C v. Ex Rel. Villegas v. City of Anaheim

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. V., a minor, by and No. 14-55760

through her Guardian ad

Litem, Miguel Villegas; D.C. No.

R. V., a minor, by and 8:12-cv-02013-CJC-AN

through his Guardian ad

Litem, Miguel Villegas;

D. V., a minor, by and OPINION

through his Guardian ad

Litem, Miguel Villegas;

ESTATE OF BERNIE

CERVANTES VILLEGAS,

Plaintiffs-Appellants,

v.

CITY OF ANAHEIM, a

California municipal entity;

ANAHEIM POLICE

DEPARTMENT, a California

municipal entity; JOHN

WELTER; NICK BENNALLACK,

in place of Doe 1,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

2 C.V. V. CITY OF ANAHEIM

Argued and Submitted March 15, 2016

Santa Ana, California

Filed May 25, 2016

Before: Raymond C. Fisher, Milan D. Smith, Jr., and

John B. Owens, Circuit Judges.

Opinion by Judge Owens

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of defendants in an action

brought under 42 U.S.C. § 1983 and state law alleging that

City of Anaheim police officers used unconstitutional deadly

force when they shot and killed Bernie Villegas, and

remanded.

The panel held that considering the facts in the light most

favorable to the nonmoving party, a reasonable juror could

find in favor of plaintiffs. The panel held that a reasonable

jury could draw the following factual conclusions: (1) the

officers, responding to a call about a suspected drug dealer

armed with a shotgun and loitering in the visitor parking area

of an apartment complex, came upon Villegas already

holding a long gun; (2) Villegas was ordered to put his hands

*

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

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

C.V. V. CITY OF ANAHEIM 3

up, and as he was complying, the officers ordered him to drop

his gun; (3) without providing a warning or sufficient time to

comply, or observing Villegas pointing the long gun toward

the officers or making any move toward the trigger, Officer

Bennallack resorted to deadly force. The panel held that

viewing the facts in this light, deadly force was not

objectively reasonable.

The panel nevertheless held that defendants were entitled

to qualified immunity because it was not clearly established

on January 7, 2012, that using deadly force in this situation,

even viewed in the light most favorable to plaintiffs, would

constitute excessive force under the Fourth Amendment.

Accordingly, the panel affirmed the district court’s grant of

summary judgment on the Fourth Amendment claim.

Determining that the doctrine of qualified immunity does

not shield defendants from state law claims, the panel

reversed the district court’s grant of summary judgment on

the state law claims and remanded for further proceedings.

COUNSEL

Federico C. Sayre (argued), Boris Treyzon, and Francis X.

Flynn, Treyzon & Associates, Santa Ana, California, for

Plaintiffs-Appellants.

Moses W. Johnson, IV (argued), Assistant City Attorney, and

Michael R.W. Houston, City Attorney, Anaheim, California,

for Defendants-Appellees.

4 C.V. V. CITY OF ANAHEIM

OPINION

OWENS, Circuit Judge:

C.V., R.V., D.V., and the estate of Bernie Villegas

(Plaintiffs) appeal from the district court’s order granting

summary judgment in favor of the City of Anaheim, the

Anaheim Police Department (APD), former Police Chief John

Welter, and APD Officer Nick Bennallack (Defendants), in

a lawsuit for the 2012 police shooting death of Villegas.

Because triable issues of fact remain as to state law claims,

we affirm in part, reverse in part, and remand.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

On January 7, 2012, around 11:00 p.m., the APD received

a 911 call about a suspected drug dealer, armed with a

shotgun, loitering in the visitor parking area of an apartment

complex. Four officers – Bennallack, Heitmann, Voorhis,

and Ellis – rendezvoused on a street near the complex and

planned their approach. They then moved on foot in a

“diamond formation” through the carport area of the

complex, with Heitmann taking point.

As the officers rounded a corner, they encountered two

men, a few yards from each other and twelve to fifteen yards

from the officers. Bennallack and Heitmann gave commands

to “show me your hands” or “put your hands up.” The first

man they saw, Tristan Rosal, put his hands in the air. The

second man, Villegas, was standing next to a cinderblock

wall on the side of a low stairway.

C.V. V. CITY OF ANAHEIM 5

The four officers’ descriptions of what happened next –

set out in sworn declarations and deposition testimony – were

consistent in many respects, but different in others.

Bennallack: Bennallack saw what he believed to be a

shotgun leaning against the wall next to Villegas (it turned

out that it was a BB gun lacking any markings to distinguish

it from a full-power long gun). In Bennallack’s account,

Villegas moved quickly to grab the gun near the end of its

barrel with one hand and lift it about a foot off the ground.

His other hand was not near the trigger area, and Villegas did

not point the gun in the officers’ direction. Heitmann and

Bennallack gave “multiple commands” including “show me

your hands,” or “put your hands up,” and “‘drop the gun’ or

something similar,” but Villegas did not obey. About one

second after Villegas lifted the gun from the ground, without

providing any warning to Villegas that he was going to shoot,

Bennallack fired five times and struck Villegas, causing him

to fall to the ground.

Heitmann: In Heitmann’s account, when the officers

rounded the corner, Villegas was already holding a long gun.

Both his hands were around the barrel, near the tip, and the

gun was pointed up with the butt on the ground. Heitmann

never saw the gun leaning against the wall. He and

Bennallack gave repeated commands to “show me your

hands,” or “put your hands up,” but at some point he changed

his commands to “‘drop the gun,’ ‘let go of the gun,’ or

something similar.” He saw Villegas “slightly” raise the gun

about eight to ten inches off the ground, though it was at all

times pointed upward and not in the officers’ direction.

Heitmann thought there was an immediate threat that Villegas

would fire his weapon, and he was “milliseconds” from

shooting Villegas when Bennallack fired his gun. Villegas’s

6 C.V. V. CITY OF ANAHEIM

“facial expression was not panicked, but calm,” while Rosal’s

showed “fear” and “shock.”

Voorhis: Voorhis did not have a clear view of the

shooting, but saw a gun barrel pointed upward “toward the

sky.” It did not appear to be leaning against anything. He

heard an officer say “drop the gun, drop the gun,” saw the

barrel of the gun move either upward or backward, then heard

shots. He feared that Villegas could use the gun against the

officers.

Ellis: Ellis also did not have a clear view of the shooting,

but heard an officer yell something like “put it down,” “drop

it,” or “get on the ground.” A second later, he heard

gunshots.

After the shooting, Bennallack and Heitmann approached

Villegas and administered CPR until paramedics arrived.

Villegas died from his wounds.

In October 2012, Plaintiffs sued Defendants in state court,

bringing a 42 U.S.C. § 1983 claim for excessive force in

violation of the Fourth Amendment and state law claims for

negligence and wrongful death.1 Defendants removed that

suit to federal court, and moved for summary judgment. The

district court concluded that summary judgment was

appropriate on the Fourth Amendment claim, as “an

objectively reasonable officer would reasonably believe that

Mr. Villegas posed an ‘immediate threat to the safety of the

officers or others’ – the ‘most important factor’ in the

Graham [v. Connor, 490 U.S. 386 (1989)] excessive force

1

On appeal, Plaintiffs have abandoned their Fourteenth Amendment

substantive due process claim, so we do not address it.

C.V. V. CITY OF ANAHEIM 7

analysis,” and that it would “not judge the reasonableness of

Officer Bennallack’s actions with the 20/20 vision of

hindsight.” Alternatively, the district court held that

Bennallack was entitled to qualified immunity because it was

not clearly established that his conduct violated the Fourth

Amendment. The district court also granted summary

judgment on the state law claims because it found Officer

Bennallack’s conduct was objectively reasonable. This

appeal followed.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. Glenn v. Washington County, 673 F.3d 864, 870

(9th Cir. 2011). We also review de novo a defendant

officer’s entitlement to qualified immunity. Id.

III. ANALYSIS

A. Fourth Amendment Claim

“In determining whether an officer is entitled to qualified

immunity, we consider (1) whether there has been a violation

of a constitutional right; and (2) whether that right was

clearly established at the time of the officer’s alleged

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th

Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232

(2009)). While we have discretion to decide which prong to

address first, here we address both. Id.

Graham provides the framework for reviewing excessive

force claims. Its non-exhaustive list of factors for evaluating

reasonableness include: (1) the severity of the crime at issue;

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

8 C.V. V. CITY OF ANAHEIM

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

actively resisted arrest or attempted to escape. Graham, 490

U.S. at 396; see also George v. Morris, 736 F.3d 829, 837–38

(9th Cir. 2013) (discussing Graham and Tennessee v. Garner,

471 U.S. 1 (1985)). We must judge the reasonableness of a

particular use of force “from the perspective of a reasonable

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

hindsight,” Graham, 490 U.S. at 396, keeping in mind that

the “‘most important’ factor under Graham is whether the

suspect posed an ‘immediate threat to the safety of the

officers or others,’” George, 736 F.3d at 838 (internal

quotation marks omitted) (quoting Bryan v. MacPherson, 630

F.3d 805, 826 (9th Cir. 2010)). “[S]ummary judgment should

be granted sparingly in excessive force cases. This principle

applies with particular force where the only witness other

than the officers was killed during the encounter.” Gonzalez

v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en

banc) (citation omitted).2

Considering the facts in the light most favorable to the

nonmoving party, Glenn, 673 F.3d at 870, a reasonable juror

could find in favor of Plaintiffs. While the officers’

testimony is largely consistent – Villegas held what

resembled a shotgun, and did not put it down when ordered

to do so – the officers’ sworn declarations and testimony

differ on key points. Bennallack testified that merely one

second before he shot Villegas, he observed Villegas make “a

quick movement” to grab the barrel of the rifle which had

previously been resting against the wall. If this were

undisputed, then summary judgment might be appropriate: “If

the person is armed . . . [then] a furtive movement, harrowing

2

Rosal was unavailable as a witness, as he apparently left the United

States for the Philippines.

C.V. V. CITY OF ANAHEIM 9

gesture, or serious verbal threat might create an immediate

threat.” George, 736 F.3d at 838.

But that is not what other officers saw. Heitmann did not

see Villegas grab the gun from against the wall, as

Bennallack testified, but rather observed Villegas already

holding the gun. Voorhis also testified he believed Villegas

was holding the gun and it did not appear to be leaning

against anything. Heitmann recalled Villegas’s calm

expression as he “slightly” raised the gun from the ground.

And none of the officers provided a clear time line of when

they switched from ordering Villegas to raise his arms to

ordering him to drop the gun, or how long after that switch

Villegas had to comply with the new command before

Bennallack opened fire. This is particularly important

because, viewed in the light most favorable to Plaintiffs,

Heitmann’s description of Villegas’s movement is consistent

with Villegas complying with the order to put his arms up:

“The butt of the stock was on the ground or close to it, and as

[Villegas] moved his arms, the rifle was moving with him, in

an upward manner.” Applying the Graham factors, the first

and third factors fall in Plaintiffs’ favor, and the second factor

is less than clear.

On summary judgment, “all justifiable inferences are to

be drawn in [Villegas’s] favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). A reasonable jury could draw

the following factual conclusions: (1) the officers, responding

to a call about a suspected drug dealer armed with a shotgun

and loitering in the visitor parking area of an apartment

10 C.V. V. CITY OF ANAHEIM

complex, came upon Villegas already holding a long gun;3

(2) Villegas was ordered to put his hands up, and as he was

complying, the officers ordered him to drop his gun;

(3) without providing a warning or sufficient time to comply,

or observing Villegas pointing the long gun toward the

officers or making any move toward the trigger, Bennallack

resorted to deadly force. Viewing the facts in this light,

deadly force was not objectively reasonable. Thus, the

district court erred in holding that Bennallack’s use of deadly

force was justified as a matter of law and in granting

summary judgment on that basis. Our court has rejected

summary judgment in cases involving similar degrees of

apparent danger, and we must do the same here.4

That ruling does not end our inquiry. Under the second

prong of the qualified immunity test, we ask whether the

3

At argument, counsel for Defendants reasoned that the officers’

formation and the apartment complex layout led to the inconsistencies

among the four officers’ sworn declarations and testimony, and that

Bennallack’s perspective provided the most accurate account for what

occurred. That may be true. But whether it is true is a quintessential jury

question, as “[c]redibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions,

not those of a judge.” Anderson, 477 U.S. at 255.

4

See, e.g., Gonzalez, 747 F.3d at 793–98 (reversing the district court’s

grant of summary judgment on excessive force claim where officer shot

driver of a minivan after driver accelerated vehicle with officer inside and

refused commands to stop); Glenn, 673 F.3d at 871–78 (reversing the

district court’s grant of summary judgment on excessive force claim where

officers shot and killed individual who did not comply with orders to put

down a knife for approximately three minutes); George, 736 F.3d at

837–39 (affirming the district court’s denial of summary judgment on

excessive force claim where officer shot and killed an armed individual

and there were triable issues as to whether the individual had the gun

“trained on the ground”).

C.V. V. CITY OF ANAHEIM 11

alleged violation of Villegas’s Fourth Amendment right

against excessive force “was clearly established at the time of

the officer’s alleged misconduct.” Lal, 746 F.3d at 1116. If

not, the officer receives qualified immunity. “A Government

official’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would

have understood that what he is doing violates that right.’”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (alteration

in original) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). “We do not require a case directly on point, but

existing precedent must have placed the . . . constitutional

question beyond debate.” Id.; see also Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (per curiam) (explaining that the

qualified immunity inquiry “must be undertaken in light of

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

proposition” (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001))).

We agree with the district court that it was not clearly

established on January 7, 2012, that using deadly force in this

situation, even viewed in the light most favorable to

Plaintiffs, would constitute excessive force under the Fourth

Amendment.5 Bennallack is therefore immune from liability

5

Cf., Brosseau, 543 U.S. at 200–01 (holding that officer was entitled to

qualified immunity where the cases relied on by plaintiffs did not

“squarely govern[]” the constitutionality of shooting a “disturbed felon,

set on avoiding capture through vehicular flight, when persons in the

immediate area [were] at risk from that flight”); Blanford v. Sacramento

County, 406 F.3d 1110, 1119 (9th Cir. 2005) (holding that deputies were

entitled to qualified immunity because they “would not have found fair

warning in Garner, Graham, or any other Supreme Court or circuit

precedent at the time that they could not use deadly force to prevent

someone with an edged sword, which they had repeatedly commanded

12 C.V. V. CITY OF ANAHEIM

under section 1983 for his use of deadly force, so we affirm

the grant of summary judgment on the Fourth Amendment

claim.

B. State Law Claims

“[T]he doctrine of qualified immunity does not shield

defendants from state law claims.” Johnson v. Bay Area

Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); see

also Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009)

(“California law is clear that the doctrine of qualified

governmental immunity is a federal doctrine that does not

extend to state tort claims against government employees”

(citations, alterations, and internal quotation marks omitted)).

Because we conclude that the district court erred in holding

that the use of deadly force was objectively reasonable as a

matter of law, we reverse the district court’s grant of

summary judgment on the state law claims and remand them

for further proceedings.6

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

The parties shall bear their own costs on appeal.

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”).

6

As to the negligence claim, we note that the California Supreme Court

has clarified that “state negligence law . . . is broader than federal Fourth

Amendment law.” Hayes v. County of San Diego, 305 P.3d 252, 263 (Cal.

2013).