Petition for Writ of Certiorari — Heath Rankin, Petitioner v. Christian Longoria, et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------HEATH RANKIN,

Petitioner,

v.

CHRISTIAN LONGORIA, et al.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------NICHOLAS D. ACEDO

Counsel of Record

STRUCK LOVE BOJANOWSKI

& ACEDO, PLC

3100 W. Ray Road, Suite 300

Chandler, Arizona 85226

(480) 420-1600

nacedo@strucklove.com

KATHLEEN L. WIENEKE

WIENEKE LAW GROUP, PLC

1095 W. Rio Salado Parkway,

Suite 209

Tempe, Arizona 85281

Attorneys for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Manuel Longoria led police on a high-speed chase

for more than an hour, through residential areas and

school zones. He attempted to ram patrol cars and run

over police officers and told the officers that he had a

gun and threatened to shoot them. After police disabled his vehicle, Longoria exited, concealed his hand

behind his back, refused commands to show his hands,

and then made a sudden, threatening movement –

with a shiny black object in his hand – toward Pinal

County Sheriff Deputy Heath Rankin. In that splitsecond, fearing for his life, the lives of his fellow officers, and the bystanders that had gathered, Deputy

Rankin fired two deadly shots. Everything was captured on videotape. The Ninth Circuit denied qualified

immunity, holding that deadly force was unreasonable

in these circumstances and violated a clearly established right. The questions presented are:

1.

In finding the use of deadly force unreasonable against a fleeing suspect, who was known

to be armed and threatened and attempted to

kill officers, did the Ninth Circuit err in rejecting uncontroverted video evidence – depicting

the suspect reaching for his waistband and

then quickly raising his arms up, chest high,

and extending them out in the officers’ direction while holding a shiny black object – and

instead relying on facts unknown to the officer-defendant and speculation of the suspect’s subjective intent to manufacture

disputes regarding the threat of immediate

harm?

ii

QUESTIONS PRESENTED – Continued

2.

Did the Ninth Circuit err in concluding that

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

every reasonable officer on notice that deadly

force under these particular circumstances is

a clearly established constitutional violation,

where this Court has said repeatedly that

Garner does not clearly establish the law in

excessive force cases and a consensus of cases

across several circuits have affirmed the use

of deadly force by officers in similar circumstances?

iii

PARTIES TO THE PROCEEDING

The Petitioner is Heath Rankin, a defendant-appellee in the proceeding below.

The Respondents, plaintiffs-appellants below, are

Christian Longoria, on behalf of himself and all statutory beneficiaries of Manuel O. Longoria; Joshua R.

Wallace, as the personal representative of the Estate

of Manuel O. Longoria; Manuel Longoria, Jr.; Lynnette

Longoria; P. C. L.; T. A. L.; K. R. L.; Sanisya Lott; T. L.;

and A. L.

Other parties to the proceeding below are defendants-appellees Pinal County, a political subdivision of

the State of Arizona; and Paul R. Babeu, in his official

capacity as Sheriff of Pinal County, Arizona.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

iii

TABLE OF CONTENTS ......................................

iv

TABLE OF AUTHORITIES ................................. viii

PETITION FOR WRIT OF CERTIORARI ...........

1

OPINIONS BELOW.............................................

2

STATEMENT OF JURISDICTION .....................

3

CONSTITUTIONAL AND STATUTORY PROVISIONS..............................................................

3

STATEMENT OF THE CASE..............................

3

I.

Facts ...........................................................

3

A. The High-Speed Pursuit ......................

3

B. The Stand-Off ......................................

8

C. The Dash Camera Video ......................

9

D. The iPhone Video ................................. 10

E. The Stabilized iPhone Video ............... 12

F. Deputy Rankin’s Perception-Reaction

Time ..................................................... 12

G. Deputy Rankin’s Deposition Testimony ....

II.

13

Litigation ................................................... 13

A. District Court ...................................... 13

B. Court of Appeals .................................. 15

REASONS TO GRANT THE PETITION ............. 17

v

TABLE OF CONTENTS – Continued

Page

I.

THE NINTH CIRCUIT ABANDONED

DECADES OF SUPREME COURT PRECEDENT TO DENY YET ANOTHER LAW

ENFORCEMENT OFFICER QUALIFIED

IMMUNITY ............................................... 17

A. In Concluding That Deputy Rankin’s

Use of Deadly Force Was Unreasonable,

the Ninth Circuit Disregarded Nearly

Every Pertinent Legal Principle ......... 17

1. The Ninth Circuit refused to

acknowledge the video evidence,

which clearly depicts Longoria

making a threatening gesture in

Deputy Rankin’s direction .............. 17

2. The Ninth Circuit did not account

for the tense, uncertain, and

rapidly-evolving circumstances that

escalated in a matter of seconds ..... 21

3. The Ninth Circuit relied on facts

that Deputy Rankin did not know ..... 22

4. The Ninth Circuit relied on

Longoria’s subjective intentions to

negate the threat of harm he

objectively posed ............................. 25

5. The Ninth Circuit heightened the

standard for deadly force and relied

on 20/20 hindsight to rebuke

Deputy Rankin’s use of force .......... 27

vi

TABLE OF CONTENTS – Continued

Page

6. The Ninth Circuit relied on

metaphysical doubt to create issues

of fact .............................................. 29

7. The Ninth Circuit ignored facts

that prove Longoria posed an

immediate threat of harm .............. 29

8. The Ninth Circuit disregarded two

of the three Graham factors and

relied on other “circumstances”

that have no bearing on the

reasonableness of force ................... 31

B. In Concluding that a Constitutional

Violation Was Clearly Established, the

Ninth Circuit Once Again Applied the

Wrong Test ........................................... 33

1. The Ninth Circuit relied solely on

Garner, despite this Court’s repeated

warning that Garner does not

clearly establish the law in every

use-of-force circumstance ................ 33

2. A consensus of circuit court cases

absolving officers who deployed

deadly force under similar circumstances demonstrates the lack of

clearly established law ................... 36

CONCLUSION..................................................... 39

vii

TABLE OF CONTENTS – Continued

Page

APPENDIX

Appendix A: Opinion, United States Court of

Appeals for the Ninth Circuit, October 10,

2017 .................................................................. App. 1

Appendix B: Order, United States District Court

for the District of Arizona, March 17, 2016 ..... App. 25

Appendix C: Order, United States Court of Appeals for the Ninth Circuit, November 21,

2017 ................................................................ App. 40

Appendix D: Relevant Constitutional and Statutory Provisions ............................................. App. 42

Appendix E: DVD........................ Affixed to Back Cover

E-1 – Dash Camera Video

E-2 – Dash Camera Video – Still Frames

E-3 – iPhone Video

E-4 – Stabilized iPhone Video

E-5 – Eloy PD Dispatch Audio

viii

TABLE OF AUTHORITIES

Page

CASES

Arian v. City of Los Angeles, 2013 WL 12081081

(C.D. Cal. Apr. 30, 2013) ..........................................38

Arian v. City of Los Angeles, 622 F. App’x 692

(9th Cir. 2015)..........................................................38

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .............. 33, 34

Behrens v. Pelletier, 516 U.S. 299 (1996) ....................35

Bowles v. City of Porterville, 571 F. App’x 538

(9th Cir. 2014)..........................................................37

Brosseau v. Haugen, 543 U.S. 194 (2004) ...................34

City and County of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) ....................................... 32, 33

Corrales v. Impastato, 650 F. App’x 540 (9th Cir.),

cert. denied, 137 S. Ct. 571 (2016) ..........................38

Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir.

2014) ...................................................... 17, 18, 19, 23

D.C. v. Wesby, 138 S. Ct. 577 (2018).................... passim

Dague v. Dumesic, 286 F. App’x 395 (9th Cir.

2008) ........................................................................36

Deorle v. Rutherford, 272 F.3d 1272 (9th Cir.

2001) .................................................................. 31, 32

Dooley v. Tharp, 856 F.3d 1177 (8th Cir. 2017) ..........19

Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996) .............27

Estate of Larsen ex rel. Sturdivan v. Murr, 511

F.3d 1255 (10th Cir. 2008) .......................................27

ix

TABLE OF AUTHORITIES – Continued

Page

George v. Morris, 736 F.3d 829 (9th Cir. 2013) ...........17

Graham v. Connor, 490 U.S. 386 (1989) ............. passim

Hudspeth v. City of Shreveport, 270 F. App’x 332

(5th Cir. 2008)..........................................................37

Hughes v. Kisela, 862 F.3d 775 (9th Cir. 2017) ............1

Illinois v. Gates, 462 U.S. 213 (1983) ..........................28

Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)........23

Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017) ............1

Malley v. Briggs, 475 U.S. 335 (1986) .........................33

Matsushita Elec. Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986) .......................................29

McKnight v. Petersen, 137 S. Ct. 2241 (2017).............34

Morales v. Fry, 873 F.3d 817 (9th Cir. 2017) ..............35

Mullenix v. Luna, 136 S. Ct. 305 (2015) .... 28, 30, 33, 34

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) ........ 22, 34

Pollard v. City of Columbus, Ohio, 780 F.3d 395

(6th Cir. 2015)..........................................................38

Reynolds v. County of San Diego, 84 F.3d 1162

(9th Cir. 1996)..........................................................26

Ryburn v. Huff, 565 U.S. 469 (2012) ..................... 22, 30

Saucier v. Katz, 533 U.S. 194 (2001)..................... 34, 35

Scott v. Harris, 550 U.S. 372 (2007).................... passim

Stanton v. Sims, 134 S. Ct. 3 (2013) ...........................36

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

x

TABLE OF AUTHORITIES – Continued

Page

United States v. Banks, 540 U.S. 31 (2003) ................25

White v. Pauly, 137 S. Ct. 548 (2017).............. 23, 34, 35

Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995) ..........27

CONSTITUTIONAL PROVISIONS

Fourth Amendment ............................................ passim

STATUTES

28 U.S.C. § 1254(1) .................................................... 2, 3

42 U.S.C. § 1983 ........................................................ 2, 3

1

PETITION FOR WRIT OF CERTIORARI

Over the last few years, this Court has carefully

refined the standard for qualified immunity, particularly in law enforcement cases involving the use of

deadly force. The resulting test has made it more difficult to find that an officer violated “clearly established”

law and, thus, subject him to suit. A court can only

deny an officer immunity if it was “beyond debate” that

using deadly force in the “particular circumstances”

was unconstitutional. D.C. v. Wesby, 138 S. Ct. 577,

589-90 (2018).

In the wake of that transformation, a trend has

emerged in the Ninth Circuit that circumvents that

stringent test altogether: find factual disputes that

cast doubt on the officer’s perception of the risk of

harm; use those disputed facts to preclude a legal determination on the reasonableness of the force; and

then rely on those same factual disputes to avoid addressing whether the asserted constitutional violation

was clearly established. See Lopez v. Gelhaus, 871 F.3d

998 (9th Cir. 2017); Hughes v. Kisela, 862 F.3d 775 (9th

Cir. 2017).

The Ninth Circuit in this case followed that script.

But to dispute the officer’s perception, it shirked several basic Fourth Amendment precepts. See Graham v.

Connor, 490 U.S. 386, 396-97 (1989). It employed a subjective standard and considered what the suspect may

have intended. It engaged in 20/20 hindsight and considered the fact that the suspect was actually unarmed. It looked outside the perspective of the

2

defendant-officer and considered facts unknown to

him. It ignored material facts actually known to the

defendant-officer, including reports the suspect was

armed and threatened officers. Most troubling of all, it

refused to defer to uncontroverted video evidence,

which shows the suspect make a sudden, threatening

gesture toward the officer a second before he responded with deadly force. See Scott v. Harris, 550 U.S.

372, 378-80 (2007).

The Ninth Circuit then continued its recalcitrance

of the Court’s standard for “clearly established” law

and held that one case – Tennessee v. Garner, 471 U.S.

1 (1985) – was enough to clearly establish the constitutional violation. The Court should take this opportunity to blunt the Ninth Circuit’s counter-offensive on

the reasonableness inquiry and reclaim the upperhand on the standard for qualified immunity and its

“clearly established” prong.

------------------------------------------------------------------

OPINIONS BELOW

The Ninth Circuit’s opinion (Appendix A) is reported at 873 F.3d 699 (9th Cir. 2017). The district

court’s order (Appendix B) is unreported but available

on Westlaw at 2016 WL 10637122.

------------------------------------------------------------------

3

STATEMENT OF JURISDICTION

The Ninth Circuit issued its opinion on October

10, 2017, and denied a timely petition for rehearing

and rehearing en banc on November 21, 2017. (Appendix C.) This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

------------------------------------------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the U.S. Constitution

and 42 U.S.C. § 1983 are set forth verbatim at Appendix D.

------------------------------------------------------------------

STATEMENT OF THE CASE

I.

Facts.

A. The High-Speed Pursuit.

On January 14, 2014, a City of Eloy police officer

attempted to stop a stolen vehicle. (ER 112.)1 The suspect driving the stolen vehicle, Manuel Longoria, did

not stop; instead, he fled, leading police on a dangerous

high-speed chase for over 70 minutes. (ER 112; Appendix (“App.”) E-1 at 12:24:32-13:34:04.) The pursuit, involving more than 20 law enforcement officers from

both the Eloy Police Department (“EPD”) and the Pinal

1

“ER” refers to Respondents’ Excerpts of Record in the Ninth

Circuit. “SER” refers to Petitioner’s Supplemental Excerpts of

Record in the Ninth Circuit.

4

County Sheriff ’s Office (“PCSO”), started at approximately 12:24 p.m. (ER 106-153, 358-380, 386-450; App.

E-1 at 12:24:32.) An EPD vehicle’s dash camera captured the pursuit on video. (App. E-1.)

Longoria drove in circles around the city, through

residential neighborhoods, school zones, alley ways,

and parking lots, reaching speeds of up to 80 miles-perhour. (ER 112, 122-133, 147, 497; App. E-1.) He drove

“extremely erratic,” “with extreme disregard for the

lives of fellow motorists and bystanders,” blowing

through every stop sign and intersection and driving

on the wrong side of the road and on sidewalks. (ER

117, 369, 497, 662; App. E-1.) He almost hit a bystander

and nearly collided with at least three civilian vehicles.

(ER 112, 125, 130, 141; App. E-1.)

Longoria successfully rammed into several police

cars and attempted to collide head-on with even more,

causing them to swerve off the road. (ER 112, 119, 124127, 366, 376; App. E-1.) Longoria was “aiming at” police, “trying to hit” them and pointing his hand at them

in the shape of a gun. (ER 151, 584.) On at least one

occasion, Longoria saw an officer standing on the side

of the road and tried running over him. (ER 398, 584.)

During the pursuit, police learned that Longoria

had a “falling out” with his children’s mother and kept

circling back to a house Longoria believed she was in.

(ER 113, 147, 638-639.) Family members told police

that Longoria “was in possession of a gun.” (ER 147,

151.)

5

At 12:42 p.m., EPD contacted PCSO and requested

its assistance “with a pursuit involving a male subject

in a stolen vehicle.” (ER 249, 365-366.) Several PCSO

deputies responded. (ER 363-398.) PCSO Deputies

Heath Rankin and John Rice, who were patrolling in

the nearby City of Casa Grande, also responded to the

call. (ER 729-738.)

The PCSO dispatcher broadcasted information to

its deputies over its own radio channel. (ER 156-181.)

Deputy Rankin listened to that broadcast on his radio

as they drove to Eloy. (ER 737.) Deputy Rankin also

monitored EPD’s radio traffic to the extent he could,

but that information was difficult to hear. (ER 256, 261,

269-270.)

Meanwhile, at 12:49 p.m., Longoria stopped in the

middle of the road and yelled out to police that “he was

not going to stop and that [they were] going to have to

kill him.” (ER 112, 120, 127, 369, 496, 500-502, 584,

636, 668; App. E-1 at 12:49:05.) Longoria drove off, but

a few moments later he stopped again in the middle of

the road. (App. E-1 at 12:52:32.) A civilian ran up to

the vehicle and attempted to stop Longoria. (ER 113;

App. E-1 at 12:52:49.) Longoria sped off with the civilian clinging to the door, dragging him 50 feet until he

fell to the pavement. (ER 399; App. E-1 at 12:52:4912:52:59.)

At 1:09 p.m., Longoria stopped in the road a third

time and exited the vehicle. (App. E-1 at 13:09:29.)

Longoria “kept his right hand behind [his] back, giving

the impression that he was concealing a gun,” and

6

yelled, “I have a gun, don’t get any closer. You’re going

to have to shot [sic] me, I’m not going in alive, I want

to die.” (ER 115, 118, 120, 378, 434, 671.) Longoria also

threatened to shoot the officers. (ER 398-399, 441, 497,

668.)

The officers ordered Longoria to show his hands

and get on the ground, but Longoria refused and continued to yell, “I have a gun and you’re not going to

take me in alive.” (ER 113, 115-116, 395-396, 668-669.)

Longoria ignored the officers’ orders to “put the gun

down,” got back into the car, and sped off. (ER 116; App.

E-1 at 13:11:20.)

At about 1:11 p.m., Deputy Rankin arrived on the

scene, just as Longoria drove away. (ER 253, 287, 739.)

Up to that point, PCSO had dispatched – and Deputy

Rankin heard – that “the driver has a weapon,” “the

driver is armed,” the driver is “hiding his right hand,”

and the driver is “high risk – high risk.” (ER 157-162,

252, 273, 282, 737.)

Deputies Rankin and Rice were driving through a

residential neighborhood, when suddenly the pursuit

was heading directly toward them. (ER 250-251; App.

E-1 at 13:12:40.) The deputies pulled over to the side

of the road, and Deputy Rankin got out of the vehicle.

(ER 254, 740-742.) As Longoria drove by, he pointed

something at Deputy Rankin “in a one-handed shooting grip with an object in his hand,” and said, “I’m going to kill you.” (ER 254-256, 743.) Deputy Rankin

ducked behind his patrol car, fearing he was going to

be shot. (ER 255, 743-744; App. E-1 at 13:12:42.)

7

Deputy Rankin reported this encounter over the PCSO

radio. (ER 163.)

The pursuit continued, with PCSO dispatch reporting – and Deputy Rankin hearing – that Longoria

was hitting or attempting to ram law enforcement vehicles. (ER 164, 168, 251, 366.) By this time, large

crowds of bystanders began lining the streets to watch

the pursuit unfold. (ER 117, 137, 171-173.)

At 1:30 p.m., PCSO deputies were ordered to stop

their pursuit because of the risk to bystanders, but

they were directed to remain in the area to assist EPD

with taking the suspect into custody once the pursuit

ended. (ER 291, 376, 379.) Deputy Rankin’s supervisor

ordered Deputies Rankin and Rice to help provide a

perimeter and assist EPD with whatever they needed.

(ER 292-293, 745.) The deputies complied with that order and set up near the high school to assist with a

crowd that had gathered. (ER 295-296.)

At 1:33 p.m., an EPD officer employed a pit maneuver that sent the stolen vehicle into a spin. (App. E1 at 13:33:52.) When the vehicle finally came to rest,

Longoria exited and stood with his back against the

side of the car and his right hand concealed behind his

back; he again yelled to officers that he had a gun. (ER

133-139, 435; App. E-1 at 13:34-04.) Officers rushed toward Longoria from all directions, repeatedly yelling

orders to show his hands and get on the ground. (ER

133-136, 150-153, 440, 570, 574, 596, 681.) Longoria did

not comply, and kept his right hand concealed behind

his back. (Id.)

8

B. The Stand-Off.

Deputy Rankin had been waiting in his vehicle

just northeast around the corner where the stolen vehicle came to rest. (ER 535, 537, 752.) Deputies Rankin

and Rice heard the collision and ran toward the scene.

(ER 302, 367, 752.) Longoria was standing on the south

side of the vehicle facing south; Deputy Rankin ran

from his position northeast of the vehicle in a southwesterly direction. (ER 311, 535, 537, 753; App. E-1 at

13:34:15-13:34:23.) As he ran, he could hear a “roar of

police officers” yelling commands at Longoria. (ER 303,

757-758.)

Deputy Rankin took his position approximately

30-40 feet southwest of Longoria. (ER 311, 754, 763.)

He did not have any protection (cover) in front of him.

(ER 767, 773-774.) From Deputy Rankin’s vantage

point, he could see that Longoria was concealing his

right hand behind his back, but could not see below

Longoria’s waist because the open car door obstructed

his view. (ER 316-318, 761, 825.)

Shortly after taking his position, other officers

fired several beanbag shotgun rounds and deployed a

taser to try to get Longoria to submit, but they had no

effect on him. (ER 121, 136, 150, 304, 364, 567, 684685.) In an interview taken just hours after the incident, Deputy Rankin described what he perceived happened next:

[W]hat he did do after the less lethal rounds

hit him and I had him at gun point – giving

him commands – I don’t know if he heard me

9

or a split second his right hand came from his

center waist area. I can’t say that it was in a

pocket or pants – came from this area ‘cause

he was behind the open driver door. . . . He

made a movement here. From the movement

there he started swinging towards me with

his hand – with his right hand extended.

When he extended it at the time of the day

there was something – I’m gonna say it was

silver but black or silver with the sun hitting

it at [sic] shine will look silver. . . . It’s the

same glare. I could not readily discern what it

was. At that point and time he was said to

have a weapon. I heard on Eloy’s channel he

had a weapon, um, our channel he had a

weapon. He threatened to fucking kill me

down there. I thought he had a gun and I

thought he was pointing it at me to kill me.

(ER 402-406, 761-762.) In that instant, Deputy Rankin

fired two shots. (ER 350, 353, 762-763.) The shots

struck Longoria in the back and killed him. (ER 448449, 618.)

After the shooting, police recovered from the scene

(near Longoria’s body) a black and white beaded rosary. (ER 146.) No gun was found.

C. The Dash Camera Video.

In addition to the entire pursuit, the dash camera

video shows Longoria exiting the vehicle with the

rosary beads in his hand and holding them as he

swings his arms toward Deputy Rankin. (App. E-1

10

at 13:34:06-13:34:08, 13:34:31-13:34:34; App. E-2, images 16h36m48s51 through 16h37m07s53.) The dash

camera video also shows the rosary beads flashing/

shining in the sun (App. E-2, images 16h18m36s34 &

16h19m41s41), and Longoria’s hand in the shape of a

“trigger finger” as he punches them out in Deputy

Rankin’s direction (App. E-2, images 16h24m49s45

through 16h24m52s45). The dash camera also captured the moment Deputy Rankin ducked for cover

earlier in the pursuit, when he said Longoria drove

past him, pointed something out the window, and

threatened to kill him. (App. E-1 at 13:12:42.)

D. The iPhone Video.

Two days after the shooting, police recovered a

video recorded by a bystander on his iPhone. (ER 392393.) The video begins just before police initiated the

pit maneuver that stopped the vehicle. (App. E-3.) The

video was taken about 200 feet away from Longoria,

but from an angle (south of Longoria) that shows everything that transpired from the moment he exited the

vehicle without visual obstruction. (ER 382; App. E-3.)

In real-time, this video shows the following: Longoria exits the vehicle, hides his right hand behind his

back with his backside against the vehicle, and slides

toward the rear of the vehicle; Longoria keeps his right

hand behind his back as officers surround him; officers

deploy less-lethal force; in response, Longoria turns

and takes a few steps toward his open car door (and

Deputy Rankin’s position); as he moves in that

11

direction, his body and arms flinch defensively to the

less-lethal rounds; Longoria then drops both hands (together) below his waist, slightly leaning forward as if

pulling something from his waistband, brings both

hands back up (together) chest high, and punches them

out (together) in Deputy Rankin’s direction; Longoria

then drops both hands down (unclasped), turns toward

the vehicle, raises his arms up in the air, then falls to

the ground. (App. E-3, 20s-51s.)

Only 31 seconds elapsed between the moment

Longoria exits the vehicle and the moment he is shot.

(App. E-3, 20s-51s.) In the video, Deputy Rankin can be

seen running in the background 15 seconds after Longoria exits the vehicle. (App. E-3, 35s.) He takes his position southwest of Longoria (off screen left) just 8

seconds before his first shot. (App. E-3, 43s.) The lesslethal rounds are deployed about 3 seconds after he

takes his position. (App. E-3, 47s.) Only 4 seconds

elapsed from the first less-lethal round to Deputy Rankin’s first shot. (App. E-3, 47s-51s.) Longoria reached

for his waistband, punched his hands out toward Deputy Rankin, dropped his hands, turned, and raised his

hands in the air all in about 1 second. (App. E-3, 49s51s.)

The iPhone video also captures two officers in the

same area as Deputy Rankin (screen left) ducking in

response to Longoria reaching for his waistband and

springing his arms toward them. (SER 8; App. E-3,

51s.)

12

E. The Stabilized iPhone Video.

As part of its investigation, PCSO retained an expert, Paris Ward, to stabilize the iPhone video to “remove camera shake” and synchronize the sound with

the images.2 (ER 382, 384, 447.) The stabilized video

confirms Deputy Rankin’s perception of Longoria’s actions and everything captured on the original iPhone

video, albeit zoomed in and stabilized: after reacting to

the less-lethal rounds, Longoria reaches for his waistband, then brings both hands back up together, chest

high, and punches them out in Deputy Rankin’s direction. (App. E-4.) Ward opined: “Approximately 1 second

before the first shot, Mr. Longoria can be seen bringing

his hands up from his waist in a manner consistent

with pointing a gun in a two-handed grip.” (ER 384,

447.)

F. Deputy Rankin’s Perception-Reaction

Time.

PCSO also retained Dr. William Lewinski. (ER

447-449.) Dr. Lewinski opined that it takes a suspect

only .92 seconds to “point a gun and turn 180 degrees.”

(Id.) He reviewed the stabilized iPhone video and noted

that it took Longoria only .30 seconds to turn away and

raise his hands after he punched his arms out toward

Deputy Rankin. (Id.) He also opined that it would have

taken Deputy Rankin at least 1.02 seconds to perceive,

2

Because of the distance between the camera and Longoria,

the sound on the iPhone video is delayed at least .17 seconds. (ER

382.)

13

process, and react to Longoria’s threatening movement, which explains why the shots are heard after

Longoria already turned away. (Id.)

G. Deputy Rankin’s Deposition Testimony.

Deputy Rankin testified at his deposition consistent with his initial statements and the video evidence. He testified that Longoria

raised his hands from that . . . position where

his hands are down by his waist and . . . he

starts coming up, he extends his arms in a

shooting stance and lowers his hands as if you

were looking through sights to shoot and

kill. . . . When he did that, there was a metallic flash with his hands that came up. I can’t

say if it was black or silver. It was the same

shine that metal would have in the sunlight

consistent with a gun. Based off all of the information that I knew from the beginning of

the call to that point, yes, I believe he had a

gun by the way he was acting.

(ER 314-315, 319.) He further testified that he “made

the conscientious decision to shoot” Longoria in the

“[s]plit second” Longoria assumed that “shooting

stance.” (ER 336, 349-350, 351-352.)

II.

Litigation.

A. District Court.

Longoria’s family sued Deputy Rankin, the Pinal

County Sheriff (in his official capacity), and Pinal

14

County, alleging excessive force, in violation of the

Fourth Amendment, and wrongful death under Arizona law.

Deputy Rankin moved for summary judgment

based on qualified immunity, relying primarily on his

interview statements and the iPhone videos. In opposition, Respondents submitted, in part: the dash camera video; a series of still shots of the dash camera

video; an expert report; and the EPD and PCSO departmental reports, which included the written reports

of all officers involved. The PCSO departmental report

also included the opinions of Ward and Dr. Lewinski.

(ER 381-384, 447-491.) Respondents did not contest

the admissibility of the stabilized iPhone video, nor did

they rebut Dr. Lewinski’s perception-reaction opinions.

(App. 32 n.2.)

The district court concluded that Deputy Rankin’s

use of force was objectively reasonable. (App. 29-36.)

The court easily found that the first (severity of the

crime) and third (attempting to evade arrest) Graham

factors were satisfied. (App. 30-31, 35-36.) Regarding

the second Graham factor (immediate threat of harm),

the court concluded that the “uncontroverted video evidence shows that Mr. Longoria came up with both

hands in front of him facing Defendant Rankin’s direction.” (App. 33.) That conclusion was based on the district court judge’s own review of the dash camera and

iPhone videos. (App. 32-33.) The district court judge recounted what she saw on the videos:

15

The dash camera video shows Mr. Longoria

exiting his vehicle with one hand behind his

back with some object in it. Mr. Longoria goes

out of frame but is visible in the car reflection

when Defendant Rankin runs onto the scene.

Mr. Longoria reenters the frame facing Defendant Rankin with both arms up and

slightly bent. Mr. Longoria’s hands go down

again and come up from his waist with him

holding something in one of his hands.

Though Mr. Longoria goes out of frame again

you can see a reflection of his hands in the air

followed by one hand sliding down the side of

the car. A stabilized iPhone recording of the

incident shows Mr. Longoria with one hand

behind his back. He turns toward Defendant

Rankin after two loud pops. His arms swing

bent, go down toward his waist, and then come

back up to about chest height. Mr. Longoria

then turns with his hands above his head and

is shot twice. The time stamp shows that only

a few seconds elapsed between Mr. Longoria

raising his hands to chest height and him

turning around and being shot.

(Id., internal citations and footnote omitted.)3

B. Court of Appeals.

The Ninth Circuit reversed. Regarding the first

prong of the qualified-immunity analysis – whether

3

The district court’s reasonableness determination resulted

in the dismissal of all claims. (App. 36-39.)

16

Deputy Rankin violated Longoria’s Fourth Amendment rights – the panel held there were several factual

issues precluding a determination that Longoria posed

any threat to Deputy Rankin. It first rejected the video

evidence and held that “the moment Rankin describes

as a ‘shooter’s stance’ is not perceptible” on the videos.

(App. 12-14, 16.) The panel then concluded that other

evidence in the record raised questions as to whether

Deputy Rankin knew or should have known that Longoria was unarmed or harmless, for example, his 20/20

vision and the fact that Longoria was actually unarmed in retrospect. (App. 14-18.)

On the second prong of the qualified-immunity

analysis – whether the constitutional violation was

clearly established – the panel concluded that this

Court’s decision in Garner was dispositive:

The law governing this case is clearly established: “A police officer may not seize an unarmed, nondangerous suspect by shooting

him dead.”

(App. 20, quoting Garner, 471 U.S. at 11.) The panel

also reiterated the purported fact issues related to the

reasonableness of the use of force and concluded that

a “jury . . . could thus find that Rankin violated Longoria’s clearly established right.” (App. 21-23.)

In denying immunity, the Ninth Circuit did not

mention or address the many circuit court decisions

upholding the reasonableness of deadly force when an

officer mistakenly believed the suspect brandished a

17

weapon and made a split-second judgment to end that

perceived threat.

------------------------------------------------------------------

REASONS TO GRANT THE PETITION

I.

THE NINTH CIRCUIT ABANDONED DECADES OF SUPREME COURT PRECEDENT

TO DENY YET ANOTHER LAW ENFORCEMENT OFFICER QUALIFIED IMMUNITY.

A. In Concluding That Deputy Rankin’s

Use of Deadly Force Was Unreasonable,

the Ninth Circuit Disregarded Nearly

Every Pertinent Legal Principle.

1. The Ninth Circuit refused to acknowledge the video evidence, which clearly

depicts Longoria making a threatening gesture in Deputy Rankin’s direction.

Even the Ninth Circuit has recognized the universal proposition that deadly force is “unquestionably

reasonable” if a suspect “reaches for” his waistband or

makes a “similar threatening gesture.” Cruz v. City of

Anaheim, 765 F.3d 1076, 1078-79 (9th Cir. 2014);

George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If

the person is . . . reasonably suspected of being armed

. . . a furtive movement, harrowing gesture, or serious

verbal threat might create an immediate threat.”).

Here, the video evidence shows Longoria reach for

his waistband and then spring his arms up – chest

high, arms extended, and hands together – with a

18

shiny black object in his hand, all in Deputy Rankin’s

direction. “[T]he videotape . . . speak[s] for itself.” Scott,

550 U.S. at 379 n.5. When video evidence “clearly contradicts the version of the story told by respondent,”

Scott instructs that the video is dispositive. 550 U.S. at

378-80. Respondents’ version – that Longoria did not

make a threatening gesture – is clearly contradicted by

the video evidence. The Ninth Circuit did not adhere to

Scott’s directive.

Instead, the Ninth Circuit skirted Scott and

bluntly pronounced that a “shooter’s stance” is not perceptible. (App. 12-14, 16.) But whether you can make

out a “shooter’s stance,” which implies Longoria’s subjective intent to strike that particular pose, is irrelevant. Reasonableness is an objective standard –

“judged from the perspective of a reasonable officer on

the scene.” Graham, 490 U.S. at 396. Through that lens,

Longoria’s sudden, threatening movement – in combination with reports that he was armed and had threatened to kill the officers – is enough to respond with

deadly force. See Cruz, 765 F.3d at 1078-79.

To minimize the district court judge’s independent

conclusion that Longoria’s threatening gesture is both

perceptible and uncontroverted, the Ninth Circuit criticized her for “rel[ying] on a single frozen frame from

one of the videos.” (App. 11.) But she did not rely on a

single frozen frame. The district court judge reviewed

and relied on all the video evidence, including the dash

camera and stabilized iPhone videos, in real-time.

(App. 32-33.)

19

The Ninth Circuit also concluded that frozen

frames of the videos illustrating a “shooter’s stance”

simply create fact issues “about the reasonableness of

Rankin’s actions and the credibility of his post-hoc justification of his conduct.” (App. 12.) That cynicism,

however, presumes Deputy Rankin recounted his perception after reviewing the frozen frames. But Deputy

Rankin had not seen any of the videos when he gave

his initial statement four hours after the shooting.

PCSO did not have the iPhone video until two days after his interview.

If, as the Ninth Circuit believes, Longoria’s

“shooter’s stance” is not evident from the videos in realtime, but apparent from the frozen frames, then the

frozen frames corroborate Deputy Rankin’s initial account. They are completely consistent with his statement. His ability to perceive – in real-time, in a splitsecond – what the Ninth Circuit purports to only see

in a frozen frame, is remarkable, not an issue of fact.

The frozen frames do not impugn his credibility; they

bolster it. Cf. Dooley v. Tharp, 856 F.3d 1177, 1182-84

(8th Cir. 2017) (affirming objective reasonableness of

officer’s deadly force despite the fact that frozen

frames of video contradicted officer’s description of

events).

Instead of applying Scott and “view[ing] the facts

in the light depicted by the videotape,” 550 U.S. at 381,

the Ninth Circuit applied its own rule: in deadly force

cases, “we must examine ‘whether the officers’ accounts are ‘consistent with other known facts.’ ” (App.

16, quoting Cruz, 765 F.3d at 1080 n.3.) But that circuit

20

rule contravenes Scott, which held that “Garner did not

establish a magical on/off switch that triggers rigid

preconditions whenever an officer’s actions constitute

‘deadly force.’ ” 550 U.S. at 382. Scott also instructs that

video evidence controls when it is clear. Id. at 378. The

Ninth Circuit erred in mining the record for anything

that cast doubt on what Deputy Rankin said he perceived. The inquiry should have ended with the videos.

Nonetheless, none of the Ninth Circuit’s purported

evidence contradicts or undermines what the videos

show: Longoria’s sudden, threatening gesture. The

Ninth Circuit placed considerable weight on its assertion that “[n]o other officers saw Longoria assume a

‘shooter’s stance.’ ” (App. 13.) That assertion is deceiving because none of the other officers were expressly

asked during their interviews whether they saw Longoria assume a “shooter’s stance.” Of course, they each

perceived different things depending on their position

and recounted their perceptions in their own words.

But what they perceived does not contradict Deputy

Rankin’s perception or the threatening gesture that

can be seen on the videos.4

4

For instance, as the Ninth Circuit points out, different officers stated it appeared to them that: “Longoria was moving towards his car after being shot by non-lethal rounds”; Longoria was

“flailing in response to the impact of the bean bags and taser”;

Longoria was “moving his hands to his chest as if checking

whether he had been shot”; and Longoria “reach[ed] behind his

back and it appeared he was attempting to return inside the vehicle.” (ER 367; App. 14.) All of this is evident from the videos.

However, it all occurred before Longoria’s threatening gesture.

21

Deputy Rankin’s perception that Longoria posed

an immediate threat of harm is confirmed not only by

the videos themselves but the reaction of two officers

standing near him, which is also captured on the

iPhone video. When Longoria springs his arms up and

punches them out, those two officers duck for cover.

(SER 8; App. E-3, 51s.) The Ninth Circuit casts this

aside because one of the two officers purportedly stated

that “he cannot remember responding in such a manner to such a threat.” (App. 14.) But whether the officer

remembers ducking or not is irrelevant. He clearly did

on the video.

Finally, the Ninth Circuit credited Respondents’

expert’s opinion that he could not discern a “shooter’s

stance” from the videos. But his perception is no more

persuasive or convincing than the Ninth Circuit

panel’s perception. Moreover, their expert admits that

Longoria’s “hands appear to go above his waist toward

his chest.” (ER 716.) That is all that matters (a threatening gesture).

2. The Ninth Circuit did not account

for the tense, uncertain, and rapidlyevolving circumstances that escalated in a matter of seconds.

The Ninth Circuit’s emphasis on whether a

“shooter’s stance” is perceptible also ignores the touchstone of the reasonableness inquiry: a court must

“allow for the fact that police officers are often forced

to make split-second judgments – in circumstances

22

that are tense, uncertain, and rapidly evolving – about

the amount of force that is necessary in a particular

situation.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020

(2014).

The situation confronting Deputy Rankin could

not have been more tense or uncertain. And it unfolded

rapidly. Only four seconds elapsed from the first lesslethal round to the first fatal shot. Longoria’s threatening gesture happened in an instant, and Deputy

Rankin had to make a split-second decision to stop

what he perceived was an imminent threat.

The Ninth Circuit had the luxury of armchair reflection, watching the events unfold on a screen, far removed from the dangerous scene and “[w]ith the

benefit of hindsight and calm deliberation.” Ryburn v.

Huff, 565 U.S. 469, 477 (2012). From that position, it

“confidently concluded that [Deputy Rankin] really

had no reason to fear for [his] safety or that of anyone

else.” Id. at 475. The court did not factor in the tense,

uncertain, and rapidly-evolving situation, nor did it

heed this Court’s directive “that judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a

particular situation.” Id.

3. The Ninth Circuit relied on facts

that Deputy Rankin did not know.

Because this case involved deadly force, the Ninth

Circuit searched for any “known facts” in the record

that were inconsistent with Deputy Rankin’s account.

23

(App. 16, quoting Cruz, 765 F.3d at 1080 n.3). But that

too violates the Fourth Amendment’s reasonableness

standard. A court must determine reasonableness

“from the perspective of a reasonable officer on the

scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (emphasis

added); see also White v. Pauly, 137 S. Ct. 548, 550

(2017) (court considers only facts known to the “defendant officers”).

The Ninth Circuit ignored this directive and considered facts unknown to Deputy Rankin to find material disputes as to whether he knew or should have

known that Longoria did not pose a risk of harm. For

example, when Longoria exited the vehicle during the

pursuit and concealed his right hand behind his back,

EPD Officer Salazar reported that he saw Longoria

holding a brown wallet in his hand and yelled out, “It’s

a wallet. It’s not a gun.” (ER 129, 497-498.) He further

reported that he mentioned over the EPD radio, “He

has a wallet.” (ER 509.)

The Ninth Circuit determined that this evidence

created an issue of fact (App. 4, 18), but it was undisputed that Deputy Rankin had not yet arrived at the

scene (ER 739). Deputy Rankin also testified that he

did not hear a transmission about a wallet over EPD’s

radio broadcast (ER 257), and the audio recording of

the EPD dispatch reveals that Officer Salazar reported

only that “he’s got a wallet in his back” (ER 260; App.

E-5). The EPD dispatcher did not broadcast that Longoria “was holding a wallet, not a gun, behind his back”

24

or that Longoria “was unarmed,” as the Ninth Circuit

contends. (App. 4, 18, emphasis added.) Thus, the

Ninth Circuit improperly imputed Officer Salazar’s

knowledge to Deputy Rankin.

The Ninth Circuit also held there is an issue of fact

as to whether Deputy Rankin heard EPD Sergeant Tarango yell, “less lethal, less lethal,” as officers rushed

toward Longoria after they immobilized his vehicle, despite Deputy Rankin’s testimony that he did not hear

this. (ER 136, 336, 567; App. 5, 15, 18.) Again, the video

evidence “blatantly contradict[s] the Ninth Circuit’s

suggestion that he did. Scott, 550 U.S. at 380. The

iPhone video shows Deputy Rankin arrive on the scene

(in the background) after Sergeant Tarango yells “less

lethal, less lethal.” (ER 535; App. E-3, 33s-35s.)

Finally, the Ninth Circuit held that there is an issue of fact as to whether Deputy Rankin heard other

officers shout that Longoria “had only a wallet behind

his back” during the stand-off. (App. 5, 15, 18.) This is

presumably based on PCSO Deputy Carnes’ statement

that he heard “voices” say “something to the effect” of,

“It’s a wallet.” (ER 683.) Deputy Carnes’ statement,

however, does not support the Ninth Circuit’s assertion

that officers shouted out that Longoria was “only” holding a wallet and/or “was unarmed.” And nothing to that

effect can be heard on the iPhone video. (App. E-3.) It

is also undisputed that Longoria was not holding a

wallet; he was holding rosary beads.

Deputy Rankin did not know any of these facts.

But even if he did, none of them diminish the threat of

25

harm Longoria posed. All three statements were allegedly made before Longoria’s threatening gesture. Even

if Longoria was holding a wallet during the prior stop,

nothing foreclosed the possibility that he had a gun in

his car or in his waistband. And even if Longoria was

holding a wallet, or was unarmed, at the moment when

Deputy Carnes heard other officers say, “It’s a wallet,”

it was Longoria’s subsequent action – reaching down as

if he was pulling a gun from his waistband or the car

door – that caused Deputy Rankin to fear for his life

and shoot. (ER 153, 396, 441, 683-687.)

The same is true of Sergeant Tarango’s calls for

“less lethal, less lethal.” That order (which was not an

order to use only less-lethal force or to not use deadly

force) and the ensuing less-lethal force occurred before

Longoria threatened the officers by reaching for his

waistband and punching his arms out with a black object in his hand as if aiming a gun. Once he did, Deputy

Rankin was justified in using deadly force.

4. The Ninth Circuit relied on Longoria’s subjective intentions to negate

the threat of harm he objectively

posed.

The Ninth Circuit also speculated that “Longoria

was either surrendering in response to the non-lethal

force of the bean bag rounds and taser or reacting in

some manner to their effects upon him.” (App. 9, 1516.) No one will ever know Longoria’s true intentions.

But his intentions do not matter. United States v.

26

Banks, 540 U.S. 31, 39 (2003). As noted above, reasonableness is an objective standard. Graham, 490 U.S. at

396. The video evidence depicts Longoria making a

sudden, threatening gesture in Deputy Rankin’s direction. That movement and gesture was after Longoria’s

reaction to the less-lethal rounds and before he drops

his hands, turns, and raises them in the air. And up to

that point, Longoria had repeatedly told officers that

he would not surrender. No reasonable officer would

have believed otherwise.

The Ninth Circuit’s speculation about what Longoria may have intended not only contravenes Graham’s objective standard, but it makes the same

mistake this Court has corrected at least twice. For instance, in Ryburn, the circuit court discredited the officers’ perceived threat because the suspect’s conduct

was not, technically, unlawful. 565 U.S. at 476. This

Court rejected that argument, holding: “It should go

without saying, however, that there are many circumstances in which lawful conduct may portend imminent violence.” Id.

And just this term, this Court criticized a circuit

court for refusing to consider any circumstances that

were “susceptible of innocent explanation.” Wesby, 138

S. Ct. at 588. Objective inquiries, it held, do “not require officers to rule out a suspect’s innocent explanation of suspicious facts.” Id. The Ninth Circuit’s

speculation as to Longoria’s subjective intent contravenes these cases and others, including its own precedent. See, e.g., Reynolds v. County of San Diego, 84 F.3d

1162, 1169 (9th Cir. 1996) (“[C]onclusions about why

27

[decedent] moved are nothing more than speculation

and fail to raise an issue of fact about the reasonableness of [the officer’s] conduct.”); Wilson v. Meeks, 52

F.3d 1547, 1553 (10th Cir. 1995) (“Qualified immunity

does not require that the police officer know what is in

the heart or mind of his assailant. It requires that he

react reasonably to a threat.”).

5. The Ninth Circuit heightened the

standard for deadly force and relied

on 20/20 hindsight to rebuke Deputy

Rankin’s use of force.

In concluding Longoria did not pose an immediate

risk of harm, the Ninth Circuit credited the fact that

“Longoria neither brandished a gun nor shot at anyone.” (App. 18.) But gun confirmation is not a prerequisite to using deadly force. See Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)

(“A reasonable officer need not await the glint of steel

before taking self-protective action; by then, it is often

too late to take safety precautions.”) (Internal quotation marks and citation omitted); Elliott v. Leavitt, 99

F.3d 640, 643 (4th Cir. 1996) (“The Fourth Amendment

does not require police officers to wait until a suspect

shoots to confirm that a serious threat of harm exists.”); see generally Scott, 550 U.S. at 385 (“We think

the police need not have taken that chance and hoped

for the best.”); Graham, 490 U.S. at 553 (“[T]he Fourth

Amendment does not require omniscience and absolute certainty of harm need not precede an act of selfprotection.”).

28

This Court recently rejected this exact argument

in Mullenix v. Luna, 136 S. Ct. 305, 312 (2015): “The

court below noted that no weapon was ever seen, but

surely in these circumstances the police were justified

in taking Leija at his word when he twice told the dispatcher he had a gun and was prepared to use it.” (Internal quotation marks and citation omitted). Like the

suspect in Mullenix, Longoria repeatedly told police

that he had a gun and was going to shoot them. Even

then, Deputy Rankin did not shoot until Longoria

made a threatening gesture and pointed a shiny black

object (glaring in the sun) directly at him.

The Ninth Circuit also credited the “fact that Longoria was actually unarmed.” (App. 9, 17.) This is 20/20

hindsight and strictly forbidden. By relying on the fact

that a suspect was actually unarmed, the Ninth Circuit superimposed a new requirement onto the reasonableness analysis for deadly force: an officer must first

rule out the possibility that a suspect is unarmed. But

deadly force is justified so long as the officer has “probable cause to believe that the suspect poses a threat of

serious physical harm.” Garner, 471 U.S. at 11-12.

“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 245

n.13 (1983).

29

6. The Ninth Circuit relied on metaphysical doubt to create issues of

fact.

To cast doubt on Deputy Rankin’s perception of an

immediate threat of harm, the Ninth Circuit posited

several other purported material disputes, including:

“whether Rankin, who has 20/20 vision, reasonably

perceived a weapon in Longoria’s hands”; “whether, as

a matter of fact, Rankin could have had enough time

to perceive the alleged ‘shooter’s stance’ at the moment

he claims to have done so”; and whether Deputy Rankin had enough time to “hold his fire” once Longoria

started his turn. (App. 15.)

These queries are simply rhetorical questions, not

genuine disputes of fact. To defeat summary judgment,

a non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Scott, 550 U.S. at 380 (quoting Matsushita

Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

586-587 (1986)). They also ignore the tense, uncertain,

and rapidly-evolving circumstances confronting Deputy Rankin. See Graham, 490 U.S. at 396-97. None of

them render Deputy Rankin’s use of force objectively

unreasonable.

7. The Ninth Circuit ignored facts that

prove Longoria posed an immediate

threat of harm.

In recounting the facts, the Ninth Circuit likens

the pursuit to a parade – Longoria was merely “driving

30

around the city,” where he “joked with officers pursuing him,” “waved his hand out of the car,” and “laughed,

pointed, waved, and even flashed a peace sign at civilians on the streets.” (App. 3-4.) It completely disregarded Longoria’s reckless driving and the various

assaults on law enforcement officers and bystanders.

It also made no mention of Longoria’s threats to shoot

police (only that he “spoke with” them) (App. 3); his

protestations that he would not stop; or the fact that

he was holding a set of black rosary beads during the

stand-off (App. 6, 11, 20 n.9).

This Court has admonished reviewing courts from

selectively omitting or sanitizing material facts that

weigh in favor of finding reasonableness to deny qualified immunity. See Ryburn, 565 U.S. at 473-74 (criticizing Ninth Circuit for “reciting a sanitized account of

this event”); Scott, 550 U.S. at 378-79 (“[R]eading the

lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test.”).

It has also directed courts to consider “the whole

picture,” not view each fact in isolation. Wesby, 138

S. Ct. at 588; see also Ryburn, 565 U.S. at 476-77 (“[I]t

is a matter of common sense that a combination of

events each of which is mundane when viewed in isolation may paint an alarming picture.”). That includes

a suspect’s conduct leading up to the deadly force. See

Mullenix, 136 S. Ct. at 310 (“By the time Mullenix

fired, Leija had led police on a 25-mile chase at extremely high speeds, was reportedly intoxicated, had

twice threatened to shoot officers, and was racing

31

towards an officer’s location.”). The Ninth Circuit

should not have ignored these facts.

8. The Ninth Circuit disregarded two

of the three Graham factors and relied on other “circumstances” that

have no bearing on the reasonableness of force.

Completely absent from the Ninth Circuit’s opinion is any acknowledgment or consideration of the first

and third Graham factors: the severity of the crimes at

issue and whether the suspect actively resisted arrest.

490 U.S. at 396. The district court concluded that both

factors weighed in favor of finding reasonableness.

(App. 30-31.) The Ninth Circuit, however, did not add

these to the “governmental interests” side of the scale

in balancing “the nature and quality of the intrusion

on” Longoria’s constitutional rights. Graham, 490 U.S.

at 396. Thus, it employed a flawed analysis from the

start.

Further tipping the scale in Longoria’s favor was

the Ninth Circuit’s improper consideration of other

factors. For example, the Ninth Circuit held that Longoria’s “emotionally disturbed” status “diminish[ed]

the governmental interest in using deadly force.” (App.

17, relying on Deorle v. Rutherford, 272 F.3d 1272 (9th

Cir. 2001).) But the Ninth Circuit merely presumed

that Longoria had a mental illness and there is no evidence that Deputy Rankin was aware of any such illness. This Court has also cast serious doubt on Deorle

32

and its consideration of a suspect’s mental health. See

City and County of San Francisco v. Sheehan, 135

S. Ct. 1765, 1776 (2015). Though it did not expressly

overrule Deorle, it refused to consider the mental

health of a suspect who was “dangerous, recalcitrant,

law-breaking, and out of sight.” Id. Longoria similarly

does not qualify. Deputy Rankin was more than justified to use deadly force once he had probable cause to

believe Longoria was about to shoot him.

The Ninth Circuit also claimed that Deputy Rankin “disobeyed orders to maintain a perimeter and

sprinted towards the scene,” as evidenced by the fact

that no other PCSO deputies “abandoned the perimeter and followed Rankin in his pursuit of Longoria.”

(App. 5 n.3, 18, 21.) This is simply not true. At least five

other PCSO deputies rushed toward Longoria after he

exited his vehicle. (ER 367, 369-370, 574, 678, 695; App.

E-3.) Regardless, this Court in Sheehan held that an

officer’s “bad tactics” or failure to follow training “does

not itself negate qualified immunity where it would

otherwise be warranted.” 135 S. Ct. at 1777. Neither of

these allegations should have been considered.

33

B. In Concluding that a Constitutional

Violation Was Clearly Established, the

Ninth Circuit Once Again Applied the

Wrong Test.

1. The Ninth Circuit relied solely on

Garner, despite this Court’s repeated

warning that Garner does not clearly

establish the law in every use-offorce circumstance.

“ ‘Clearly established’ means that, at the time of

the officer’s conduct, the law was ‘sufficiently clear’

that every ‘reasonable official would understand that

what he is doing’ is unlawful.” Wesby, 138 S. Ct. at 589

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

The “existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ ” Id. “This

demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The “clearly established” standard “requires that

the legal principle clearly prohibit the officer’s conduct

in the particular circumstances before him.” Wesby,

138 S. Ct. at 590. “This requires a high ‘degree of specificity.’ ” Id. (quoting Mullenix, 136 S. Ct. at 309). A

court cannot simply define the constitutional right “at

a high level of generality,” Sheehan, 135 S. Ct. at 1776,

or rely on “a broad general proposition,” Mullenix, 136

S. Ct. at 308. Rather, the inquiry “must be undertaken

in light of the specific context of the case.” Id.

34

This Court has “stressed that the ‘specificity’ of the

rule is ‘especially important in the Fourth Amendment

context.’ ” Wesby, 138 S. Ct at 590 (quoting Mullenix,

136 S. Ct. at 308). Accordingly, it has repeatedly held

that neither Graham nor Garner is enough to clearly

establish the law. See White, 137 S. Ct. at 552; Mullenix, 136 S. Ct. at 308-09; Plumhoff, 134 S. Ct. at 2023;

Brosseau v. Haugen, 543 U.S. 194, 199 (2004); Saucier

v. Katz, 533 U.S. 194, 202 (2001). Instead, a court must

“identify a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth

Amendment.” Wesby, 138 S. Ct. at 590 (quoting White,

137 S. Ct. at 552).

The Ninth Circuit ignored that exacting standard

and committed the exact same error as those cases before it. The court identified Garner as clearly establishing the constitutional right: “[A] police officer may not

seize an unarmed, nondangerous suspect by shooting

him dead.” (App. 20.) It did not identify any other case,

much less a “robust ‘consensus of cases of persuasive

authority,’ ” al-Kidd, 563 U.S. at 742 (citation omitted),

that have held an officer’s use of deadly force in similar

circumstances was unreasonable. That directly contravenes White, Mullenix, Plumhoff, Brosseau, Saucier,

and all of the Court’s cases that have refined the

“clearly established” standard. It is a basis for summary reversal. See McKnight v. Petersen, 137 S. Ct.

2241 (2017) (vacating Ninth Circuit’s denial of qualified immunity – based on Garner – to an officer who

used deadly force on a suspect he mistakenly believed

had a knife).

35

The Ninth Circuit seemed to suggest that the exacting “clearly established” standard applies only “in

cases presenting novel factual circumstances involving

car chases,” not cases, like this one, where “the shooting occurred after the pursuit ended.” (App. 8.) That is

an alarming – and definitively wrong – interpretation.

See, e.g., Wesby, 138 S. Ct. at 591 (warrantless arrest);

White, 137 S. Ct. at 552 (use of deadly force on suspect

inside his house).

The Ninth Circuit buttressed its reliance on Garner by recycling its previous purported issues of fact

and concluding that immunity is not available because

there “is a material issue of fact as to whether [the deputy] violated Longoria’s clearly established right.”

(App. 21-23.) In doing so, it further bungled the qualified-immunity analysis. The “clearly established”

prong concerns the reasonableness of the officer’s mistake of law, not fact. Saucier, 533 U.S. at 205.

Moreover, whether a right is clearly established is

a legal question for the court to decide, not a jury. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (holding

the “clearly established” prong is an “abstract issue of

law”). And “[t]he First, Second, Third, Fourth, Sixth,

Seventh, Eighth, Eleventh, and D.C. Circuits take the

view that whether a right is clearly established is a legal issue for the judge to decide.” Morales v. Fry, 873

F.3d 817, 824 (9th Cir. 2017). So does the Ninth Circuit.

See id. The panel’s opinion is in direct conflict with all

of them.

36

2. A consensus of circuit court cases

absolving officers who deployed

deadly force under similar circumstances demonstrates the lack of

clearly established law.

Applying the correct standard, the alleged constitutional violation should be defined as: the use of

deadly force by an officer against a suspect, who – after

leading police on a high-speed chase for more than an

hour, ramming patrol cars, telling officers he had a

gun, threatening to shoot them, and warning he would

not be taken alive – exited his vehicle with one hand

concealed behind his back, refused commands to show

his hands, and then made a sudden, threatening movement toward the officer with a shiny black object in his

hand.

No case has held that the use of deadly force in

those or similar circumstances is unconstitutional. To

the contrary, a consensus of cases has held that deadly

force in nearly identical situations is reasonable. See

Stanton v. Sims, 134 S. Ct. 3, 7 (2013) (cases granting

immunity in similar circumstances demonstrate that

law is not clearly established). The Ninth Circuit ignored all of them, including its own.

For example, in Dague v. Dumesic, 286 F. App’x

395, 396 (9th Cir. 2008), the suspect “kept his left hand

concealed during the standoff,” told officers that he

“had something that would make the officers do what

he could not,” and “made a threatening movement with

the hand he kept concealed.” The Ninth Circuit held

37

that the officer’s perception, whether or not correct,

was reasonable and one “we cannot second-guess.” Id.

In Hudspeth v. City of Shreveport, 270 F. App’x 332,

333 (5th Cir. 2008), a suspect, following a high-speed

pursuit, exited his vehicle, holding a cell phone, and

walked away from the officers. The suspect then

“turned rapidly toward one of the Officers, and pointed

his cell phone at him . . . with two hands and arms outstretched, as if he was aiming a handgun.” Id. The officers crouched and then shot the suspect in the back.

Id. The Fifth Circuit held that the deadly force was reasonable even though the suspect “was unarmed” and

“had his back to the Officers.” Id. at 337. The court also

rejected purported fact issues such as “whether [the

suspect] was aiming at [the officers], or just pointing

the cell phone in his general direction,” and “whether

any of the Officers truly thought: [the suspect] had a

gun[.]” Id. at 337. And just because the suspect appeared to be talking on a cell phone earlier, that fact

“did not preclude his having a weapon on exiting his

vehicle.” Id.

Cases decided after the incident confirm that the

law was not clearly established at the time. For example, in Bowles v. City of Porterville, 571 F. App’x 538,

538 (9th Cir. 2014), an officer was pursuing a suspect

on foot, when the suspect turned and pointed a metallic object at him (a cologne bottle with a metallic top).

The officer shot and killed the suspect. Id. The Ninth

Circuit held that the use of deadly force was reasonable because the officer “reasonably feared that [the suspect] was about to shoot him.” Id.

38

In Pollard v. City of Columbus, Ohio, 780 F.3d 395,

398 (6th Cir. 2015), a suspect led officers on a car chase

until he crashed. Officers surrounded the car and fatally shot the suspect when he reached down toward

the floorboard and, despite the officers’ commands to

“show his hands,” he “extended his arms and clasped

his hands into a shooting posture, pointed at the officers.” Id. at 399-400. No gun was found in the vehicle.

Id. The Sixth Circuit affirmed the use of deadly force,

even though the suspect was “actually unarmed,” because the officers had reports that he was “potentially

armed” and the suspect was “determined to avoid arrest.” Id.

In Arian v. City of Los Angeles, 2013 WL 12081081,

at **1-2 (C.D. Cal. Apr. 30, 2013), a suspect, following a

dangerous chase, exited his car, holding a black cell

phone, and pointed it, in both hands, at the officers.

The officers shot and killed him. Id. The Ninth Circuit

affirmed the use of deadly force in these circumstances.

Arian v. City of Los Angeles, 622 F. App’x 692 (9th Cir.

2015).

In Corrales v. Impastato, 650 F. App’x 540, 541 (9th

Cir.), cert. denied, 137 S. Ct. 571 (2016), a suspect

“rushed toward [an officer] while pulling his previously

concealed hand from his waistband and forming it into

a fist with a single, hooked finger extended.” Id. The

officer quickly fired and killed the suspect, shooting

him in the back. Id. The entire incident spanned only

3.3 seconds. Id. The Ninth Circuit held that the officer

was justified in firing “to end the perceived threat.” Id.

at 542.

39

In light of this legal landscape, it cannot be said

that Deputy Rankin was “plainly incompetent” or that

the constitutional question was “beyond debate.”

Wesby, 138 S. Ct. at 589.

------------------------------------------------------------------

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

NICHOLAS D. ACEDO

Counsel of Record

STRUCK LOVE BOJANOWSKI

& ACEDO, PLC

3100 W. Ray Road, Suite 300

Chandler, Arizona 85226