Gonzalez Ex Rel. Gonzalez v. City of Anaheim

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL GONZALEZ, individually and No. 11-56360

as successor in interest to Adolph

Anthony Sanchez Gonzalez, D.C. No.

Plaintiff, 2:10-cv-04660-

PA-SH

and

F.E.V., a minor, individually and as OPINION

successor in interest to Adolph

Anthony Sanchez Gonzalez, by and

through her Guardian Ad Litem

David Vasquez; ANTOINETTE

SANCHEZ, individually and as

successor in interest to Adolph

Anthony Sanchez Gonzalez,

Plaintiffs-Appellants,

v.

CITY OF ANAHEIM, DARON WYATT,

and MATTHEW ELLIS,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

2 GONZALEZ V. CITY OF ANAHEIM

Argued and Submitted En Banc

December 11, 2013—San Francisco, California

Filed March 31, 2014

Before: Alex Kozinski, Chief Judge, and Stephen S. Trott,

Barry G. Silverman, Susan P. Graber, M. Margaret

McKeown, Ronald M. Gould, Marsha S. Berzon, Richard

C. Tallman, Richard R. Clifton, Carlos T. Bea, and Morgan

Christen, Circuit Judges.

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by Judge Trott;

Dissent by Chief Judge Kozinski

SUMMARY*

Civil Rights

The en banc court reversed the district court’s summary

judgment and remanded on a Fourth Amendment excessive

deadly force claim, and affirmed the district court’s summary

judgment as to a Fourteenth Amendment claim and a non-

deadly force portion of the Fourth Amendment claim, in a

42 U.S.C. § 1983 action brought by successors of Adolph

Gonzalez, who was shot and killed during an encounter with

two Anaheim police officers.

*

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

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

GONZALEZ V. CITY OF ANAHEIM 3

The court held that based on the record, it could not say

that a verdict in favor of the defendants on the claim of

excessive deadly force was the only conclusion that a

reasonable jury could reach. The court noted that there was

significant inconsistency in the officers’ testimony regarding

what happened during the few seconds before Gonzalez was

shot in the head, specifically whether Gonzalez’s vehicle,

which contained Officer Wyatt, was rapidly accelerating and

posed an immediate threat to safety.

The court held that the constitutional standard for using

force less than deadly force was lower and that given the

circumstances, defendants were entitled to summary

judgment on the uses of force leading up to the gunshot.

The court affirmed the district court’s summary judgment

for defendants as to plaintiffs’ claim that they had been

deprived of a familial relationship with Gonzalez in violation

of their Fourteenth Amendment right to substantive due

process. The court held that plaintiffs produced no evidence

that the officers had any ulterior motives for using force

against Gonzalez.

Dissenting in part and concurring in part, Judge Trott,

joined by Chief Judge Kozinski and Judges Tallman, and

Bea, wrote that given that Officer Wyatt was trapped in

Gonzalez’s van, his act of self-defense was objectively

reasonable, and he would therefore affirm the district court.

Dissenting, Chief Judge Kozinski, joined by Judges Trott,

Tallman, and Bea, wrote that how fast the vehicle was

moving and how far it had traveled was beside the point

given that it was undisputed that at the time he fired the fatal

shot, Officer Wyatt was trapped inside a moving vehicle

4 GONZALEZ V. CITY OF ANAHEIM

driven by a man who had resisted the verbal commands,

physical restraints, lethal threats and the bodily force of two

uniformed officers.

COUNSEL

Paul L. Hoffman (argued), Schonbrun, DeSimone, Seplow,

Harris & Hoffman, Venice, California; Dale K. Galipo and

Melanie T. Partow, Woodland Hills, California, for Plaintiffs-

Appellants.

Moses W. Johnson (argued) and Cristina L. Talley, Anaheim,

California, for Defendants-Appellees.

OPINION

CLIFTON, Circuit Judge:

Adolph Anthony Sanchez Gonzalez was shot and killed

during an encounter with two Anaheim police officers. His

successors brought an action seeking damages under

42 U.S.C. § 1983. The district court entered summary

judgment in favor of defendants.

Because Gonzalez is dead, the police officers are the only

witnesses able to testify as to the events that led to

Gonzalez’s death. In such a circumstance, we must carefully

examine the evidence in the record to determine whether the

officers’ testimony is internally consistent and consistent with

other known facts. After conducting such a review, we

conclude that a significant inconsistency in the officers’

testimony was sufficient to present a genuine dispute of

GONZALEZ V. CITY OF ANAHEIM 5

material fact. Based on the current record, summary

judgment on the plaintiffs’ claim for deadly excessive force

was inappropriate. We reverse and remand that claim for

further proceedings.

In addition to the excessive force claim brought on behalf

of Gonzalez, the plaintiffs also brought claims in their own

right for the denial of a familial relationship. The district

court granted summary judgment for defendants as to those

claims as well. As to that portion of the judgment, we affirm.

I. Background

As noted above, the only testimony concerning the events

that led to Gonzalez’s death came from the two police

officers involved in the incident, Anaheim Police Department

Officers Daron Wyatt and Matthew Ellis. They testified that

they first noticed Gonzalez when they were responding in

their patrol car to an unrelated call at about 2 a.m. on

September 25, 2009. A Mazda minivan cut them off as they

were making a turn. The minivan turned into a gas station,

and the officers continued on their way.

A few minutes later, the officers returned to the area

where they had been cut off and noticed that the minivan was

still at the gas station. Gonzalez got in the car and began

driving southbound. The officers followed him. They

observed the minivan weaving within its traffic lane.

Although weaving within a lane was not a traffic violation, as

Ellis later acknowledged, the officers decided to make a

traffic stop and pulled Gonzalez over.

At that time, the officers did not recognize the driver from

any prior contacts. They did not have any information that the

6 GONZALEZ V. CITY OF ANAHEIM

minivan had been stolen or had outstanding warrants or

citations. They had no information that the driver had

previously committed any crime, had any prior contact with

law enforcement, or had any involvement with weapons. At

no point during the entire incident did either officer ever see

a weapon in the minivan.

The officers exited their vehicle and approached the

minivan from both sides. Ellis approached from the driver’s

side, and Wyatt approached from the passenger side. Wyatt

drew his gun. Wyatt thought he saw Gonzalez reach for

something between the driver and passenger seats and warned

Gonzalez that if he reached down again, Wyatt would shoot.

Gonzalez at that point complied and held his fists in his lap.

The officers told Gonzalez to turn off the vehicle and

open his hands, which he held clenched. Ellis tried to open

the driver’s side door, but it was locked. The officers reached

through the minivan’s open windows and opened the driver

and passenger side doors. Ellis saw Gonzalez pull his hand

out of a bag located between the two front seats. Ellis

observed a plastic bag in Gonzalez’s right fist. Ellis told

Gonzalez to turn off the vehicle and give him his hands.

Gonzalez did not respond to that command.

Wyatt reached into the car, struck Gonzalez’s elbow three

times with a flashlight, and told Gonzalez to open his hand.

Gonzalez then raised his hand up to his mouth, as if to

swallow what he was holding. Ellis grabbed Gonzalez. Wyatt

testified that he thought Ellis was trying to apply a carotid

restraint, but Ellis testified that he was only trying to gain

control of Gonzalez’s hands. Wyatt also observed that

Gonzalez had a clenched fist and was reaching downward

with his left hand. Wyatt called for assistance on his police

GONZALEZ V. CITY OF ANAHEIM 7

radio. Wyatt went around to the driver’s side to try to help

Ellis restrain Gonzalez, but was not able to do so.

Wyatt went back to the passenger side, entered the

minivan, and began punching Gonzalez in the head. Ellis

observed Gonzalez reaching for the minivan’s gear shift with

his right hand. Ellis thought Gonzalez was attempting to shift

the car into drive so Ellis used his flashlight to hit Gonzalez

on the back of the head to try to stop him.

Despite the officers’ efforts, Gonzalez managed to shift

the minivan into drive, and the minivan began moving. Ellis

withdrew from the vehicle as it began moving and struck

Gonzalez in the head as he did so. The front passenger door

closed behind Wyatt, who remained in the vehicle.

Ellis stated that Gonzalez “stomp[ed]” on the accelerator.

Wyatt said that Gonzalez “floored the accelerator” and that

the vehicle “violently accelerated.”

Wyatt yelled at Gonzalez to stop the car, but he kept

going. Gonzalez swatted Wyatt’s hand away as he tried to

turn off the ignition or shift the transmission to neutral or

park. Unable to stop or gain control of the car, Wyatt drew his

weapon and shot Gonzalez in the head, killing him. He shot

from a distance of less than six inches. The minivan hit a

parked car and came to a stop.

Wyatt testified that he fired the shot less than ten seconds

after the car started moving, and it could have been less than

five seconds. He estimated that the car moved approximately

50 feet in that time and was going 50 miles per hour at the

time of the shot.

8 GONZALEZ V. CITY OF ANAHEIM

Gonzalez’s father sued the officers and the City of

Anaheim under 42 U.S.C. § 1983. He brought claims as his

son’s successor for excessive force in violation of the Fourth

Amendment and on behalf of himself for denial of a familial

relationship in violation of the Fourteenth Amendment.

Gonzalez’s mother and daughter filed a similar action that

also raised various state law claims. The district court

consolidated the actions.

The defendants moved for summary judgment, and the

district court granted the motion. The district court held that

the force the officers used during their encounter with

Gonzalez was reasonable and that their conduct did not

violate the Fourteenth Amendment. Having disposed of the

federal claims, the district court declined to exercise

supplemental jurisdiction over the remaining state law claims.

Gonzalez’s mother and daughter appeal the district court’s

grant of summary judgment.

II. Discussion

We review a district court’s grant of summary judgment

de novo to determine whether there are any genuine disputes

of material fact and whether the moving party is entitled to

judgment as a matter of law. Johnson v. Poway Unified Sch.

Dist., 658 F.3d 954, 960 (9th Cir. 2011). We view the

evidence in the light most favorable to the nonmoving party.

Id.

A. Fourth Amendment Claim

Gonzalez’s representatives argue that genuine disputes of

material fact preclude summary judgment on their claim that

GONZALEZ V. CITY OF ANAHEIM 9

the officers used unreasonable deadly force against Gonzalez.

We agree.

“An officer’s use of deadly force is reasonable only if ‘the

officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th

Cir. 1994) (emphasis omitted) (quoting Tennessee v. Garner,

471 U.S. 1, 3 (1985)). Factors relevant to assessing whether

an officer’s use of force was objectively reasonable include

“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 v. Connor, 490 U.S. 386, 396

(1989). The immediacy of the threat posed by the suspect is

the most important factor. Mattos v. Agarano, 661 F.3d 433,

441 (9th Cir. 2011) (en banc). These factors are not exclusive,

and we consider the totality of the circumstances. Bryan v.

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010).

In general, we have recognized that an officer must give

a warning before using deadly force “whenever practicable.”

Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997)

(citing Garner, 471 U.S. at 11–12). Also relevant to

reasonableness are the “alternative methods of capturing or

subduing a suspect” available to the officers. Smith v. City of

Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc).

We take the perspective of an officer on the scene without

the benefit of 20/20 hindsight and consider 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 396–97.

10 GONZALEZ V. CITY OF ANAHEIM

The key issue in this case is whether a reasonable jury

would necessarily find that Wyatt perceived an immediate

threat of death or serious physical injury at the time he shot

Gonzalez in the head.1 That requires us to consider exactly

what was happening when the shot was fired.

As described above, Ellis testified that Gonzalez

“stomp[ed]” on the accelerator, and Wyatt said that Gonzalez

“floored” it. Wyatt specifically testified that the minivan

“violently accelerated.” But that is not entirely consistent

with Wyatt’s other testimony. His story was that the minivan

1

The primary dissenting opinion, by Judge Trott, suggests, at 24, that

the question at summary judgment of whether a law enforcement officer’s

actions were objectively reasonable is a question of law, not a question of

fact for the jury, citing Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). But

as that footnote in Scott makes clear, that does not change the standard to

be applied to the question presented by this case. The footnote as a whole

states:

Justice STEVENS incorrectly declares this to be “a

question of fact best reserved for a jury,” and complains

we are “usurp[ing] the jury’s factfinding function.” At

the summary judgment stage, however, once we have

determined the relevant set of facts and drawn all

inferences in favor of the nonmoving party to the extent

supportable by the record, the reasonableness of Scott’s

actions—or, in Justice STEVENS’ parlance, “[w]hether

[respondent’s] actions have risen to a level warranting

deadly force” —is a pure question of law.

Id. (citations omitted) (emphasis in original). The dispute in this case

concerns the relevant set of facts, in particular whether the minivan had

violently accelerated and was moving at a high rate of speed. That remains

a question of fact for the jury, as to which we must draw all inferences in

favor of the nonmoving party at the summary judgment stage.

GONZALEZ V. CITY OF ANAHEIM 11

moved 50 feet in five to ten seconds but was going 50 miles

per hour when he shot.

That combination of facts appears to be physically

impossible. There are three pieces to this puzzle: the speed

of the minivan at the time of the shot, the distance it traveled,

and the time that elapsed. These pieces don’t fit together. As

plaintiffs argued to the district court, a vehicle that traveled

50 feet in ten seconds would have an average speed of only

3.4 miles per hour. If the time period is cut to five seconds,

the average speed increases only to 6.8 miles per hour. Even

accepting that the minivan would be gaining speed while

accelerating, an average speed of 3 to 7 miles per hour

appears inconsistent with Wyatt’s testimony as to the speed

of the vehicle and with the testimony of both Wyatt and Ellis

that Gonzalez floored or stomped down on the gas.

“Deadly force cases pose a particularly difficult problem

. . . because the officer defendant is often the only surviving

eyewitness.” Henrich, 39 F.3d at 915. This is one of those

difficult cases. Gonzalez cannot testify because he is dead,

and no other witnesses saw the incident. In such cases, we

“must ensure that the officer is not taking advantage of the

fact that the witness most likely to contradict his story—the

person shot dead—is unable to testify.” Id. Accordingly, 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. We must also examine “circumstantial

evidence that, if believed, would tend to discredit the police

officer’s story.” Id. We have held that summary judgment

should be granted sparingly in excessive force cases. Glenn

v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011).

12 GONZALEZ V. CITY OF ANAHEIM

This principle applies with particular force where the only

witness other than the officers was killed during the

encounter.

Based on the record before us, a jury could believe

Wyatt’s testimony that the minivan traveled about 50 feet

before the shot was fired and that less than five or ten seconds

passed between the time the vehicle started moving and the

time Wyatt fired the shot. See Long v. Johnson, 736 F.3d 891,

896 (9th Cir. 2013) (explaining that “we must respect the

exclusive province of the jury to determine the credibility of

witnesses, resolve evidentiary conflicts, and draw reasonable

inferences from proven facts” (internal quotation marks and

brackets omitted)).

Although it was argued that the actual distance traveled

by the minivan by the time the shot was fired was

substantially greater than 50 feet, defendants did not submit

evidence to that effect. There was plenty of time after the

episode took place to check how far the minivan traveled. It

seems likely that there would have been an incident report

that would have included descriptions and precise

measurements taken afterwards, but defendants did not offer

anything like that into evidence. Based on the record, a

rational jury was not required to assume that the distance

traveled was greater than Wyatt’s estimate. Moreover, as it is

our obligation to view the evidence in the light most

favorable to the nonmoving parties at summary judgment, we

cannot simply dismiss the internal contradictions in Wyatt’s

testimony. Johnson, 658 F.3d at 960.

A reasonable jury could accept at face value Wyatt’s

statements that the car moved approximately 50 feet in about

five to ten seconds before he shot Gonzalez. It could thus

GONZALEZ V. CITY OF ANAHEIM 13

find that the minivan was not traveling at a high rate of speed

and Wyatt did not reasonably perceive an immediate threat of

death or serious bodily injury at the time he shot Gonzalez in

the head.

The primary dissenting opinion, by Judge Trott, suggests,

at 47, that because the plaintiffs did not dispute that Gonzalez

“stomp[ed]” down on the gas pedal, summary judgment must

be affirmed. But it was the speed of the minivan, not whether

Gonzalez stomped on the gas pedal, that was the key disputed

material fact.

The premise of the primary dissent is that the officer

acted in response to an immediate threat to his safety or the

safety of others. We do not disagree with most of what the

primary dissent says.2 But the existence of an immediate

threat to safety in this case is based on the sudden

acceleration and speed of the van. Gonzalez’s action could

not have presented a threat sufficient to justify the use of

deadly force unless it caused the car to move in a way that

immediately threatened the safety of the officers or the

public. The defendants did not argue that such a threat was

2

We disagree with the view in the separate dissent by Chief Judge

Kozinski, at 54, that any “sane officer” would have shot Gonzalez in the

head, no matter “[h]ow fast the van was moving.” The defendants have

not tried to make that argument, and we are not compelled by either logic

or existing precedent to accept that proposition. As explained below, if the

jury found, as it could, that Officer Wyatt was in the passenger seat of a

slowly rolling vehicle, it could conclude that he did not face an immediate

threat to safety sufficient to justify the immediate use of deadly force. Our

decision simply identifies a disputed issue of material fact. If, as Chief

Judge Kozinski’s dissent bemoans, that gives plaintiffs “a bludgeon with

which to extort a hefty settlement,” id., it will only be because the

defendants are concerned that a jury might not view the evidence as the

dissent does.

14 GONZALEZ V. CITY OF ANAHEIM

posed if the minivan was actually going only 3 to 7 miles per

hour. They argued that “[t]he undisputed evidence is that

decedent was speeding down the street going approximately

40 to 50 MPH with Officer Wyatt trapped inside the van.” If

that were true, we agree that summary judgment in favor of

defendants would be appropriate, as the primary dissenting

opinion contends. There was a genuine dispute about that

fact, however, based on Wyatt’s own testimony. This case is

about the standard for summary judgment, not whether law

enforcement officers face danger and are permitted to use

deadly force when faced with an immediate threat to safety.

A jury that found that the minivan was moving slowly

could reasonably infer that Gonzalez did not stomp on the

accelerator, or that he let off the accelerator even if he

stomped down at first, or that a mechanical failure prevented

the car from reaching dangerous speeds. Regardless of

whether they disputed the use of the word “stomp,” the

plaintiffs explicitly argued to the district court and to us that

the minivan was not going very fast, based on Wyatt’s own

testimony, and thus that Wyatt did not face an immediate

threat of death or serious bodily injury. On this record, the

“stomping” does not preclude a triable issue on Wyatt’s use

of deadly force.

Our decision in Wilkinson v. Torres, 610 F.3d 546 (9th

Cir. 2010), a case that also involved an accelerating minivan,

does not require the conclusion that the use of deadly force

against Gonzalez was reasonable as a matter of law. In

Wilkinson, we did not hold that the threat of sudden

acceleration always justifies the use of deadly force. Instead,

we emphasized the importance of considering all the facts in

excessive force cases. Id. at 551. The officer in Wilkinson was

standing near a minivan that was trying to accelerate. Id. The

GONZALEZ V. CITY OF ANAHEIM 15

minivan’s wheels were spinning and throwing up mud

because the driver was attempting to accelerate in a slippery

area. Id. The officer thought his partner may have already

been run over by the minivan once and was lying or standing

in the mud nearby, possibly disoriented, at risk of being hit

again. Id. The officer shot the driver. Id. The plaintiffs

argued that the vehicle was moving too slowly to endanger

the officers. Id. We decided that, even so, the car “could have

gained traction at any time, resulting in a sudden acceleration

in speed,” while the officer believed his partner to be

vulnerable. Id. at 552. Given these facts, we concluded that

there was no genuine dispute of material fact as to whether

the officer’s use of deadly force was reasonable.

Here, Wyatt was not on foot next to a vehicle that might

run him over at any moment should it have accelerated, and

he did not express concern that his partner was vulnerable to

being run over. The defendants presented no evidence of

anyone else in danger. Instead, Wyatt was inside a car that

might have been slowly rolling forward. Wilkinson does not

answer the question in this case. Based on the current record,

a jury could find that Wyatt did not act reasonably.

Similarly, a jury could find that Wyatt reasonably

perceived a threat, but not one that justified the immediate

use of deadly force. As noted above, the jury may consider

the availability of other methods to subdue a suspect. Wyatt

had a police baton, pepper spray, and a taser. He could have

used any of them, or he could have shot Gonzalez in a

nonlethal area of the body to try to stop him from driving

further. Instead, he used his gun and intentionally shot

Gonzalez in the head. If the jury found that the car was

moving slowly at the time, it could also find that other

16 GONZALEZ V. CITY OF ANAHEIM

alternatives could have been used and that the use of deadly

force was unreasonable. See Smith, 394 F.3d at 703.

A jury could also find that Wyatt failed to give a warning

before he shot Gonzalez in the head. The absence of a

warning does not necessarily mean that Wyatt’s use of deadly

force was unreasonable. See Scott, 550 U.S. at 383

(explaining that there is no “easy-to-apply-legal test” in

excessive force cases). A rational jury may find, however,

that if the car was moving at an average speed of 3 to 7 miles

per hour, a warning was practicable and the failure to give

one might weigh against reasonableness. See Deorle v.

Rutherford, 272 F.3d 1272, 1283–84 (9th Cir. 2001).

We do not hold that a reasonable jury must find in favor

of the plaintiffs on this record, only that it could. The jury

could also reasonably find, to the contrary, that the minivan

was moving dangerously fast and that Wyatt reasonably

perceived an immediate threat to his safety sufficient to

support the use of deadly force. Other factors identified in

Graham would support a verdict in favor of the defendants

here, as well. By the time Wyatt pulled the trigger, the

crimes at issue were relatively severe and Gonzalez was

plainly resisting arrest or attempting to evade arrest by flight.

See Graham, 490 U.S. at 396. But based on the record before

us, we cannot say that a verdict in favor of the defendants on

the claim for excessive force is the only conclusion that a

reasonable jury could reach.3

3

The constitutional standard for using force less than deadly force is

lower. See Gregory v. County of Maui, 523 F.3d 1103, 1106–07 (9th Cir.

2008) (holding that “officers had substantial grounds for believing that

some degree of force was necessary” where suspect was possibly under

the influence of drugs, acting bizarrely, trespassing, and refusing repeated

GONZALEZ V. CITY OF ANAHEIM 17

B. Fourteenth Amendment Claim

The plaintiffs also assert on their own behalf, as

Gonzalez’s relatives, that they have been deprived of a

familial relationship with Gonzalez in violation of their

Fourteenth Amendment right to substantive due process. Such

a claim requires the plaintiffs to prove that the officers’ use

of force “shock[ed] the conscience.” Porter v. Osborn,

546 F.3d 1131, 1137 (9th Cir. 2008). Based on the record, a

reasonable jury could not so find. Where, as here, the officers

did not have time to deliberate, a use of force shocks the

conscience only if the officers had a “purpose to harm” the

decedent for reasons unrelated to legitimate law enforcement

objectives. Id. The plaintiffs produced no evidence that the

officers had any ulterior motives for using force against

Gonzalez, and the district court properly granted summary

judgment on this claim. See Karam v. City of Burbank,

352 F.3d 1188, 1194 (9th Cir. 2003) (explaining that

“speculation as to . . . improper motive does not rise to the

level of evidence sufficient to survive summary judgment”).

III. Conclusion

For the foregoing reasons, the district court’s grant of

summary judgment as to the Fourth Amendment excessive

deadly force claim is reversed and remanded. The district

court’s grant of summary judgment as to the Fourteenth

commands to drop a pen). Because it is undisputed that Gonzalez did not

respond to the officers’ directions before any force was applied, appeared

to be trying to swallow potential evidence, and began driving away, the

defendants were entitled to summary judgment on the uses of force

leading up to the gunshot, such as striking Gonzalez with a flashlight or

hitting him in the head as he shifted the minivan into gear.

18 GONZALEZ V. CITY OF ANAHEIM

Amendment claim and the non-deadly force portion of the

Fourth Amendment claim is affirmed.

Each party shall bear its own costs.

AFFIRMED IN PART AND REVERSED IN PART;

REMANDED.

TROTT, Circuit Judge, with whom KOZINSKI, Chief Judge,

and TALLMAN and BEA, Circuit Judges, join dissenting in

part and concurring in part:

Instead of cooperating with the police, Gonzalez stomped

on his van’s accelerator and fled from a traffic stop, igniting

a dangerous chase. What makes this chase unusual is that

Officer Wyatt was trapped in Gonzalez’s van. After yelling

at Gonzalez to stop and unsuccessfully trying to disable the

vehicle, Officer Wyatt ended Gonzalez’s violent attempt to

escape by shooting him. As much as one might have wished

for a different outcome, I conclude that Officer Wyatt’s act in

self-defense was objectively reasonable. Thus, I would

affirm the district court.

I

The issue here is different from our usual two-part fare in

Fourth Amendment excessive force litigation. Officers Wyatt

and Ellis do not request qualified immunity under prong two

GONZALEZ V. CITY OF ANAHEIM 19

of the Saucier v. Katz,1 Pearson v. Callahan2 test on the

ground that what they did had not been clearly established to

be a violation of the excessive force prohibition of the Fourth

Amendment. When questioned during oral argument why his

clients were not asking for qualified immunity, counsel

pointed out that the summary judgment threshold issue under

either approach — which we call “prong one” in judicial

short form — is the same, i.e., whether “[t]aken in the light

most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional

right?” Saucier, 533 U.S. at 201. If not, the question of

immunity becomes moot. See Pearson, 555 U.S. at 236 (“In

some cases, a discussion of why the relevant facts do not

violate clearly established law may make it apparent

that . . . the relevant facts do not make out a constitutional

violation at all.”).

Focusing on prong one, these officers maintain that the

law covering their actions was established twenty five years

ago; and pursuant to that established law, what they did

shortly after midnight on September 25, 2009, was

objectively reasonable and therefore constitutional. The

Supreme Court law they relied on as to their encounter with

Gonzalez is this: when faced with a suspect who is resisting

arrest and attempting to evade apprehension by flight from

serious crimes under circumstances that pose an immediate

threat to their safety or the safety of others, police officers

may use deadly force to protect themselves and the public at

large.

1

533 U.S. 194 (2001).

2

555 U.S. 223 (2009).

20 GONZALEZ V. CITY OF ANAHEIM

This case perforce is not just about how officers handle

criminal suspects, but also what the judiciary has consistently

said is constitutionally permissible when those suspects

endanger peace officers’ lives or safety. Accordingly, the

ramifications of our decision radiate far beyond this particular

lawsuit.

II

Every day of the year, law enforcement officers leave

their homes to police, protect, and serve their communities.

Unlike most employees in the workforce, peace officers carry

firearms because their occupation requires them on occasion

to confront people who have no respect either for the officers

or for the law. Chief Judge Kozinski put it well in Mattos v.

Agarano when he said,

By asking police to serve and protect us,

we citizens agree to comply with their

instructions and cooperate with their

investigations. Unfortunately, not all of us

hold up our end of the bargain. As a result,

officers face an ever-present risk that routine

police work will suddenly become dangerous.

661 F.3d 433, 453 (9th Cir. 2011) (en banc) (Kozinski, C.J.,

concurring in part and dissenting in part).

This case inexorably requires us to answer two related

questions involving officer safety on the job. First, to what

extent are those officers entitled to protect themselves during

dangerous situations so they may return home as healthy as

before? Second, can they, or can they not, rely on the

authoritative constitutional guidance the judiciary has

GONZALEZ V. CITY OF ANAHEIM 21

provided for them as to what they may do when confronted

by a suspect who poses an immediate threat to their safety

and the safety of others?

III

The men and women who become officers of the law

have been selected by their agencies according to demanding

criteria of suitability for their profession. Many officers have

degrees from colleges and universities in law enforcement.

Police departments in California — including the Anaheim

Police Department — almost uniformly require that a

candidate graduate from a police academy approved by the

State Commission know as POST, which stands for Peace

Officer Standards and Training.3 Once employed, officers

receive in-service and special training from their departments.

What are they taught in the classroom and in POST

academies? What the law is, and how to enforce it. Peace

officers’ primary sources of information and guidance are not

only the Constitution and the statutes passed by the legislative

branch, but more importantly in connection with the

resolution of this controversy, case law. Because the

principles in our Constitution, such as the Fourth

Amendment’s prohibition against unreasonable seizures,

appear in broad abstract terms, justices and judges use

published opinions — case law — to provide police

departments and individual officers with more specific

guidance, such as the general rule that the use of excessive

force to make an arrest is an unreasonable seizure, and is

therefore actionable in civil court pursuant to 42 U.S.C.

§ 1983. Just as I am certain that no law student graduates

3

See Cal. Penal Code §§ 13500, 13510.

22 GONZALEZ V. CITY OF ANAHEIM

without taking a course in contracts, I am equally certain that

all police officers have been instructed as to the acceptable

use of deadly force.

The core of their curriculum is the Supreme Court’s

constitutional guidance in Tennessee v. Garner, 471 U.S. 1

(1985), and Graham v. Connor, 490 U.S. 386 (1989), which

law enforcement regards as orthodox scripture. Those cases

provide fair warning of what police cannot do, but also what

they can. And, just as officers are required to follow the law,

so too are they entitled to be protected by it as they confront

the daily challenges of their work responsibilities. Precisely

what we have said and what we have held about the

vulnerable circumstances Officer Wyatt found himself in are

central to understanding the reasonableness of Officer

Wyatt’s use of deadly force and his exercise of his right of

self-defense. Therefore, I choose not to paraphrase or

summarize our opinions, but to quote from them at length.

IV

What have we, the federal judiciary, said about how

officers may react to facts and circumstances such as those

encountered by Officers Daron Wyatt and Matthew Ellis

when they stopped Adolph Anthony Sanchez Gonzalez on

September 25, 2009?

In Tennessee v. Garner and Graham v. Connor, the

Supreme Court ruled that an officer may use deadly force in

self-defense or in the defense of others if

(1) confronted with a serious crime,

GONZALEZ V. CITY OF ANAHEIM 23

(2) the suspect poses an immediate threat to

the safety of the officer or the safety of others,

and

(3) the suspect is actively resisting arrest or

attempting to evade arrest by flight.

Garner, 471 U.S. at 11–12; Graham, 490 U.S. at 396. Of

these three factors, the most important is number two: the

immediacy of the threat posed by the suspect. Mattos,

661 F.3d at 441.

The operative word in the second factor is “threat.” The

word “threat” denotes an indication of impending danger or

harm. The law does not require an officer who immediately

faces physical harm to wait before defending himself until the

indication of impending harm ripens into the onslaught of

actual physical injury. This distinction becomes crucial

when, without warning, a criminal suspect begins to use force

to resist an officer in the discharge of the officer’s sworn

responsibilities.

In this connection, the Supreme Court has admonished us

in the trial and appellate courts (1) to evaluate the

reasonableness of an officer-in-the-field’s response “from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396,

and (2) to make “allowance for the fact that police officers

are often forced to make split-second judgments — in

circumstances that are tense, uncertain, and rapidly evolving,”

id. at 397. The Court added that the test is not whether “in

the peace of a judge’s chambers” it seems that what officers

did in the field was unnecessary. Id. at 396. And in Ryburn

v. Huff, the Court warned that “judges should be cautious

24 GONZALEZ V. CITY OF ANAHEIM

about second-guessing a police officer’s assessment, made on

the scene, of the danger presented by a particular situation.”

565 U.S. at _____, 132 S. Ct. 987, 991–92 (2012) (per

curiam).

The threshold question at the summary judgment stage of

whether or not an officer’s actions were objectively

reasonable under the Fourth Amendment is “a pure question

of law,” not a question of fact reserved for a jury. Scott v.

Harris, 550 U.S. 372, 381 n.8 (2007). Included in this “pure

question of law” is whether a suspect’s actions have risen to

a level warranting deadly force. Id. In handing down this

ruling, the Scott Court explicitly rejected Justice Stevens’s

dissenting view that the objective reasonableness of an

officer’s actions should always be a question for the jury. Id.

The status of this threshold issue as “a pure question of law”

makes it all the more important that what we say about it can

be relied upon by those who must act accordingly in the field.

Fair warning is sine qua non of a rule when it applies to

officers who must react quickly in tense situations.

V

A.

Did Gonzalez Pose “an Immediate Threat”

to the Safety of the Officers and to Others?

Because this case arises from a stop at 2:00 a.m. of a van

being driven erratically, I begin with the Supreme Court’s

longstanding recognition of the perils of the “traffic stop.”

This common event has attendant personal-safety hazards that

peace officers face thousands of times a day throughout our

country and about which they receive basic training. In

GONZALEZ V. CITY OF ANAHEIM 25

summary, an officer must presume that a traffic stop, such as

the one we evaluate here, is dangerous until he is satisfied of

his safety.

The lead case in this area is Terry v. Ohio, 392 U.S. 1

(1968), the seminal “stop-and-frisk” decision that presented

the Court with “serious questions concerning the role of the

Fourth Amendment in the confrontation on the street between

the citizen and the policeman investigating suspicious

circumstances.” Id. at 4. In holding that the circumstances of

Terry’s detention justified an officer’s “invasion of Terry’s

personal security by searching him for weapons,” id. at 23,

the Court embraced the stark realities of the street to explain

its holding.

We are now concerned with more than the

governmental interest in investigating crime;

in addition, there is the more immediate

interest of the police officer in taking steps to

assure himself that the person with whom he

is dealing is not armed with a weapon that

could unexpectedly and fatally be used against

him. Certainly it would be unreasonable to

require that police officers take unnecessary

risks in the performance of their duties.

American criminals have a long tradition of

armed violence, and every year in this country

many law enforcement officers are killed in

the line of duty, and thousands more are

wounded. Virtually all of these deaths and a

substantial portion of the injuries are inflicted

with guns and knives.

26 GONZALEZ V. CITY OF ANAHEIM

In view of these facts, we cannot blind

ourselves to the need for law enforcement

officers to protect themselves and other

prospective victims of violence in situations

where they may lack probable cause for an

arrest. When an officer is justified in

believing that the individual whose suspicious

behavior he is investigating at close range is

armed and presently dangerous to the officer

or to others, it would appear to be clearly

unreasonable to deny the officer the power to

take necessary measures to determine whether

the person is in fact carrying a weapon and to

neutralize the threat of physical harm.

Id. at 23–24 (emphasis added).

The Court’s footnote twenty-one is equally enlightening.

Fifty-seven law enforcement officers were

killed in the line of duty in this country in

1966, bringing the total to 335 for the seven-

year period beginning with 1960. Also in

1966, there were 23,851 assaults on police

officers, 9,113 of which resulted in injuries to

the policemen. Fifty-five of the 57 officers

killed in 1966 died from gunshot wounds, 41

of them inflicted by handguns easily secreted

about the person. The remaining two murders

were perpetrated by knives. See Federal

Bureau of Investigation, Uniform Crime

Reports for the United States – 1966, at

45–48, 152 and Table 51. The easy

availability of firearms to potential criminals

GONZALEZ V. CITY OF ANAHEIM 27

in this country is well known and has

provoked much debate. See e.g., President’s

Commission of Law Enforcement and

Administration of Justice, The Challenge of

Crime in a Free Society 239–243 (1967).

Whatever the merits of gun-control proposals,

this fact is relevant to an assessment of the

need for some form of self-protective search

power.

Id. at 24 n.21.

Next, we come to Pennsylvania v. Mimms, 434 U.S. 106

(1977) (per curiam).

We think it too plain for argument that the

State’s proffered justification — the safety of

the officer — is both legitimate and weighty.

“Certainly it would be unreasonable to require

that police officers take unnecessary risks in

the performance of their duties.” And we have

specifically recognized the inordinate risk

confronting an officer as he approaches a

person seated in an automobile. “According

to one study, approximately 30% of police

shootings occurred when a police officer

approached a suspect seated in an automobile.

Bristow, Police Officer Shootings—A

Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93

(1963).” We are aware that not all these

assaults occur when issuing traffic summons,

but we have before expressly declined to

accept the argument that traffic violations

necessarily involve less danger to officers

28 GONZALEZ V. CITY OF ANAHEIM

than other types of confrontations. Indeed, it

appears “that a significant percentage of

murders of police officers occurs when the

officers are making traffic stops.”

Id. at 110 (emphasis added) (citations omitted).

Now to 1983, and to Michigan v. Long, 463 U.S. 1032

(1983).

In Adams v. Williams, 407 U.S. 143 (1972),

we held that the police, acting on an

informant’s tip, may reach into the passenger

compartment of an automobile to remove a

gun from a driver’s waistband even where the

gun was not apparent to police from outside

the car and the police knew of its existence

only because of the tip. Again, our decision

rested in part on our view of the danger

presented to police officers in “traffic stop”

and automobile situations.

Finally, we have also expressly recognized

that suspects may injure police officers and

others by virtue of their access to weapons,

even though they may not themselves be

armed. . . .

Our past cases indicate then that

protection of police and others can justify

protective searches when police have a

reasonable belief that the suspect poses a

danger, that roadside encounters between

police and suspects are especially hazardous,

GONZALEZ V. CITY OF ANAHEIM 29

and that danger may arise from the possible

presence of weapons in the area surrounding

a suspect.

Id. at 1048–49 (emphasis added) (footnote and citations

omitted).

The Michigan Supreme Court appeared to

believe that it was not reasonable for the

officers to fear that Long could injure them,

because he was effectively under their control

during the investigative stop and could not get

access to any weapons that might have been

located in the automobile. This reasoning is

mistaken in several respects. During any

investigative detention, the suspect is “in the

control” of the officers in the sense that he

“may be briefly detained against his will . . . .”

Just as a Terry suspect on the street may,

despite being under the brief control of a

police officer, reach into his clothing and

retrieve a weapon, so might a Terry suspect in

Long’s position break away from police

control and retrieve a weapon from his

automobile. In addition, if the suspect is not

placed under arrest, he will be permitted to

reenter his automobile, and he will then have

access to any weapons inside. Or as here, the

suspect may be permitted to reenter the

vehicle before the Terry investigation is over,

and again, may have access to weapons. In

any event, we stress that a Terry investigation,

such as the one that occurred here, involves a

police investigation “at close range,” when

30 GONZALEZ V. CITY OF ANAHEIM

the officer remains particularly vulnerable in

part because a full custodial arrest has not

been effected, and the officer must make a

“quick decision as to how to protect himself

and others from possible danger . . . .” In

such circumstances, we have not required that

officers adopt alternate means to ensure their

safety in order to avoid the intrusion involved

in a Terry encounter.

Id. at 1051–52 (emphasis added) (footnote and citations

omitted).

In Maryland v. Wilson, 519 U.S. 408 (1997), Chief Justice

Rehnquist elaborated one of the main reasons the Court has

extended constitutional protection to officers conducting

traffic stops, a reason with pungent applicability to our case.

It would seem that the possibility of a violent

encounter stems not from the ordinary

reaction of a motorist stopped for a speeding

violation, but from the fact that evidence of a

more serious crime might be uncovered

during the stop. And the motivation of a

passenger to employ violence to prevent

apprehension of such a crime is every bit as

great as that of the driver.

Id. at 414 (emphasis added).

As authority for this holding as to not just the driver but

also a passenger, the Court relied on its opinion in Michigan

v. Summers, 452 U.S. 692 (1981), which highlighted the

danger to police searching for narcotics.

GONZALEZ V. CITY OF ANAHEIM 31

Although no special danger to the police is

suggested by the evidence in this record, the

execution of a warrant to search for narcotics

is the kind of transaction that may give rise to

sudden violence or frantic efforts to conceal

or destroy evidence. The risk of harm to both

the police and the occupants is minimized if

the officers routinely exercise unquestioned

command of the situation.

Wilson, 519 U.S. at 414 (quoting Summers, 452 U.S. at

702–03) (emphasis added).

To support its observations, the Court updated the grim

statistics about traffic stops taken from the FBI’s Uniform

Crime Reports (1994). “[I]n 1994 alone, there were 5,762

officer assaults and 11 officers killed during traffic pursuits

and stops.” Wilson, 519 U.S. at 416. In 2011, Chief Judge

Kozinski observed that “[i]n the last decade, more than half

a million police were assaulted in the line of duty. More than

160,000 were injured, and 536 were killed — the vast

majority while performing routine law enforcement tasks like

conducting traffic stops and responding to domestic

disturbance calls.” Mattos, 661 F.3d at 453 (Kozinski, C.J.,

concurring in part and dissenting in part).

Writing in 2009 for a unanimous Court, Justice Ginsburg

reaffirmed the Court’s unyielding view that traffic stops are

“especially fraught with danger to police officers.” Arizona

v. Johnson, 555 U.S. 323, 330 (2009) (quoting Long,

463 U.S. at 1047). Yet again, she recognized that: “‘The risk

of harm to both the police and the occupants [of a stopped

vehicle] is minimized, . . . if the officers routinely exercise

unquestioned command of the situation.’” Id. (brackets in

32 GONZALEZ V. CITY OF ANAHEIM

original) (quoting Wilson, 519 U.S. at 414). In Brendlin v.

California, Justice Souter called the principle of unquestioned

police command, a reflection of “a societal expectation.”

551 U.S. 249, 258 (2007). We recognized the need for

unquestioned obedience to lawful commands during a car

stop in Ruvalcaba v. City of Los Angeles, 64 F.3d 1323,

1325–28 (9th Cir. 1995).

Relying on Mimms, the Sixth Circuit has acknowledged

another safety concern arising from of a traffic stop where, as

here, the officers have reason to believe that the driver is

under the influence of a mind-altering substance.

While safety considerations are always

relevant, they have even greater salience here,

as Ford had grounds to suspect that Everett

was intoxicated. See Marvin v. City of Taylor,

509 F.3d 234, 246 (6th Cir. 2007) (noting that

“[d]runk persons are generally unpredictable,”

such that extra police precautions may be

justified in confronting an intoxicated

suspect).

United States v. Everett, 601 F.3d 484, 495 (6th Cir. 2010).4

We made similar observations in Gregory v. County of Maui,

where we held that the possibility that a suspect was under

the influence of drugs justified the use of “some degree of

force” to confront him. 523 F.3d 1103, 1106 (9th Cir. 2008).

4

“Police officers are entitled to rely on existing lower court cases

without facing personal liability for their actions.” Pearson, 555 U.S. at

244–45.

GONZALEZ V. CITY OF ANAHEIM 33

Gonzalez’s representatives accept as “undisputed” the

officers’ reason for stopping the decedent: erratic and unsafe

driving. Gonzalez had earlier made an illegal left turn in

front of them, almost causing a collision with their police car.

Later, the officers saw him driving on the wrong side of the

street and then weaving within the van’s lane as they

attempted to make the stop. Added to these observations at

2:00 a.m. was their knowledge learned from the mobile data

terminal in their patrol car that Gonzalez’s van had been

involved in a prior narcotics stop.

The California Supreme Court understood the

ramifications of erratic driving, such as Gonzalez exhibited,

when it published its opinion in People v. Wells, 136 P.3d 810

(Cal. 2006). That court held that it was reasonable to stop a

motorist on no more than an anonymous uncorroborated

phoned-in tip that she was “weaving all over the roadway” —

even though the officers who stopped her had not seen

anything to validate the caller’s information. Id. at 811–12.

The court believed the stop was “reasonable” because of the

grave danger to public safety posed by drunken drivers. Id.

at 813. The court likened an impaired driver to a “‘bomb,’

and a mobile one at that.” Id. at 815 (citation omitted). The

court continued: “Police officers undoubtedly would be

severely criticized for failing to stop and investigate a

reported drunk driver if an accident subsequently occurred

. . . . [T]he public rightfully expects a police officer to

inquire into such circumstances.” Id. (internal quotation

marks and citations omitted). The same can be said for

Officers Ellis and Wyatt when they decided to pull Gonzalez

over at a time of night notorious for a ubiquity of drunk

drivers.

34 GONZALEZ V. CITY OF ANAHEIM

B.

The Undisputed Facts Leading

Up to the Use of Deadly Force.

We come to the undisputed material facts. These facts

come almost verbatim from “Plaintiff’s Separate Statement

of Disputed and Additional Undisputed Material Facts in

Opposition of Defendant’s Motion for Summary Judgment”

filed in the district court on June 20, 2011. Gonzalez’s

acceptance of these facts as “undisputed” ensures that they

represent a view of the case understood in the light most

favorable to his interests. Because they are not contested,

these facts are more than just “evidence”: they are the givens

from which we begin our analysis.

The majority correctly points out that when the only

remaining witnesses are the officers, we must look with great

care at their testimony, but I have obviated this concern by

using only those facts that the plaintiffs have accepted as

“undisputed.” These facts establish beyond any doubt that

when Officer Wyatt shot Gonzalez, (1) he and his partner

were confronted with multiple serious crimes, and

(2) Gonzalez was actively fleeing to evade arrest.

I present the material facts in two segments. First, those

immediately leading up to Officer Wyatt’s use of deadly

force; and second, those that in a matter of seconds placed

Officer Wyatt in immediate peril and caused the shooting.

1.

As the officers followed Gonzalez’s van, Ellis observed

it weaving within its traffic lane. At 2:11 a.m., Wyatt advised

GONZALEZ V. CITY OF ANAHEIM 35

headquarters over his police radio of their intended traffic

stop for the van’s previous left-turn violation, and he

activated their patrol car’s emergency lights. The van

continued westbound and subsequently made a wide

northbound turn on Bond Street, driving left of center of the

roadway, northbound in the southbound lane. Gonzalez came

to a stop along the east curb of Bond Street. As Wyatt

approached Gonzalez in the van, and in response to a sudden

movement by the driver on his approach, Wyatt immediately

drew his service weapon, pointed it at Gonzalez, and gave

him a warning: “If you reach down there again, I’m gonna

shoot you.” Ellis heard Wyatt’s warning. Ellis observed

Gonzalez’s right hand clenched into a fist and it appeared he

was holding something.5 Ellis told Gonzalez to turn off the

van and show his hands. Gonzalez did not comply. The

van’s engine remained running. Ellis tried to open the

driver’s door. However, it was locked. The driver’s window

was open approximately six to eight inches. Ellis reached

through the opening with his right hand and tried

unsuccessfully to unlock the door by pulling up the lock. On

the other side of the car, Wyatt holstered his weapon and

unlocked the passenger door by reaching through the partially

opened passenger door window. Both officers then used

physical force in an attempt to control an uncooperative

Gonzalez. During this process, Gonzalez reached downward

with his left hand between the driver’s seat and the door, as

he simultaneously raised his right hand up toward his mouth.

Ellis observed a plastic bag protruding from Gonzalez’s right

fist. Suspecting the bad might contain narcotics, Wyatt

commanded Gonzalez to open his hands. Wyatt also

observed that Gonzalez had a clenched right fist and was

reaching downward with his left hand. Wyatt, who had

5

Detectives later recovered a knife at the scene.

36 GONZALEZ V. CITY OF ANAHEIM

reached into the vehicle from the passenger side, radioed for

backup assistance. Wyatt ran around the rear of the van to

the driver’s side to assist Ellis who was grappling with

Gonzalez through the window. When Wyatt found he was

unable to help from the driver’s side, he returned to the

passenger’s door. Wyatt then entered the van on the

passenger side and punched Gonzalez in the head in an

attempt to subdue him. Ellis then observed Gonzalez reach

toward the van’s gear shift. He believed Gonzalez was trying

to shift the van into drive, so he struck Gonzalez with his

flashlight in an attempt to stop him. Gonzalez did not

comply.

2.

Now, we arrive at the undisputed events that placed

Officer Wyatt in danger and precipitated the shooting. These

events occurred in as little as five and at most in ten seconds,

and they address what the majority concedes is “the most

important” Graham factor: the immediacy of the threat.

Mattos, 661 F.3d at 441.

Wyatt tried to control Gonzalez’s right arm, however,

Gonzalez reached forward toward the gear shift and slapped

it into drive and “stomped down” on the gas pedal. Fearing

he would be pulled forward with the van, Ellis pulled himself

out of the driver’s door window, hitting Gonzalez on the head

as he withdrew. Ellis stepped back as the van moved

forward. He ran to his patrol car to chase after the van. Still

in the van, Wyatt yelled at Gonzalez to stop. Gonzalez did

not comply. Wyatt reached with his left hand and attempted

to turn off the ignition or shift the transmission into neutral or

park. Gonzalez hit his hand away. This sequence occurred

two to three times. With Gonzalez driving and Wyatt in the

GONZALEZ V. CITY OF ANAHEIM 37

van on the passenger side, the van went through the cross-

street intersection of Bond Street and Willow Street. Wyatt

yelled at Gonzalez to stop, but Gonzalez did not comply.

Wyatt unholstered his weapon and shot Gonzalez in the head,

killing him. Wyatt grabbed the steering wheel with both

hands. In an attempt to stop the van, he steered it into a

parked truck. The collision with the truck dislodged Wyatt’s

gun from his right hand. The van continued to roll after the

collision, stopping finally at the intersection of Bond Street

and Elm Street, a block from Willow Street. After the van

stopped, Ellis, who had followed in his patrol car, observed

a bag lying on the street beneath the van’s open passenger

door. A knife was also found later when detectives processed

the scene.

C.

The Legal Consequences

of Gonzalez’s Behavior

Now, let’s translate the undisputed facts into their legal

consequences, a step Garner and Graham require to

determine whether the officers were “confronted with a

serious crime.”

When Officer Ellis and Officer Wyatt walked up to

Gonzalez’s van, they entered a zone of personal danger.6 In

that zone, the Supreme Court has approved of requiring

Gonzalez to turn off his vehicle, of removing him from the

6

See Terry, 392 U.S. at 23–24; Mimms, 434 U.S. at 110–11; Long,

463 U.S. at 1046–47.

38 GONZALEZ V. CITY OF ANAHEIM

van,7 of patting him down for weapons, and of taking

command of the situation.8

Gonzalez’s uncooperative, suspicious, and menacing

behavior when first approached by the uniformed officers

gave them reason to believe he had in his possession either a

weapon or contraband — or both. Officer Wyatt then warned

Gonzalez, as contemplated by Garner, that if he “reached

down there again he would be shot.” Gonzalez did not obey

this warning, and he did not turn off the car’s engine or

unlock its doors.

By now, Gonzalez’s recalcitrant behavior violated

California Penal Code (“CPC”) § 148, resisting, delaying, or

obstructing a peace officer in the discharge or attempt to

discharge his duties. Then, Gonzalez attempted to eat a

plastic baggie, giving Officer Ellis and Officer Wyatt

probable cause to believe he was in possession of an illegal

substance — another crime — and destroying evidence. This

set of facts is precisely what the Court had in mind in

Michigan v. Summers, when it discussed a narcotics suspect’s

willingness to use violence in an attempt to avoid

apprehension. See 452 U.S. at 702–03.

As Gonzalez “stomped” on the van’s accelerator and

attempted to flee, he struck Officer Wyatt’s hands numerous

times with his own, adding to his offenses — in a matter of

seconds — the additional crimes of (1) battery against a peace

officer in violation of CPC §§ 242, 243; (2) felonious false

imprisonment of Officer Wyatt in violation of CPC §§ 236,

7

Mimms, 434 U.S. at 111 & n.6

8

Johnson, 555 U.S. at 330; Brendlin, 551 U.S. at 258.

GONZALEZ V. CITY OF ANAHEIM 39

237; (3) felonious kidnaping of Officer Wyatt in violation of

CPC § 207; and (4) flight from a pursuing officer (Officer

Ellis) in violation of California Vehicle Code § 2800.1. It is

beyond argument that had Officer Wyatt not stopped

Gonzalez, Gonzalez would have accelerated his van and

continued to attempt to escape with Officer Wyatt trapped

inside the van, and with Officer Ellis — and probably others

— in hot pursuit.

D.

Now we come to an aspect of this case the majority does

not discuss: Gonzalez’s choice to flee in his vehicle from the

scene — with Officer Ellis in pursuit. Gonzalez’s dangerous

choice weighs heavily on whether or not Officer Wyatt faced

an immediate indication of impending danger while trapped

in Gonzalez’s van.

In Scott v. Harris the Supreme Court published its take on

the hazards of a motorist engaged in public-endangering

flight. As Justice Scalia expressed the question in that case,

“Can an officer take actions that place a fleeing motorist at

risk of serious injury or death in order to stop the motorist’s

flight from endangering the lives of innocent bystanders?”

550 U.S. at 374. The Court’s answer? Yes. Why? Because

car chases place “police officers and innocent bystanders

alike at great risk of serious injury.” Id. at 380. By

comparison, continued the Court, unlike the flight of the

young, slight, unarmed burglary suspect who was on foot in

Garner, Harris’s “flight itself (by means of a speeding

automobile) . . . posed the threat of ‘serious physical harm . . .

to others.’” Id. at 382 n.9. “It was [Harris], after all, who

intentionally placed himself and the public in danger by

unlawfully engaging in the reckless, high-speed flight that

40 GONZALEZ V. CITY OF ANAHEIM

ultimately produced the choice between two evils that

[Deputy] Scott confronted.” Id. at 384.

The Court deemed it “appropriate in this process to take

into account not only the number of lives at risk, but also

their relative culpability.” Id.; see also Mattos, 661 F.3d at

445 (a defiant suspect “bears some responsibility for the

escalation” of an incident resulting in the use of force). The

culpable person here was Gonzalez.

Sykes v. United States, _____ U.S. _____, 131 S. Ct. 2267

(2011), is even more on point than Scott v. Harris regarding

the potential for injury caused by a motorist fleeing to avoid

apprehension. In Sykes, the motorist fled after an officer had

ordered him to stop. The question for the Court was whether

Sykes’s flight was “violent.”

When a perpetrator defies a law

enforcement command by fleeing in a car, the

determination to elude capture makes a lack

of concern for the safety of property and

persons of pedestrians and other drivers an

inherent part of the offense. Even if the

criminal attempting to elude capture drives

without going at full speed or going the wrong

way, he creates the possibility that police will,

in a legitimate and lawful manner, exceed or

almost match his speed or use force to bring

him within their custody. A perpetrator’s

indifference to these collateral consequences

has violent — even lethal — potential for

others. A criminal who takes flight and

creates a risk of this dimension takes action

similar in degree of danger to that involved in

GONZALEZ V. CITY OF ANAHEIM 41

arson, which also entails intentional release of

a destructive force dangerous to others. This

similarity is a beginning point in establishing

that vehicle flight presents a serious potential

risk of physical injury to another.

Another consideration is a comparison to

the crime of burglary. Burglary is dangerous

because it can end in confrontation leading to

violence. The same is true of vehicle flight,

but to an even greater degree. The attempt to

elude capture is a direct challenge to an

officer’s authority. It is a provocative and

dangerous act that dares, and in a typical

case requires, the officer to give chase. The

felon’s conduct gives the officer reason to

believe that the defendant has something more

serious than a traffic violation to hide. In

Sykes’ case, officers pursued a man with two

prior violent felony convictions and marijuana

in his possession. In other cases officers may

discover more about the violent potential of

the fleeing suspect by running a check on the

license plate or by recognizing the fugitive as

a convicted felon.

Because an accepted way to restrain a

driver who poses dangers to others is through

seizure, officers pursuing fleeing drivers may

deem themselves duty bound to escalate their

response to ensure the felon is apprehended.

Scott v. Harris rejected the possibility that

police could eliminate the danger from a

vehicle flight by giving up the chase because

42 GONZALEZ V. CITY OF ANAHEIM

the perpetrator “might have been just as likely

to respond by continuing to drive recklessly as

by slowing down and wiping his brow.” And

once the pursued vehicle is stopped, it is

sometimes necessary for officers to approach

with guns drawn to effect arrest.

Confrontation with police is the expected

result of vehicle flight. It places property and

persons at serious risk of injury.

Risk of violence is inherent to vehicle

flight. Between the confrontations that

initiate and terminate the incident, the

intervening pursuit creates high risks of

crashes. It presents more certain risk as a

categorical matter than burglary. It is well

known that when offenders use motor vehicles

as their means of escape they create serious

potential risks of physical injury to others.

Flight from a law enforcement officer invites,

even demands, pursuit. As that pursuit

continues, the risk of an accident

accumulates. And having chosen to flee, and

thereby commit a crime, the perpetrator has

all the more reason to seek to avoid capture.

Unlike burglaries, vehicle flights from an

officer by definitional necessity occur when

police are present, are flights in defiance of

their instructions, and are effected with a

vehicle that can be used in a way to cause

GONZALEZ V. CITY OF ANAHEIM 43

serious potential risk of physical injury to

another.

Id. at 2273–74 (emphasis added) (citations omitted).

E.

In summary starting with the three Graham factors, I

conclude that the facts in the record compel one conclusion,

and only one conclusion a jury could reach: Officer Wyatt’s

use of deadly force to stop Gonzalez’s behavior was

objectively reasonable. First, Officer Wyatt was “confronted

with a serious crime,” indeed multiple crimes. Second,

Gonzalez posed “an immediate threat” to Officer Wyatt’s

safety and to the safety of others. Third, Gonzalez was

“actively resisting arrest” and attempting to evade arrest by

flight. I cannot envision any scenario wherein this case might

survive a motion for judgment as a matter of law pursuant to

Rule 50(a)(B).

VI

A.

The “factual dispute” my colleagues in the majority see

as “material” is the speed Gonzalez was driving when Officer

Wyatt shot him. Because the only summary judgment

disputes that matter are those that are “material,” I disagree.9

The actual or the estimated speed of the van at the moment of

the shooting is not material. Neither is the “average speed”

9

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586–87 (1986) (only issues of “material fact” can defeat a motion for

summary judgment) (emphasis added).

44 GONZALEZ V. CITY OF ANAHEIM

of an accelerating vehicle in flight from the police. What is

material is that Gonzalez suddenly accelerated his van away

from the traffic stop with Officer Wyatt trapped inside and

traveled for a block before it crashed. Who cares how fast the

van was going? Gonzalez’s representatives admit that

Gonzalez unexpectedly tried to flee without warning, and that

when Officer Wyatt tried to stop him, Gonzalez physically

fought him off. I do not comprehend how this constellation

of facts fails to demonstrate a real threat of impending harm

to Officer Wyatt, as well as to members of the public.

The majority’s discussion of speed cannot be squared

with Justice Kennedy’s declaration in Sykes that “[e]ven if the

criminal attempting to elude capture drives without going at

full speed . . . , he creates the possibility that police will . . .

use force to bring him within their custody. A perpetrator’s

indifference to these collateral consequences has violent —

even lethal — potential for others.” 131 S. Ct. at 2273

(emphasis added). Gonzalez certainly posed a direct threat to

Officer Wyatt when he chose to flee.

In an unconvincing attempt to make this dispute over

speed “material,” the majority unwittingly engages in exactly

the type of rear-view-mirror microanalysis the Supreme

Court has told us to eschew. The majority has converted

Officer Wyatt’s precarious ten-second episode in Gonzalez’s

van into an ex post facto exercise in calculus, the world of the

derivative and the integral.10 They impose a new duty on

10

Professor Michael Starbird of the University of Texas at Austin

demonstrates how calculus can be used to determine the velocity of a

moving vehicle. POST might want to include this exercise in its officer

training programs.

GONZALEZ V. CITY OF ANAHEIM 45

police officers: when you are in a zone of immediate danger

involving a moving vehicle in which you are being kidnaped,

you must calculate the speed of the vehicle as you try to turn

off the ignition and to disengage the gearshift. Then, you

must refrain from using deadly force until the vehicle speeds

up to a point where a crash will surely threaten your life (or

have the presence of mind to try something else). At that

point, the use of deadly force too late will not only disable the

driver, but probably you, too. And let us not forget, the

majority thinks it would be nice if you would give one more

warning before you shoot.

Here, I agree with Judge O’Scannlain’s discussion of this

issue, as the author of the three-judge panel majority opinion.

Gonzalez’s representatives . . . argue that

Wyatt’s testimony that the van traveled

approximately fifty feet either contradicts his

If we think of function v(t) as measuring the velocity of

a moving car at each time t, then the integral is a

number that is equal to the distance traveled, because

the integral is obtained by dividing the time from a to

b into small increments and approximating the distance

traveled by assuming that the car went at a steady speed

during each of those small increments of time. By

taking increasingly smaller increments of time,

approximations converge to a single answer, the

integral. This sounds complicated, but the naturality of

it is the topic of Lecture 3. The integral is also equal to

the area under the graph of v(t) and above the t-axis.

The integral is related to the derivative (as an inverse

procedure) via the Fundamental Theorem of Calculus.

Michael Starbird, Change and Motion: Calculus Made Clear 10 (The

Great Courses 2d ed. 2006).

46 GONZALEZ V. CITY OF ANAHEIM

testimony that the events took “less than ten”

and possibly “less than five seconds” or

indicates that the van was traveling so slowly

that it could not have been a threat.

First, even assuming that the van was

traveling relatively slowly, the threat of

acceleration—and the threat to Wyatt’s

life—remained. . . . Thus, the van’s speed is

not a material fact, even if it were actually

disputed. The dissent does not address this

point.

Second, the rough estimates of time taken

and distance traveled stated in Wyatt’s

deposition were just that—rough estimates.

Wyatt’s story is “internally consistent” if we

do not ascribe unfounded precision to his

estimates. It would be surprising if an officer

could recount precise quantitative details

about an incident which took mere seconds

over a year later. A minor inconsistency in

officer testimony does not alone create a

dispute of material fact.

Gonzalez v. City of Anaheim, 715 F.3d 766, 771–72 (9th Cir.

2013) (footnote omitted).

Judge O’Scannlain’s reference to the “threat of

acceleration” came from our decision in Wilkinson v. Torres,

610 F.3d 546 (9th Cir. 2010). In that case, an officer shot and

killed the driver of a slow-moving minivan that the officer

thought might run over his partner. The driver’s

representatives contended that the minivan posed no threat

GONZALEZ V. CITY OF ANAHEIM 47

because it was moving too slowly to endanger the officers.

We flatly rejected that argument, saying that the vehicle

“could have gained traction at any time, resulting in a sudden

acceleration in speed.” Id. at 552.

Why did we acknowledge in Wilkinson that vehicles

driven by fleeing criminals can suddenly accelerate only to

brush aside this indisputable fact here? Moreover, we

rebuked the plaintiff in Wilkinson for giving us a “sanitized

version of the incident” because it omitted the “urgency of the

situation.” Id. at 551–52. When Officer Wyatt shot

Gonzalez, his situation was every bit as urgent as Officer

Torres’s, if not more so. We held in Wilkinson, involving

facts quite similar to this case, that Officer Torres “did not

violate a constitutional right.” Id. at 551. The majority’s

claim of “no evidence of anyone else in danger” is technically

true only because Officer Wyatt ended the chase before news

helicopters had the opportunity to film Gonzalez as he raced

around Southern California freeways. Now, stopping a chase

before it gets completely out of control inures to Officer

Wyatt’s detriment.

B.

The majority also errs in suggesting that the speed-

distance-time information would support a jury conclusion

that “Gonzalez had not stomped down on the accelerator.”

What they overlook is that this issue is before us as a matter

of summary judgment, and that Gonzalez’s representatives do

not dispute the fact that Gonzalez stomped down on the gas

pedal. I quote again from the record. “Gonzalez reached

forward toward the gear shift and ‘slapped’ the gear shift into

a driving gear, and ‘stomps down’ on the gas pedal.”

Gonzalez’s representatives objected only to what Officer Ellis

48 GONZALEZ V. CITY OF ANAHEIM

was doing at this time, saying nothing about Gonzalez or

Officer Wyatt. It is this simple. If Gonzalez’s

representatives accept for the purposes of summary judgment

that Gonzalez stomped on the gas pedal, it is not for us to

claim that he did not. Moreover, both officers said that when

Gonzalez “floored” it, the van’s tires squealed on the

roadway. That sound is exactly what occurs when a vehicle

is violently accelerated.

C.

Back to the question of the van’s speed, Officer Wyatt

wasn’t looking out the van’s window as Gonzalez drove

away, calculating elapsed time, distance covered, and

integrals. Officer Wyatt was yelling at Gonzalez to stop. He

was looking at the ignition and the gearshift as he tried

physically to stop the van and prevent Gonzalez’s attempt to

escape. Moreover, it was dark outside. I defy anyone under

these circumstances to have the presence of mind and the

ability to calculate the speed of a moving vehicle. Without

exterior visual cues, it is next to impossible. The majority

makes the mistake of failing to place themselves in

Gonzalez’s van and in Officer Wyatt’s shoes, engaging

instead in a classroom exercise in determining speed from

time and distance. The majority’s approach violates the rule

that we are (1) to make allowance for the fact that officers are

often forced to make split-second judgments in tense,

uncertain, and rapidly evolving circumstances, and (2) to be

cautious about second-guessing a police officer’s assessment,

made on the scene, of the danger presented by a particular

situation.

GONZALEZ V. CITY OF ANAHEIM 49

D.

Next, we get to the majority’s should-have-shot-the-gun-

out-of-his-hand suggestion, which comes from Hollywood

westerns, certainly not from the streets of our cities. The

Seventh Circuit has a clear-eyed take on the assertion that

alternative methods short of deadly force must be used to

resolve a dangerous situation. In Plakas v. Drinski, 19 F.3d

1143 (7th Cir. 1994), Plakas’s administrator argued that the

defendant officer, instead of shooting Plakas, should have

used a non-lethal cannister of CS Gas he carried on his belt,

or used a canine unit on the scene to take Plakas down, or

tried to isolate him while keeping a safe distance. The

argument was that failing to use these available methods

rendered unreasonable the use of deadly force. In rejecting

this contention, the court said,

There is no precedent in this Circuit (or

any other) which says that the Constitution

requires law enforcement officers to use all

feasible alternatives to avoid a situation where

deadly force can justifiably be used. There

are, however, cases which support the

assertion that, where deadly force is otherwise

justified under the Constitution, there is no

constitutional duty to use non-deadly

alternatives first.

Id. at 1148 (footnote omitted).

It is true we consider the whole of the event as

it appears to the officer involved, but we

recognize that the decision to shoot can only

be made after the briefest reflection, so brief

50 GONZALEZ V. CITY OF ANAHEIM

that “reflection” is the wrong word. As

Plakas moved toward Drinski, was he

supposed to think of an attack dog, of Perras’s

CS gas, of how fast he could run backwards?

Our answer is, and has been no, because there

is too little time for the officer to do so and

too much opportunity to second-guess that

officer.

Id. at 1149.

The majority says Officer Wyatt could have used a baton,

pepper spray, or maybe a Taser. The record does not contain

a shred of evidence that such methods would have been

effective — to the contrary. To speculate that such methods

would have safely ended the chase disregards the officers’

escalating reasonable use of nonlethal force against Gonzalez,

hitting him with their fists, trying to put him in a carotid hold,

and striking him with a flashlight, but nothing worked.11

Officer Wyatt warned him that he would be shot if he

continued to display dangerous behavior, but even a threat of

that magnitude did not register. Officer Wyatt ordered him

to stop the van. Verbal commands and warnings had no

effect. Under these circumstances, giving him another

warning was neither feasible nor required, nor would it have

caused Gonzalez to stop. He was determined, albeit

foolishly, to try to escape. As we said in Forrett v.

Richardson, 112 F.3d 416, 421 (9th Cir. 1997), superseded on

other grounds as stated in Chroma Lighting v. GTE Prods.

Corp., 127 F.3d 1136 (9th Cir. 1997), another excessive force

11

I do agree with the majority that this use of force was reasonable and

that the district court’s grant of summary judgment in favor of the officers

on these theories and Gonzalez’s due process claim was appropriate.

GONZALEZ V. CITY OF ANAHEIM 51

shooting case, “[t]he only objectively reasonable conclusion

to be drawn from this evidence is that if [the officers] had not

shot him, he would have continued taking whatever measures

were necessary to avoid capture.”

The Supreme Court said in Michigan v. Long that a

vulnerable officer — which Officer Wyatt surely was —

“must make a ‘quick decision as to how to protect himself

and others from possible danger . . . .’ In such circumstances,

we have not required that officers adopt alternate means to

ensure their safety . . . .” 463 U.S. at 1052 (emphasis added)

(citation omitted). We said the same thing in Wilkinson: “A

reasonable use of deadly force encompasses a range of

conduct, and the availability of a less-intrusive alternative

will not render conduct unreasonable.” 610 F.3d at 551.

E.

Finally, the majority observes that the officers had no

information that the driver had previously committed any

crime, had any prior contact with law enforcement, had any

involvement with weapons, or that the van might be stolen.

All of this what-the-event-wasn’t information is irrelevant

because it is irreconcilable with what the Supreme Court has

said about the inherent hazards of ordinary traffic stops and

car chases. Read the Court’s discussion in Terry v. Ohio,

Pennsylvania v. Mimms, Michigan v. Long, Maryland v.

Wilson, Michigan v. Summers, Arizona v. Johnson, Scott v.

Harris, and Sykes v. United States. Moreover, when

Gonzalez began to resist, to flee, and to strike Officer Wyatt,

everything the majority finds missing from their sterile

scenario became irrelevant.

52 GONZALEZ V. CITY OF ANAHEIM

VII

Given the undisputed facts in the record, the officers’

actions that led to the unfortunate death of Adolph Gonzalez

fall squarely and objectively within the Supreme Court’s

description of a regrettable situation justifying the use of

deadly force. My colleagues on the other side, “far removed

from the scene and with the opportunity to dissect the

elements of the situation,” have failed to heed the Court’s

warning not to second guess from the peace, safety, and

comfort of our chambers a split-second decision in the field,

a decision Officer Wyatt made under extreme pressure in a

perilous situation. Ryburn, 132 S. Ct. at 991. Their opinion,

rendered “with the benefit of hindsight and calm

deliberation,” will become the subject of confusing law

enforcement training and can only impede and endanger all

law enforcement officers in the discharge of their sworn

duties with respect to patrolling our streets and keeping the

peace in our neighborhoods. Id. at 992

The Sixth Circuit has taken to heart the Supreme Court’s

cautionary instructions about our task in these cases. After

quoting Garner’s admonitory language, the Sixth Circuit

said,

This passage carries great weight in this case,

since all parties agree that the events in

question happened very quickly. Thus, under

Graham, we must avoid substituting our

personal notions of proper police procedure

for the instantaneous decision of the officer at

the scene. We must never allow the

theoretical, sanitized world of our

imagination to replace the dangerous and

GONZALEZ V. CITY OF ANAHEIM 53

complex world that policemen face every day.

What constitutes “reasonable” action may

seem quite different to someone facing a

possible assailant than to someone analyzing

the question at leisure.

Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992).

The unmistakable message that comes from this case will

cause officers inappropriately to hesitate in the face of danger

in a confrontation with a combative suspect who refuses to

obey lawful commands and warnings. The result in turn will

endanger both the police and the public at large as officers

worry that they may (this case) or may not (Wilkinson) end up

in court for years.

I end where I began, with the Supreme Court’s message

to both the police as well as to lawbreakers like Gonzalez.

[W]e are loath to lay down a rule requiring the

police to allow fleeing suspects to get away

whenever they drive so recklessly that they

put other people’s lives in danger. It is

obvious the perverse incentives such a rule

would create: Every fleeing motorist would

know that escape is within his grasp, if only

he accelerates to 90 miles per hour, crosses

the double-yellow line a few times, and runs

a few red lights. The Constitution assuredly

does not impose this invitation to impunity-

earned-by-recklessness. Instead, we lay down

a more sensible rule: A police officer’s

attempt to terminate a dangerous high-speed

car chase that threatens the lives of innocent

54 GONZALEZ V. CITY OF ANAHEIM

bystanders does not violate the Fourth

Amendment, even when it places the fleeing

motorist at risk of serious injury or death.

Scott, 550 U.S. at 385–86 (emphasis in original).

Where the officer has probable cause to

believe that the suspect poses a threat of

serious physical harm, either to the officer or

to others, it is not constitutionally

unreasonable to prevent escape by using

deadly force.

Garner, 471 U.S. at 11 (emphasis added).

Chief Judge KOZINSKI, with whom Circuit Judges TROTT,

TALLMAN and BEA join, dissenting:

It’s undisputed that, at the time he fired the fatal shot,

Officer Wyatt was trapped inside a moving vehicle driven by

a man who had resisted the verbal commands, physical

restraints, lethal threats and bodily force of two uniformed

officers. How fast the van was moving and how far it had

traveled are beside the point. What matters is that Officer

Wyatt was prisoner in a vehicle controlled by someone who

had already committed several dangerous felonies. No sane

officer in Wyatt’s situation would have acted any differently,

and no reasonable jury will hold him liable. The only thing

this remand will accomplish is to give plaintiffs a bludgeon

with which to extort a hefty settlement. The Supreme Court

should foil the plan with a swift summary reversal.