The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMEE L. WADE, No. 14-35281
Plaintiff-Appellee, D.C. No. 1:12-cv-00465-CWD
v.
MEMORANDUM*
BILL COPELAND, Police Officer, City of
Fruitland Police Department,
Defendant-Appellant,
and
CITY OF FRUITLAND; CITY OF
FRUITLAND POLICE DEPARTMENT,
Defendants.
Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding
Argued and Submitted September 2, 2016
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS, McKEOWN, and DAVIS,** Circuit Judges.
City of Fruitland Police Department officer Bill Copeland appeals the
district court’s denial of his motion for summary judgment based on qualified
immunity in this 42 U.S.C. § 1983 action brought by Jamee Wade. We have
jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
We review de novo an order denying summary judgment based on qualified
immunity. Glenn v. Wash. Cty., 673 F.3d 864, 870 (9th Cir. 2011). When a
defendant asserts a qualified immunity defense on an excessive force claim, we
inquire “into the objective reasonableness of the officer’s belief in the necessity of
his actions, and there is no Fourth Amendment violation if the officer can satisfy
this standard.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). The
court also must ask “whether the actions alleged violate a clearly established
constitutional right, where clearly established means that it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Id. (citation and internal quotation marks omitted).
**
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
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The district court properly denied summary judgment as to the first shooting.
There is a genuine issue of material fact as to whether Copeland’s shooting of
Wade was objectively reasonable, since there is evidence that Wade had his hands
up when he was shot. It violates clearly established Supreme Court law to “seize
an unarmed, nondangerous suspect by shooting him dead.” Torres v. City of
Madera, 648 F.3d 1119, 1128 (9th Cir. 2011) (quoting Tennessee v. Garner, 471
U.S. 1, 11 (1985)).
However, Copeland was entitled to qualified immunity as to the second
shooting. Copeland’s belief that his use of force was legal and that he faced
serious risk of harm was objectively reasonable. Graham v. Connor, 490 U.S. 386,
396 (1989). Video evidence shows that despite having been shot once already,
Wade was advancing quickly towards Copeland and was very near Copeland at the
time of the shooting. It is also uncontroverted that Copeland knew that Wade had
called the police the night before, seeking to have a SWAT team sent to his house
so he could fight with officers.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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