Blanford v. Sacramento County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW AARON BLANFORD, 

Plaintiff-Appellant,

v. No. 03-17146

SACRAMENTO COUNTY; LOU BLANAS, D.C. No.

Sacramento County Sheriff; BRETT  CV-01-02068-

ANDERSON, Sacramento County GEB/GGH

Sheriff’s Deputy; TODD HENGEL,

OPINION

Sacramento County Sheriff’s

Deputy,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

April 15, 2005—San Francisco, California

Filed May 6, 2005

Before: John T. Noonan, David R. Thompson, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Rymer;

Dissent by Judge Noonan

4965

4968 BLANFORD v. SACRAMENTO COUNTY

COUNSEL

Stewart Katz, John M. Poswall, for plaintiff-appellant Mat-

thew Aaron Blanford.

BLANFORD v. SACRAMENTO COUNTY 4969

Terence J. Cassidy (argued), Jennifer E. Duggan, Carl J. Cal-

nero (on the brief), Porter, Scott, Weiberg & Delehant, for

defendants-appellees County of Sacramento, Lou Blanas,

Brett Anderson, and Todd Hengel.

OPINION

RYMER, Circuit Judge:

Matthew Aaron Blanford appeals the summary judgment in

favor of Brett Anderson, Todd Hengel, Lou Blanas, and Sac-

ramento County1 in his 42 U.S.C. § 1983 action alleging

claims of excessive force and unreasonable seizure in viola-

tion of the Fourth Amendment. Blanford was shot and

severely injured after he ignored warnings and commands to

stop and drop an edged sword that he was carrying and

instead tried to enter a house in a residential area. There is no

doubt that the facts of this case are tragic and that the case is

a difficult one. Nevertheless, because Deputies Anderson and

Hengel did not exceed constitutional limits on the use of

deadly force when they shot Blanford and because, even if

their actions did violate Blanford’s constitutional rights, a rea-

sonable law enforcement officer in their position at the time

would not have known that shooting Blanford was a violation

of clearly established law, the deputies are entitled to quali-

fied immunity. We therefore affirm.

I

On the afternoon of November 13, 2000, the Sacramento

County Sheriff’s Department received several reports that a

1

Brett Anderson and Todd Hengel are Sacramento County Sheriff’s

Deputies and are the principal defendants in Blanford’s suit. We refer to

them collectively as “the deputies” unless context otherwise requires. Lou

Blanas, the Sacramento County Sheriff, is sued in both his official and

individual capacities.

4970 BLANFORD v. SACRAMENTO COUNTY

man (who turned out to be Blanford) wearing a ski mask and

carrying a sword was walking through a suburban residential

neighborhood outside Sacramento and behaving erratically.

Anderson and Hengel were dispatched to investigate these

reports. During the course of their search for Blanford, Ander-

son and Hengel were informed by dispatch that Blanford had

been seen licking the sword and that he was walking in the

middle of the street. After driving down several streets where

Blanford had been seen, the deputies spotted him walking

down Reetey Avenue.

When the deputies arrived, they saw Blanford carrying a

2-1/2-foot-long Civil War-era cavalry saber by the handle.

Blanford was wearing a green ski mask that was not covering

his face, so that it appeared to be a knit cap pulled down over

his ears and close to his eyes. When Anderson and Hengel

came upon Blanford walking away from their position on

Reetey, they got out of their vehicles, drew their guns, and

Hengel called out to Blanford: “Sheriff’s department, stop,

drop the sword.” Blanford did not heed this command but

rather kept walking. As it turned out, Blanford was listening

to a Discman at the highest volume using headphones which

were concealed underneath his knit cap. Blanford did not hear

the deputies yelling at him and did not notice them at that time.2

The deputies did not realize until after Blanford was shot that

he had been wearing headphones.

The deputies followed Blanford at a safe distance of 20 to

2

There appears to be a genuine dispute of material fact regarding

whether Blanford noticed the deputies and heard their command when

they first called out to him on Reetey Avenue. Anderson and Hengel both

testified that, after Hengel called out the first time, Blanford turned his

head and looked back at them over his shoulder. However, Blanford testi-

fied that he did not notice or hear the deputies before he turned from

Reetey onto Gaines Avenue, and he specifically denied looking back

behind himself before he turned onto Gaines. Since these two accounts

conflict on this point, Blanford’s version must be taken as true for sum-

mary judgment purposes.

BLANFORD v. SACRAMENTO COUNTY 4971

25 feet as they were trained to do for persons with edged

weapons. Their guns were drawn and aimed. They were “ex-

tremely concerned that Blanford posed a significant danger to

any individual who might come near him or to [themselves]

if he turned and charged.” Anderson and Hengel continued to

shout commands at Blanford to stop and drop the sword, as

well as to warn him “We’ll shoot.” At the corner of Reetey

and Gaines Avenue, Blanford stopped, raised the sword, and

made a loud growling or roaring sound.3 This increased the

deputies’ concern that Blanford posed a risk of physical harm

to themselves or others, and the deputies considered Blan-

ford’s action to be the felony of drawing or exhibiting a

deadly weapon with the intent to resist or prevent arrest or

detention by a peace officer in violation of California Penal

Code § 417.8 (1982).

Blanford then turned onto Gaines Avenue and began

angling his walk toward 8679 Gaines, which turned out to be

his parents’ home where he lived. The deputies did not know

this. Blanford testified that he first became aware of the depu-

ties’ presence behind him as he was passing his next door

neighbor’s house, but despite his awareness that the deputies

might be there for him, he continued walking at the same pace

toward 8679. The deputies considered whether Blanford

might be mentally disturbed or under the influence of narcot-

ics, but believed they “had to secure the weapon before doing

anything else in order to protect the public.” As it turned out,

Blanford had just taken a dose of antipsychotic medication for

schizophrenia and bipolar disorder for which he was being

treated. Blanford walked up the lawn of 8679 to the front

door, where he searched his pockets for his keys but realized

3

Blanford testified that he did not remember whether or not he stopped

at the corner of Reetey and Gaines, raised the sword, and made a growling

or roaring sound. This is not sufficient to allow a reasonable jury to con-

clude that Blanford did not do these things; Blanford’s and the deputies’

accounts are not mutually exclusive. Thus, the district court properly took

the deputies’ account on this point as true.

4972 BLANFORD v. SACRAMENTO COUNTY

he did not have them. He knocked on the door, but no one

answered. Blanford then started walking down the walkway

that led in front of the house, past the driveway and garage,

and around to the side where there was a gate that led along-

side the garage to the back yard. As he turned onto the walk-

way, Blanford caught a glimpse of the deputies, believed that

they were police officers, and heard them shout “Drop the

sword.” He did not do so. Blanford thought he told the depu-

ties that he was going to go put the sword in the back and

come up and talk to them afterwards. Both deputies testified

that they never heard any such thing, though even if they had,

it would not have alleviated their reasonable concern that

Blanford posed an imminent threat as he did not drop the

sword.

Neither deputy believed that Blanaford should be allowed

to get out of sight into the back of the house due to the danger

he presented to anyone in the yard or the house. Both fired as

Blanford rounded the corner of the house to the gate (“the

first volley”). Blanford was hit by at least one shot. Neverthe-

less, he went through the gate, and it closed behind him.

Anderson kicked the gate open and saw Blanford about ten

feet away trying to open a door into the garage through which

entrance could be gained into the residence. Anderson ordered

him to drop the sword again. When Blanford did not drop the

sword, or stop trying to push the door open, Anderson fired

again, hitting Blanford in the right wrist (“the second volley”).4

He did so out of concern that Blanford would be able to get

into the residence and cause death or injury to people inside.

Blanford then turned away, still holding the sword, and

walked toward the back yard.5 Anderson continued firing

4

Anderson did not realize he had hit Blanford in the right wrist during

the second volley until after the shooting ended and Blanford had fallen

to the ground.

5

Blanford testified that he did not know whether he was holding the

sword or not. Anderson testified that Blanford did not drop the sword

when he was hit by the second volley near the garage door. Hengel testi-

fied that he retrieved the sword from where it had fallen near where Blan-

ford fell after the third volley, and threw it away from that area.

BLANFORD v. SACRAMENTO COUNTY 4973

(“the third volley”). One of the bullets severed Blanford’s

spine, causing him to fall to the ground and rendering him a

paraplegic. The entire encounter lasted about two minutes.

Approximately fourteen seconds passed between the first and

last shots.

Blanford filed this action against Anderson, Hengel, Sacra-

mento County Sheriff Lou Blanas (in both his individual and

official capacities), and Sacramento County and its Sheriff’s

Department, asserting claims under 42 U.S.C. § 1983 for

excessive force and unreasonable seizure and false arrest in

violation of the Fourth Amendment, including a claim of

Monell6 liability against the County. Blanford also asserted

state-law claims for battery and assault against all the defen-

dants, as well as state-law claims for negligence and for negli-

gent hiring, training, and supervision against the County.7

After discovery, cross-motions for summary judgment were

filed on all claims. The district court analyzed each of the

three volleys separately under Graham v. Connor, 490 U.S.

386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). The

court concluded that Anderson and Hengel acted in an objec-

tively reasonable manner in firing each volley, because a rea-

sonable officer in their position at the time would have

believed that Blanford presented an imminent threat of death

or serious bodily injury to persons inside the house or yard of

8679 Gaines, or to themselves. The district court also granted

summary judgment on Blanford’s wrongful arrest claim, find-

ing that the deputies had probable cause to arrest Blanford for

violating California Penal Code § 417.8. It further held that,

even if Anderson’s or Hengel’s actions violated Blanford’s

Fourth Amendment rights, the deputies were entitled to quali-

6

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

7

Blanford also asserted a state-law medical malpractice claim against

Kaiser Permanente and the doctor who had prescribed him the antipsycho-

tic medication the same day he was shot by the deputies. Blanford does

not appeal dismissal of this claim.

4974 BLANFORD v. SACRAMENTO COUNTY

fied immunity because a reasonable officer in their position at

the time would not have known that their actions were unlawful.8

Blanford timely appealed.

II

Our review on appeal from entry of a summary judgment

is de novo. Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th

Cir. 2001) (as amended). Under the approach for evaluating

claims of qualified immunity adopted by the Supreme Court

in Saucier v. Katz, 533 U.S. 194 (2001), we must first ask

whether, “[t]aken in the light most favorable to [Blanford],

. . . the facts alleged show [the deputies’] conduct violated a

constitutional right?” Id. at 201. Only if this question is

answered in the affirmative must the court address “the next,

sequential step” in the inquiry, namely, whether the constitu-

tional right at issue was clearly established at the time the

deputies shot Blanford in November 2000, such that a reason-

able officer in the deputies’ position at the time would have

known that shooting Blanford was a violation of his Fourth

Amendment right to be free from excessive force. Id. at 201-

02. As the Court noted in Saucier and reiterated recently in

Brosseau v. Haugen, 125 S. Ct. 596 (2004), “[i]t is important

to emphasize that this inquiry ‘must be undertaken in light of

8

The district court also granted summary judgment to Blanas in his indi-

vidual capacity, finding no triable issue that Blanas ratified the deputies’

actions knowing them to have used excessive force, and to the County and

Blanas in his official capacity for lack of evidence that the County main-

tained a policy or practice of ratifying deputies’ use of excessive force.

The court granted summary judgment on Blanford’s state-law claims as

well. Blanford makes no arguments on appeal challenging the district

court’s rulings on these claims other than to note that they rise or fall with

the Fourth Amendment excessive force claim. Given that we affirm on

that claim, we also affirm the judgment on the municipal liability and

state-law claims. Blanford does not mention his Fourth Amendment

wrongful arrest claim in his opening brief, which waives appeal on that

issue. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

BLANFORD v. SACRAMENTO COUNTY 4975

the specific context of the case, not as a broad general propo-

sition.’ ” Id. at 599 (quoting Saucier, 533 U.S. at 201).

III

[1] All claims of excessive force, whether deadly or not, are

analyzed under the objective reasonableness standard of the

Fourth Amendment as enunciated in Graham and Garner.

“Determining whether the force used to effect a particular sei-

zure is reasonable under the Fourth Amendment requires a

careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham, 490

U.S. at 396 (internal quotation marks omitted). This balancing

test entails consideration of the totality of the facts and cir-

cumstances in the particular case, including “the severity of

the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade arrest by

flight.” Id.

[2] Garner articulates a more particularized version of the

Fourth Amendment’s objective reasonableness analysis for

assessing the reasonableness of deadly force.9 The Court

explained that while it is unreasonable to apprehend an

unarmed, nondangerous suspect by killing him, an officer’s

use of deadly force to prevent escape satisfies Fourth Amend-

ment standards “[w]here the officer has probable cause to

believe that the suspect poses a threat of serious physical

harm, either to the officer or to others.” Garner, 471 U.S. at

11.

9

There is no question in this case that the deputies’ firing of their guns

at Blanford constituted deadly force, whether defined as force reasonably

likely to cause death (as it was at the time of the events giving rise to this

case) or as force creating a substantial risk of causing death or serious

bodily injury (as it is today). See Smith v. City of Hemet, 394 F.3d 689,

704-07 (9th Cir. 2005) (en banc), overruling Vera Cruz v. City of Escon-

dido, 139 F.3d 659, 663 (9th Cir. 1998) (as amended).

4976 BLANFORD v. SACRAMENTO COUNTY

Blanford argues that probable cause under Garner exists

only if the suspect is immediately or directly threatening the

officer or others with a weapon, or the suspect recently com-

mitted a crime involving the infliction or threatened infliction

of serious physical harm and deadly force is necessary to pre-

vent escape. He maintains that this standard cannot be met

here, because he had not committed a significant crime or

threatened anyone, and was walking away from the deputies

when they fired the third volley that severely injured him. As

Blanford puts it, officers may not use deadly force “just in

case” a suspect might find someone to harm, yet, he submits,

this is what happened to him.

If Blanford were correct that the threat of harm from his

conduct was purely hypothetical and could not objectively

have been perceived otherwise, then the constitutional limits

on use of deadly force would certainly be implicated. In hind-

sight, from his point of view, it is understandable to think so.

As it turned out, Blanford did not hear all of the deputies’

warnings because he had earphones on. He was on medication

that may have affected his behavior and his judgment. And in

fact there was no threat to others because Blanford lived at

8679 Gaines and no one was home at the time. However,

“[t]he reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on the

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

ham, 490 U.S. at 396. We conclude that from this perspective,

the deputies had cause to believe that Blanford posed a seri-

ous danger to themselves and to anyone in the house or yard

that he was intent upon accessing, because he failed to heed

warnings or commands and was armed with an edged weapon

that he refused to put down.

A

[3] By the time of the first volley, Anderson and Hengel

knew that citizens had called 911 reporting peculiar behavior

by a person with a sword. Blanford was in fact armed with a

BLANFORD v. SACRAMENTO COUNTY 4977

2-1/2-foot sword. The deputies knew that Blanford failed to

communicate or comply with their orders to stop and drop the

sword, and did not respond to their warnings that they would

shoot if he did not comply. Instead, he raised his sword and

growled. This was a crime, and in addition gave the deputies

cause to believe that Blanford posed a threat of harm to

whomever he encountered. They saw Blanford move purpose-

fully toward the house at 8679 Gaines, which they were

unaware was where he lived; try unsuccessfully to gain entry

through the front door; and start around the corner of the

house toward a gate that would have blocked the deputies but

allowed Blanford access to the side of the house and back

yard. They considered the possibility that Blanford might be

mentally disturbed or under the influence of a controlled sub-

stance, but acted, consistent with their training, to secure the

weapon first. The deputies’ decision to fire was based upon

Blanford’s refusal to heed warnings and commands to drop

the sword, as well as his attempt to enter a private residence

and backyard with a lethal weapon. These facts objectively,

and reasonably, led the deputies to conclude that the situation

could not be resolved by talking, and that Blanford posed an

immediate and unacceptable risk of harming whoever was in

the house or yard should he be allowed to escape beyond the

gate.

The cases upon which Blanford relies to show that the use

of deadly force was not justified — Haugen v. Brosseau, 351

F.3d 372 (9th Cir. 2003) (as amended), rev’d, 125 S. Ct. 596

(2004) (reversing on qualified immunity without expressing

opinion on the constitutional question); Harris v. Roderick,

126 F.3d 1189 (9th Cir. 1997); and Deorle v. Rutherford, 272

F.3d 1272 (9th Cir. 2001) — presented quite different situa-

tions to the officers involved. In Haugen, an officer shot a

suspect who was trying to flee in his vehicle because she

believed he posed a danger to other officers (not to herself)

who might be approaching the driveway. However, the evi-

dence showed that she knew where the other officers would

be coming from and would necessarily have known that none

4978 BLANFORD v. SACRAMENTO COUNTY

was in harm’s way. We found this was objectively unreason-

able. Unlike Officer Brosseau in Haugen, the deputies in this

case could not have perceived that there was no one in harm’s

way. While it is true that the deputies did not know if anyone

were at home or in the yard at 8679 Gaines, it was objectively

reasonable for them to be concerned for the safety of whoever

was there, and for themselves.

In Harris, which arose out of the standoff at Ruby Ridge,

an FBI agent shot a suspect who was in an open space return-

ing to a cabin that he had come out of and which agents knew

was occupied by his friends. The agent could see that Harris

posed no threat to anyone at the moment, but he fired without

warning pursuant to the FBI’s special rules of engagement

that authorized agents to shoot to kill any armed adult male

regardless of whether he posed an immediate threat of serious

physical harm to agents or others. It was clear that this

exceeded Fourth Amendment bounds under Garner. Unlike

the FBI agent in Harris, the deputies here knew that Blanford

was armed with an edged sword that he refused to drop

despite orders to do so and despite warnings that he would be

shot if he did not. Their concern that he posed a significant

risk of serious harm to anyone inside the house or yard, and

to themselves, is supported by this evidence and the fact that

he continued to hold the sword while trying to access a pri-

vate residence and yard with which they were unaware he had

any connection.

Finally, in Deorle, officers were called by Deorle’s wife

who was concerned that her husband was out of control. Thir-

teen officers responded, removed the family as well as neigh-

bors, and surrounded the house to ensure that Deorle had no

avenue of escape. Deorle was generally compliant. After a

half-hour or so of observation he started shouting at the offi-

cers while carrying an unloaded plastic crossbow in one hand

and a bottle of lighter fluid in the other. Rutherford told

Deorle to drop the crossbow, which he did. However, when

Deorle passed a virtual line in the grass that Rutherford had

BLANFORD v. SACRAMENTO COUNTY 4979

drawn, Rutherford fired a “beanbag” round without warning,

and without having told Deorle to stop or to drop the lighter

fluid. Unlike Officer Rutherford in Deorle, before firing at

Blanford the deputies repeatedly ordered him to stop and drop

the sword, and specifically warned Blanford that they would

shoot unless he did; unlike Deorle, Blanford was not compli-

ant. In this case, the deputies had only a few minutes to act,

so there was no time to remove residents at 8679 Gaines or

neighbors from the area. Blanford suggests that the deputies

knew help was on the way and, like the officers in Deorle,

should have been patient. The difference, however, is that

Blanford had been warned, was noncompliant, and appeared

intent on accessing a private residence. The fact that help may

have been on the way was immaterial in the circumstances of

imminent access. Blanford also suggests that deadly force was

inappropriate because he, too, appeared emotionally disturbed

and should not have been treated as if he were a violent crimi-

nal who had committed a serious offense. See Deorle, 272

F.3d at 1282-83 (indicating that tactics to be used “against an

unarmed, emotionally distraught individual who is creating a

disturbance or resisting arrest are ordinarily different from

those involved in law enforcement efforts to subdue an armed

and dangerous criminal who has recently committed a serious

offense”). The deputies did factor the possibility of Blanford’s

being mentally disturbed into their thinking, as they should

have, but Blanford was armed with a dangerous weapon and

it was not objectively unreasonable for them to consider that

securing the sword was a priority. Id. at 1283 (recognizing

that there is no per se rule requiring mentally disabled persons

to be treated differently from “serious criminals”).

[4] We conclude that the first volley was objectively rea-

sonable and that the deputies had probable cause to believe

that Blanford posed a threat of serious physical harm to them-

selves, or to others, because he was armed, refused to give up

his weapon, was not surrounded, and was trying to get inside

a private residence or in default of that, into the back yard,

4980 BLANFORD v. SACRAMENTO COUNTY

where his sword could inflict injury that the deputies would

not then be in a position to prevent.

B

[5] Despite being hit during the initial volley, Blanford

went through the side gate, closing it behind him, and when

next seen by Anderson was about ten feet away trying to open

a door into the garage. The second volley was also a reason-

able use of deadly force under the circumstances because

Blanford was still carrying the sword and attempting to gain

access to the residence. He was also quite close to the depu-

ties. Nothing else in the balance of factors already present had

changed when Anderson fired again, and a reasonable officer

in his position would have believed that doing so was neces-

sary to neutralize the threat that Blanford posed to people on

the premises.

C

Although Blanford had been hit again in the second volley,

he turned away from Anderson and headed toward the yard

before the third volley. On this account Blanford contends

that he was clearly in the deputies’ sight and was not escap-

ing, as, for example, was the suspect before he was shot in

Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997), over-

ruled on other grounds by Chroma Lighting v. GTE Prods.

Corp., 127 F.3d 1136 (9th Cir. 1997). Forrett had committed

a violent residential burglary, shot and tied up several victims,

escaped in a truck with firearms and ammunition, and eluded

police on foot by jumping over fences and crossing residential

yards before he was eventually cornered, tried to escape by

climbing over a fence, and was shot. Forrett did indeed pre-

sent a case of extreme escape, but this does not mean that the

deputies in this case could not reasonably believe that Blan-

ford, who was armed with a dangerous weapon that he

refused to drop and whose conduct manifested a continuing

BLANFORD v. SACRAMENTO COUNTY 4981

intent to evade their authority and enter a private residence,

presented a danger to themselves or others.

[6] Blanford makes the further point that, even if still

armed with the sword, he was not holding it in any threaten-

ing manner. He also notes that even so, there was no known

person in the vicinity. These factors, together with the severe

injury inflicted, make the third volley the most difficult. How-

ever, from the deputies’ position at the time, we cannot say

that it was objectively unreasonable for Anderson not to stop

firing when Blanford did not stop moving or holding the

sword. All of the facts and circumstances from the beginning

of the encounter must be considered. When they are, the situa-

tion confronting Anderson is distinguishable from the situa-

tions confronting officers in the cases we have already

discussed, and from Curnow v. Ridgecrest Police, 952 F.2d

321 (9th Cir. 1991), upon which Blanford also relies on the

footing that there, as here, the suspect was shot in the back.

Officers had come to Curnow’s house following up on a

report from the night before that he was physically threaten-

ing a woman. They shot Curnow once when it looked as if he

were slapping a woman, and again fatally as he tried to leave

the house with a gun. We affirmed denial of summary judg-

ment in the officers’ favor on qualified immunity because the

evidence, viewed in the light most favorable to Curnow,

showed that the woman was simply sitting on his lap, Curnow

was doing nothing threatening, and he was unarmed at the

time he was shot in the back the first time; and that Curnow

picked up an unloaded gun by the muzzle as he tried to flee

the house and was shot the second time. Here, the deputies

knew that Blanford had committed a crime, albeit not a vio-

lent one, and was continuing a course of conduct that objec-

tively indicated he was not giving up the sword that made him

a threat to anyone in charging range.

[7] In sum, Blanford was armed with a dangerous weapon,

was told to stop and drop it, was warned that he would be shot

if he didn’t comply, appeared to flaunt the deputies’ com-

4982 BLANFORD v. SACRAMENTO COUNTY

mands by raising the sword and grunting, refused to let go of

the sword, and was intent upon trying to get inside a private

residence or its backyard with the sword in hand. The tragedy

is that he persisted even after he admitted seeing the deputies

and hearing them order him to drop the sword, resulting in a

terrible injury. However, that this happened does not make the

deputies’ actions objectively unreasonable, or unconstitu-

tional.

IV

[8] It follows that the deputies are entitled to qualified

immunity. Even if we have misjudged the constitutional issue,

neither Supreme Court nor circuit precedent in existence as of

November 13, 2000 would have put a reasonable officer in

the deputies’ position on notice that using deadly force in the

particular circumstances would violate his Fourth Amendment

rights. While they certainly would have known from Garner

and Graham that shooting Blanford required probable cause

(supported by objectively reasonable facts) to believe that he

posed a threat of serious physical harm to themselves or to

others, the deputies would not have found fair warning in

Garner, Graham, or any other Supreme Court or circuit pre-

cedent at the time that they could not use deadly force to pre-

vent someone with an edged sword, which they had

repeatedly commanded him to drop and whom they had

repeatedly warned would otherwise be shot, from accessing a

private residence where they or people in the house or yard

might be seriously harmed. In this they may have been mis-

taken, but reasonably so. See Anderson v. Creighton, 483 U.S.

635, 641 (1987).

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

Matthew Blanford, a twenty-year-old college student, was

shot and rendered a paraplegic by the police of Sacramento

BLANFORD v. SACRAMENTO COUNTY 4983

County. The shooting occurred in broad daylight at Matthew

Blanford’s residence where he lived with his parents. His

“crime” had been bizarre behavior — he was on medication

for bipolar disorder. At the time that he was shot, he was not

threatening the police or any other known person, and he was

not attempting to escape. Under these circumstances, the

important governmental interest served by sparing the two

shooters a jury trial is the interest of protecting impatient offi-

cers for conduct for which the County of Sacramento awarded

a citation.

The standards to be applied are well-known. Lethal force

may not be employed unless necessary to prevent escape “and

the officer has probable cause to believe that the suspect poses

a significant threat of death or physical injury to the officer

or others.” Tennessee v. Garner, 473 U.S. 1, 3 (1985). The

reasonableness of the officer’s conduct is to be evaluated with

“careful attention to the facts and circumstances of each par-

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

whether the suspect poses an immediate threat to the safety of

the officer and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham v. Connor, 490

U.S. 386, 396 (1989). Let us look at Matthew Blanford’s con-

duct in terms of these factors.

The severity of the crime. The opinion alleges that Matthew

Blanford had committed a violation of California Penal Code

§ 417.8, by raising the sword he carried and uttering some

indistinct sounds not discernible as words. Blanford was not

convicted of, nor charged with, committing this crime. His act

would have been a crime if he had exhibited the sword with

the intent to resist or prevent arrest. No showing of such an

intent has been made. Blanford was walking away from the

officers. He did not turn to confront them. The sword had

been in sight from the beginning. Citizens had telephoned the

police that the person carrying it had been seen licking it.

Blanford’s alleged growl did not transform the ancient

weapon into an instrument that he, while walking away, was

4984 BLANFORD v. SACRAMENTO COUNTY

using to threaten the police. His crime was not severe, it was

nonexistent.

The immediate threat posed to the safety of the officers.

Matthew Blanford posed no immediate threat to the safety of

the officers. As the opinion of the court observes, they kept

a safe distance away from him. They always had their guns.

He had nothing but the sword. He never threatened the police

with it.

Actively resisting arrest. At no point did Matthew Blanford

actively resist arrest.

Attempting to evade arrest. Because he did not stop after he

was shot, Matthew Blanford could be seen as attempting to

evade arrest. The attempt was feeble. He did not accelerate,

he did not hide, he stood in his parents’ yard and was shot.

Having examined the objective circumstances that Graham

directs us to, I find no crime, no immediate threat to the offi-

cers, no resistance to arrest, and a pathetic if possible attempt

to evade arrest. The court says that the case is “difficult.” It

is indeed difficult to say that a reasonable officer would not

have known that he violated Matthew Blanford’s constitu-

tional right to life and constitutional right to be free of police

violence when the officer gunned him down at short range.

Let me add one further circumstance mentioned in Garner

that might justify the use of lethal force: probable cause to

believe that the suspect poses a significant threat of death or

physical injury to the officer or others. As glossed by Gra-

ham, the significant threat must also be immediate. The offi-

cers have not been able to name a single human being who

was significantly or immediately threatened by Matthew

Blanford. What the officers have supplied is speculation:

someone might have been in the house, although no one

answered the door; someone might have been in a neighbor’s

backyard if Blanford could have gotten there; Blanford might

BLANFORD v. SACRAMENTO COUNTY 4985

have entered the house through the garage, although no one

knows whether the garage opened into the house.

Not only is there no evidence that any human person was

in significant or immediate danger. The officers knew that

Blanford had been walking the streets for some time without

harming or endangering anyone. They also knew that a

bizarre sword-carrier had been seen before in the neighbor-

hood and had disappeared into it without harm or threat to

anyone. So why did they need to use deadly force to restrain

Blanford at his parents’ doorstep? If imagined persons and

imagined emergencies constitute reason to shoot, no commu-

nity is safe from officers too quickly frustrated and angered

by being ignored.

The case is one that demands judgment by the citizens of

Sacramento County assembled as a jury, not immunity for the

injury-inflicting police.