Glenn v. Washington County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOPE GLENN, as the personal 

representative of the Estate of

No. 10-35636

Lukus Glenn,

Plaintiff-Appellant, D.C. No.

v.  3:08-cv-00950-MO

ORDER AND

WASHINGTON COUNTY; MIKHAIL

AMENDED

GERBA, an individual; TIM

OPINION

MATESKI, an individual,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

June 6, 2011—Portland, Oregon

Opinion Filed November 4, 2011

Amended December 27, 2011

Before: Raymond C. Fisher, Ronald M. Gould and

Richard A. Paez, Circuit Judges.

Opinion by Judge Fisher

21263

GLENN v. WASHINGTON COUNTY 21267

COUNSEL

Michael A. Cox (argued) and Lawrence K. Peterson, Law

Office of Michael Cox, Tualatin, Oregon, for the plaintiff-

appellant.

William G. Blair (argued), William G. Blair, PC, Beaverton,

Oregon, for the defendants-appellees.

ORDER

The panel acknowledges the amended table of contents in

Appellees’ corrected petition for rehearing, filed November

21, 2011. Appellees’ motion for leave to file a corrected peti-

tion for rehearing is DENIED.

The full court has been advised of the petition for rehearing

en banc, and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

21268 GLENN v. WASHINGTON COUNTY

Appellees’ petition for rehearing and petition for rehearing

en banc, filed November 18, 2011, is DENIED.

The changes to the amended opinion filed concurrently

with this order are non-substantive. Therefore, no further peti-

tions for rehearing will be considered.

OPINION

FISHER, Circuit Judge:

Eighteen-year-old Lukus Glenn was shot and killed in his

driveway by Washington County police officers. His mother

had called 911 for help with her distraught and intoxicated

son after Lukus began threatening to kill himself with a pock-

etknife and breaking household property. Within four minutes

of their arrival, officers had shot Lukus with a “less-lethal”

beanbag shotgun, and had fatally shot him eight times with

their service weapons. Lukus’ mother filed suit against the

officers and Washington County alleging a state law wrongful

death claim and a 42 U.S.C. § 1983 claim for excessive force

under the Fourth Amendment. The district court granted sum-

mary judgment to the defendants after concluding there was

no constitutional violation. We reverse and remand for trial.

BACKGROUND1

On September 15, 2006, Lukus Glenn left his home to

attend a Tigard High School football game with his girlfriend.

He had graduated from Tigard High a few months before and

was living with his parents, Hope and Brad Glenn, and his

grandmother. Lukus had no history of violence or criminal

1

Because the plaintiff appeals the entry of summary judgment in the

defendants’ favor, to the extent there are factual disputes, the facts are

presented in the light most favorable to the plaintiff. See Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 255 (1986).

GLENN v. WASHINGTON COUNTY 21269

activity. He returned home at 3:00 a.m., agitated, intoxicated

and intent on driving his motorcycle. His parents told him he

could not take the motorcycle, and to their surprise Lukus

became angry. He began to damage household property,

including windows and the front door, and the windows of

cars parked in the driveway. His parents had never seen

Lukus drunk before, and believed they needed help to calm

him down. They first called his friends, Tony Morales and

David Lucas, who came over to the Glenn home. Lukus’

friends were unable to calm him down, however, and his par-

ents became alarmed when he held a pocketknife to his neck

and threatened to kill himself.2

Frightened that Lukus would harm himself, Hope called

911 believing that “the police would have the expertise and

experience to deal with an emotionally distraught teenager.”

The transcript of the 911 call states that Hope told the dis-

patcher her son was “out of control, busting our windows, and

has a knife and is threatening us.”3 Hope clarified that the

knife was “just a pocket knife” and that Lukus had not hurt

anyone, and said he was “just really, really intoxicated.”

When the dispatcher asked if everyone could move away

from Lukus, Hope said “well, yeah,” but explained that they

were “just trying to talk to him right now.” She said Lukus

was “threatening the knife to his neck and he keeps saying

he’s gonna kill himself if the cops come,” and “he’s not leav-

ing until the cops shoot him and kill him.”

Hope asked if paramedics could be sent to the house,

remarking that Lukus was “so suicidal right now.” She

explained that she thought he had attempted suicide once

before and had been “really depressed,” but that “[h]e’s

2

The pocketknife had a three-inch blade and hooked tip.

3

Hope says that she misspoke, and that Lukus never actually threatened

anyone but himself. She also contends that the 911 transcript in the record

is only a rough transcription, contains inaccuracies and does not fully con-

vey a sense of the scene.

21270 GLENN v. WASHINGTON COUNTY

always been a good athlete and a good kid.” In response to the

dispatcher’s questions, Hope said Lukus was born in 1988,

was about 5’11” and had a thin build. She explained that he

had damaged their windows and front door. She also said the

family owned hunting rifles, but they were locked up and

Lukus could not get to them.

The 911 dispatcher informed the Washington County Sher-

iff’s Department that officers were needed at the Glenn home

for a domestic disturbance involving a “fight with a weapon.”

Dispatch advised that “Caller has a son. Has a knife . . . It’s

a pocket knife. Glenn Lucas [sic] born in ’88 . . . . Caller is

advising he is probably going to kill himself if you show up.”

Officers were informed that there was no “premise history”

and that Lukus was suicidal and “very intoxicated.” Dispatch

relayed that Lukus had broken a window and was out in the

driveway. Officers were also told there were hunting rifles

inside the house, but Lukus could not get to them. An officer

can then be heard asking whether the Glenns could lock the

doors since he “[doesn’t] want [the son] going inside if there

are guns in there,” and dispatch responded that Lukus had

“busted through the front door.” A staging area for responding

officers was established a short distance from the Glenn home.4

Deputy Mikhail Gerba was not on duty with the Washing-

ton County Sheriff’s Department that night, but was working

on a special assignment for the Oregon Department of Trans-

portation performing traffic control for a construction project.

He heard the dispatch, however, and responded. For some

unknown reason, he skipped the staging area and went

directly to the Glenn home, where he was the first officer to

arrive on the scene at 3:11 a.m. Gerba initially encountered

4

Written information on the officers’ mobile data terminals similarly

stated “son has a knife, broke a veh[icle] window, [it] is a pocketknife,

sig[nal] II w[ith] tones, son is Glenn, Lukus, [born] 042288, . . . says he

is not leaving till cops kill him, . . . hunting rifles in the house, he can’t

get to . . . friends are standing w/ him . . . [history] of su[icide] attempts.”

GLENN v. WASHINGTON COUNTY 21271

David Lucas and, pointing his gun at David, ordered him to

“[g]et on the fucking ground.” David did as ordered and told

Gerba that Lukus was “over there by the garage; we have him

calmed down.”

Gerba proceeded up the driveway and positioned himself

eight to twelve feet from Lukus, who was standing by the

garage near his parents and Tony Morales. Gerba had a com-

pletely unobstructed view of Lukus, who could be seen

clearly under the garage light. Lukus was not in a physical

altercation with anyone, nor was he threatening anyone with

the pocketknife or in any other way, and no one was trying

to get away from him. He was, however, holding the pocket-

knife to his own neck.

Gerba held his .40 caliber Glock semiautomatic pistol in

“ready position, aimed at Lukus.” From the moment he

arrived, Gerba “only scream[ed] commands loudly at Lukus”

such as “drop the knife or I’m going to kill you.” As the dis-

trict court recognized, Lukus may not have heard or under-

stood these commands because he was intoxicated and many

people were yelling at once. Gerba “did not attempt to

cajol[e] or otherwise persuade Lukus to drop the knife volun-

tarily.” Numerous witnesses described Gerba’s behavior as

“angry, frenzied, amped and jumpy,” and noted that they were

“shocked by how [he] approached this situation.” Within a

minute of Gerba’s arrival, Hope began “begging the 911 oper-

ator, ‘Don’t let him shoot him. Please don’t let him shoot him

. . . . [T]hey’re gonna shoot him.’ ” The dispatcher tried to

reassure her that the police were “gonna try and talk to him,”

but Hope said “I shouldn’t have called but I was so scared,”

“they’re gonna kill him.”

Washington County Deputy Timothy Mateski was the next

officer to reach the scene, approximately one minute after

Gerba’s arrival. Mateski had initially headed toward the stag-

ing area, but rushed to the Glenn home when he heard from

dispatch that Gerba had gone directly there. En route he asked

21272 GLENN v. WASHINGTON COUNTY

whether Hope and Brad could leave the house, and was

advised that dispatch was checking. He never received a

response, and did not follow up. Upon arrival, Mateski took

a position six to twelve feet from Lukus, where he had a com-

pletely unobstructed view of Lukus. Like Gerba, “Mateski

drew his gun and began screaming commands as soon as he

arrived, including expletives and orders like ‘drop the knife or

you’re going to die’ ” and “drop the fucking knife.” Numer-

ous witnesses described Mateski as “frantic and excited and

only pursu[ing] a course of screaming commands at Luke.”

Tony Morales “implore[d] the officers to ‘calm down’ and

t[old] them that Luke [wa]s only threatening to hurt himself.”

The officers ordered Morales to crawl behind them and

ordered Hope and Brad to go into the house and close the

door, which officers knew was broken and could not be

locked. Everyone complied. Lukus’ grandmother, who lived

in a residence between the main house and garage, opened her

door to come talk to Lukus. The officers ordered her back

inside her home, and she complied. All of the people “in and

around the house could have easily walked away from the

scene to a spot behind the officers or even to the street behind

without having to pass any closer to Luke than [they] already

had been.” Instead, they did as the officers instructed them to

do. Having ordered the Glenns to go into their home, the offi-

cers could have positioned themselves between Lukus and the

front door to the home without having to get any closer to

Lukus, but they chose to stand elsewhere.

At about 3:14 a.m., Corporal Musser advised Mateski and

Gerba that back-up was en route. Sergeant Wilkinson radioed

that the officers on the scene should “remember your tactical

breathing, and if you have leathal [sic] cover a taser may be

an option if you have enough distance. Just tactical breathe,

control the situation.” Neither Mateski nor Gerba was carry-

ing a taser or a beanbag gun. Shortly after these dispatch mes-

sages, however, Officer Andrew Pastore of the City of Tigard

Police Department arrived with a beanbag shotgun and a

GLENN v. WASHINGTON COUNTY 21273

taser. Gerba and Mateski apparently were not aware that

Pastore had a taser, and did not ask.

Mateski immediately ordered Pastore to “beanbag him.”

Pastore yelled “beanbag, beanbag” and opened fire on Lukus.

Pastore shot all six of the shotgun’s beanbag rounds. Gerba

recalled that, “when [Lukus] got hit, I remember . . . he kind

of cowered up against the garage and he kind of looked like,

kind of like, did I just get hit with something?” The officers’

brief acknowledges that Lukus “appeared surprised, confused,

and possibly in pain.” Numerous witnesses observed that,

“[w]hile being struck by beanbag rounds, Luke put his hands

down, grabbed his pants and began to move away from the

beanbag fire toward the alcove between the house and garage

. . . in the most obvious line of retreat from the fire.” Mateski

and Gerba stated in their declarations that they had indepen-

dently determined that if Lukus made a move toward the

house with his parents inside, they would use deadly force.5

After Lukus took one or two steps, Gerba and Mateski

began firing their semiautomatic weapons at him. They fired

eleven shots, eight of which struck Lukus in the back, chest,

stomach, shoulder and legs. The remaining three bullets

struck his grandmother’s residence. All the lethal fire

occurred before the last beanbag round was fired, and less

than four minutes after the first officer arrived on the scene.

Seconds before he was fired upon, Lukus “pled[,] ‘Tell them

to stop screaming at me’ ” and “why are you yelling?” Lukus

bled out and died on his grandmother’s porch shortly after he

was shot.

In April 2007, Washington County Sheriff Rob Gordon

5

The district court determined that “Lukus could not have headed in the

direction of the alcove without also heading in the direction of his parents’

front door.” Glenn argues that it is possible Lukus did not make any voli-

tional movement at all, but rather was “moved by . . . the onslaught of

beanbag fire.”

21274 GLENN v. WASHINGTON COUNTY

released to the public an Administrative Review of the Lukus

Glenn shooting. The review concluded that “[n]o policies

were violated during this critical incident,” and that the

“WCSO deputies involved in this incident performed as

trained, followed established policies, and acted in a profes-

sional manner.”

In August 2008, Hope Glenn filed a complaint against the

defendants in her capacity as personal representative of

Lukus’ estate.6 The complaint included an Oregon state law

wrongful death claim and a 42 U.S.C. § 1983 claim for exces-

sive force. The defendants moved for summary judgment,

which the district court granted in June 2010. The court,

acknowledging the tragedy of Lukus’ death, nonetheless felt

it had to conclude “that the officers’ use of force did not vio-

late Lukus Glenn’s Fourth Amendment rights,” and therefore

that the defendants were entitled to qualified immunity. The

district court issued an amended opinion granting the defen-

dants’ motion for summary judgment on all claims. This

timely appeal followed.

DISCUSSION

I.

We have jurisdiction under 28 U.S.C. § 1291. We review

a district court’s decision to grant summary judgment de

novo, considering all facts in dispute in the light most favor-

able to the nonmoving party. See Mena v. City of Simi Valley,

226 F.3d 1031, 1036 (9th Cir. 2000). “Summary judgment is

appropriate only ‘if the pleadings, the discovery and disclo-

sure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.’ ” Stoot v. City of

6

Pastore and the City of Tigard were voluntarily dismissed as defen-

dants on May 18, 2010. The remaining defendants are Mateski, Gerba and

Washington County.

GLENN v. WASHINGTON COUNTY 21275

Everett, 582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R.

Civ. P. 56(c)). The de novo standard also applies to our

review of the defendant officers’ entitlement to qualified

immunity as a matter of law. See Mena, 226 F.3d at 1036.

II.

In evaluating a grant of qualified immunity, we ask two

questions: (1) whether, taking the facts in the light most

favorable to the nonmoving party, the officers’ conduct vio-

lated a constitutional right, and (2) whether the right was

clearly established at the time of the alleged misconduct. See

Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled in

part by Pearson v. Callahan, 555 U.S. 223 (2009). Either

question may be addressed first, and if the answer to either is

“no,” then the officers cannot be held liable for damages. See

Pearson, 555 U.S. at 236. In this case, the district court

focused on whether the officers’ use of force violated Lukus’

Fourth Amendment rights, and held that it did not. Glenn

argues on appeal that the district court erred in granting sum-

mary judgment on that basis. We agree that genuine issues of

fact remain, and accordingly reverse. We further conclude

that resolution of these issues is critical to a proper determina-

tion of the officers’ entitlement to qualified immunity. We

express no opinion as to the second part of the qualified

immunity analysis and remand that issue to the district court

for resolution after the material factual disputes have been

determined by the jury.7

7

See, e.g., Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir.

2010) (affirming a denial of summary judgment on qualified immunity

grounds because “there are genuine issues of fact regarding whether the

officers violated [the plaintiff’s] Fourth Amendment rights[, which] are

also material to a proper determination of the reasonableness of the offi-

cers’ belief in the legality of their actions”); 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”).

21276 GLENN v. WASHINGTON COUNTY

A.

[1] In evaluating a Fourth Amendment claim of excessive

force, courts ask “whether the officers’ actions are ‘objec-

tively reasonable’ in light of the facts and circumstances con-

fronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).

This inquiry “requires a careful balancing of ‘the nature and

quality of the intrusion on the individual’s Fourth Amendment

interests’ against the countervailing governmental interests at

stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,

8 (1985)). “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to

make split-second judgments — 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.

Reasonableness therefore must be judged from the perspec-

tive of a reasonable officer on the scene, “rather than with the

20/20 vision of hindsight.” Id. at 396 (citing Terry v. Ohio,

392 U.S. 1, 20-22 (1968)).

“Our analysis involves three steps. First, we must assess the

severity of the intrusion on the individual’s Fourth Amend-

ment rights by evaluating ‘the type and amount of force

inflicted.’ ” Espinosa, 598 F.3d at 537 (quoting Miller v.

Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). “[E]ven

where some force is justified, the amount actually used may

be excessive.” Santos, 287 F.3d at 853. Second, we evaluate

the government’s interest in the use of force. Graham, 490

U.S. at 396. Finally, “we balance the gravity of the intrusion

on the individual against the government’s need for that intru-

sion.” Miller, 340 F.3d at 964.

“Because [the excessive force inquiry] nearly always

requires a jury to sift 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.”

Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en

GLENN v. WASHINGTON COUNTY 21277

banc) (alteration in original) (internal quotation marks omit-

ted); see also Espinosa, 598 F.3d at 537 (“[T]his court has

often held that in police misconduct cases, summary judgment

should only be granted ‘sparingly’ because such cases often

turn on credibility determinations by a jury.”). We hold that

there remain questions of fact regarding the reasonableness of

the officers’ actions that preclude summary judgment.

1.

[2] First we consider the quantum of force used when offi-

cers shot Lukus with the beanbag shotgun. A beanbag shotgun

is “a twelve-gauge shotgun loaded with . . . ‘beanbag’ round-

[s],” which consist of “lead shot contained in a cloth sack.”

Deorle v. Rutherford, 272 F.3d 1272, 1277 (9th Cir. 2001). It

is “intended to induce compliance by causing sudden, debili-

tating, localized pain, similar to a hard punch or baton strike.”

“Although bean bag guns are not designed to cause serious

injury or death, a bean bag gun is considered a ‘less-lethal’

weapon, as opposed to a non-lethal weapon, because the bean

bags can cause serious injury or death” “if they hit a relatively

sensitive area of the body, such as [the] eyes, throat, temple

or groin.” In Deorle, we observed that the euphemism “bean-

bag” “grossly underrates the dangerousness of this projectile,”

which “can kill a person if it strikes his head or the left side

of his chest at a range of under fifty feet.” Id. at 1279 & n.13.

Indeed, the plaintiff in Deorle suffered multiple cranial frac-

tures and the loss of an eye as a result of being shot with a

beanbag gun from approximately 30 feet away. See id. at

1277-78 & n.11. In light of this weapon’s dangerous capabili-

ties, “[s]uch force, though less than deadly, . . . is permissible

only when a strong governmental interest compels the

employment of such force.” Id. at 1280.

2.

The strength of the government’s interest in the force used

is evaluated by examining three primary factors: (1) “whether

21278 GLENN v. WASHINGTON COUNTY

the suspect poses an immediate threat to the safety of the offi-

cers or others,” (2) “the severity of the crime at issue,” and (3)

“whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396. These factors,

however, are not exclusive. See Bryan v. MacPherson, 630

F.3d 805, 826 (9th Cir. 2010). We “examine the totality of the

circumstances and consider ‘whatever specific factors may be

appropriate in a particular case, whether or not listed in Gra-

ham.’ ” Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 876

(9th Cir. 1994)). Other relevant factors include the availability

of less intrusive alternatives to the force employed, whether

proper warnings were given and whether it should have been

apparent to officers that the person they used force against

was emotionally disturbed. See, e.g., Bryan, 630 F.3d at 831;

Deorle, 272 F.3d at 1282-83.

[3] The “most important” factor is whether the individual

posed an “immediate threat to the safety of the officers or oth-

ers.” See, e.g., Bryan, 630 F.3d at 826 (internal quotation

marks omitted). The district court held that the officers “were

justified in using less-than-lethal force to prevent [Lukus’]

suicide.” The case the court cited in support of that proposi-

tion, however, does not involve a § 1983 claim, but rather

addresses the constitutionality of a statute prohibiting assisted

suicide. See Compassion in Dying v. Washington, 79 F.3d 790

(9th Cir. 1996) (en banc), rev’d sub nom. Washington v.

Glucksberg, 521 U.S. 702 (1997). Although Graham does not

specifically identify as a relevant factor whether the suspect

poses a threat to himself, we assume that the officers could

have used some reasonable level of force to try to prevent

Lukus from taking a suicidal act. But we are aware of no pub-

lished cases holding it reasonable to use a significant amount

of force to try to stop someone from attempting suicide.

Indeed, it would be odd to permit officers to use force capable

of causing serious injury or death in an effort to prevent the

possibility that an individual might attempt to harm only him-

self. We do not rule out that in some circumstances some

force might be warranted to prevent suicide, but in cases like

GLENN v. WASHINGTON COUNTY 21279

this one the “solution” could be worse than the problem. On

the facts presented here, viewed favorably to the plaintiff, the

officers’ use of force was not undisputably reasonable.

[4] The district court also held that the officers were justi-

fied in shooting Lukus with the beanbag gun because he

posed an immediate threat to officers and bystanders. In com-

ing to this conclusion, the district court relied primarily on

Lukus’ possession of a knife. Although there is no question

this is an important consideration, it too is not dispositive.

Rather, courts must consider “the totality of the facts and cir-

cumstances in the particular case”; otherwise, that a person

was armed would always end the inquiry. Blanford v. Sacra-

mento Cnty., 406 F.3d 1110, 1115 (9th Cir. 2005). The district

court mischaracterized our case law as establishing that

“when a suspect was armed with a deadly weapon, . . . the

officers’ use of force [was reasonable] as a matter of law —

even when the suspect ‘had not committed a significant crime

or threatened anyone’ and no identifiable bystanders were

present.” In each of the cases the district court cited — Blan-

ford, 406 F.3d at 1115-19, Long v. City & County of Hono-

lulu, 511 F.3d 901, 906 (9th Cir. 2007), and Scott v. Henrich,

39 F.3d 912, 914-15 (9th Cir. 1994) — we engaged in a

context-specific analysis rather than resting our holding on the

single fact that the suspect was armed.

Further, in each of those cases, the suspect had a more dan-

gerous weapon than Lukus and wielded it in a more threaten-

ing manner. In Blanford, for example, the suspect was armed

with a 2-1/2 foot sword, and when officers ordered him to put

it down, he instead “raised his sword and growled.” 406 F.3d

at 1116. In Long, the suspect, who officers knew had already

shot two people, carried a .22 caliber rifle and, just before

being fired upon by officers, raised his rifle to chest level and

shouted “I told you fuckers to get the fuck back. Have some

of this.” 511 F.3d at 904-05. And in Scott, the suspect “held

a ‘long gun’ and pointed it at” officers. 39 F.3d at 914. Lukus,

21280 GLENN v. WASHINGTON COUNTY

by contrast, had a pocketknife with a three-inch blade, which

he did not brandish at anyone, but rather held to his own neck.

[5] Here, although Lukus did not respond to officers’

orders to put the knife down during the approximately three

minutes that elapsed before he was shot with the beanbag gun,

a number of other circumstances weigh against deeming him

“an immediate threat to the safety of the officers or others.”

Graham, 490 U.S. at 396. By all accounts Lukus was suicidal

on the night in question and the threats of violence known to

the responding officers focused on harming himself rather

than other people. Although Hope told the 911 operator that

Lukus “was threatening to kill everybody” and might “run at

the cops with a knife,” the district court correctly recognized

it must be assumed on summary judgment that the officers on

the scene did not know of such statements.8 They had, how-

ever, been informed that Lukus was intoxicated and emotion-

ally disturbed, and that he was the teenage son of the

homeowners rather than an intruder or criminal. They also

knew there was no history of 911 calls to the Glenn home,

Lukus was not wanted for any crime and he was not in pos-

session of any guns.

When Officer Gerba arrived on scene, Lukus was standing

outside his home talking with his parents and friends, all of

whom stood near him. He was “not in a physical altercation

with anyone,” “[h]e was not threatening anyone with the

knife,” and “[n]o one [wa]s trying to get away from” him. The

only person with any injury was Lukus himself, whose hand

was bleeding. Both Mateski and Gerba had unobstructed

views of Lukus and stood with their weapons aimed at him.

8

We disagree with the district court’s suggestion that, even though we

must assume the officers did not know of these statements, they provide

“uncontroverted evidence demonstrat[ing] that the officers’ safety con-

cerns were not at odds with information provided to law enforcement.”

We cannot consider evidence of which the officers were unaware — the

prohibition against evaluating officers’ actions “with the 20/20 vision of

hindsight” cuts both ways. Graham, 490 U.S. at 396.

GLENN v. WASHINGTON COUNTY 21281

From the moment they arrived, although Lukus did not heed

orders to put down the pocketknife, he “did not attack the

officers; indeed at no time did he even threaten to attack any

of them,” or anyone else. Smith, 394 F.3d at 703. Tony Mora-

les asked officers to “calm down,” telling them that Lukus

was “only threatening to hurt himself.” Furthermore, at the

officers’ direction, Hope and Brad went inside their home and

Morales and David Lucas moved behind the officers, so a jury

could conclude that no one was close enough to Lukus to be

harmed by him before police could intervene.

[6] Accordingly, a jury could conclude that at the time

Pastore arrived with the beanbag gun approximately three

minutes into the encounter, there was little reason to believe

Lukus could have done any immediate harm to anyone. Lukus

stood in the driveway several feet from the officers (who

could have moved farther away at any time, had they wanted

to), with guns trained on him, while his friends stood behind

the officers and his parents and grandmother were in their

homes. By all accounts, Lukus stayed in the same position

from the moment officers arrived and showed no signs of

attempting to move until after he was fired upon. At the time

the officers elected to shoot Lukus with the beanbag rounds,

only two things about the situation had changed from the time

of their arrival: (1) the four people who previously had been

standing near Lukus had moved away from him to locations

either behind the officers or inside the house, arguably

decreasing the threat Lukus posed, and correspondingly the

need for force; and (2) the beanbag shotgun had arrived. No

new action by Lukus precipitated the use of less-lethal force.

Viewing the evidence in the light most favorable to the plain-

tiff, even though Lukus remained in possession of the pocket-

knife, a jury could conclude that at the moment the officers

shot him with the beanbag gun there was little evidence that

he posed an “immediate threat” to anybody. Graham, 490

U.S. at 396.

21282 GLENN v. WASHINGTON COUNTY

[7] The “character of the offense” committed by the sus-

pect is also “often an important consideration in determining

whether the use of force was justified.” Deorle, 272 F.3d at

1280. Viewing the facts in the light most favorable to the

plaintiff, the “crime at issue” in this case was not “sever[e]”

by any measure. Graham, 490 U.S. at 396. Indeed, Lukus’

family did not call the police to report a crime at all, but rather

to seek help for their emotionally disturbed son. See Deorle,

272 F.3d at 1280-81 (noting that officers were called “not to

arrest him, but to investigate his peculiar behavior [as] Deorle

was clearly a deeply troubled, emotionally disturbed individu-

al”). Neither the district court nor the defendants have identi-

fied any crime that Lukus committed.9

[8] Next, we consider whether Lukus was “actively resist-

ing arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396. No one contends that Lukus tried to flee

before officers shot him with the beanbag gun. Whether

Lukus was “actively resisting arrest” is more complicated.

9

We recognize that the defendants could argue at trial that Lukus threat-

ened his family, or that Lukus obstructed the officers by refusing to follow

their orders, and thereby violated the law. These are disputed facts, how-

ever, which we must resolve in the plaintiff’s favor. There is evidence

from which a jury could conclude that Lukus never threatened anyone but

himself, and that Lukus could not hear or understand the officers’ com-

mands.

We do not diminish the importance of crimes such as those Lukus might

be argued to have committed, but we have previously concluded that simi-

lar offenses were not “severe” within the meaning of the Graham analysis.

See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (not-

ing that trespassing and obstructing a police officer were not severe

crimes); Smith, 394 F.3d at 702 (concluding that a suspect was not “partic-

ularly dangerous” and his crimes were not “especially egregious” where

police were called because he was “ ‘hitting [his wife] and/or was physical

with her’ ”); Deorle, 272 F.3d at 1277, 1281-82 (noting that “the crime

being committed, if any, was minor” where the suspect was charged with

obstructing the police in the performance of their duties after brandishing

a hatchet and crossbow at police officers and threatening to “kick [their]

ass”).

GLENN v. WASHINGTON COUNTY 21283

Significantly, “he did not attack the officers” or anyone else,

nor did he threaten to do so at any point while officers were

on the scene. Smith, 394 F.3d at 703. Rather, he stayed in the

same position from the time officers arrived and took no

threatening actions (other than noncompliance with shouted

orders). However, he remained in possession of the pocket-

knife despite officers’ commands to put it down. As the dis-

trict court recognized, though, it is not clear Lukus heard or

understood those orders.

In Deorle, the plaintiff “brandish[ed] a hatchet” and a

crossbow and was verbally abusive to officers, threatening to

“kick [their] ass.” 272 F.3d at 1276-77. He also continually

roamed about his property despite officers’ orders. Id. None-

theless, we did not consider this sufficient active resistance to

warrant use of the beanbag shotgun. Id. at 1282-85. Rather,

we noted that “the crime being committed, if any, was

minor.” Id. at 1282. Similarly, in Smith, 394 F.3d at 703, we

held that the plaintiff’s refusal to obey officers’ commands to

remove his hands from his pockets to show police whether he

was armed, as well as his entry into his home despite officers’

orders and his brief physical resistance were “not . . . particu-

larly bellicose.” Smith is similar to this case in that the crux

of the resistance was the refusal to follow officers’ com-

mands, rather than actively attacking or threatening officers or

others. Lukus, however, had a pocketknife, whereas police

ultimately determined that Smith was unarmed. We take note

of Washington County’s own guidelines in considering how

this distinction should affect our analysis. See, e.g., id. at 701-

02 (discussing the “Hemet Police Department’s use of force

policy” in analyzing the Graham factors).

[9] Washington County’s use of force continuum identifies

five levels of resistance, ranging from least to most resistant:

verbal, static, active, ominous and lethal. Applying Washing-

ton County’s definitions to the facts viewed in the light most

favorable to Glenn, Lukus falls under the “static” resistance

category, where the suspect “refuses to comply with com-

21284 GLENN v. WASHINGTON COUNTY

mands . . . [and] has a weapon but does not threaten to use it.”

According to Washington County guidelines, officers can

employ various types of force in response to static resistance,

including takedown methods, electrical stun devices and pep-

per spray. Use of less-than-lethal munitions, however, is

unauthorized unless a suspect exhibits “ominous” or “active”

resistance, which entails “pull[ing] away from a deputy’s

grasp, attempt[ing] to escape, resist[ing] or counter[ing] phys-

ical control,” or “demonstrat[ing] the willingness to engage in

combat by verbal challenges, threats, aggressive behavior, or

assault.” Accordingly, when viewing the facts in the light

most favorable to the plaintiff, the defendants’ own guidelines

would characterize Lukus’ conduct as less than active resis-

tance, not warranting use of a beanbag shotgun.

[10] Another circumstance relevant to our analysis is

whether the officers were or should have been aware that

Lukus was emotionally disturbed. See Deorle, 272 F.3d at

1283. Viewing the facts in the required light, it is clear that,

as the district court recognized, Lukus was obviously “emo-

tionally disturbed, a factor to which the officers should have

assigned greater weight.” Dispatch informed officers that

Lukus (1) was suicidal and very intoxicated, (2) had a history

of suicide attempts, and (3) was the son of the caller rather

than a criminal intruder. This information was confirmed

when officers arrived and found Lukus holding a knife to his

own neck and threatening to harm himself, rather than bran-

dishing it at his parents or friends, who were standing nearby.

Indeed, at least one person on the scene explicitly told officers

that Lukus was “only threatening to hurt himself.” “Even

when an emotionally disturbed individual is ‘acting out’ and

inviting officers to use deadly force,” “the governmental

interest in using such force is diminished by the fact that the

officers are confronted, not with a person who has committed

a serious crime against others, but with a mentally ill individ-

ual.” Id. This was the situation officers confronted in this

case.

GLENN v. WASHINGTON COUNTY 21285

[11] We also consider whether officers gave a warning

before employing the force. See Bryan, 630 F.3d at 831;

Deorle, 272 F.3d at 1272. “Appropriate warnings comport

with actual police practice” and “such warnings should be

given, when feasible, if the use of force may result in serious

injury.” Deorle, 272 F.3d at 1284. In this case, more than

once Gerba and Mateski yelled warnings like “drop the fuck-

ing knife or I’m going to kill you,” but, as the district court

noted, “Lukus may not have heard or understood these warn-

ings” because he was intoxicated and there were other people

yelling. Further, these warnings were given before Pastore

arrived with the beanbag shotgun. It appears that the only

warning given immediately before the beanbag shotgun was

fired was when Pastore yelled “beanbag, beanbag.” Possibly,

Lukus did not know what this statement meant, or perhaps

even what a beanbag shotgun was. The officers concede that

after being hit with the beanbag rounds Lukus “appeared sur-

prised, confused, and possibly in pain,” and Lukus may even

have thought he was being shot at with live lethal rounds

given the officers’ previous threats of deadly force. Confusion

regarding whether his life was in immediate danger may have

led Lukus to seek cover rather than surrender.

[12] Finally, we consider whether there were less intrusive

means of force that might have been used before officers

resorted to the beanbag shotgun. Officers “need not avail

themselves of the least intrusive means of responding to an

exigent situation; they need only act within that range of con-

duct we identify as reasonable.” Henrich, 39 F.3d at 915.

However, “police are ‘required to consider [w]hat other tac-

tics if any were available,’ ” and if there were “clear, reason-

able and less intrusive alternatives” to the force employed,

that “militate[s] against finding [the] use of force reasonable.”

Bryan, 630 F.3d at 831 (quoting Headwaters Forest Def. v.

Cnty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)); see

also Smith, 395 F.3d at 703 (considering “alternative tech-

niques available for subduing him that presented a lesser

threat of death or serious injury”).

21286 GLENN v. WASHINGTON COUNTY

Glenn identifies various less intrusive options that she

argues were available to the officers. She suggests that rather

than immediately drawing their weapons and shouting com-

mands and expletives at Lukus, which predictably escalated

the situation instead of bringing it closer to peaceful resolu-

tion, officers could have attempted the tactics of “persuasion”

or “questioning.” These tactics appear on the Washington

County use of force continuum, and the 911 dispatcher

assured Hope that the officers would “try and talk to

[Lukus].” Glenn also argues that the officers also could have

“use[d] time as a tool,” given that they knew backup officers

were en route and that the situation appeared static. Instead,

officers shot Lukus with numerous beanbag rounds approxi-

mately three minutes into the encounter, and had shot him to

death within four minutes of their arrival.

[13] We have made clear that the “desire to resolve

quickly a potentially dangerous situation is not the type of

governmental interest that, standing alone, justifies the use of

force that may cause serious injury.” Deorle, 272 F.3d at

1281. We also recognized in Deorle that when dealing with

an emotionally disturbed individual who is creating a distur-

bance or resisting arrest, as opposed to a dangerous criminal,

officers typically use less forceful tactics. See id. at 1282.

This is because when dealing with a disturbed individual, “in-

creasing the use of force may . . . exacerbate the situation,”

unlike when dealing with a criminal, where increased force is

more likely to “bring[ ] a dangerous situation to a swift end.”

Id. at 1283. The facts of this case, viewed in the light most

favorable to the plaintiff, bear this out: Lukus did not respond

positively to the officers’ forceful tactics, and just before offi-

cers fired the beanbag gun, Lukus “pled: ‘Tell them to stop

screaming at me,’ ” and “why are you yelling?”

In support of her arguments, Glenn offers the statements of

an expert witness, a former Bellevue, Washington Chief of

Police with a law enforcement career spanning more than 50

years. It was his “considered professional opinion that the

GLENN v. WASHINGTON COUNTY 21287

[defendants] escalated a static situation into an unnecessary

and avoidable shooting.” We have held en banc that “[a]

rational jury could rely upon such [expert] evidence in assess-

ing whether the officers’ use of force was unreasonable.”

Smith, 394 F.3d at 703 (reversing district court’s grant of

qualified immunity).

In the expert’s opinion, the “fundamental rules for

approaching” a situation like the one the officers faced are:

“1) Slow it down, 2) Do not increase the subject’s level of

anxiety or excitement, 3) Attempt to develop rapport, 4) Time

is on the side of the police.” The expert pointed out that Ser-

geant Wilkinson had specifically advised the responding offi-

cers to “[r]emember your tactical breathing,” and “control the

situation” — advice Wilkinson explained was meant to “help

[the officers] control themselves if possible while dealing

with a stressful situation.” Instead, “[w]ith no attempt at

establishing any dialogue whatsoever,” “[t]he shooters began

loudly and continuously yelling at the decedent.” “3 minutes

and 49 seconds later, Officer Pastore began firing 6 impact

projectiles at him,” and “[a]fter only 9 more seconds and

before all of the impact projectiles had been fired, the shoot-

ers began rapidly firing a total of 11 shots.” In the expert’s

opinion, “[t]he rapidity of the time sequence is particularly

illustrative of th[e] too hasty and escalating approach to a per-

son in crisis.”

Finally, Glenn argues that the officers should have used a

taser before employing the beanbag shotgun. Washington

County considers electrical stun devices to be lesser force

than less-lethal munitions. Sergeant Wilkinson suggested over

dispatch that “a taser may be an option if you have enough

distance,” and Tony Morales also suggested that the officers

try tasing Lukus. Plaintiff’s expert opined that the taser “was

the ideal less-lethal option to temporarily disable the dece-

dent, at approximately 15 feet away, and take him into custo-

dy.” He came to this conclusion because beanbag shotgun

rounds “are generally inaccurate, rely solely on pain for com-

21288 GLENN v. WASHINGTON COUNTY

pliance that will also motivate the target to escape and do not

have a high degree of reliability,” whereas the taser “actually

immobilizes the target, is accurate out to 21 feet and has a

high degree of reliability.”

[14] Neither Gerba nor Mateski had a taser on the night in

question, but Pastore did. It appears Gerba and Mateski did

not know that, and never asked. The district court cited sev-

eral reasons the defendants offered for their decision to use a

beanbag shotgun rather than a taser, such as that Lukus’ posi-

tion and distance relative to the officers would have made fir-

ing the taser difficult. But there was conflicting evidence on

these points, so on summary judgment we must assume that

a taser would have been a feasible option. Although a jury

could ultimately disagree that the officers were in optimal

taser range or that use of a taser was otherwise feasible or

preferable, these are disputed questions of fact.10

We do not suggest that the officers were required to attempt

any of the various purportedly less intrusive alternatives to the

beanbag shotgun. As we have explained, it is well settled that

officers need not employ the least intrusive means available

so long as they act within a range of reasonable conduct. See

Henrich, 39 F.3d at 915. The available lesser alternatives are,

10

We do not suggest that it would have necessarily been reasonable for

the officers to use a taser here. “[W]hether the force used to effect a partic-

ular seizure is reasonable under the Fourth Amendment requires a careful

balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental

interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks

omitted). This is a fact-specific inquiry, and reasonableness is determined

based on the totality of the circumstances. The reasonableness of the use

of a taser here would depend on a balancing of the Graham factors. See

Mattos v. Agarano, ___ F.3d ___, 2011 WL 4908374, at *7-*16 (9th Cir.

Oct. 17, 2011) (en banc) (applying the Graham factors and concluding

that use of a taser was unreasonable under the circumstances). We need

not conduct such an analysis at this stage, because regardless of whether

the force used would have been upheld as reasonable, it was a less intru-

sive alternative to the beanbag shotgun.

GLENN v. WASHINGTON COUNTY 21289

however, relevant to ascertaining that reasonable range of

conduct. See Bryan, 630 F.3d at 831. Accordingly, the avail-

ability of those alternatives is one factor we consider in the

Graham calculus.

3.

[15] Balancing these various considerations, we hold that

the district court erred in granting summary judgment on the

constitutionality of the officers’ use of force. We recognize

that the officers have offered evidence that could support a

verdict in their favor. A jury could view the facts as the dis-

trict court did, and likewise reach the conclusion that the offi-

cers’ use of force was reasonable. But on summary judgment,

the district court is not permitted to act as a factfinder. The

circumstances of this case can be viewed in various ways, and

a jury should have the opportunity to assess the reasonable-

ness of the force used after hearing all the evidence. See

Smith, 394 F.3d at 701 (noting that “ ‘summary judgment . . .

in excessive force cases should be granted sparingly’ ”

because such cases “ ‘nearly always’ ” involve disputed

facts); see also Espinosa, 598 F.3d at 537. Because the dis-

puted facts and inferences could support a verdict for either

party, we are compelled to reverse the district court’s entry of

summary judgment.

B.

[16] As the district court recognized, “the officers’ deci-

sion to employ the beanbag gun is critical to the resolution of”

the reasonableness of the lethal force as well “[b]ecause the

use of less-lethal force precipitated the use of deadly force.”

Before Lukus was shot with the beanbag shotgun, he had not

moved from the position he was in at the time officers arrived,

and showed no signs of attempting to do so. He moved only

after being struck by the beanbag rounds, which have suffi-

cient force to “knock[ ] [someone] off his feet.” Deorle, 272

F.3d at 1279. Lukus’ movement in reaction to the beanbag

21290 GLENN v. WASHINGTON COUNTY

fire — which a jury could conclude was a predictable conse-

quence of using the beanbag shotgun — prompted the offi-

cers’ lethal force.

[17] “[W]here an officer intentionally or recklessly pro-

vokes 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); see also

Espinosa, 598 F.3d at 548 (“[E]ven though the officers rea-

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

ble for using excessive force because their reckless and

unconstitutional provocation created the need to use force.”).

Because there is a triable issue of whether shooting Lukus

with the beanbag shotgun was itself excessive force, under

Billington there is also a question regarding the subsequent

use of deadly force. Even assuming, as the district court con-

cluded, that deadly force was a reasonable response to Lukus’

movement toward the house, a jury could find that the bean-

bag shots provoked Lukus’ movement and thereby precipi-

tated the use of lethal force. If jurors conclude that the

provocation — the use of the beanbag shotgun — was an

independent Fourth Amendment violation, the officers “may

be held liable for [their] otherwise defensive use of deadly

force.” Billington, 292 F.3d at 1189.

Even if the jury determines that the use of “less-lethal”

force was justifiable, however, the question still remains

whether escalating so quickly to deadly force was warranted.

The critical issue is whether Lukus posed an immediate safety

risk to others. “In deadly force cases, ‘[w]here the suspect

poses no immediate threat to the officer and no threat to oth-

ers, the harm resulting from failing to apprehend him does not

justify the use of deadly force to do so.’ ” Espinosa, 598 F.3d

at 537 (quoting Garner, 471 U.S. at 11-12).

Even before the final beanbag round was fired, the officers

began firing a total of 11 shots at Lukus, eight of which struck

GLENN v. WASHINGTON COUNTY 21291

him, causing him to bleed to death on his grandmother’s

porch within minutes. The officers argue they were justified

in resorting to deadly force because Lukus had begun to move

toward the house where his parents were located, and the offi-

cers knew the front door had a broken lock. Thus, they rea-

sonably feared that he could have attacked his parents with

the knife so they shot Lukus to protect his family.

Glenn counters that Lukus was not running toward the front

door to attack his family, but instead took one or two steps

seeking cover from the beanbag rounds by moving in the most

obvious line of retreat, and was shot without warning. Glenn

contends that Lukus may not even have taken an intentional

step but instead was “moved by . . . the onslaught of beanbag

fire.” Glenn further argues that the officers’ professed concern

for Hope and Brad’s safety was unreasonable given that

Lukus had up to that point not attempted to attack anyone, and

had been threatening suicide rather than exhibiting any incli-

nation to harm his family. Moreover, had the officers been so

concerned with the Glenns’ safety, Glenn argues, they could

easily have positioned Hope and Brad behind the officers, as

they did with Tony Morales and David Lucas, rather than

ordering them into the house with its broken door. Alterna-

tively, the officers could have positioned themselves between

Lukus and the front door.

[18] As with the use of beanbags, there are material ques-

tions of fact about Lukus’ and the officers’ actions that pre-

clude a conclusion that the officers’ rapid resort to deadly

force was reasonable as a matter of law. Again, the disputed

facts and inferences could support a verdict for either party,

and the jury must resolve these factual disputes. Accordingly,

we reverse the district court’s summary judgment on the use

of lethal force.

III.

[19] Glenn also appeals the dismissal of her claim against

Washington County under Monell v. Department of Social

21292 GLENN v. WASHINGTON COUNTY

Services, 436 U.S. 658 (1978). “Pursuant to 42 U.S.C. § 1983,

a local government may be liable for constitutional torts com-

mitted by its officials according to municipal policy, practice,

or custom.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028

(9th Cir. 2000) (citing Monell, 436 U.S. at 690-91). Alterna-

tively, “the plaintiff may prove that an official with final

policy-making authority ratified a subordinate’s unconstitu-

tional decision or action and the basis for it.” Gillette v. Del-

more, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citing City of

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). The dis-

trict court’s dismissal of Glenn’s Monell claim was based

entirely on the erroneous entry of summary judgment in the

defendants’ favor on the excessive force question. Accord-

ingly, we remand to the district court for consideration of

whether Glenn’s Monell claim can properly be resolved on

summary judgment even if the constitutional violation ques-

tion cannot.

[20] We also reverse and remand for reconsideration of

whether Glenn’s state law wrongful death claim could prop-

erly be resolved on summary judgment. The district court

appears to have assumed that Oregon law and § 1983 are

coextensive, and rejected Glenn’s state law claims “[i]n light

of [its] decision that the officers’ two acts of force were con-

stitutionally reasonable.” The defendants likewise argue on

appeal that once the district court determined the officers’

conduct was objectively reasonable under federal law, Ore-

gon’s justification statutes provided an affirmative defense

permitting summary judgment on the state law claims as well.

Glenn counters that the justification statutes are not applicable

and liability under Oregon law is broader than under federal

law. Cf. Billington, 292 F.3d at 1190 (“The Fourth Amend-

ment’s ‘reasonableness’ standard is not the same as the stan-

dard of ‘reasonable care’ under tort law . . . . An officer may

fail to exercise ‘reasonable care’ as a matter of tort law yet

still be a constitutionally ‘reasonable’ officer.”). We need not

resolve this question of Oregon law because, in either event,

our reversal of the summary judgment on the § 1983 claim

GLENN v. WASHINGTON COUNTY 21293

also requires reversal of the summary judgment on the wrong-

ful death claim.

CONCLUSION

We reverse the entry of summary judgment on all claims

and remand for further proceedings consistent with this opin-

ion.

REVERSED and REMANDED.