Adams v. Speers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ADAMS; CATHY ADAMS, 

Plaintiffs-Appellees,

v.

PAUL SPEERS,

Defendant-Appellant, No. 05-15159

v.  D.C. No.

CV-02-05741-LJO

MERCED COUNTY SHERIFF’S

DEPARTMENT; CALIFORNIA HIGHWAY OPINION

PATROL; COUNTY OF MERCED;

MARK PAZIN, Merced County

Sheriff Coroner,

Defendants.



Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Magistrate Judge, Presiding

Argued and Submitted

December 4, 2006—San Francisco, California

Filed January 10, 2007

Before: John T. Noonan, Michael Daly Hawkins, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Noonan

239

ADAMS v. SPEERS 241

COUNSEL

Scott H. Wyckoff, Deputy Attorney General of the State of

California, Sacramento, California, for the defendant-

appellant.

Jacques LeBoeuf, Oakland, California; Randal W. Hooper,

Oakland, California, for the plaintiffs-appellees.

OPINION

NOONAN, Circuit Judge:

Paul E. Speers, an officer in the California Highway Patrol

(CHP), appeals the district court’s denial of immunity in this

civil rights suit by John and Cathy Adams. Holding that, on

the basis of the facts submitted by the Adamses, Speers is not

242 ADAMS v. SPEERS

entitled to immunity as a matter of law, we affirm the judg-

ment of the district court.

FACTS

Preliminary to statement of the facts, we note that Officer

Speers can make an interlocutory appeal from the ruling on

immunity only if he accepts as undisputed the facts presented

by the appellees. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th

Cir. 2001). As Speers’ briefs show, he is familiar with this

maxim governing such appeals, but at times his briefs lapse

into disputing the Adamses’ version of the facts and even into

offering his own version of the facts. We regret these lapses

and, as they are made by the Attorney General of the State of

California defending Speers, we take this occasion to advise

the Attorney General that such practice could jeopardize our

jurisdiction to hear the interlocutory appeal. This exceptional

remedy is available only if the issue of immunity is presented

as a question of law. See Johnson v. County of Los Angeles,

340 F.3d 787, 791 n.1 (9th Cir. 2003).

As an appellate court, we are in no position to adjudicate

disputed facts that have not gone through the crucible of trial.

Still less are we in a position to accept as true something

asserted to be a fact by the appellant that has not been tested

in any judicial process. The exception to the normal rule pro-

hibiting an appeal before a trial works only if the appellant

concedes the facts and seeks judgment on the law.

The facts as presented by the Adamses are as follows:

Alan Adams, eighteen years of age, the youngest son of

John and Cathy Adams, lived with his parents at their home

in Hilmar, California. Early in the afternoon of June 26, 2001,

Alan borrowed his mother’s 1998 Ford Expedition to go to

look for work at a nearby dairy. At about 1:30 p.m., a detec-

tive from the Merced County Sheriff’s department observed

Alan run several stop signs. He put on a light to signal Alan

ADAMS v. SPEERS 243

that he should pull over. Alan did not, and a second Sheriff’s

deputy joined in the pursuit of his car. Two more county offi-

cers entered the chase, followed by two CHP vehicles. Alan

continued on his course, driving largely within the speed

limit, stopping at some stop signs and rolling slowly through

others. His driving was “nonchalant” or that of a “rapid Sun-

day drive.” He waved as he passed acquaintances.

Paul Speers had been assigned by the CHP to sit in his

patrol car, parked on the road, to serve as a visible deterrent

to speeders. On his radio he picked up news of the chase.

Shortly after 2:00 p.m. and before his assignment had ended,

he decided to join it, first picking up as a spectator a county

probation officer who was his occasional partner in appre-

hending probation violators. Speers drove north and parked at

a spot he guessed Alan would pass if he continued his present

route.

The Ford Expedition with Alan at the wheel reached the

point where Speers was waiting. Without advising the pursu-

ing law enforcement vehicles of his identity or his intentions,

Speers put his patrol car into gear, pulled out, and tried to ram

Alan’s vehicle. He missed. He continued in the procession of

police, putting his patrol car at the head of the chase, which

was now aided by a police helicopter that hung over the pro-

cession.

At 2:51 p.m., Alan’s Expedition exited the off-ramp and

made a left turn back over the freeway. It then entered the on-

ramp to go north. Speers used his patrol car to ram the Expe-

dition. The two cars became entangled. What the CHP report

termed “a significant hazard” to both vehicles was created.

The adjoining embankment was “very steep.” Speers had not

taken into consideration where his patrol car would end up. In

fact, the patrol car was dragged down the on-ramp for some

distance. Then the vehicles separated, and Alan and Speers

went on.

244 ADAMS v. SPEERS

At 3:00 p.m., Alan encountered traffic stopped by a colli-

sion. He entered the center divider to make a U-turn and

change direction. Speers accelerated, leaving the other police

cars behind. He cut through the divider and rammed the left

rear of Alan’s vehicle with sufficient force to knock it off the

shoulder of the road and down into a sandy embankment or

ditch where it came to rest. The impact was such that Speers’

own car spun down the shoulder, its bumper entangled with

the Expedition. As the two cars came to rest, they separated.

After the crash, as the CHP report continues, “additional

units positioned their patrol vehicles to prevent the suspect

vehicle’s escape.” A CHP unit was stopped on the shoulder

of the road about 35 feet from Alan’s right rear. Another CHP

unit stationed itself 25 feet away from the left rear. A Sher-

iff’s unit came into position about 30 feet away from the

Expedition and “slightly off-set to the left rear” of the Expedi-

tion. The patrol cars completely surrounded the Expedition,

cutting off any possible avenue of escape.

Alan began to inch the Expedition backwards, at no more

than 4 to 5 miles per hour, turning slowly to the left and let-

ting the front of the Expedition swing to the right towards

Speers’ patrol vehicle. Speers pushed his door open and hit

the Expedition. At the same time, Officer Marcos Rivera

approached the Expedition and stood next to the window on

Alan’s side. He raised his baton, struck the window and broke

it. He reached into Alan’s car with the intention of pepper-

spraying him.

Before Rivera could act, Speers exited his patrol car,

moved away from it, and stood in front of the Expedition as

it rolled backwards away from him. He drew his service

weapon and trained it on Alan. Without warning that he

would use it, he fired six rounds. Alan was killed.

A CHP investigation of the incident found, inter alia, that

Speers, contrary to regulations, was not wearing body armor

ADAMS v. SPEERS 245

that would “reduc[e] or minimiz[e] the possibility of injury in

the event of an accident or shooting.” Speers did not obtain

permission for the probation officer to ride as his passenger

in the chase; the probation officer was untrained in CHP pro-

cedure as to pursuits; he was, in the words of the CHP, “an

unauthorized passenger.” At no time did Speers request or

receive permission to enter the pursuit. He failed to communi-

cate with any of the other units engaged in the chase. He was

unfamiliar with the area he entered. In his failures to obtain

permission and to communicate, he violated CHP policy.

Speers was also found by the CHP to have twice “rammed

the suspect vehicle without obtaining permission” and to not

have given “consideration to the final resting place of the

involved vehicles after the ramming.” In each instance, Speers

violated CHP rules on ramming. In each instance, Speers dis-

regarded CHP policy that “consideration should be given to

the final resting place of the patrol car and its proximity to the

violator’s vehicle.” Speers failed to follow CHP policy in

making a stop by the use of force without authorization. In

each instance, Speers acted without communication with the

other units. The result of the second ramming, in the CHP’s

words, “left Officer Speers in a vulnerable and hazardous

position. Officer Speers had difficulty in exiting the patrol car

due to very little room to open the patrol car door.” The CHP

report concluded, “Based on the previously mentioned viola-

tions, it is recommended that Adverse Action be initiated

against Officer Paul E. Speers.”

When Speers fired the six rounds, as the CHP report also

stated, he “did not have a completely clear background for

discharging his weapon.” Two of the officers on the scene

saw no reason why Speers should shoot Alan. According to

Speers’ own deposition, he did not fire to protect other offi-

cers.

PROCEEDINGS

On August 28, 2002, the Adamses, parents of Alan, filed

their first amended complaint seeking damages under 42

246 ADAMS v. SPEERS

U.S.C. § 1983 and the Fourth Amendment to the Constitution

and under California law governing wrongful death. Other

officers besides Speers were named, but were ultimately dis-

missed by stipulation. Speers moved for summary judgment,

contending that he was entitled to qualified immunity. In a

written opinion the court denied his motion.

Following the steps set out in Saucier v. Katz, 533 U.S. 194

(2001), the court first determined that, if all the facts were

viewed in favor of the Adamses, Speers had violated the

Fourth Amendment. Id. at 201. The court stated that it is

unreasonable for a police officer to “seize an unarmed, non-

dangerous suspect by shooting him dead.” Tennessee v. Gar-

ner, 471 U.S. 1, 11 (1985). Serious questions, unresolvable by

summary judgment, existed “as to the objective reasonable-

ness of Officer Speers [firing] six rounds into Alan’s vehicle

in the absence of warning.”

The second Saucier step was for the court to ask if Speers

could have reasonably believed that his conduct did not vio-

late the Constitution. See Saucier, 533 U.S. at 205. Speers is

off the hook if, on the facts before us, he had the reasonable

belief that his conduct was lawful. In short, Speers is not held

to a correct constitutional reading, only to a reasonable one.

See id. The district court concluded that Speers was unreason-

able in believing that the law permitted him to fire six rounds

at Alan’s vehicle. Accordingly, the district court denied him

qualified immunity.

Speers appeals.

ANALYSIS

[1] Reviewing de novo the district court’s denial, we find

its judgment impeccable. On the facts presented by the

Adamses and the disciplinary report of the CHP itself, a jury

could find Speers to be an officer off on a mission of his own

creation, abandoning his assignment, picking up a buddy for

ADAMS v. SPEERS 247

no apparent reason except the excitement of the chase, barg-

ing in ahead of the police already engaged in pursuit, once

attempting to use force against Alan and twice doing so, cre-

ating each time a serious hazard for himself as well as Alan,

and finally stepping out of his patrol car and, without warning

and without the need to defend himself or the other officers,

killing Alan. Shooting of this sort was established as unconsti-

tutional by Tennessee v. Garner, supra, almost twenty years

ago. See Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), on

remand from 536 U.S. 953 (2002). No officer acting reason-

ably in these circumstances could have believed that he could

use deadly force to apprehend Alan.

The Supreme Court recently stated the governing law in

Brosseau v. Haugen, 543 U.S. 194 (2004). Two decisions of

circuit courts were there cited by the Supreme Court as exam-

ples of cases where it was reasonable for an officer to shoot:

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993); Smith v. Fre-

land, 954 F.2d 343 (6th Cir. 1992). In Cole the officer had

probable cause to believe that the suspect’s truck “posed an

imminent threat of serious physical harm to innocent motor-

ists as well as to the officers themselves.” 993 F.2d at 1333.

In Smith, the suspect was cornered at the back of a street, but

freed his car and began speeding down the street. The Sixth

Circuit noted that the suspect “had proven that he would do

almost anything to avoid capture” and that he posed a major

threat to officers at the end of the street. Smith, 954 F.2d at

347. In Brosseau itself, the officer twice ordered the suspect

to get out of his car and then broke the window on the driver’s

side with her handgun. The officer then tried to grab the car

keys and struck the suspect with the barrel and butt of her

gun. Undeterred, the suspect put the key in the ignition and

started his car. The officer fired because she was fearful for

the safety of the other officers. The suspect survived the sin-

gle shot but subsequently pleaded guilty to driving in wilful

or wanton disregard for the lives of others. Brosseau, 543

U.S. at 196-197. The Supreme Court held that Brosseau was

entitled to qualified immunity because her actions fell in the

248 ADAMS v. SPEERS

“ ‘hazy border between excessive and acceptable force.’ ” Id.

at 201 (quoting Saucier, supra, at 206).

At the same time the Supreme Court reaffirmed the rule of

Tennessee v. Garner that the shooting of an unarmed, non-

dangerous suspect to prevent the suspect’s flight is a violation

of the Fourth Amendment and that cases would occur where

such a violation was “obvious.” Id. at 199.

[2] Accepting the Adamses’ facts as true, this case falls

within the obvious: the absence of warning and the lack of

danger to the shooter or others distinguish the case from Cole,

Smith, and Brosseau. On these facts, Officer Speers was not

entitled to qualified immunity.

AFFIRMED.