Than Orn v. City of Tacoma

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THAN ORN, individually; THALISA No. 18-35379

ORN, individually; CLARISSE ORN,

Guardian on behalf of J. O. and D.C. No.

C. O., 3:13-cv-05974-

Plaintiffs-Appellees, RBL

v.

OPINION

CITY OF TACOMA, a municipal

corporation; KRISTOPHER CLARK, in

his individual capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted July 11, 2019

Seattle, Washington

Filed February 3, 2020

Before: Danny J. Boggs, * Marsha S. Berzon,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford

*

The Honorable Danny J. Boggs, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 ORN V. CITY OF TACOMA

SUMMARY **

Civil Rights

The panel affirmed the district court’s order, on

summary judgment, denying qualified immunity to a police

officer in an action brought pursuant to 42 U.S.C. § 1983

alleging that the officer used excessive force when he shot

and severely wounded plaintiff after a slow-speed car

pursuit.

The panel first held that, viewing the facts in the light

most favorable to plaintiff, a reasonable jury could conclude

that the police officer violated plaintiff’s Fourth Amendment

right to be free from the use of excessive force. Thus, the

panel determined that defendant did not have an objectively

reasonable basis for believing that plaintiff posed a threat of

serious physical harm, either to the officer himself or to

others. The panel noted that construing the facts in

plaintiff’s favor, he never targeted officers with his vehicle

or forced other vehicles off the road. In addition, he traveled

at normal speeds and stopped at traffic lights and stop signs

throughout the pursuit.

Turning to the second step of the qualified immunity

analysis, the panel held that plaintiff’s right to be free from

the use of excessive force was clearly established at the time

of the shooting. The panel noted that in October 2011, at

least seven circuits had held that an officer lacks an

objectively reasonable basis for believing that his own safety

**

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

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

ORN V. CITY OF TACOMA 3

is at risk when firing into the side or rear of a vehicle moving

away from him. The panel stated that, taking the facts in the

light most favorable to plaintiff, a reasonable jury could

conclude both that the officer was never in the path of

plaintiff’s vehicle and that he fired through the passenger-

side windows and rear windshield as the vehicle was moving

away from him. The panel further held that under plaintiff’s

version of events, he never engaged in any conduct that

suggested his vehicle posed a threat of serious physical harm

to another officer on the scene, or to anyone else in the

vicinity.

COUNSEL

Jean P. Homan (argued), Tacoma City’s Attorney’s Office,

Tacoma, Washington, for Defendants-Appellants.

Loren A. Cochran (argued) and Darrell L. Cochran, Pfau

Cochran Amala Vertetis PLLC, Tacoma, Washington;

Thomas A. Balerud, Law Office of Thomas A. Balerud,

Tacoma, Washington; for Plaintiffs-Appellees.

OPINION

WATFORD, Circuit Judge:

Officer Kristopher Clark of the Tacoma Police

Department shot and severely wounded Than Orn on the

night of October 12, 2011. Orn sued Clark and the City of

Tacoma under 42 U.S.C. § 1983, alleging a violation of his

Fourth Amendment right to be free from the use of excessive

force. Clark moved for summary judgment on the basis of

qualified immunity. The district court denied the motion,

4 ORN V. CITY OF TACOMA

and Clark has taken an interlocutory appeal from that order.

We have jurisdiction under the collateral-order doctrine, see

Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014), and now

affirm.

I

In an interlocutory appeal challenging the denial of

qualified immunity, we must construe the facts in the light

most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372,

378 (2007). Notwithstanding this clear rule, Clark asks us at

several key junctures to credit his version of the facts and to

assume that a jury would resolve factual disputes in his

favor. This we are not permitted to do. See Tolan v. Cotton,

572 U.S. 650, 656–57 (2014) (per curiam); Brosseau v.

Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam). Unless

Orn’s version of events is “blatantly contradicted by the

record, so that no reasonable jury could believe it,” we must

assume that a jury could find Orn’s account of what

happened credible, even if it conflicts with Clark’s account.

Scott, 550 U.S. at 380. Here, nothing in the record blatantly

contradicts Orn’s account of the events in question. The

narrative that follows therefore resolves all disputed factual

issues in his favor.

At about 8:30 p.m., Orn was driving his wife’s

Mitsubishi Montero on city streets when he noticed a police

car with its lights activated attempting to pull him over. The

officer sought to stop Orn because he was driving without

his headlights on. Excerpts of Record (ER) 128, 133. Orn

was driving with a suspended license at the time and had just

smoked crack cocaine. Rather than pull over, he decided to

return home to the apartment complex where he lived with

his wife, as he knew she needed the car for work. As he

made his way home, Orn traveled at 25–35 miles per hour

ORN V. CITY OF TACOMA 5

and stopped at traffic lights and stop signs. ER 133, 305,

308, 351.

It took Orn roughly 15 minutes to drive home. Along the

way, additional officers joined the slow-speed pursuit,

including Clark and his partner Donald Rose, who were

driving in a Tacoma Police Department sport utility vehicle.

At one point, in an effort to get Orn to stop, several police

units attempted unsuccessfully to box him in. ER 163–65.

At another point, officers drove in front of Orn’s vehicle to

block his path, but Orn drove onto a curb and down a portion

of a closed roadway to avoid them. ER 269, 475, 478. Later

in the pursuit, officers put down spike strips, which Orn

managed to circumvent by swerving away from the officers

and into the oncoming lane of traffic. No oncoming vehicles

were traveling toward Orn at the time. ER 104–05, 351, 358.

As the pursuit progressed, officers correctly predicted

that Orn might be returning home, since by then they had

determined the address to which his vehicle was registered.

Clark knew that Orn’s apartment complex had a long

outdoor parking lot with only two entrances, one at the north

end and the other at the south end. When Clark saw Orn

head toward the south entrance, he drove to the north end of

the complex and entered there. Clark positioned his SUV

across a narrow point of the single access lane that ran the

length of the parking lot, in an effort to prevent Orn from

exiting the complex on the north end.

Orn pulled into the south entrance with a caravan of

police vehicles following behind him. He proceeded slowly

down the access lane toward the north end of the complex.

When he approached Clark’s SUV and saw that it was

blocking his path, he paused and came to a brief stop.

ER 180, 353.

6 ORN V. CITY OF TACOMA

The diagram below depicts the scene of the events that

transpired next. ER 535. Clark was standing on the grassy

area to the left of his SUV as Orn approached. ER 523. He

had his gun drawn with the barrel pointed toward the ground

and repeatedly yelled at Orn to stop. ER 341–42, 523. Clark

had no reason to believe that Orn had a firearm, and in fact

he did not. ER 165, 444. Orn saw Clark and heard his

commands but ignored them. ER 342.

After briefly stopping in front of Clark’s SUV, Orn drove

away from where Clark was standing and attempted to

navigate through a narrow opening between the passenger

side of Clark’s SUV and a nearby parked car. To do so, Orn

had to drive up a curb onto a small patch of grass between

the two vehicles and then turn his vehicle to the right.

ER 342. Given the tightness of the space, Orn was driving

very slowly as he attempted this maneuver. ER 179–80. He

ORN V. CITY OF TACOMA 7

estimated his speed at five miles per hour, as did officers at

the scene. ER 193, 352.

When Orn began maneuvering around Clark’s SUV,

another officer, Steven Butts, backed his patrol vehicle into

Orn’s line of travel to cut off any path of escape through the

complex’s north entrance. ER 416. That move caused Orn

to turn his vehicle more sharply to the right to avoid hitting

Officer Butts’s vehicle. ER 355.

As Orn moved past Clark’s SUV, the panel near the

passenger-side rear wheel of Orn’s vehicle clipped the

passenger-side rear quarter panel of Clark’s SUV. (Officer

Rose, who remained inside the SUV and felt the impact,

described it as a “glancing blow.” ER 109.) The left front

corner of Orn’s vehicle also struck the right front corner of

Officer Butts’s vehicle. Just after Orn’s vehicle moved past

Clark’s SUV, Orn saw Clark run toward his vehicle on the

passenger side and begin firing at him. ER 270, 354, 356.

The first round entered through the front passenger-side

window of Orn’s vehicle; the second and third rounds

entered through the rear passenger-side window. ER 435,

440–41, 513–15, 517–18. One of those rounds struck Orn in

the spine, which caused Orn’s body to go numb. ER 357,

362, 515. He slumped into the passenger seat and the engine

of his vehicle revved loudly as his foot floored the

accelerator. Clark ran behind Orn’s vehicle as it sped away,

firing seven more rounds through the rear windshield.

ER 212, 440.

Clark disputes this account of the shooting. His account

differs from Orn’s in two key respects: the manner in which

Orn maneuvered his vehicle around Clark’s SUV, and where

Clark was standing when that occurred. According to Clark,

as soon as he saw Orn drive up the curb onto the patch of

grass, he ran from where he had been standing and took up a

8 ORN V. CITY OF TACOMA

position behind the rear bumper near the passenger side of

his SUV, as depicted by the faint blue figure in the diagram

above. ER 299, 524. Clark contends that, as Orn

maneuvered between Clark’s SUV and the parked car, Orn

turned his wheels sharply to the right, which placed Clark in

the path of Orn’s vehicle. ER 299, 525. At the same time,

Clark says, Orn stepped on the gas and propelled the vehicle

toward him under “hard acceleration,” causing him to fear

that he would be run over by Orn’s vehicle or pinned

between his vehicle and Orn’s. ER 299, 524–25. According

to Clark, he placed his left hand on the side of Orn’s vehicle

to brace for the impact while simultaneously raising his right

arm above his shoulder. He then fired one or two rounds

downward into Orn’s vehicle as it passed by. ER 525. Clark

asserts that he chased after Orn’s vehicle and continued to

fire at it from behind because he feared for the safety of

Officer Rose, who he thought might be standing in the area

where Orn’s vehicle was headed. ER 523, 525.

After Clark stopped firing, Orn’s vehicle continued

forward and hit several parked cars before crashing into a

chain-link fence, which stopped the vehicle’s forward

progress. Officers took Orn into custody and summoned

medical help. In all, three of the ten rounds fired by Clark

struck Orn. The bullet that lodged in his spine has left him

paralyzed from the waist down.

County prosecutors charged Orn with using his vehicle

to assault Clark and with attempting to elude a pursuing

police vehicle. The jury acquitted Orn of the assault charge.

ER 253. It also acquitted him of the eluding charge,

convicting him instead of the lesser-included offense of

failure to obey a law-enforcement officer. ER 254. Orn was

ordered to pay a fine of $250.

ORN V. CITY OF TACOMA 9

II

When an officer asserts qualified immunity as a defense,

our analysis proceeds in two steps. We first ask whether the

facts taken in the light most favorable to the plaintiff show

that the officer’s conduct violated a constitutional right.

Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, we then ask

whether the right in question was clearly established at the

time of the officer’s actions, such that any reasonably well-

trained officer would have known that his conduct was

unlawful. District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018); Malley v. Briggs, 475 U.S. 335, 344–45 (1986).

We have the discretion to skip the first step in certain

circumstances, as when the officer is plainly entitled to

prevail at the second step. See Pearson v. Callahan,

555 U.S. 223, 236 (2009). Here, however, we think both

steps of the analysis must be resolved against Clark.

A

At the first step, a reasonable jury could conclude that

Clark violated Orn’s Fourth Amendment right to be free

from the use of excessive force.

Determining whether an officer’s use of force violates

the Fourth Amendment requires balancing “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.”

Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal

quotation marks omitted). That inquiry generally involves

an assessment of 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 v. Connor, 490 U.S. 386, 396 (1989). In the context

10 ORN V. CITY OF TACOMA

involved here, the Supreme Court has crafted a more

definitive rule: An officer may use deadly force to

apprehend a fleeing suspect only if “the officer has probable

cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.” Garner,

471 U.S. at 11. A suspect may pose such a threat if “there is

probable cause to believe that he has committed a crime

involving the infliction or threatened infliction of serious

physical harm,” or if the suspect threatens the officer or

others with a weapon capable of inflicting such harm. Id.

The key question, then, is whether Clark had an

objectively reasonable basis for believing that Orn posed a

threat of serious physical harm, either to Clark himself or to

others. See Ryburn v. Huff, 565 U.S. 469, 474 (2012) (per

curiam). Taking the facts in the light most favorable to Orn,

and giving due deference to Clark’s assessment of the danger

presented by the situation he confronted, see id. at 477, we

conclude the answer is no.

1. We’ll begin with the threat to Clark himself. A

moving vehicle can of course pose a threat of serious

physical harm, but only if someone is at risk of being struck

by it. According to Orn’s version of events, Clark was never

at risk of being struck by Orn’s vehicle because he was never

in the vehicle’s path of travel. As Orn’s vehicle moved past

Clark’s SUV, Clark ran toward the passenger side of Orn’s

vehicle and opened fire through the passenger-side windows.

At that point, Clark could not reasonably have feared for his

own safety because he was on the side of Orn’s vehicle as it

was traveling away from him. See, e.g., Godawa v. Byrd,

798 F.3d 457, 466 (6th Cir. 2015); Smith v. Cupp, 430 F.3d

766, 774 (6th Cir. 2005); Cowan ex rel. Estate of Cooper v.

Breen, 352 F.3d 756, 763 (2d Cir. 2003); Abraham v. Raso,

183 F.3d 279, 293–94 (3d Cir. 1999). And Clark was

ORN V. CITY OF TACOMA 11

obviously not in harm’s way as he chased after Orn’s vehicle

and fired additional rounds at Orn through the rear

windshield.

Clark does not dispute that an officer who fires into the

side or rear of a vehicle moving away from him lacks an

objectively reasonable basis for claiming that he did so out

of fear for his own safety. He instead urges us to analyze the

lawfulness of his actions under his version of events, in

which he stood in the path of Orn’s vehicle as it accelerated

toward him, causing him to fear for his life. As noted at the

outset, we cannot analyze the case through that lens because

Clark’s version of events conflicts with the facts construed

in the light most favorable to Orn. Most fundamentally,

Orn’s testimony provides an account of the shooting in

which Clark was never at risk of being struck by Orn’s

vehicle. Although Orn’s testimony alone would be

sufficient to create a material factual dispute on this point,

Officer Butts’s testimony provides additional support for

Orn’s version of events. Officer Butts testified that he saw

Clark standing behind the rear bumper of the SUV only after

Clark fired the first round of shots, and that he did not see

Clark make any physical contact with Orn’s vehicle.

ER 194–96, 198–99. Officer Butts also testified that he

heard Orn’s engine rev and saw the vehicle accelerate after

the first shots were fired, not before as Clark maintains.

ER 196–97, 201. A reasonable jury could find Officer

Butts’s testimony significant because his vehicle was parked

facing the rear passenger side of Clark’s SUV, giving him an

up-close vantage point from which to see and hear what

transpired just before the shooting.

In an effort to bolster his version of events and discredit

Orn’s, Clark relies on two pieces of evidence that he views

as critical. First, he points to a tire track left at the scene,

12 ORN V. CITY OF TACOMA

which he contends shows that Orn must have accelerated

before being shot. ER 207, 462–63, 538, 562. Second, Clark

notes that detectives found an unidentified palm print on the

passenger side of Orn’s vehicle, in the area where Clark said

he placed his hand to brace for the impact. ER 448–49.

While these two pieces of evidence provide some support for

Clark’s version of events, they are nowhere near conclusive

enough to meet Scott’s “blatantly contradicts” standard,

where the Court relied on a videotape clearly depicting the

events in question. 550 U.S. at 379–80.

Even if a jury found that Clark was standing behind the

rear bumper of his SUV, as he claims, it could still conclude

that Clark lacked an objectively reasonable basis to fear for

his own safety. As Orn’s vehicle approached, Clark

concedes that he was not initially in the vehicle’s path of

travel. ER 524. He contends that his safety was imperiled

when Orn turned his wheels more sharply to the right to

squeeze between Clark’s SUV and Officer Butts’s patrol car.

At that point, Orn’s vehicle was moving at just five miles per

hour. Clark could therefore have avoided any risk of being

struck by simply taking a step back, a common-sense

conclusion confirmed by Clark’s own admission that he

“was able to step backwards and get out of the path of

Mr. Orn’s vehicle.” ER 525. In similar circumstances, we

held that a reasonable jury could find that an officer standing

near a slow-moving vehicle “would not have perceived

himself to be in danger of serious bodily harm,” because he

could have avoided any risk of injury “by simply stepping to

the side.” Acosta v. City & County of San Francisco, 83 F.3d

ORN V. CITY OF TACOMA 13

1143, 1146–47 (9th Cir. 1996); see also Abraham, 183 F.3d

at 294. 1

2. The remaining question is whether Clark had an

objectively reasonable basis for believing that Orn posed a

threat of serious physical harm to others. On this point, in

both the district court and before our court, Clark has argued

only that Orn posed a threat to his partner, Officer Rose. As

noted earlier, Clark mistakenly (but reasonably) believed

that Officer Rose had exited the SUV and may have been

standing in the area where Orn’s vehicle was headed. In fact,

Officer Rose remained inside the SUV until after the

shooting.

Clark claims that he feared for the safety of Officer Rose

because Orn had just attempted to run Clark over and thus

might have been inclined to assault Officer Rose as well.

ER 299–300, 525. But if a jury rejects Clark’s account of

the shooting and concludes that Clark was never at risk of

being struck by Orn’s vehicle, nothing else Orn had done

suggested that he posed a threat to the safety of Officer Rose.

1

We need not decide whether a jury could find Clark’s use of deadly

force unreasonable based in part on his decision to move from the grassy

area where he had been standing (a position of relative safety) to take up

a more dangerous position behind the rear bumper of his SUV as Orn’s

vehicle approached. The reasonableness of an officer’s use of force must

be judged by considering “the totality of the circumstances,” Garner,

471 U.S. at 8–9, and several circuits have held that “[w]here a police

officer unreasonably places himself in harm’s way, his use of deadly

force may be deemed excessive.” Kirby v. Duva, 530 F.3d 475, 482 (6th

Cir. 2008); accord Thomas v. Durastanti, 607 F.3d 655, 667 (10th Cir.

2010); Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009); Estate

of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993). In County of Los

Angeles v. Mendez, 137 S. Ct. 1539 (2017), the Supreme Court did not

foreclose this theory of liability, even as it rejected our circuit’s former

“provocation rule.” See id. at 1547 n.*

14 ORN V. CITY OF TACOMA

Orn was driving at a slow speed in a non-reckless manner as

he maneuvered around Clark’s SUV, and although his

vehicle clipped Clark’s SUV and Officer Butts’s patrol car

as he maneuvered between them, the contact was slight and

clearly accidental. See Latits v. Phillips, 878 F.3d 541, 549–

50 (6th Cir. 2017) (accidental collision with police vehicle

causing minor damage did not provide a basis for believing

that suspect would harm officers); Vaughan v. Cox, 343 F.3d

1323, 1330 (11th Cir. 2003) (same). In addition, at every

juncture earlier in the evening, Orn had deliberately driven

his vehicle away from nearby officers. Taking this view of

the facts, a reasonable jury could conclude that Clark had no

basis for believing that Orn’s vehicle posed a threat to

Officer Rose. See Abraham, 183 F.3d at 294–95; cf. Scott v.

Edinburg, 346 F.3d 752, 758 (7th Cir. 2003) (suspect’s

attempt to run over officer was relevant to the officer’s

“perception that the bystanders were in danger”).

Clark has not argued that his use of deadly force was

justified on the theory that permitting Orn to escape could

have posed a threat to the safety of the general public. Nor

is there any basis in the record for making such an argument.

A fleeing suspect’s escape can pose a threat to the public

when police have probable cause to believe that the suspect

has committed a violent crime, see Garner, 471 U.S. at 11,

but neither of the offenses for which Orn was wanted

involved any sort of violence. Such a threat can also exist

when the suspect has driven in a manner that puts the lives

of pedestrians or other motorists at risk, as by leading

officers on a high-speed chase. See Mullenix v. Luna, 136 S.

Ct. 305, 306, 309 (2015) (per curiam) (suspect drove at over

100 miles per hour and threatened to shoot police officers

unless they abandoned the pursuit); Plumhoff, 572 U.S. at

776 (suspect swerved between congested traffic lanes at

speeds exceeding 100 miles per hour); Scott, 550 U.S. at 380

ORN V. CITY OF TACOMA 15

(suspect engaged in “a Hollywood-style car chase of the

most frightening sort”). In such cases, officers have an

interest in terminating the suspect’s flight because the flight

itself poses a threat of serious physical harm to others. But

to warrant the use of deadly force, a motorist’s prior

interactions with police must have demonstrated that “he

either was willing to injure an officer that got in the way of

escape or was willing to persist in extremely reckless

behavior that threatened the lives of all those around.”

Latits, 878 F.3d at 548 (internal quotation marks omitted).

A reasonable jury could conclude that Orn did not

engage in any such conduct here, and that Clark therefore

had no basis for believing that Orn would pose a threat of

serious physical harm to the general public if permitted to

escape. Construing the facts in the light most favorable to

Orn, he never targeted officers with his vehicle or forced

other vehicles off the road. In addition, he traveled at normal

speeds and stopped at traffic lights and stop signs throughout

the pursuit. ER 305, 308, 351. Indeed, the Tacoma Police

Department’s Pursuit Review Committee conducted a

review of the pursuit and classified it as involving only a

“Failure to Yield,” which occurs when a driver “fails or

refuses to immediately bring his or her vehicle to a stop, and

drives in a manner that is not reckless and does not pose an

immediate threat to community safety.” ER 219.

In his brief before our court, Clark hints at a different

view of the facts, but in doing so he simply highlights the

factual disputes that a jury must ultimately resolve. For

example, Clark asserts that when officers attempted to box

Orn in, he deliberately swerved toward one of them, forcing

the officer to veer into the next lane of traffic to avoid a

collision. ER 161, 166. That incident, if it did occur, is

irrelevant to the Fourth Amendment analysis because Clark

16 ORN V. CITY OF TACOMA

did not witness it and a reasonable jury could conclude that

he did not learn about it until after the shooting. See Deorle

v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). The

officer involved in the alleged incident did not report it over

the radio, ER 162, and Officer Rose, who was riding in the

same vehicle as Clark, testified that he did not recall hearing

any radio transmissions during the pursuit indicating that

Orn’s driving had endangered other officers or the public,

ER 105. Clark further asserts that Orn drove onto a

pedestrian path during the pursuit, but Clark did not witness

this incident either, and the officer who reported it over the

radio stated only that Orn had “cut over the curb.” ER 306.

Clark also points to Orn’s actions in evading the spike

strips—something Clark did witness—but it is undisputed

that Orn swerved away from the officers who deployed the

strips and that he did not endanger any motorists in the

oncoming lane of traffic because there were no motorists

coming toward Orn.

In short, if Clark decides to pursue this line of argument

at trial, a jury will have to determine whether Orn engaged

in conduct that demonstrated a willingness either to injure

officers or to “persist in extremely reckless behavior that

threatened the lives of all those around.” Latits, 878 F.3d at

548.

B

We turn next to the second step of the qualified immunity

analysis, which asks whether Orn’s right to be free from the

use of excessive force was clearly established at the time of

the shooting. In making that determination, we are mindful

of the Supreme Court’s repeated admonition not to define

the right at issue at a high level of generality. See, e.g.,

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam);

City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,

ORN V. CITY OF TACOMA 17

1775–76 (2015); Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011). Qualified immunity is designed to ensure that

officers receive fair notice of the illegality of their conduct,

and general standards often fail to provide such notice in

excessive force cases, where “the result depends very much

on the facts of each case.” Kisela, 138 S. Ct. at 1153

(internal quotation marks omitted).

In an “obvious case,” the general standards established

in Garner and Graham can suffice to put an officer on notice

that his conduct is unlawful. Brosseau, 543 U.S. at 199. But

usually uncertainty will remain as to whether the particular

set of facts confronting an officer satisfies those standards.

See Sheehan, 135 S. Ct. at 1777. When that is the case, an

officer will be “entitled to qualified immunity unless existing

precedent squarely governs the specific facts at issue.”

Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted).

Stated differently, precedent in existence at the time of the

officer’s actions must render the unlawfulness of his conduct

“beyond debate.” al-Kidd, 563 U.S. at 741. That does not

mean a plaintiff must identify prior cases that are “directly

on point.” Id. The plaintiff must instead identify precedent

that holds “certain conduct is a constitutional violation under

facts not distinguishable in a fair way from the facts

presented in the case at hand.” Saucier, 533 U.S. at 202.

1. To the extent Clark seeks to justify his use of deadly

force based on a threat to his own safety, existing precedent

declared his conduct unconstitutional in circumstances

indistinguishable from those present here. By the time of the

shooting in October 2011, at least seven circuits had held

that an officer lacks an objectively reasonable basis for

believing that his own safety is at risk when firing into the

side or rear of a vehicle moving away from him. See

Cordova v. Aragon, 569 F.3d 1183, 1187, 1191 (10th Cir.

18 ORN V. CITY OF TACOMA

2009); Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir.

2009); Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008);

Waterman v. Batton, 393 F.3d 471, 482 (4th Cir. 2005);

Cowan, 352 F.3d at 763; Vaughan, 343 F.3d at 1327, 1330–

31; Abraham, 183 F.3d at 293–94; see also Scott, 346 F.3d

at 757–58. To the same effect is our circuit’s decision in

Adams v. Speers, 473 F.3d 989 (9th Cir. 2007), where we

held that an officer violated the Fourth Amendment by firing

through the front windshield of a vehicle moving backward

away from him. Id. at 992–93. As discussed above, taking

the facts in the light most favorable to Orn, a reasonable jury

could conclude both that Clark was never in the path of Orn’s

vehicle and that he fired through the passenger-side windows

and rear windshield as the vehicle was moving away from

him. On that score, “existing precedent squarely governs the

specific facts at issue.” Kisela, 138 S. Ct. at 1153.

Clark contests this conclusion only by urging us to credit

his version of events, just as he did for purposes of the Fourth

Amendment analysis at step one. He insists that “the

specific facts at issue” are those in which he was standing in

the path of a vehicle speeding toward him under “hard

acceleration.” The cases on which he relies for support all

involve officers who were in the path of vehicles moving

toward them. See Thomas v. Durastanti, 607 F.3d 655, 665

(10th Cir. 2010); Hathaway v. Bazany, 507 F.3d 312, 322

(5th Cir. 2007); Troupe v. Sarasota County, 419 F.3d 1160,

1168 (11th Cir. 2005); Robinson v. Arrugueta, 415 F.3d

1252, 1256 (11th Cir. 2005). These cases are inapposite here

because we are not permitted to analyze Clark’s entitlement

to qualified immunity under his version of the facts.

Even if the jury were to conclude that Clark was standing

behind the rear bumper of his SUV as Orn’s vehicle

approached, he would not be entitled to qualified immunity.

ORN V. CITY OF TACOMA 19

We held in Acosta that an officer’s use of deadly force

violated the Fourth Amendment in circumstances similar to

those present here. There, the defendant officer was

standing in front of the suspect’s car “closer to the side than

the dead-center,” 83 F.3d at 1146, and the vehicle was

“moving or rolling very slowly from a standstill” as it

approached him. Id. at 1147. We stated that the car was

moving slowly enough that the officer could have avoided

any risk of injury “by simply stepping to the side,” rendering

his use of deadly force unreasonable. Id. at 1146. The facts

of this case, taken in the light most favorable to Orn, are not

fairly distinguishable from those in Acosta. If Orn was

traveling at only five miles per hour as he maneuvered past

Clark’s SUV, and if he did not accelerate until after being

shot, a reasonable jury could conclude that Clark lacked an

objectively reasonable basis to fear for his own safety, as he

could simply have stepped back to avoid being injured.

2. Clark is not entitled to qualified immunity based on

his claimed fear for the safety of others—in this case, Officer

Rose. The objective reasonableness of Clark’s fear for

Officer Rose’s safety is again dependent upon the jury’s

acceptance of his account of the shooting. According to

Clark, Orn nearly ran him over after turning the vehicle

toward him and accelerating rapidly. But a reasonable jury

could conclude, contrary to Clark’s version of events, that he

was never at risk of being struck by Orn’s vehicle. And if

the jury disbelieved Clark’s account of having been

assaulted by Orn, it could also conclude that nothing else

about Orn’s behavior that night, either during the course of

the pursuit or in the parking lot, gave rise to a basis for

believing that he posed a significant threat to Officer Rose.

See, e.g., Lytle, 560 F.3d at 416–17; Abraham, 183 F.3d

at 293.

20 ORN V. CITY OF TACOMA

The cases Clark cites on this point are distinguishable

when the facts are viewed in the light most favorable to Orn.

In Brosseau, the suspect had a felony no-bail warrant out for

his arrest and was attempting to elude capture by hiding near

his mother’s house. 543 U.S. at 195. When officers found

him, he ran to the driveway and jumped into his car, which

was facing the street. Two vehicles directly blocked his

path: a small car parked in the driveway facing the suspect’s

car; and a pickup truck parked in the street blocking the

driveway. Id. at 195–96. Both vehicles were occupied. The

defendant officer believed that the suspect had sprinted to

his car in order to retrieve a weapon, and she ordered him at

gunpoint to get out of the car. When he refused to comply,

the officer shattered the driver’s side window with her gun,

reached in to try to grab the keys, and struck the suspect in

the head with her gun. The suspect nonetheless started the

car and began to move forward when the officer fired one

round through the rear driver’s side window. She did so to

protect the occupants of the two vehicles directly blocking

the suspect’s path, as well as fellow officers who were on

foot in the immediate area. Id. at 196–97. Given the

suspect’s apparent determination to escape at all costs,

notwithstanding the officer’s violent attempts to restrain

him, the Supreme Court held that the officer had reasonable

grounds to believe that the suspect would race out of the

driveway—and recklessly endanger the lives of those in his

path—if allowed to drive off.

In Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010), the

suspect had engaged the police in a short pursuit before

crashing into a telephone pole. Two officers, Key and

Torres, approached the vehicle on foot. Key attempted to

open the driver’s door but slipped and fell to the ground as

the suspect’s vehicle began to move in reverse. Id. at 548–

49. The engine revved and the wheels were spinning and

ORN V. CITY OF TACOMA 21

throwing up mud due to the slippery conditions. As the

vehicle accelerated backward, it arced toward the driver’s

side, leading Torres to fear that Key had been run over and

was in danger of being struck again. Torres fired through

the passenger-side window to protect both Key and himself.

Id. at 549. We held that the undisputed facts provided Torres

with an objectively reasonable basis to fear for both Key’s

safety and his own. Id. at 551–52.

The facts of this case bear no resemblance to those in

Brosseau and Wilkinson. There were no officers or other

individuals in Orn’s path. The only person Clark thought

might be in the immediate area was Officer Rose. Yet under

Orn’s version of events, he never engaged in any conduct

that suggested his vehicle posed a threat of serious physical

harm to Officer Rose, or to anyone else in the vicinity.

Finally, although Clark has not argued that Orn posed a

threat to the safety of the general public, we do not think

Clark could claim qualified immunity on that basis either.

Officers may use deadly force to halt the flight (or continued

flight) of a motorist who they reasonably believe will pose a

deadly threat to the lives of pedestrians or other motorists.

Plumhoff, 572 U.S. at 777. But existing precedent made

clear that Orn’s conduct prior to the shooting did not give

rise to an objectively reasonable basis for believing that Orn

posed such a threat.

The cases upholding the use of deadly force to protect

the public from a fleeing motorist have typically involved

suspects who drove at extremely high speeds, endangered

other motorists on the road, or intentionally targeted police

officers with their vehicles. See, e.g., Scott, 550 U.S. at 379–

80; Pace v. Capobianco, 283 F.3d 1275, 1277–78, 1282–83

(11th Cir. 2002); Cole v. Bone, 993 F.2d 1328, 1330–31,

1333–34 (8th Cir. 1993); Smith v. Freland, 954 F.2d 343,

22 ORN V. CITY OF TACOMA

344, 347 (6th Cir. 1992). In these cases, the suspect’s

conduct before the shooting demonstrated that he “was likely

to continue to threaten the lives of those around him in his

attempt to escape.” Cupp, 430 F.3d at 775. As discussed

above, Orn engaged in no such conduct here. In fact, his

driving prior to the shooting was less hazardous than that of

the suspects in Cordova and Lytle, two cases in which the

courts held, after construing the facts in the light most

favorable to the plaintiffs, that an officer’s use of deadly

force violated the Fourth Amendment. See Cordova,

569 F.3d at 1186, 1190 (suspect ran two red lights, crossed

onto the wrong side of a highway, and attempted to ram

police vehicles on two occasions); Lytle, 560 F.3d at 407,

413 (suspect speeding through a residential area collided

with a car in an oncoming lane of traffic). 2

* * *

In the end, this is not a case in which the legality of the

officer’s conduct falls within the “hazy border between

excessive and acceptable force.” Saucier, 533 U.S. at 206

(internal quotation marks omitted). When the facts are

viewed in the light most favorable to Orn, as they must be at

this point in the litigation, Clark had “fair and clear warning

2

In denying the officer qualified immunity, the Lytle court explained

that the suspect had a clearly established right to be free from the use of

deadly force because he did not “pose a sufficient threat of harm to the

officer or others.” 560 F.3d at 417. The court in Cordova reaffirmed

this principle, but ultimately granted qualified immunity to the officer in

that case based on the specific facts at issue. 569 F.3d at 1193. In doing

so, the court acknowledged that the outcome likely would have been

different had the suspect posed a less substantial risk of harm to others,

or at least the same degree of risk as the suspect in Lytle. Id. Because

Orn presented even less of a risk of harm to third parties than the driver

in Lytle, Cordova’s qualified immunity holding, if anything, supports our

conclusion.

ORN V. CITY OF TACOMA 23

of what the Constitution requires.” Sheehan, 135 S. Ct.

at 1778 (internal quotation marks omitted). What Clark

most forcefully contests is whether his alternative account of

the shooting should be accepted as true. Factual disputes of

that order must be resolved by a jury, not by a court

adjudicating a motion for summary judgment. Tolan,

572 U.S. at 656; see Saucier, 533 U.S. at 216 (Ginsburg, J.,

concurring in the judgment).

AFFIRMED.