Kathleen Espinosa v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN ESPINOSA, individually 

and as personal representative of

the Estate of decedent Asa

Sullivan; ASA SULLIVAN; A. S., by

and through his Guardian ad

Litem; NICOLE GUERRA,

Plaintiffs-Appellees,

No. 08-16853

v.

CITY AND COUNTY OF SAN  D.C. No.

3:06-cv-04686-JSW

FRANCISCO; HEATHER FONG, in her

capacity as Chief of Police, OPINION

Defendants,

and

JOHN KEESOR, Police Officer;

MICHELLE ALVIS, Police Officer;

PAUL MORGADO, Police Officer,

Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

October 5, 2009—San Francisco, California

Filed March 9, 2010

3643

3644 ESPINOSA v. SAN FRANCISCO

Before: Procter Hug, Jr. and Richard A. Paez, Circuit

Judges, and George H. Wu,* District Judge.

Opinion by Judge Hug;

Partial Concurrence and Partial Dissent by Judge Wu

*The Honorable George H. Wu, United States District Judge for the

Central District of California, sitting by designation.

3648 ESPINOSA v. SAN FRANCISCO

COUNSEL

Peter J. Keith, Deputy City Attorney, San Francisco, Califor-

nia, for the appellants.

Benjamin Nisenbaum, Law Offices of John L. Burris, Oak-

land, California and Julie M. Houk, Law Offices of James B.

Chanin, Berkeley, California, for the appellees.

OPINION

HUG, Senior Circuit Judge:

Officers of the San Francisco Police Department and the

City and County of San Francisco (“defendants”) brought an

interlocutory appeal from the district court’s denial of their

summary judgment motion in this 42 U.S.C. § 1983 action

brought by Kathleen Espinosa and other survivors of Asa Sul-

livan (“plaintiffs”). Plaintiffs allege that Officers Paulo Mor-

gado, Michelle Alvis, and John Keesor violated Asa

Sullivan’s Fourth Amendment rights by entering and search-

ing an apartment, using unreasonable force, and intentionally

or recklessly provoking a confrontation. The three officers

entered an apartment in which Asa Sullivan was staying,

searched it, and Officers Alvis and Keesor fatally shot Sulli-

van. We review de novo the denial of defendants’ summary

judgment motion, Hopkins v. Bonvicino, 573 F.3d 752, 762

(9th Cir. 2009), and we affirm.

The district court properly denied defendants’ summary

judgment motion regarding whether Officers Morgado, Alvis,

and Keesor are entitled to qualified immunity for the alleged

ESPINOSA v. SAN FRANCISCO 3649

Fourth Amendment violations. For summary judgment, we

determine whether, viewing the evidence in the light most

favorable to the non-moving party, “there are any genuine

issues of material fact and whether the district court correctly

applied the substantive law.” Olsen v. Idaho State Bd. of Med-

icine, 363 F.3d 916, 922 (9th Cir. 2004). For qualified immu-

nity, we determine whether the facts show that (1) the

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

right which was violated was clearly established at the time

of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001);

Hopkins, 573 F.3d at 762. A right is clearly established if a

reasonable officer would know that his conduct was unlawful

in the situation he confronted. Headwaters Forest Defense v.

County of Humbolt, 276 F.3d 1125, 1129 (9th Cir. 2002). If

the officers did not violate a constitutional right, then they are

entitled to immunity. Hopkins, 573 F.3d at 762. If the officers

violated such a right, but it was not clearly established, then

they are entitled to immunity. Id.

In this case, the district court properly denied the summary

judgment motion because there are genuine issues of fact

regarding whether the officers violated Asa Sullivan’s Fourth

Amendment rights. Those unresolved issues of fact are also

material to a proper determination of the reasonableness of

the officers’ belief in the legality of their actions. See Santos

v. Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002) (finding it

premature to decide the qualified immunity issue “because

whether the officers may be said to have made a ‘reasonable

mistake’ of fact or law may depend on the jury’s resolution

of disputed facts and the inferences it draws therefrom”)

(internal cite omitted).

On June 6, 2006, Officers Morgado, Alvis, and Keesor

entered an apartment in which Sullivan, the victim, was stay-

ing, and shot and killed him. Evidence indicated that Sullivan

was staying at the apartment (“the apartment”) with the per-

mission of the lease holders and another resident, Jason Mar-

tin. That evening, the police received a call in which a

3650 ESPINOSA v. SAN FRANCISCO

neighbor stated that the front door of the apartment was

swinging open and that the location could be a drug house.

Officer Morgado arrived and saw that the apartment door was

closed. He pushed up against the front door and it opened

slightly. He then looked in the windows and saw several items

inside. He requested police dispatch call security for the apart-

ment complex and another police unit for a walk-through of

the apartment. Officer Morgado then pushed open the apart-

ment door and entered the apartment. After entering, he saw

a bloody shirt hanging over the top of an interior door. In a

post-incident interview with investigators, he stated that he

could not tell if the blood was fresh or dry, but later stated it

appeared fresh.

Officers Alvis and Keesor arrived and entered the apart-

ment. All three officers searched the first floor and found

nothing except paint cans and painting sheets. Officer Keesor

stated that it looked like the apartment was being renovated

and that he did not have any reason to believe there were

squatters there. He stated that they found nothing to indicate

an emergency, except for the bloody shirt.

The officers continued searching the apartment and on the

second floor, they found a locked bedroom. They announced

that they were the police and kicked down the bedroom door.

Inside the room, they found resident, Jason Martin. They

ordered him to the ground and handcuffed him. He was coop-

erative and complied with their requests. They searched him

and found a knife. Then, they heard noises coming from the

attic indicating that someone was in the attic.

Officer Alvis climbed into the attic with her gun drawn.

Officers Morgado and Keesor entered the attic after Officer

Alvis with their guns drawn as well. It was dark, but Officers

Alvis and Morgado had flashlights. Officer Alvis shouted that

she saw Sullivan. An officer responded over the radio “Hey,

why don’t we just pull back really quick, set up a perimeter

and just try to get him later.” Officer Alvis then shouted

ESPINOSA v. SAN FRANCISCO 3651

“Cover both closets. I have him at gunpoint. He’s not going

anywhere. . . .” The officers told Sullivan to put up his hands,

but he failed to follow the instruction. Officers Keesor and

Alvis fired their guns at Sullivan, fatally wounding him. Offi-

cer Keesor stated that he shot because he believed that he saw

something black in Sullivan’s hand that looked like a gun.

Officer Alvis stated that she shot because she thought she saw

something in Sullivan’s hand and that she saw him move his

right arm. Sullivan was unarmed.

I. Warrantless Entry and Search of Home

[1] The district court properly denied defendants’ summary

judgment motion on whether they were entitled to qualified

immunity for the warrantless entry and search of the apart-

ment because there are questions of fact regarding the first

prong of the qualified immunity test, i.e., whether the officers

violated Sullivan’s Fourth Amendment rights. The Fourth

Amendment prohibits unreasonable searches and seizures.

U.S. Const. amend. IV. For the Fourth Amendment to apply,

one must have a reasonable expectation of privacy in the

place that is invaded. Minnesota v. Carter, 525 U.S. 83, 88

(1998). A search of a home or residence without a warrant is

presumptively unreasonable. Lopez-Rodriguez v. Mukasey,

536 F.3d 1012, 1016 (9th Cir. 2008). A warrantless entry into

a home violates the Fourth Amendment unless an exception

to the Fourth Amendment warrant requirement applies, such

as emergency, exigency, or consent. Id.

A. Reasonable Expectation of Privacy

[2] The district court properly found that there are ques-

tions of fact regarding whether Sullivan had a reasonable

expectation of privacy in the apartment under the Fourth

Amendment. An overnight guest in a home staying with the

permission of the host has a reasonable expectation of privacy

under the Fourth Amendment. Minnesota v. Olson, 495 U.S.

91, 98-100 (1990); United States v. Armenta, 69 F.3d 304,

3652 ESPINOSA v. SAN FRANCISCO

308-09 (9th Cir. 1995). Here, there is evidence that Sullivan

was staying in the apartment with the permission of a lease

holder, Bryant Gudor, and another resident, Jason Martin. The

evidence strongly suggests that the lease holders were in pos-

session of the apartment on the day of the entry and search

because the lease holders were charged June rent for the

apartment, the lease holders had not returned the keys for the

apartment, and management for the apartment testified that

they considered the lease holders at that time to be in posses-

sion of the apartment. Although defendants argue that Sulli-

van had no privacy expectation, because the evidence strongly

indicates that Sullivan had permission to stay in the apartment

from a lease holder, Bryant Gudor, and a resident, Jason Mar-

tin, defendants have failed to show as a matter of law that Sul-

livan did not have a reasonable expectation of privacy. See

United States v. Davis, 932 F.2d 752, 756-57 (9th Cir. 1991)

(holding that the defendant had a reasonable expectation of

privacy in an apartment where he was free to come and go

and had independent access, stored items, and joint control);

United States v. Young, 573 F.3d 711, 716-20 (9th Cir. 2009)

(holding that the defendant had a reasonable expectation of

privacy in his hotel room where the hotel had not informed

him that he was evicted or taken any action to evict him);

United States v. Bautista, 362 F.3d 584, 589-91 (9th Cir.

2004) (holding that hotel guest who used stolen credit card

had an expectation of privacy in the rented hotel room and

that the officer’s entry into room was not supported by proba-

ble cause).

B. The Emergency and Exigency Exceptions

[3] The district court properly found that defendants failed

to show as a matter of law that the emergency and exigency

exceptions to the Fourth Amendment warrant requirement

applied. These two “exceptions are ‘narrow’ and their bound-

aries are ‘rigorously guarded’ to prevent any expansion that

would unduly interfere with the sanctity of the home.” Hop-

kins, 573 F.3d at 763 (quoting United States v. Stafford, 416

ESPINOSA v. SAN FRANCISCO 3653

F.3d 1068, 1073 (9th Cir. 2005)). Under the emergency

exception, an officer may enter a home without a warrant to

investigate an emergency that threatens life or limb if the offi-

cer has objectively reasonable grounds to believe that an

emergency exists and that his immediate response is needed.

Id. at 763-64. This exception is derived from police officers’

community caretaking function, allowing them to enter a

home when an emergency which threatens physical harm is

presented. Id. at 763. The exigency exception, in contrast,

stems from police officers’ investigatory function: it allows an

officer to enter a residence without a warrant if he has “proba-

ble cause to believe that a crime has been or is being commit-

ted and a reasonable belief that [his] entry” is needed to stop

the destruction of evidence or a suspect’s escape or carry out

other crime-prevention or law enforcement efforts. Id. Both

exceptions, however, require that the officer have an objec-

tively reasonable belief that the circumstances justify entry.

Id.

i. Officer Morgado

[4] Viewing the evidence in the light most favorable to the

plaintiffs, defendants failed to show as a matter of law that the

emergency or exigency exceptions to the Fourth Amendment

warrant requirement applied with regard to Officer Morgado’s

entry and search of the apartment. The only evidence that

Officer Morgado had prior to forcing open the front door of

the apartment and entering the unit was: (1) the neighbor’s

report that the front door had been swinging open and that it

might be a drug house; (2) a visual inspection through a win-

dow that, according to Officer Morgado, revealed “several

items, unknown items” inside; and (3) the security officer’s

statement that the unit was supposed to be vacant and that the

front door lock was not one of the approved locks installed by

the landlord. This evidence does not establish that Officer

Morgado could have had an objectively reasonable belief that

a life-threatening emergency was occurring or a crime was in

progress. Any evidence found after Officer Morgado entered

3654 ESPINOSA v. SAN FRANCISCO

the apartment, such as the bloody shirt or knife on Jason Mar-

tin, is irrelevant. This court has stated that evidence discov-

ered after an illegal entry cannot be used retroactively to

justify a search. United States v. Licata, 761 F.2d 537, 543

(9th Cir. 1985) (stating that the “exigencies must be viewed

from the totality of circumstances known to the officers at the

time of the warrantless intrusion.”). Thus, defendants fail to

show as a matter of law that the emergency or exigency

exceptions applied with regard to Officer Morgado’s entry

and search of the apartment. See Hopkins, 573 F.3d at 764-69

(holding that the officers who responded to minor hit-and-run

could not justify their warrantless entry and that there was no

probable cause where the officers entered the home based on

statements by a witness that the resident was in an accident

and smelled of alcohol).

ii. Officers Keesor and Alvis

Viewing the evidence in the light most favorable to plain-

tiffs, defendants also failed to show that the emergency or exi-

gency exceptions applied with regard to Officers Keesor’s and

Alvis’s entry and search of the apartment. Defendants argue

that the exceptions apply to Officers Keesor’s and Alvis’s

entry because both officers (1) were aware of the bloody shirt

prior to entry; and (2) reasonably relied on Officer Morgado’s

instruction to enter and search the apartment.

[5] First, defendants fail to show as a matter of law that

Officers Keesor and Alvis were aware of the bloody shirt

prior to entry. Officer Morgado requested an additional unit

for a walk-through of the apartment before he found the

bloody shirt and cannot recall if he told the officers about the

bloody shirt upon their arrival prior to entry. Officer Alvis

stated that Officer Morgado told police headquarters about the

bloody shirt. Officer Keesor, immediately after the shooting,

did not tell investigators that Officer Morgado told him about

the bloody shirt. Later, when he was deposed, Officer Keesor

stated that Officer Morgado did tell him about the bloody shirt

ESPINOSA v. SAN FRANCISCO 3655

prior to entry. Viewing the evidence in the light most favor-

able to plaintiffs, defendants have failed to establish as a mat-

ter of law that Officers Keesor and Alvis were aware of the

bloody shirt prior to their entry.

Defendants also failed to show as a matter of law that Offi-

cers Keesor and Alvis reasonably relied on Officer Morgado’s

instructions to enter the apartment. An officer is not liable for

acting on information supplied by another officer, even if that

information later turns out to be wrong, if he has an objec-

tively reasonable, good-faith belief that he is acting pursuant

to proper authority. Motley v. Parks, 432 F.3d 1072, 1081-82

(9th Cir. 2005) (en banc). The officer relying on the informa-

tion must make reasonable inquiries to determine if there is a

sufficient basis for the entry and search. Id. at 1081-82. “The

lynchpin is whether the officer’s reliance on the information

was objectively reasonable.” Id. at 1082.

[6] Viewing the evidence in the light most favorable to the

plaintiffs, there is a material issue of fact regarding whether

Officer Keesor’s and Alvis’s reliance on information gathered

by Officer Morgado was objectively reasonable. Officer Mor-

gado instructed the officers to clear the house. It is unclear if

the officers knew of the bloody shirt prior to entry. Even if

they did, the record does not show whether they inquired

about the nature of the shirt, whether Officer Morgado knew

that it was blood, whether the blood appeared fresh or old, or

whether there was blood on any other area of the apartment.

The record also does not show that Officers Keesor and Alvis

made inquiries about other facts which would allow a war-

rantless entry and search of the apartment. Viewing the evi-

dence in the light most favorable to the plaintiffs, there is a

material question of fact regarding the reasonableness of the

officers’ reliance. See Torres v. City of Los Angeles, 548 F.3d

1197, 1212 (9th Cir. 2008) (holding that there was a material

issue of fact regarding whether a reasonable officer would

have relied on information possessed by the detectives with-

out further verification where the detectives had a general

3656 ESPINOSA v. SAN FRANCISCO

description of the suspect, a witness who identified the sus-

pect in a suggestive photograph presentation, no evidence of

plaintiff’s gang affiliation, and no physical evidence tying

plaintiff to the crime).

D. Consent

[7] Defendants also failed to prove as a matter of law that

the consent exception to the Fourth Amendment warrant

requirement applied. Defendants argue that the security guard

for the apartment complex had apparent authority to consent

to the entry and search of the apartment and that the guard

implied consent by agreeing to watch the windows of the

apartment while Officer Morgado entered. A third party’s

consent to the search of another person’s belongings is valid

if the consenting party has actual or apparent authority to con-

sent. United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005).

To establish apparent authority, it must be shown that (1) the

officer believed an untrue fact which made him believe the

consent-giver had control over the area searched; (2) it was

objectively reasonable for the officer to believe that the fact

was true; and (3) the consent-giver had actual authority. Id. at

880-81. Regarding implied consent, only in narrow circum-

stances may consent be implied by actions and in most

implied consent cases it is the suspect himself who takes an

action which implies consent. United States v. Impink, 728

F.2d 1228, 1233 n.3 (9th Cir. 1984); United States v. Rosi, 27

F.3d 409, 411-12 (9th Cir. 1994). It is “a most uncommon sit-

uation” where the court is asked to infer consent from a third

party’s actions. Impink, 728 F.2d at 1233 n.3.

[8] In this case, defendants fail to show that there are no

questions of fact regarding whether the security guard had

apparent authority to consent and implied consent. When

Officer Morgado was interviewed immediately after the

shooting, he stated that (1) he asked the security guard if he

had a key to the apartment; (2) the guard said he did not and

that the lock was not their lock; and (3) he asked the guard to

ESPINOSA v. SAN FRANCISCO 3657

stand outside and scream if he saw anyone climbing out of a

window. When he was deposed, Officer Morgado added that

the security guard told him the apartment was vacant. The two

security guards involved stated that Officer Morgado asked

them for the keys; neither guard stated that Officer Morgado

asked them about the status of the apartment. Viewing the

evidence in the light most favorable to plaintiffs, Officer Mor-

gado did not ask and was not told by security that the apart-

ment was vacant and when he looked in the window he saw

several items which could have indicated occupancy. Because

defendants cannot show that Officer Morgado believed an

untrue fact (i.e., that no one lived in the apartment), and can-

not show Officer Morgado had any objectively reasonable

grounds to believe the apartment was vacant, it was proper for

the district court to find that consent was not established as a

matter of law. See United States v. Shaibu, 920 F.2d 1423,

1426-27 (9th Cir. 1990) (declining to imply consent where

officers did not request entry and no steps were taken to imply

consent); Impink, 728 F.2d at 1233 & n.3 (holding implied

consent was not given by third party).

II. Unreasonable Force

[9] The district court properly denied defendants’ summary

judgment motion regarding whether the officers are entitled to

qualified immunity for allegedly violating Sullivan’s Fourth

Amendment rights by using excessive force. Fourth Amend-

ment claims of excessive or deadly force are analyzed under

an objective reasonableness standard. Scott v. Harris, 550

U.S. 372, 381 (2007). To determine if a Fourth Amendment

violation has occurred, we must balance the extent of the

intrusion on the individual’s Fourth Amendment rights

against the government’s interests to determine whether the

officer’s conduct was objectively reasonable based on the

totality of the circumstances. Graham v. Connor, 490 U.S.

386, 396-97 (1989); Price v. Sery, 513 F.3d 962, 968 (9th Cir.

2008); Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.

2003). Our analysis involves three steps. First, we must assess

3658 ESPINOSA v. SAN FRANCISCO

the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating “the type and amount of

force inflicted.” Miller, 340 F.3d at 964; Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir.

2003). Next, we must evaluate the government’s interests by

assessing (1) the severity of the crime; (2) whether the suspect

posed an immediate threat to the officers’ or public’s safety;

and (3) whether the suspect was resisting arrest or attempting

to escape. Id.; Graham, 490 U.S. at 396. Third, “we balance

the gravity of the intrusion on the individual against the gov-

ernment’s need for that intrusion.” Miller, 340 F.3d at 964.

Ultimately, we must balance the force that was used by the

officers against the need for such force to determine whether

the force used was “greater than is reasonable under the cir-

cumstances.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir.

2002). In deadly force cases, “[w]here the suspect poses no

immediate threat to the officer and no threat to others, the

harm resulting from failing to apprehend him does not justify

the use of deadly force to do so.” Tennessee v. Garner, 471

U.S. 1, 11-12 (1985). The parties “relative culpability” i.e.,

which party created the dangerous situation and which party

is more innocent, may also be considered. Scott, 550 U.S. at

384. Finally, this court has often held that in police miscon-

duct cases, summary judgment should only be granted “spar-

ingly” because such cases often turn on credibility

determinations by a jury. Drummond, 343 F.3d at 1056.

[10] Here, defendants failed to show that there are no ques-

tions of fact regarding whether Officers Morgado, Keesor and

Alvis used unreasonable force when they entered the attic and

pointed loaded guns at Sullivan. The three officers climbed

into the attic and each pointed a gun at Sullivan. With regard

to the force used, pointing a loaded gun at a suspect, employ-

ing the threat of deadly force, is use of a high level of force.

The officers pointed guns at Sullivan knowing that he had not

been accused of any crime. Sullivan had not caused the offi-

cers to forcibly enter the home; he ran from them. Sullivan

did not present a danger to the public. Sullivan could not

ESPINOSA v. SAN FRANCISCO 3659

escape from the attic because it had only one exit. The bloody

shirt and finding a knife on resident Jason Martin may have

suggested some risk of harm. However, the officers offered

inconsistent testimony regarding whether the blood appeared

fresh or old. Viewing the evidence most favorably for plain-

tiffs, the officers did not know if the blood was new or old.

With regard to the knife, according to Officer Keesor, the

officers kicked down Martin’s bedroom door, Martin put his

hands up, allowed the officers to handcuff him even though

he had not been accused of any crime, and complied with

their demands. After he was arrested, they found a knife.

However, his behavior did not make future danger more

likely. Viewing the evidence in the light most favorable to

plaintiffs, even considering the shirt and knife, defendants fail

to show that there are not questions of fact regarding whether

the level of force used was reasonable at the point when they

entered the attic given the low level of threat. See Hopkins,

573 F.3d at 776-77 (affirming denial of summary judgment on

excessive force claim where suspect was not a safety threat,

did not have a gun, and the officers outnumbered him); Tekle

v. United States, 511 F.3d 839, 845 (9th Cir. 2007) (stating

that this court has held that “the pointing of a gun at someone

may constitute excessive force, even if it does not cause phys-

ical injury.”); Robinson v. Solano County, 278 F.3d 1007,

1013-14 (9th Cir. 2002) (holding that the officers’ use of a

drawn gun at close range when they pointed the gun at head

of unarmed misdemeanor suspect is actionable) (en banc).

[11] In addition, there are questions of fact regarding

whether Officer Keesor’s and Alvis’s use of deadly force was

reasonable. Both officers fired their entire magazines at Sulli-

van. Officer Keesor fired 12 shots at Sullivan. Officer Alvis

fired 13 shots at Sullivan. All shots were fired at close range.

The officers stated that Sullivan refused to show his hands

and made disturbing statements, such as “Kill me or I’ll kill

you” and “Are you ready to shoot me?” Officer Alvis stated

that she thought she saw something in Sullivan’s hands and

when he moved his right arm that she thought he was going

3660 ESPINOSA v. SAN FRANCISCO

to shoot her. Officer Keesor stated that he saw something that

looked like a gun in Sullivan’s hand, heard a pop, and began

shooting at Sullivan. According to the officers, Sullivan was

resisting arrest and posed a high risk to their safety. Still, Sul-

livan had not been accused of any crime. He was not a threat

to the public and could not escape. He had not initially caused

this situation. He had not brandished a weapon, spoken of a

weapon, or threatened to use a weapon. Sullivan, in fact, did

not have a weapon. Viewing the evidence in the light most

favorable to the plaintiffs, defendants have failed to show that

there are no questions of fact regarding whether the use of

deadly force was reasonable. See id.; Meredith v. Erath, 342

F.3d 1057, 1061 (9th Cir. 2003) (affirming denial of qualified

immunity on excessive force claim where suspect posed no

safety risk).

III. Provoking a Confrontation

[12] Finally, the district court properly denied defendants’

summary judgment motion on whether the officers were enti-

tled to qualified immunity for allegedly violating Sullivan’s

Fourth Amendment rights by intentionally or recklessly pro-

voking a confrontation. Where a police officer “intentionally

or recklessly provokes a violent confrontation, if the provoca-

tion is an independent Fourth Amendment violation, he may

be held liable for his otherwise defensive use of deadly

force.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.

2002). If an officer intentionally or recklessly violates a sus-

pect’s constitutional rights, then the violation may be a provo-

cation creating a situation in which force was necessary and

such force would have been legal but for the initial violation.

Id.

[13] In this case, the district court did not err in finding

that there are genuine issues of fact regarding whether the

officers intentionally or recklessly provoked a confrontation

with Sullivan. Evidence strongly suggests that the initial entry

into the apartment by Officer Morgado violated Sullivan’s

ESPINOSA v. SAN FRANCISCO 3661

Fourth Amendment rights. Viewing the evidence in the light

most favorable to the plaintiffs, there is evidence that the ille-

gal entry created a situation which led to the shooting and

required the officers to use force that might have otherwise

been reasonable. See Alexander v. City and County of San

Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994) (holding offi-

cers provoked a confrontation where they entered a man’s

house without a warrant and this violation provoked the man

to shoot at the officers). Because there is a genuine issue of

fact regarding whether the defendants intentionally or reck-

lessly provoked a violent confrontation, the district did not err

in denying defendants’ summary judgment motion on this

issue. See id.

Based on the foregoing, the district court properly denied

the summary judgment motion regarding qualified immunity

because defendants failed to show as a matter of law that they

did not violate Sullivan’s Fourth Amendment rights.

All parties shall bear their own costs.

AFFIRMED.

WU, District Judge, concurring in part and dissenting in part:

I agree with the majority that the district court properly

denied summary judgment as to the defendant officers’ claim

of qualified immunity in regards to their entering and search-

ing the apartment. However, I disagree with the Opinion’s

resolution of the qualified immunity question in the contexts

of the unreasonable force and provoking a confrontation

issues.

I. FACTS/EVIDENCE1

1

Northern District of California Civil Local Rule 56-1(a) states that

“Unless required by the assigned Judge, no separate statement of undis-

3662 ESPINOSA v. SAN FRANCISCO

Initially, further consideration of the facts/evidence is war-

ranted.2 On June 6, 2006 at approximately 8:28 p.m., a dis-

patch call went out over the San Francisco Emergency

Communications Department (“ECD”) system for an officer

to conduct a premises check at 2 Garces Drive located in the

Park Merced apartment complex.3 San Francisco Police

Department Officer Paulo Morgado responded at 8:33 p.m.

After he had opened the door to the premises and saw the

bloody T-shirt hanging on an interior door, between 8:40 and

8:43 p.m., he made requests over the ECD system for another

police unit to assist in conducting a walk-through to check out

the premises. In doing so, he specifically referenced “a T-shirt

. . . hanging on the door with blood all over it.”

Officers Michelle Alvis and John Keesor heard Morgado’s

transmission and responded at about 8:50 p.m. Additional

police units also arrived thereafter. Morgado, Alvis, Keesor

puted facts or joint statement of undisputed facts shall be submitted.”

The record herein, does not contain any separate or joint statement of

undisputed facts. Furthermore, aside from Defendants’ Second Objection

to and Motion to Strike Evidence Offered by Plaintiffs in Support of their

Opposition to Motion for Summary Judgment (which mostly challenged

the evidentiary basis for plaintiffs’ expert’s opinions), no evidentiary

objections (or rulings thereon) have been provided.

The following factual summary has been made from a review of the

entire record submitted on this appeal, noting any relevant factual dis-

putes.

2

As observed in Blanford v. Sacramento County, 406 F.3d 1110, 1115

(9th Cir. 2005), an analysis of an excessive force claim under the objective

reasonableness standard of the Fourth Amendment requires “consideration

of the totality of the facts and circumstances in the particular case [empha-

sis added].”

3

The specified times cited herein are based upon the transcript of the

audio dispatch recording of the communications over the ECD system that

were made while the events herein were transpiring (“transcript”). The

ECD system automatically records the times at which the calls are gener-

ated. A copy of that transcript was placed into the record, apparently with-

out objection as to its accuracy.

ESPINOSA v. SAN FRANCISCO 3663

and Officer Yukio Oshita entered the premises, announcing

that they were San Francisco police officers. They did not

encounter anyone on the first floor. Moving up to the second

floor, there were a number of closed doors, one of which was

to a bathroom. The door to the first bedroom was locked, but

there were sounds of movement from within. The officers

again announced that they were police officers and ordered

the occupants to open the door. After a period of time, entry

was obtained and the officers encountered Jason Martin. The

officers ordered Martin to the ground. He complied and was

handcuffed.

While dealing with Martin, the bedroom closet door was

open and the officers heard movement above them. Believing

that another person was trying to gain access to the roof, Mor-

gado announced through the ECD system that “we got one

going on the roof.” Keesor went back downstairs and out of

the building to determine if he could locate anyone on the

roof. Eventually, personnel from the apartment complex

informed Keesor that there was no roof-top exit from the attic,

and he called in that information. Keesor then returned to the

second floor of the premises and, with other officers, checked

out a second bedroom. It was unoccupied. Although it had a

closet, there was no access to the attic from that room. Upon

Keesor’s return to the first bedroom, Martin was searched for

weapons and a four inch “ninja” knife was located in his back

pocket. It did not appear to have any blood on it.

At about 8:56 p.m., Officer Erik Leung spoke with Keesor

about setting up a perimeter. Morgado spoke with the dis-

patcher (“Dispatch”) about getting a search dog unit. Around

9:02 p.m., Dispatch reported that it was “negative” as to the

dog unit.

The officers elected to investigate the attic. Access to the

attic was solely through an approximate 2-2½ foot hole at the

top of the first bedroom’s closet. To enter one had to utilize

the closet’s shelving to lift oneself up. Once inside, the attic

3664 ESPINOSA v. SAN FRANCISCO

was extremely dark with no lighting. The attic was triangular-

shaped but even at its center there was not enough room for

the taller officers to stand. The floor of the attic was trans-

versed at regular intervals by wood beams approximately six

inches in height, in between which had been placed copious

amounts of cotton-like white insulation material. Also inter-

spaced at regular intervals were both vertical wood beams

from floor to ceiling and outstretched diagonal rafters sup-

porting the roof. There were also heating ducts and other

obstructions present.

Alvis was the first officer up into the attic, followed by

Keesor and Morgado. Because of a lack of space, Oshita

remained half-way through the opening. They announced

themselves as police officers. There was no verbal response.

Using their flashlights and with guns drawn, the officers

began searching the attic for any persons. Eventually, Alvis

spotted Asa Sullivan, who was wearing a black T-shirt, jeans,

heavy boots, and eyeglasses.4 Sullivan was sitting/reclining in

between two of the wooden beams and was partially covered

by insulation. Alvis was the nearest officer to Sullivan,

approximately 15 feet away. There were wood beams, rafters

and other obstructions between the officers and Sullivan.

Alvis ordered Sullivan to show the officers his hands, Sulli-

van did not comply and verbally indicated that he would not

be taken into custody. Morgado announced through the ECD

system, “Stand by, he’s gonna be a 148, stand by.” “148” is

code for “resisting arrest.”5 At that point, all three officers

(i.e., Alvis, Keesor and Morgado) had their flashlights and

guns trained on Sullivan.

Thereafter, the officers tried to get Sullivan to cooperate.

He did not do so and continued to make statements indicating

4

According to the Coroner’s Report, Sullivan was 25 years old, five feet

nine inches in height and weighed 208 pounds.

5

Included in the transcript was a table as to the meaning of the code

words utilized by the officers during the incident.

ESPINOSA v. SAN FRANCISCO 3665

his intent to resist. Dispatch finally made contact with a dog

unit that responded that it would be there in a few minutes.

Alvis announced to Dispatch, “Be advised, this subject is

refusing to show us his hands. I cannot see what is in his

hands. Be advised.” Morgado stated, “He’s also said he’s not

coming into custody.” Around that point, someone asked

whether the officers could use “less than lethal.” “Less than

lethal” refers to a shotgun that has been fitted to shoot bean

bags rather than pellets, and is usually not deadly unless fired

at very close range. Morgado responded over the ECD sys-

tem, “Hey Sarge, there’s no way we can use less lethal. We’re

in the attic with rafters.”

At about 9:06 p.m., it was reported that Sullivan had begun

to pound the floor with his foot in an apparent attempt to

make a hole through the floor into the bathroom below.

Leung, who was in the bathroom, stated that “there doesn’t

appear to be any access.” At some point, Martin began yelling

to Sullivan from the bedroom to “just come on down, it’s

okay.” Morgado asked the officers in the bedroom with Mar-

tin to inquire if he could tell them the name and date of birth

of the person in the attic in order to check on his criminal sta-

tus. Leung reported that Martin “doesn’t know his name or his

date of birth.”

At around 9:07 p.m., Sullivan began getting more agitated

and made statements of a threatening nature to the officers.

Morgado reported via the EDC system that Sullivan was “try-

ing to 801 by cop. Can’t see his hands. He’s claiming to have

something.” “801” is code for “person attempting suicide.”

During this period, Sullivan had continued to kick on the

flooring and had managed to break open a small hole above

the bathroom tub. Certain officers tried to use a pole with a

hook to enlarge the hole in order to be able to pull Sullivan

through it or to secure him. The ceiling material would not

give way. At approximately 9:12 p.m., Officer Tracy McCray

asked Morgado through the EDC system whether the less than

lethal option could be used through the hole. Leung, who was

3666 ESPINOSA v. SAN FRANCISCO

in the bathroom, responded that “we can’t identify a target

through a dark hole. So why don’t we slow it down, see if we

can get a hostage negotiator or something, because this guy’s

not listening to us.”

Shortly thereafter, Alvis announced through the EDC sys-

tem, “He’s bringing his hand around, he’s got something, hold

on. **** The suspect’s under the insulation, cannot see it,

he’s making movement.” An officer on the ground reported

that the canine unit had arrived. At about 9:15 p.m., McCray

shouted over the EDC “shots fired, shots fired!”

The evidence as to what happened immediately before the

shooting started varies somewhat among the four officers who

were in the attic. Each officer was in a different location from

the others.6

In the recorded interview of Alvis taken in the early morn-

ing of June 7, 2006 by inspectors from the San Francisco

Police Department Investigations Unit, Alvis stated that she

repeatedly asked Sullivan to show the officers his hands but

he did not do so. He then began to move his right hand under

the insulation and behind his back and then rapidly moved his

right arm up. She heard a “pop” and saw what she thought

was a “muzzle flash.” Believing that she was being fired on,

Alvis shot her own weapon. Alvis’s February 22, 2008 depo-

sition testimony and her June 16, 2008 declaration are consis-

tent with her interview statements except that in her

deposition and declaration she said that, when she saw Sulli-

van suddenly move his right arm, she “moved”/“fell back-

ward,” then heard the sound she believed was gunfire and saw

the muzzle flash, and made the decision to fire her weapon.

Also, in her deposition, Alvis stated that, just before the

6

Alvis was standing and closest to Sullivan (about fifteen feet away).

Morgado was a number of feet behind and to the left of Alvis. Keesor was

even further away from Alvis but in a prone position on the attic floor.

Oshita was still half-way through the opening into the attic.

ESPINOSA v. SAN FRANCISCO 3667

shooting, Sullivan did bring up his left hand and was doing

something with it, but she is certain he did not have a weapon

in that hand.

Keesor in his June 7, 2006 interview stated that just prior

to the shooting he had been talking to Sullivan trying to get

him to cooperate. Sullivan — who had been responding ver-

bally — stopped and gave Keesor “this weird look; and he

takes a deep breath.” Thereafter, he saw Sullivan appear to

raise his hand(s)7 holding a “black oblong thing” which

looked to Keesor to be a barrel of a gun. He then heard a

“pop” and Alvis fell from his peripheral field of vision.

Believing that Sullivan had shot Alvis, Keesor opened fire.

Keesor’s February 12, 2008 deposition testimony and his June

18, 2008 declaration are generally consistent with his inter-

view statements except that in his declaration it is unclear

whether he fired his weapon upon seeing Sullivan raising his

hand(s) with the dark object therein or if it was after also

hearing what he though was gunfire. Keesor in his deposition

stated that he did not see any muzzle flash coming from Sulli-

van’s direction.

In his June 7, 2006 interview, Morgado stated that Sullivan

had been repeating “tell my mom, tell my girlfriend I love

them,” followed by Alvis saying something that he couldn’t

understand, and then shots were fired. Upon hearing gunfire,

Morgado was about to also fire his weapon but Keesor got in

front of him and he elected not to shoot his gun. In his deposi-

tion, when asked when he first realized that “a gun had gone

off in the attic,” Morgado responded that it was when he “saw

sudden movement of Mr. Sullivan . . . . I saw his right shoul-

der move in a forward direction over his waist to the left

. . . .” In his June 16, 2008 declaration, Morgado stated that:

While the Suspect was seated, after he made the

statements that caused me to believe he may attempt

7

Keesor was unsure if Sullivan raised only one hand or both hands.

3668 ESPINOSA v. SAN FRANCISCO

to force us to shoot him, he made a sudden move-

ment with the right side of his body that I thought

was consistent with producing a firearm. Believing

he was about to shoot at us, I began to depress the

trigger on my weapon. Before I could fire, however,

I realized that Officer Keesor may be in my way and

I held fire. As a result, I did not discharge my

weapon during this incident. Shortly after I saw the

sudden movement of the right side of the Suspect’s

body I heard the sound of gunshots, some of which

I believed were coming from the Suspect.

In his June 10, 2008 declaration, Oshita stated that before

the shooting, Sullivan said: “hey, tell my mom that I love her,

and tell my girl that I love her. You guys, I’m gonna make my

move and you’ll be sorry.” Shortly thereafter, he heard gun-

shots and saw muzzle flashes.

No firearm or other weapon was found on or near Sulli-

van’s body. A dark eyeglass case was located underneath his

right forearm.

II. UNREASONABLE FORCE

A. Applicable Law

As noted in Billington v. Smith, 292 F.3d 1177 (9th Cir.

2002):

In Saucier v. Katz, [533 U.S. 194 (2001),] the

Supreme Court instructed lower courts deciding

summary judgment motions based on qualified

immunity to consider “this threshold question: Taken

in light most favorable to the party asserting the

injury, do the facts alleged show the officer’s con-

duct violated a constitutional right?” [Id. at 201.] If

not, then “there is no necessity for further inquiries

concerning qualified immunity.” [Id.] If so, then “the

ESPINOSA v. SAN FRANCISCO 3669

next, sequential step is to ask whether the right was

clearly established.” [Id.] A constitutional right is

clearly established when, “on a favorable view of the

other parties’ submissions” “it would be clear to a

reasonable officer that his conduct was unlawful in

the situation he confronted.” [Id.] In Saucier, the

Supreme Court overruled Ninth Circuit precedent

holding that “the inquiry as to whether officers are

entitled to qualified immunity for the use of exces-

sive force is the same as the inquiry on the merits of

the excessive force claim.” The Court rejected our

view because an officer might be reasonably mis-

taken as to the facts justifying his actions, or as to

the law governing his actions, so that an officer

could use objectively excessive force without clearly

violating the constitution.

*****

A police officer may reasonably use deadly force

where he “has probable cause to believe that the sus-

pect poses a threat of serious physical harm, either

to the officer or to others. We analyze excessive

force claims in the arrest context under the Fourth

Amendment’s reasonableness standard. We balance

“the nature and quality of the intrusion on the indi-

vidual’s Fourth Amendment interests against the

countervailing governmental interests at stake” and

ask whether, under the circumstances, “including the

severity of the crime at issue, the suspect poses an

immediate threat to the safety of the officers or oth-

ers, or whether he is actively resisting arrest or

attempting to evade arrest by flight.” The reason-

ableness inquiry is objective, without regard to the

officer’s good or bad motivations or intentions.

Id. at 1183-84 (footnote and citations omitted). As further

observed in Graham v. Connor, 490 U.S. 386 (1989):

3670 ESPINOSA v. SAN FRANCISCO

The “reasonableness” of a particular use of force

must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20

vision of hindsight. **** The calculus of reasonable-

ness must embody allowance for the fact that police

officers are often forced to make split-second judg-

ments — in circumstances that are tense, uncertain,

and rapidly evolving — about the amount of force

that is necessary in a particular situation.

Id. at 396-97. Finally, Tekle v. United States, 511 F.3d 839,

844-45 (9th Cir. 2006), states that:

The legal framework is clearly established. The

first factor in determining whether the force used

was excessive is the severity of the force applied.

Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052, 1056 (9th Cir. 2003). The second

factor, and the most important, is the need for the

force. Miller v. Clark County, 340 F.3d 959, 964 (9th

Cir. 2003). The amount of force used is “permissible

only when a strong government interest compels the

employment of such force.” Drummond, 343 F.3d at

1057 (quoting Deorle v. Rutherford, 272 F.3d 1272,

1280 (9th Cir. 2001)). ****

Finally, we must balance the force used against

the need, to determine whether the force used was

“greater than is reasonable under the circumstances.”

Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002).

This determination

“requires careful attention to the facts and

circumstances of each particular case” and

a “careful balancing” of an individual’s lib-

erty with the government’s interest in the

application of force. Because such balanc-

ing nearly always requires a jury to sift

ESPINOSA v. SAN FRANCISCO 3671

through disputed factual contentions, and to

draw inferences therefrom, we have held on

many occasions that summary judgment or

judgment as a matter of law in excessive

force cases should be granted sparingly.

This is because police misconduct cases

almost always turn on a jury’s credibility

determinations.

Id. at 853 (quoting Graham, 490 U.S. 396) (internal citations

omitted).

B. Analysis

1. The Officers’ Pointing their Guns at Sullivan

There were two instances of force applied as to Sullivan

which must be addressed and analyzed. First is the officers’

act of training their firearms on Sullivan.8 As stated in Tekle,

511 F.3d at 845, “[w]e have held that the pointing of a gun

at someone may constitute excessive force, even if it does not

cause physical injury. See Robinson v. Solano County, 278

F.3d 1007, 1014-15 (9th Cir. 2002) (en banc).” Second is the

actual shooting of the firearms by Officers Alvis and Keesor.

Turning to the facts and circumstances confronting the offi-

cers, while encountering the bloody T-shirt would not by

itself constitute probable cause to believe that a crime had

been committed, it would certainly give rise to a reasonable

belief that caution (because of possible danger to the officers)

was appropriate.9 Another factor was the officers’ being

8

Defendant Morgado is alleged to have used excessive force even

though he did not fire his weapon at Sullivan or otherwise make physical

contact with him. Hence, the only basis for an unreasonable force claim

against Morgado would rest on his aiming his gun at Sullivan.

9

As conceded in the Opinion, supra at page 3659, the presence of the

bloody shirt in the interior of the apartment and the knife found on Martin

“may have suggested some risk of harm.”

3672 ESPINOSA v. SAN FRANCISCO

denied immediate access to the first bedroom following their

identifying themselves as police officers and requests for the

door to be opened. Thereafter, the officers found Martin in the

bedroom who cooperated with their commands. From the

sounds of movement coming from the attic at that point, it

was rational to conclude that there was another individual

who was attempting to flee from the officers and who was in

the attic or on the roof. Before climbing into the attic, a knife

was found on Martin’s person. Upon entering the attic, the

officers found it to be extremely dark, illuminated only by the

flashlights which they carried in one hand, and filled with raf-

ters and other obstructions which hampered both movement

and vision. When the person in the attic did not respond to

their presence or announcements and remained hidden, in

light of all of the referenced factors, it was objectively reason-

able for the officers to have drawn their guns because of the

possibility of danger to the officers in that situation.10

Thereafter, the officers located Sullivan who was in a posi-

tion in between sitting and lying down on his back between

two wooden beams on the floor, and partly covered by the

insulation material. Despite the officers’ repeated demands for

him to show them his hands, he never raised his right hand

which was underneath the insulation and, periodically, he

would move his left hand in and out of the insulation material.

Consequently, at no time during the entire incident could the

officers have determined whether or not Sullivan was armed

with a gun, knife or other weapon. Sullivan was a 25 year old

10

In Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc), in

the context of conducting a warrantless search of a parolee’s purported

residence not based on probable cause but solely upon a mandatory condi-

tion of parole, this court held that “While it may have been reasonable for

[the police officer] to have drawn his firearm during the initial sweep of

a known gang member’s house, his keeping the weapon trained on the

infant, as he was alleged to have done, falls outside the Fourth Amend-

ment’s objective reasonableness standard.” “[A] police officer may well

act reasonably in drawing his gun while he approaches a [person] in an

uncertain situation.” In re Joseph R., 65 Cal. App. 4th 954, 961 (1998).

ESPINOSA v. SAN FRANCISCO 3673

able-bodied, five foot nine inch, 208 pound man. Thus, point-

ing their weapons at him cannot be found to have been objec-

tively unreasonable. The facts of this case are clearly

distinguishable from Ninth Circuit precedent finding exces-

sive force from the mere act of aiming weapons at an individu-

al.11 Here, Sullivan was not cooperative, was indicating that

he would not be taken into custody, and was possibly armed

with a weapon, plus all of the participants were in a dark, con-

fined and obstructed location. In light of the above facts, the

defendant officers are entitled to qualified immunity as to this

portion of plaintiffs’ unreasonable force claim.

2. Officers Alvis and Keesor’s Shooting of Sullivan

The problem with the district court’s analysis of the unrea-

sonable force issue in regards to Sullivan’s shooting is that the

court focused solely on the “provoking a confrontation”

aspect without any consideration as to whether the undisputed

facts/evidence show that the officers’ firing of their weapons

was objectively reasonable at the point in time of the shoot-

ing. As discussed below, the district court’s conclusions as to

the provoking a confrontation issue are incorrect. Hence, this

portion of the case should be reversed and remanded for the

11

For example, in Tekle, “twenty-three armed officers saw a barefoot

[and unarmed] eleven-year old boy, clad in shorts and a T-shirt” emerge

from a garage and, even after he cooperated with the officers’ instructions,

certain agents “held a gun to his head, searched him handcuffed him,

pulled him up from behind by the chain of the handcuffs, and sat him on

the sidewalk, still handcuffed, with their guns pointed at him, for ten to

fifteen minutes.” 511 F.3d at 845-46.

In Robinson, 278 F.3d at 1015, this court en banc, while finding that the

law “was not sufficiently established in this circuit in 1995 to override the

officers’ claim of qualified immunity,” held that “[t]he development of the

law with respect to arrests and detentions now allows us to recognize as

a general principle that pointing a gun to the head of an apparently,

unarmed suspect during an investigation can be a violation of the Fourth

Amendment, especially where the individual poses no particular danger.

[Emphasis added].”

3674 ESPINOSA v. SAN FRANCISCO

district court to decide whether the undisputed facts establish

that Officers Alvis and Keesor’s firing of their weapons was

objectively reasonable.

On the issue of the shooting, all of the previously discussed

facts/evidence would come into play. Furthermore, the offi-

cers continually made requests throughout the incident for

Sullivan to show both his hands, but he never did so. Addi-

tionally, he made statements which: 1) indicated his intent not

to be taken into custody; 2) were of a threatening nature in

regards to the officers’ safety; and 3) led the officers to

believe that he was contemplating “suicide by cop.”12 In addi-

tion, once the officers encountered Sullivan in the attic, they

did not act precipitously. They did not rush and attempt to

subdue him. As the time elapsed, they considered options

such as using less than lethal weapons and trying to force a

larger hole through the bathroom ceiling/attic flooring to gain

access to Sullivan’s person. Also, they had made a request for

a canine unit and were waiting for it to arrive.

Finally, and most importantly, one must consider what was

happening just before the officers’ use of the force.13 Here,

there was testimony that immediately preceding the shooting,

there were: 1) Sullivan’s sudden movement of his right hand

behind his back, 2) Sullivan’s sudden lifting of his right arm,

3) Sullivan’s raising something in one or both of his hands,

4) the sound of a “pop” that, to certain of the officers, was

like a gunshot, and 5) a muzzle flash as if from a gun. Officer

Alvis stated that she believed that Sullivan was shooting a gun

at her so she returned fire. Officer Keesor testified that he

thought that Sullivan had shot Alvis after he heard the pop

12

As to the validity of the “suicide by cop” concept, see generally Boyd

v. City and County of San Francisco, 576 F.3d 938, 945-46 (9th Cir.

2009).

13

It does not appear that the district court specifically considered the

facts and circumstances confronting the officers at this critical period of

time.

ESPINOSA v. SAN FRANCISCO 3675

and she fell from his peripheral view. He then opened fire.

Although it is not disputed that Sullivan had no firearm to

shoot, the question not addressed by the district court is

whether Alvis and Keesor had objectively reasonable beliefs

that Sullivan had a gun and was using it at the time they fired

their weapons.14

III. PROVOKING A CONFRONTATION

A. Applicable Law

Alexander v. City and County of San Francisco, 29 F.3d

1355 (9th Cir. 1994), involved a case where San Francisco

police officers, pursuant to merely an administrative inspec-

tion warrant, decided to storm into the home of a man known

to be “a mentally ill, elderly, half-blind recluse who threat-

ened to shoot anybody who entered [his house].” Id. at 1366.

He was shot and killed when he pointed and tried to fire a

handgun at the entering officers. This court held that, if the

officers committed an independent Fourth Amendment viola-

tion by using unreasonable force to enter the decedent’s

14

The majority Opinion seems to imply that there are factual questions

in regards to the use of deadly force because Officers Keesor and Alvis

emptied their entire magazines when firing at Sullivan and because, in the

majority’s view, Sullivan “had not initially caused this situation.” A ques-

tion arises as to why the majority feels that, under the facts herein, it

makes any difference whether the officers fired one bullet or “12 shots.”

If there was a reasonable basis to believe that deadly force was appropriate

in the situation, given the darkness of the location, the rafters and other

obstructions, and additional factors which impeded the officers’ determi-

nation as to the accuracy of their shots, there is no basis to believe that it

would have been rational for the officers to count the number of bullets

fired and to stop at some arbitrary figure.

Additionally, to claim that Sullivan “had not initially cause this situa-

tion” is highly questionable. Had Sullivan remained in the first bedroom

when the officers announced their presence, had he shown both of his

hands when repeatedly requested to do so by the officers, and had he not

made the statements to the officers which were of a threatening and unco-

operative nature, then the “situation” would have been entirely different.

3676 ESPINOSA v. SAN FRANCISCO

house, then they could be held liable for shooting him — even

though it was objectively reasonable to use their guns at the

moment of the shooting — because they “used excessive

force in creating the situation which caused [the decedent] to

take the actions he did.” Id. The district court’s analysis of the

excessive force issue, although citing to the Billington deci-

sion, actually rests on the initial concepts delineated in Alexan-

der.15

However, as noted in Billington, 292 F.3d at 1188-90:

We have since placed important limitations on

Alexander. In Scott v. Henrich [,39 F.3d 912 (9th

Cir. 1994)], we held that even though the officers

might have had “less intrusive alternatives available

to them,” and perhaps under departmental guidelines

should have “developed a tactical plan” instead of

attempting an immediate seizure, police officers

“need not avail themselves of the least intrusive

means of responding” and need only act “within that

range of conduct we identify as reasonable.” [Id. at

1169.] We reinforced this point in Reynolds v.

County of San Diego, [39 F.3d 912 (9th Cir. 1994),]

15

As specifically stated in the district court’s Order re Parties’ Cross-

Motions for Summary Judgment:

The Court’s determination that it cannot find as a matter of law

that Officers Alvis and Keesor’s warrantless entry and search did

not violate the Fourth Amendment also precludes granting sum-

mary adjudication as to whether the officers’ use of deadly force

was reasonable. “[W]here an officer intentionally or recklessly

provokes a violent confrontation, if the provocation is an inde-

pendent Fourth Amendment violation, he may be held liable for

his otherwise defensive use of deadly force.” Billington v. Smith,

292 F.3d 1177, 1189 (9th Cir. 2002). In addition to the questions

of fact regarding whether Officers Keesor and Alvis’ entry and

search was an independent violation of Sullivan’s Fourth Amend-

ment rights, the Court finds there are questions of fact as to

whether the officers’ entry and search provoked the officers’ use

of deadly force.

ESPINOSA v. SAN FRANCISCO 3677

which distinguished Alexander because “the court

must allow for the fact that officers are forced to

make split second decisions.” [Id. at 915.] We

affirmed summary judgment for the defendant police

officers despite experts’ reports stating — like the

expert report in the case at bar — that the officers

should have called and waited for backup, rather

than taking immediate action that led to deadly com-

bat. We held that, even for summary judgment pur-

poses, “the fact that an expert disagrees with the

officer’s action does not render the officer’s action

unreasonable.” [Id. at 1170.] Together, Scott and

Reynolds prevent a plaintiff from avoiding summary

judgment by simply producing an expert’s report

that an officer’s conduct leading up to a deadly con-

frontation was imprudent, inappropriate, or even

reckless. Rather, the court must decide as a matter of

law “whether a reasonable officer could have

believed that his conduct was justified.” Id.

We placed an additional limitation on Alexander

in Duran v. City of Maywood [, 221 F.3d 1127 (9th

Cir. 2000)]. In Duran, police officers responding to

a report of shots fired in a residential neighborhood

walked up the plaintiffs’ driveway toward their

garage silently, without identifying themselves, and

holding their guns. Then they heard someone cock-

ing a pistol and saw an armed man in the garage.

They shot him after he ignored their orders to drop

his gun and pointed his gun at them. The plaintiffs

appealed the jury’s defense verdict because the dis-

trict court did not instruct the jury, under Alexander,

that the officers could violate the Fourth Amendment

by provoking the use of deadly force. We affirmed,

holding that an Alexander instruction is unnecessary

where there is no “evidence to show that the offi-

cer’s actions were excessive and unreasonable” and

caused the “escalation that led to the shooting,” and

3678 ESPINOSA v. SAN FRANCISCO

where the evidence does not show that the officer’s

actions “should have provoked an armed response.”

[Id. at 1131.]

We read Alexander, as limited by Duran, to hold

that where an officer intentionally or recklessly pro-

vokes a violent confrontation, if the provocation is

an independent Fourth Amendment violation, he

may be held liable for his otherwise defensive use of

deadly force. In Alexander, the officers allegedly

used excessive force because they committed an

independent Fourth Amendment violation by enter-

ing the man’s house to arrest him without an arrest

warrant, for a relatively trivial and non-violent

offense, and this violation provoked the man to shoot

at the officers. Thus, even though the officers rea-

sonably fired back in self-defense, they could still be

held liable for using excessive force because their

reckless and unconstitutional provocation created the

need to use force.

Alexander’s requirement that the provocation be

either intentional or reckless must be kept within the

Fourth Amendment’s objective reasonableness stan-

dard. The basis of liability for the subsequent use of

force is the initial constitutional violation, which

must be established under the Fourth Amendment’s

reasonable-ness standard. Thus, if a police officer’s

conduct provokes a violent response, as in Duran,

but is objectively reasonable under the Fourth

Amendment, the officer cannot be held liable for the

consequences of that provocation regardless of the

officer’s subjective intent or motive. But if an offi-

cer’s provocative actions are objectively unreason-

able under the Fourth Amendment, as in Alexander,

liability is established, and the question becomes the

scope of liability, or what harms the constitutional

violation proximately caused. [Footnotes omitted.]

ESPINOSA v. SAN FRANCISCO 3679

B. Analysis

Even accepting the proposition that Officers Alvis, Keesor

and Morgado’s presence in the attic was not constitutionally

proper,16 they cannot be found to have provoked a confronta-

tion under the Alexander/Billington line of cases. First of all,

unlike the facts in Alexander, the officers here had no advance

knowledge that, when they got into the attic, they would meet

an individual who was definitely armed and/or mentally

unstable. Also, the officers’ actions were not excessive and/or

unreasonable in light of the developing events that transpired

in the attic. Furthermore, the evidence does not demonstrate

that the officers’ conduct either caused an escalation that led

to the shooting or should have provoked an armed or violent

response. See Billington, 292 F.3d at 1189. Indeed, had Sulli-

van cooperated with the officers’ commands as did Martin,

there is no doubt that he would have been treated in the same

manner and survived the encounter.

One last point should be made: it is not disputed that the

only entrance to (or exit from) the attic known to the officers

was through the hole in the closet ceiling. As they indicated

in their statements/testimony which is uncontradicted by the

16

The fact that the officers may have been negligent when they decided

to climb up into the attic will not give rise to liability for the use of reason-

able force thereafter. As stated in Billington,

Under Alexander, the fact that an officer negligently gets himself

into a dangerous situation will not make it unreasonable for him

to use force to defend himself. The Fourth Amendment’s “rea-

sonableness” standard is not the same as the standard of “reason-

able care” under tort law, and negligent acts do not incur

constitutional liability. An officer may fail to exercise “reason-

able care” as a matter of tort law yet still be a constitutionally

“reasonable” officer. Thus, even if an officer negligently pro-

vokes a violent response, that negligent act will not transform an

otherwise reasonable subsequent use of force into a Fourth

Amendment violation.

292 F.3d at 1190 (footnote omitted).

3680 ESPINOSA v. SAN FRANCISCO

evidence in the record, once they encountered Sullivan in the

attic, the officers reasonably believed they could not safely

retreat and exit the attic without first determining whether or

not he had a gun, knife or other weapon. To climb down

through the hole, one had to use both hands/arms to lower

oneself, which would render the officer defenseless to an

attack. Thus, until such time as the officers could make a

determination as to whether Sullivan had a weapon, they

could not safely retreat or leave the attic.

IV. CONCLUSION

For the reasons stated, I dissent from the majority’s affir-

mation of the district court’s denial of the defendant officers’

motion for summary judgment on the basis of qualified

immunity as to the issues of excessive force and provoking a

confrontation.