, her use of force in this situation was

excessive and violated Everardo’s Fourth Amendment rights.

Because there remain material factual issues in dispute on

which a jury could make such a finding, the Torres Family

has properly alleged the violation of a constitutional right, and

summary judgment based on failure to do so was improper.

II. Qualified Immunity

[12] We must next consider whether Officer Noriega is

nonetheless entitled to qualified immunity because the alleged

unlawfulness of her conduct was not clearly established as of

October 27, 2002, for the “inquiries for qualified immunity

and excessive force remain distinct.” Saucier, 533 U.S. at

204. While the constitutional violation prong concerns the

reasonableness of the officer’s mistake of fact, the clearly

established prong concerns the reasonableness of the officer’s

mistake of law:

The concern of the immunity inquiry is to acknowl-

edge that reasonable mistakes can be made as to the

legal constraints on particular police conduct. It is

sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will

apply to the factual situation the officer confronts.

TORRES v. CITY OF MADERA 11335

An officer might correctly perceive all of the rele-

vant facts but have a mistaken understanding as to

whether a particular amount of force is legal in

those circumstances. If the officer’s mistake as to

what the law requires is reasonable, however, the

officer is entitled to the immunity defense.

Saucier, 533 U.S. at 205 (emphasis added); see also Wilkins,

350 F.3d at 955 (at the second step, the court must inquire

“whether the officer was reasonable in his belief that his con-

duct did not violate the Constitution”); Curley v. Klem, 499

F.3d 199, 214 (3d Cir. 2007). Thus, for purposes of determin-

ing whether Officer Noriega is entitled to qualified immunity

under Saucier’s second prong, we assume she “correctly per-

ceived all of the relevant facts” and ask whether an officer

could have reasonably believed at the time that the force actu-

ally used was lawful under the circumstances.

[13] The facts of this case do not fall in the “ ‘hazy border

between excessive and acceptable force’ ” as a legal matter.

See Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per

curiam) (quoting Saucier, 533 U.S. at 206). This is not a case

where a fleeing suspect’s actions may or may not have estab-

lished probable cause to believe he posed a danger to others.

See, e.g., id. at 200-01 (not clearly established that shooting

a disturbed felon in the course of a high-speed car chase jeop-

ardizing safety of others violated the Fourth Amendment);

Blanford, 406 F.3d at 1119 (not clearly established that using

deadly force against man carrying a sword, who did not heed

officers’ instructions, who appeared to be breaking into a resi-

dence, and whom officers feared was a threat to others’ safety

violated the Fourth Amendment); cf. A.D. v. Markgraf, 636

F.3d 555, 561 (9th Cir. 2011) (not clearly established that

split-second decision to use deadly force in the course of a

high-speed chase, where suspect was using her car as a

weapon, shocked the conscience in violation of substantive

due process).

11336 TORRES v. CITY OF MADERA

[14] Rather, this is a case where the suspect was already

arrested, handcuffed, and in the back seat of a patrol car.

There is no suggestion that Everardo was armed, that he was

fleeing, or that he posed a threat to any officers or anyone

else. While locating the outer contours of the Fourth Amend-

ment may at times be a murky business, few things in our

case law are as clearly established as the principle that an offi-

cer may not “seize an unarmed, nondangerous suspect by

shooting him dead” in the absence of “probable cause to

believe that the [fleeing] suspect poses a threat of serious

physical harm, either to the officer or to others.” Garner, 471

U.S. at 11; accord Brosseau, 543 U.S. at 197-99 (reaffirming

the rule of Garner and explaining that it provides sufficient

“fair warning” of a constitutional violation in “obvious”

cases); Adams v. Speers, 473 F.3d 989, 994 (9th Cir. 2007)

(denying qualified immunity where suspect’s nondangerous-

ness and officer’s failure to warn before shooting placed the

case squarely “within the obvious”). Officer Noriega applied

deadly force to an unarmed, nondangerous suspect, and there

could be no reasonable mistake that this use of force was pro-

scribed by law. See Wilkins, 350 F.3d at 955.

The district court nonetheless determined Officer Noriega

was entitled to qualified immunity because the law in 2002

did not clearly establish that an unreasonable mistaken use of

force violated the Fourth Amendment. But in 2001, we

decided a case holding it clearly established that an allegedly

unreasonable mistake of identity resulting in the use of deadly

force against a fellow police officer violated that officer’s

Fourth Amendment right. See Jensen, 145 F.3d at 1086-87; cf.

Garrison, 480 U.S. at 85-86 (lawfulness of search of wrong

apartment turns on reasonableness of officers’ factual mis-

take); Hill v. California, 401 U.S. 797, 803-04 (1971) (same

for arrest of wrong individual). We later reaffirmed this prin-

ciple in another case of mistaken identity, holding it clearly

established as of January 11, 2001. See Wilkins, 350 F.3d at

952, 955. In both cases, we focused our qualified immunity

TORRES v. CITY OF MADERA 11337

inquiry not on what the officer intended to do, but instead on

the level of force actually used.

Jensen and Wilkins are materially indistinguishable from

this case for purposes of qualified immunity. Although those

two cases involved mistakes of identity, whereas here we deal

with a mistake of weapon, we have never required a prior case

“on all fours prohibiting that particular manifestation of

unconstitutional conduct” to find a right “clearly established.”

Deorle, 272 F.3d at 1286; see also Anderson v. Creighton,

483 U.S. 635, 640 (1987); Mitchell, 472 U.S. at 535 n.12;

Bryan, 630 F.3d at 833; Moreno v. Baca, 431 F.3d 633, 641

(9th Cir. 2005). To the contrary, we have repeatedly stressed

that officials can still have “fair warning” that their conduct

violates established law “even in novel factual circum-

stances,” Hope v. Pelzer, 536 U.S. 739, 741 (2002), and even

when “a novel method is used to inflict injury,” Mendoza v.

Block, 27 F.3d 1357, 1362 (9th Cir. 1994). See, e.g., Deorle,

272 F.3d at 1285-86 (officer violated a clearly established

right when, without warning, he shot a lead-filled beanbag

round in the face of a mentally or emotionally disturbed,

unarmed man who had committed no serious offense, and

who posed no risk of flight or danger to the officers or oth-

ers); Oliver v. Fiorino, 586 F.3d 898, 907-08 (11th Cir. 2009)

(same for officer who repeatedly tased a compliant, unarmed

man not suspected of any crime, even in absence of case law

factually on point).

[15] In Jensen and Wilkins, we held that, had the defendant

officers realized that the targets they were about to shoot were

fellow police officers rather than armed civilians, they “could

not have reasonably believed the use of deadly force was law-

ful.” Jensen, 145 F.3d at 1087; see Wilkins, 350 F.3d at 955.

Likewise here, had Officer Noriega realized that she was

pointing a Glock at Everardo’s chest, she “could not have

been reasonably mistaken as to the legality of [her] actions.”

Wilkins, 350 F.3d at 955. Jensen and Wilkins adequately put

Officer Noriega on notice that an unreasonable mistake in the

11338 TORRES v. CITY OF MADERA

use of deadly force against an unarmed, nondangerous suspect

violates the Fourth Amendment.

The district court nonetheless reasoned that “[e]ven if the

law was clear that an unreasonable mistaken use of force vio-

lated the Fourth Amendment in 2002,” Officer Noriega is still

entitled to qualified immunity because “the law remained

unclear on how to determine if a mistaken use of force was

reasonable or unreasonable.” But this is not the proper “level

of generality at which the relevant ‘legal rule’ is to be

[defined],” Anderson, 483 U.S. at 639, for if it were, then

qualified immunity would foreclose a trial in any case where

the objective reasonableness of the officer’s conduct turned

on material disputes of fact. The standard for judging the

objective reasonableness of an officer’s actions has long been

and remains today the “totality of the circumstances.” The

totality of the circumstances, however, will inevitably vary

from case to case, and the five factors we identified in Torres

I are merely some of the circumstances we found relevant

here.

Were we to require such granular specificity under the sec-

ond Saucier prong, we would effectively wrench of all mean-

ing the Supreme Court’s admonition that “officials can still be

on notice that their conduct violates established law even in

novel factual circumstances.” Hope, 536 U.S. at 741. While

the test of whether a right is “clearly established” must not be

so broad that the important shield of qualified immunity is

rendered meaningless, Anderson, 483 U.S. at 639, nor can it

be so narrow that the immunity is transformed from one

“qualified” in nature to one absolute.

CONCLUSION

[16] While a jury might ultimately find Officer Noriega’s

mistake of weapon to have been reasonable, it was inappropri-

ate for the district court to reach this conclusion in the face of

material disputes of fact. At this stage of the proceeding, Offi-

TORRES v. CITY OF MADERA 11339

cer Noriega has not shown an entitlement to qualified immu-

nity, and summary judgment was therefore improperly

granted.

REVERSED and REMANDED.

SILER, Circuit Judge, concurring:

I concur in the majority opinion herein. However, because

I was on the original panel in the Fourth Circuit in Henry v.

Purnell, 619 F.3d 323 (4th Cir. 2010), vacated and super-

ceded by Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816

(4th Cir. July 14, 2011) (en banc), I should explain why I

agreed in Henry that the officer was entitled to qualified

immunity, but the officer in this case does not have that pro-

tection.

As the majority correctly states, a police officer is entitled

to qualified immunity in a § 1983 action unless the officer’s

conduct violated a constitutional right, and the right at issue

was clearly established at the time of the incident so that a

reasonable officer would have understood her conduct to be

unlawful in that situation. See Saucier v. Katz, 533 U.S. 194,

201-02 (2001).

In my opinion, unlike the case law in the Fourth Circuit at

the time of the conduct in Henry, the law in effect in the Ninth

Circuit in this case was clearly established by Wilkins v. City

of Oakland, 350 F.3d 949, 955 (9th Cir. 2003), and Jensen v.

City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998). In both

Wilkins and Jensen, it was a situation in which one officer

shot another thinking the officer who was shot was someone

else. Thus, both were situations in which the officer had a

mistake of fact, thinking the victim was a criminal offender.

Moreover, in the case at bar, the person who was killed,

Torres, was already secured and in the police cruiser. In con-

11340 TORRES v. CITY OF MADERA

trast, the circumstances were that Henry was not in custody

but was being pursued on foot by Officer Purnell, who had an

arrest warrant for Henry.

The majority in Henry (en banc) found clearly established

law from Tennessee v. Garner, 471 U.S. 1, 3 (1985), that an

officer who shoots a fleeing suspect violates the suspect’s

Fourth Amendment rights if there was no probable cause to

believe that the suspect posed a significant threat of death or

physical injury to the officer or others. Id. Moreover, the

majority in this case at bar suggests that Garner was the

clearly established law at the time of the conduct in our case.

I am not prepared to go that far, and I think we need not do

so, because the precedent from Wilkins and Jensen clearly

established the federal law for the Ninth Circuit to be fol-

lowed in this case.