A. K. H. Ex Rel. Landeros v. City of Tustin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. K. H., a minor by and through her No. 14-55184

Guardian Ad Litem Elizabeth

Landeros; MARIA CERDA REYES; D.C. No.

BENITO HERRERA; H. H., a minor by 8:12-cv-01547-

and through her Guardian Ad Litem JLS-RNB

Eloisa Gutierrez; A. H., a minor by

and through her Guardian Ad Litem

Eloisa Gutierrez; B. H., Jr., a minor OPINION

by and through his Guardian Ad

Litem Eloisa Gutierrez,

Plaintiffs-Appellees,

v.

CITY OF TUSTIN; OFFICER

VILLARREAL,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted March 7, 2016

Pasadena, California

Filed September 16, 2016

2 A. K. H. V. CITY OF TUSTIN

Before: William A. Fletcher, Mary H. Murguia,

and John B. Owens, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of qualified

immunity to a police officer and remanded in an action

brought pursuant to 42 U.S.C. § 1983 alleging that the officer

used unlawful deadly force when he shot and killed Benny

Herrera during an attempted investigatory stop.

The panel held that the government’s interests were

insufficient to justify the use of deadly force. The panel

noted that the crime at issue was a domestic dispute that had

ended before the police became involved, that Herrera did not

pose an immediate threat to the safety of the officers or

others, that although Herrera did not comply with the

officer’s commands, he did not attempt to flee, and that the

officer escalated to deadly force very quickly and without

warning. The panel concluded that viewing the evidence in

the light most favorable to the plaintiffs, the intrusion on

Herrera’s interest substantially outweighed any interest in

using deadly force. The panel further held that the officer

violated clearly established Fourth Amendment law when he

shot and killed Herrera.

*

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

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

A. K. H. V. CITY OF TUSTIN 3

COUNSEL

M. Lois Bobak (argued), Robert L. Kaufman, and Daniel K.

Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa,

California, for Defendant-Appellant Officer Villareal.

No appearance by Defendant-Appellant City of Tustin.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of

Dale K. Galipo, Woodland Hills, California, for Plaintiffs-

Appellees.

OPINION

W. FLETCHER, Circuit Judge:

Defendant Osvaldo Villarreal, a police officer in Tustin,

California, fatally shot Benny Herrera during an attempted

investigatory stop. As will be more fully described below,

Herrera was on foot. Officer Villarreal was in his patrol car

and had just driven up beside Herrera. Herrera was in the

middle of the roadway, moving in the direction of traffic. His

left hand was free and visible; his right hand was in his

sweatshirt pocket. Villarreal commanded Herrera to take his

hand out of his pocket. Less than a second later, just as

Herrera’s hand came out of his pocket, Villarreal shot him

twice, killing him. Herrera was unarmed. Villarreal does not

claim that he saw, or thought he saw, a weapon in Herrera’s

hand.

In a § 1983 suit alleging excessive force, Officer

Villarreal moved for summary judgment. The district court

denied the motion. In this interlocutory appeal, we affirm.

4 A. K. H. V. CITY OF TUSTIN

I. Factual and Procedural Background

On December 17, 2011, at approximately 3:00 p.m., Hilda

Ramirez called 911. She reported that her ex-boyfriend,

Benny Herrera, had “jacked [her] phone.” Ramirez stated

that she was not hurt, that she did not need paramedics, and

that her children were “fine.” Initially, Ramirez told the 911

police dispatcher that Herrera stole her phone by “just

grabb[ing] it from [her] hand.” A short time later, Ramirez

modified her story and said that, while the two were arguing

about her phone, Herrera “did end up hitting [her] in the

head.”

Ramirez told the police dispatcher that Herrera had not

used a weapon to take her phone, that Herrera did not carry

any weapons, and that Herrera had never been violent with

her before. Ramirez told the dispatcher that Herrera was

“walking down El Camino Real . . . towards Red Hill.” She

explained that because he did not have a car and had no

friends in the area, Herrera was probably trying to a catch a

bus back to his home.

The dispatcher sent out a general call to Tustin police

officers. The dispatcher initially reported:

[A] DV [domestic violence] just occurred . . .

The RP [reporting party] states her ex-

boyfriend, Benny Herrera, male Hispanic, 31

years, 5’8”, thin build, bald head, black

hooded sweatshirt was inside her apartment,

took her cell phone, he left. He is now

walking on ECR [El Camino Real] towards

Red Hill.

A. K. H. V. CITY OF TUSTIN 5

The dispatcher repeated Ramirez’s report, saying that Herrera

was heading down El Camino Real “to catch the bus” because

he had “no access to a vehicle and no friends in the area.”

After Ramirez modified her story, the dispatcher updated the

officers, explaining that “originally the RP claimed that there

was no physical violence, now she’s claiming that the male

subject hit her in the head.” The dispatcher reported that

Herrera “is not known to carry weapons.” She also reported

that Herrera was “shown in-house to be a member of the

Southside Gang” and that there was possibly a $35,000 traffic

warrant out for Herrera’s arrest. The dispatcher reported,

further, that Herrera was on “parole for 11350,” a reference

to a state drug possession crime. See Cal. Health & Safety

Code § 11350.

Driving a large police SUV, Officer Brian Miali was the

first to spot Herrera. As Ramirez had reported, Herrera was

walking down El Camino Real. A video taken by Miali’s

dashboard camera shows Herrera walking on the right

shoulder of the road in the same direction as traffic. On

Herrera’s immediate right was a high wall, preventing him

from escaping to the right. As he came up to Herrera, Miali

turned on the red lights of his SUV. Herrera put his right

hand in his sweatshirt pocket and started alternately to skip,

walk, and run backwards facing Miali. As Herrera did so, he

moved away from the right shoulder toward the middle of the

road. Miali drew his gun and opened his driver’s side door

while driving forward slowly. Herrera kept ahead of Miali’s

SUV, sometimes at distances of less than ten or fifteen feet.

Using the loudspeaker of his SUV, Miali told Herrera three

times to “get down.” Herrera did not comply. He stayed on

his feet and continued to move down the road at about the

same speed as Miali’s SUV.

6 A. K. H. V. CITY OF TUSTIN

Officer Villarreal was driving on El Camino Real behind

Officer Miali. A civilian sedan was directly behind Miali,

separating Miali from Villarreal’s vehicle. Villarreal testified

in his deposition that he did not hear Miali tell Herrera to “get

down.” The civilian car moved onto the shoulder to the right,

and Villarreal moved left into the opposite lane. He drove his

patrol car up beside Herrera, and slightly forward of Miali’s

SUV, in order to “box” Herrera in and cut off his avenue of

escape. Villarreal held his gun in his hand. His front

passenger window was open. The video taken by Miali’s

dashboard camera shows that Herrera was already moving to

the left, toward Villarreal’s patrol car, as Villareal pulled up

beside Herrera. Villareal immediately shouted, “Get your

hand out of your pocket.” Herrera removed his right hand

from his sweatshirt pocket in an arcing motion over his head.

Just as Herrera’s hand came out of his pocket, Villarreal fired

two shots in rapid succession. Villarreal did not give any

warning that he would shoot, and Officer Miali later stated

that he was not expecting the shots. Both officers admitted

that they never saw anything in either of Herrera’s hands.

Officer Villarreal testified in his deposition that he shot

Herrera because he “believe[ed] that he had a weapon and he

was going to use that weapon on [him].” Villarreal testified

that Herrera’s right hand was “concealed” in his sweatshirt

pocket.” Miali testified in his deposition that “there was

something in there that appeared to be heavy.” Villarreal

testified that Herrera “charged [him] or shortened the distance

or closed the distance at [his] passenger window very

quickly.” Villarreal said that probably “three to five seconds”

passed between when he commanded Herrera to remove his

hands from his pocket and when he shot. The recording from

Villarreal’s dashboard camera, however, shows that the

command and the shots were almost simultaneous, separated

A. K. H. V. CITY OF TUSTIN 7

by less than a second. The total elapsed time from when

Miali first encountered Herrera to when Villarreal shot him

was less than a minute.

It is undisputed that Herrera was unarmed. Ramirez had

reported to the police dispatcher that Herrera did not carry

weapons. The dispatcher had reported to the officers that

Herrera “is not known to carry weapons.” The only “heavy”

object in Herrera’s sweatshirt pocket was a cell phone.

Relatives of Herrera (“Plaintiffs”) filed suit under

42 U.S.C. § 1983 against Officer Villarreal and the City of

Tustin alleging, inter alia, that Villarreal used excessive force

against Herrera. Villarreal moved for summary judgment

based on qualified immunity. The district court denied the

motion. Villarreal brought an interlocutory appeal.

II. Appellate Jurisdiction

The parties dispute whether we have jurisdiction to hear

this interlocutory appeal. A denial of summary judgment is

not ordinarily appealable because it is not a “final decision.”

See 28 U.S.C. § 1291; Plumhoff v. Rickard, 572 U.S.

—,134 S. Ct. 2012, 2018 (2014). However, there is an

exception to the final judgment rule for an appeal denying a

motion for summary judgment based on qualified immunity.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

When analyzing an appellate court’s jurisdiction over an

appeal from a denial of a motion for summary judgment

based on qualified immunity, the Supreme Court

distinguishes between “factual” and “legal” questions. We

have jurisdiction over “legal” but not “factual” interlocutory

appeals. Plumhoff, 134 S. Ct. at 2019; Behrens v. Pelletier,

8 A. K. H. V. CITY OF TUSTIN

516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304,

313 (1995).

Officer Villarreal argues that, even viewing the evidence

in the light most favorable to the plaintiffs, his actions did not

violate the Fourth Amendment and that the district court

therefore erred in denying him qualified immunity. A

defendant who appeals a denial of qualified immunity on the

ground that his “conduct did not violate the Fourth

Amendment and, in any event, did not violate clearly

established law” has “raise[d] legal issues” that may be

properly heard in an interlocutory appeal. Plumhoff, 134 S.

Ct. at 2019; see also Behrens, 516 U.S. at 312–13. Villarreal

has brought such an appeal, and we have jurisdiction.

III. Standard of Review

In reviewing a summary judgment ruling, “we assume the

version of the material facts asserted by the non-moving party

to be correct.” Jeffers v. Gomez, 267 F.3d 895, 905 (9th Cir.

2001) (emphasis omitted) (quoting Schwenk v. Hartford,

204 F.3d 1187, 1195 (9th Cir. 2000)). We review “de novo

the district court’s determination regarding qualified

immunity.” Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th

Cir. 2001).

IV. Discussion

To determine whether Officer Villarreal is entitled to

summary judgment based on qualified immunity, we ask two

questions. First, viewing the facts in the light most favorable

to the plaintiffs, did Villarreal use excessive force in violation

of the Fourth Amendment? Bryan v. MacPherson, 630 F.3d

805, 823 (9th Cir. 2010). Second, if Villarreal used excessive

A. K. H. V. CITY OF TUSTIN 9

force, did he violate a clearly established right? Id. We

address each question in turn.

A. Excessive Force

We analyze excessive force claims under the Fourth

Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989);

Tennessee v. Garner, 471 U.S. 1, 7 (1985). “The question is

whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham,

490 U.S. at 397 (citation omitted). To determine the

reasonableness of an officer’s actions, we “balance the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.”

Garner, 471 U.S. at 8 (quoting United States v. Place,

462 U.S. 696, 703 (1983)) . We evaluate “the totality of the

circumstances,” id. at 9, paying careful attention to factors

such as “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at

396. The “most important” of these factors is “whether the

suspect posed an ‘immediate threat to the safety of the

officers or others.’” Mattos v. Agarano, 661 F.3d 433, 441

(9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet,

394 F.3d 689, 702 (9th Cir. 2005) (en banc)). Deadly force

is permissible only “if the suspect threatens the officer with

a weapon or there is probable cause to believe that he has

committed a crime involving the infliction or threatened

infliction of serious physical harm.” Garner, 471 U.S. at 11.

10 A. K. H. V. CITY OF TUSTIN

The “nature and quality of the intrusion” by Officer

Villarreal on Herrera’s Fourth Amendment interests was

extreme. Id. at 8. “The intrusiveness of a seizure by means

of deadly force is unmatched.” Id. at 9. The use of deadly

force implicates the highest level of Fourth Amendment

interests both because the suspect has a “fundamental interest

in his own life” and because such force “frustrates the interest

of the individual, and of society, in judicial determination of

guilt and punishment.” Id.

The government’s interests were insufficient to justify the

use of deadly force. First, the “crime at issue,” Graham,

490 U.S. at 396, was a domestic dispute that had ended before

the police became involved. We recognize that some

domestic disputes can pose a serious danger to police officers

and others, see Mattos, 661 F.3d at 450, but we have held that

domestic disputes do not necessarily justify the use of even

intermediate let alone deadly force. For example, we denied

qualified immunity in Smith to officers who used pepper

spray and a dog to subdue and arrest a suspect, even though

the suspect was reported to have “hit[]” or become “physical”

with his wife. Smith, 394 F.3d at 702–03. The use of force

is especially difficult to justify when “the domestic dispute is

seemingly over by the time the officers begin their

investigation.” George v. Morris, 736 F.3d 829, 839 (9th Cir.

2013) (denying qualified immunity in an excessive force case

partly because the victim of the domestic disturbance “was

unscathed and not in jeopardy when deputies arrived”);

Smith, 394 F.3d at 702–03 (denying qualified immunity partly

because, by the time the officers arrived, the suspect “was

standing on his porch alone and separated from his wife”).

Here, when the officers came upon Herrera, he had left

Ramirez’s apartment and was walking down a road at some

distance from the apartment.

A. K. H. V. CITY OF TUSTIN 11

Second, Herrera did not “pose[] an immediate threat to

the safety of the officers or others.” Graham, 490 U.S. at

396. It is clear that the domestic altercation was over, and

that Herrera posed no current threat to the safety of Ramirez.

She had told the police dispatcher that Herrera had taken her

phone, had hit her on the head, and had left on foot to catch

a bus. It is also clear in retrospect that Herrera posed no

threat to the safety of the officers, as he in fact had no

weapon; but the relevant question for purposes of qualified

immunity is whether Officer Villarreal could reasonably have

believed that Herrera posed such a threat. Viewing the

evidence in the light most favorable to Plaintiffs, we conclude

that he could not.

When Officer Miali first arrived on the scene, Herrera

was walking on the right-hand shoulder of the road. The

officers had little, if any, reason to believe that Herrera was

armed. Ramirez had told the police dispatcher that Herrera

was not carrying any weapons, and the dispatcher had told the

officers that Herrera was “not known to carry weapons.”

When Miali started following Herrera in his SUV, Herrera

put his right hand in the pocket of his sweatshirt. He then

alternated among skipping, walking, and running, mostly

facing backward toward Miali, without displaying a weapon.

Villarreal admitted that he never saw a weapon.

We recognize that the dispatcher had told the officers that

Herrera was a member of the “Southside Gang,” may

possibly have had a $35,000 traffic warrant, and was on

parole for a drug possession conviction. Further, the officers

had been told that Herrera had stolen Ramirez’s cell phone

and hit her on the head, and had had prior run-ins with law

enforcement, including at least one conviction. But the traffic

warrant and drug possession conviction were relatively minor

12 A. K. H. V. CITY OF TUSTIN

crimes, neither of which entailed violence or gun possession,

and the dispatcher’s information included a statement that

Herrera was not known to be armed.

Third, even if Herrera was “actively resisting” or

“attempting to evade” an investigatory stop, and even if we

equate for present purposes an arrest and an investigatory

stop, this factor only slightly favors the government.

Graham, 490 U.S. at 396; see also Chew v. Gates, 27 F.3d

1432, 1442 (9th Cir. 1994). Herrera did not stop as soon as he

saw the red lights on Officer Miali’s SUV, and he did not

comply with the officer’s commands to “get down.” Herrera,

however, never attempted to cross the road and flee, and he

continued to move at about the same speed as Officer Miali,

while facing him much of the time. Nor did Villareal actually

hear Miali tell Herrera to “get down.” Viewing the evidence

in the light most favorable to Herrera, this factor does not

weigh heavily in the government’s favor in determining

whether the amount of force used was justified. See Deorle,

272 F.3d at 1280 (describing the Graham factors as “simply

a means by which to determine objectively ‘the amount of

force that is necessary in a particular situation’” (quoting

Graham, 490 U.S. at 396–97)).

Finally, and perhaps most important, Officer Villarreal

escalated to deadly force very quickly. Villarreal

commanded Herrera to take his hand out of his pocket

immediately upon driving up beside him. Villarreal then shot

Herrera just as he was taking his hand out of his pocket. Less

than a second elapsed between Villarreal commanding

Herrera to take his hand from his pocket and Villarreal

shooting him. Villarreal neither warned Herrera that he was

going to shoot him, nor waited to see if there was anything in

Herrera’s hand. In total, less than a minute had elapsed

A. K. H. V. CITY OF TUSTIN 13

between when Miali first came upon Herrera and when

Villarreal shot him.

Roger Clark, a twenty-seven year veteran of the Los

Angeles Police Department, submitted an expert witness

declaration. Clark concluded that the “use of deadly force by

Officer Villarreal against Mr. Herrera was excessive and

unreasonable.” The reasons supporting his conclusion

included that “[t]here was no serious crime reported”;

“[t]here was no indication that a weapon was involved”;

“[t]he dispatch information to the officers was that the

suspect was not known to carry weapons”; “Mr. Herrera was

only being detained, not arrested”; “Mr. Herrera complied

with Officer Villarreal’s command to take his hand out of his

pocket”; “[w]hen Mr. Herrera took his hand out of his pocket

upon request, there was nothing in his hand”; “Officer

Villarreal conceded that he never saw a gun or anything that

looked like a gun in Mr. Herrera’s hand”; “Officer Villarreal

gave no warning that he was going to shoot”; “Mr. Herrera

never verbally threatened the officers”; and “Officer

Villarreal had other reasonable options.”

Based on the totality of circumstances, and balancing the

interests of the two sides, see Garner, 471 U.S. at 8, we

conclude, viewing the evidence in the light most favorable to

the plaintiffs, that the intrusion on Herrera’s interests

substantially outweighed any interest in using deadly force.

We therefore conclude, so viewing the evidence, that Officer

Villarreal’s fatal shooting of Herrera violated the Fourth

Amendment.

14 A. K. H. V. CITY OF TUSTIN

B. Clearly Established Right

Although we conclude Officer Villarreal’s actions

violated the Fourth Amendment, we may affirm the district

court’s denial of qualified immunity only if “the right which

was violated was clearly established at the time of the

violation.” Espinosa v. City & Cty. of San Francisco,

598 F.3d 528, 532 (9th Cir. 2010) (citing Saucier v. Katz,

533 U.S. 194, 201 (2001)). To determine whether Officer

Villarreal violated clearly established law, we look to “cases

relevant to the situation [Villarreal] confronted,” Brosseau v.

Haugen, 543 U.S. 194, 200 (2004) (quotation marks omitted),

mindful that there need not be a case “directly on point.”

Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir.

2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Viewing the evidence in the light most favorable to

the plaintiffs, we conclude that Villarreal violated clearly

established Fourth Amendment law when he shot and killed

Herrera.

The Supreme Court’s decision in Garner is instructive.

Neither the crime at issue in Garner nor the crime in this case

involved the use of serious or deadly force. In Garner, the

police suspected Garner of committing burglary; here, the

officers had been told that Herrera reportedly hit his ex-

girlfriend on the head and stole her cell phone. Garner fled

from police even though an officer told him to “halt”; Herrera

did not comply with Miali’s commands to “get down”

(although Officer Villarreal had not heard the commands).

Id. at 4. Most important, viewing the facts in the light most

favorable to Plaintiffs, Officer Villarreal in this case had no

more reason to suspect that Herrera was armed than did the

officer in Garner. The officer in Garner stated that the

suspect “appeared to be unarmed” but that he “could not be

A. K. H. V. CITY OF TUSTIN 15

certain that was the case.” Id. at 20. The Court

explained,“Restated in Fourth Amendment terms, this means

[the officer] had no articulable basis to think Garner was

armed.” Id. The same is true here. The dispatcher expressly

told the officers that Herrera was “not known to carry

weapons.” Villarreal never saw a gun. He could provide no

basis for his belief that Herrera was armed except to say that

Herrera had one hand “concealed.”

Conclusion

It has long been clear that “[a] police officer may not

seize an unarmed, nondangerous suspect by shooting him

dead.” Garner, 471 U.S. at 11. Viewing the evidence in the

light most favorable to the plaintiffs, that is precisely what

Officer Villarreal did here. We affirm the district court’s

denial of qualified immunity and remand for further

proceedings consistent with this opinion.

AFFIRMED and REMANDED.