Petition for Writ of Certiorari — Erick Gelhaus, Petitioner v. Estate of Andy Lopez, By and Through Successors in Interest, Rodrigo Lopez and Sujay Cruz, et al.

Supreme Court briefMar 22, 2018

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------ERICK GELHAUS,

Petitioner,

vs.

ESTATE OF ANDY LOPEZ, by and through successors

in interest, Rodrigo Lopez and Sujay Cruz, 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

-----------------------------------------------------------------TIMOTHY T. COATES

Counsel of Record

GREINES, MARTIN, STEIN &

RICHLAND LLP

5900 Wilshire Boulevard, 12th Floor

Los Angeles, California 90036

Telephone: (310) 859-7811

Facsimile: (310) 276-5261

E-mail: tcoates@gmsr.com

NOAH G. BLECHMAN

MCNAMARA, NEY, BEATTY, SLATTERY,

BORGES & AMBACHER LLP

3480 Buskirk Avenue, Suite 250

Pleasant Hill, California 94523

Telephone: (925) 939-5330

Facsimile: (925) 939-0203

E-mail: noah.blechman@

mcnamaralaw.com

Counsel for Petitioner Erick Gelhaus

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Andy Lopez was shot by Sonoma County Deputy

Sheriff Erick Gelhaus while carrying a replica AK-47

assault rifle that had been altered to look like the real

thing. Gelhaus had been on patrol in the afternoon of

October 22, 2013, and had spotted Lopez, who appeared to be in his mid to late teens, walking on the

sidewalk carrying what appeared to be an AK-47. Gelhaus approached Lopez from behind, called for him to

drop his weapon, but instead, Lopez turned to face the

officer, raising the barrel of the rifle, prompting Gelhaus to fatally shoot him.

The questions presented by this petition are:

Did the Ninth Circuit improperly depart from

this Court’s decision in White v. Pauly, ___ U.S.

___, 137 S. Ct. 548 (2017) (per curiam) and numerous other cases by denying qualified immunity notwithstanding the absence of

clearly established law imposing liability under circumstances closely analogous to those

confronting Deputy Gelhaus?

Did the Ninth Circuit improperly depart from

this Court’s decisions in Graham v. Connor,

490 U.S. 386 (1989) and Plumhoff v. Rickard,

___ U.S. ___, 134 S. Ct. 2012 (2014) in denying

qualified immunity based upon the absence of

a constitutional violation given that the undisputed facts established that Deputy Gelhaus acted reasonably in responding to the

threat of a suspect turning towards him while

raising the barrel of what appeared to be an

assault rifle?

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

The parties to the proceeding in the Court whose

judgment is sought to be reviewed are:

•

The County of Sonoma, California, and Erick

Gelhaus, an individual, defendants and appellants below, jointly represented by the same

counsel, with Gelhaus as petitioner here.

•

Estate of Andy Lopez, by and through successors in interest, Rodrigo Lopez and Sujay

Cruz, plaintiffs and appellees below and respondents here.

There are no publicly held corporations involved

in this proceeding.

iii

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS AND RULE

29.6 STATEMENT ..............................................

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

vii

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

BASIS FOR JURISDICTION IN THIS COURT .....

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE ...............................................

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

A. The Underlying Incident .............................

The District Court Denies Gelhaus’s Motion

For Summary Judgment Based On Qualified Immunity ..............................................

The Ninth Circuit, By A 2-1 Decision, Affirms The Denial Of Qualified Immunity To

Gelhaus ........................................................

REASONS WHY CERTIORARI IS WARRANTED ....

REVIEW IS WARRANTED BECAUSE THE

PANEL MAJORITY DEPARTED FROM

THE CONTROLLING DECISIONS OF

THIS COURT REQUIRING THAT QUALIFIED IMMUNITY BE GRANTED IN ALL

BUT THE MOST OBVIOUS CASES IN

THE ABSENCE OF A ROBUST CONSENSUS OF CASES IMPOSING LIABILITY IN

FACTUAL CIRCUMSTANCES CLOSELY

ANALOGOUS TO THOSE CONFRONTING AN OFFICER ....................................... 17

TABLE OF CONTENTS – Continued

Page

A. An Officer Is Generally Entitled To Qualified Immunity In The Absence Of

Clearly Established Law As Set Out In

A Robust Consensus Of Cases Imposing

Liability In Circumstances Closely Analogous To Those Confronted By The Officer ........................................................

B. Existing Ninth Circuit Authority Did

Not Establish The Unlawfulness Of Petitioner’s Conduct “Beyond Debate” And

Hence He Is Entitled To Qualified Immunity ....................................................

C. Decisions In Other Circuits Have Applied Qualified Immunity In Closely

Analogous Cases, Which Demonstrates

That The Law Is Not Clearly Established, And Petitioner Is Entitled To

Qualified Immunity ...............................

D. The Absence Of Clearly Established Law

Mandated That Petitioner Be Granted

Qualified Immunity ...............................

II. THE COURT SHOULD GRANT REVIEW

TO COMPEL COMPLIANCE WITH GRAHAM V. CONNOR’S STANDARD FOR

EVALUATING FOURTH AMENDMENT

USE OF FORCE CLAIMS AND TO REPUDIATE THE NINTH CIRCUIT’S APPLICATION OF AN ESPECIALLY STRINGENT

STANDARD OF REVIEW WITH RESPECT

TO SUMMARY JUDGMENT WHERE OFFICERS ARE THE ONLY WITNESSES TO

AN INCIDENT............................................. 27

TABLE OF CONTENTS – Continued

Page

A. The Graham Standards ........................

B. The Majority Departed From Graham

By Applying 20/20 Hindsight Without

Regard To The Tense, Fast-Evolving Circumstances Confronting Petitioner And

Relying On Speculation, Not Evidence,

In Denying Summary Judgment .......... 30

C. The Ninth Circuit’s Rule Requiring Especially Stringent Review Of Summary

Judgment Motions In Deadly Force Cases

Where Officers Are The Only Witnesses

To Events, Effectively Requires Defendants To Affirmatively Disprove Any Conceivable Contrary Scenario, Which Is

Directly Contrary To This Court’s Decisions Concerning Summary Judgment ... 34

CONCLUSION .......................................................

APPENDIX

September 22, 2017, Opinion, Estate of Andy

Lopez, by and through successors in interest,

Rodrigo Lopez and Sujay Cruz, et al. v. Erick

Gelhaus, County of Sonoma, United States

Court of Appeals for the Ninth Circuit ........... App. 1

January 20, 2016, Order Granting In Part And

Denying In Part Motion For Summary Judgment, Estate of Andy Lopez, et al. v. Erick Gelhaus, et al., United States District Court,

Northern District of California...................... App. 75

TABLE OF CONTENTS – Continued

Page

December 22, 2017, Order, Estate of Andy Lopez,

by and through successors in interest, Rodrigo

Lopez and Sujay Cruz, et al. v. Erick Gelhaus,

County of Sonoma, United States Court of Appeals for the Ninth Circuit .......................... App. 102

Exhibit C to Declaration of James L. Morris,

Filed in Support of Defendants’ Motion for

Summary Judgment on November 4, 2015

(docket entry 67) and contained in Ninth Circuit Excerpt of Record at Volume III, page 555,

filed June 15, 2016 (Ninth Circuit docket entry 14-3) ........................................................ App. 103

vii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) ...............17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) .......................................................................35

Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001) ........ 26

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .. 12, 17, 18, 19, 23

Brosseau v. Haugen, 543 U.S. 194 (2004) ...................19

City and County of San Francisco v. Sheehan,

___ U.S. ___, 135 S. Ct. 1765 (2015) .................. 16, 19

County of Los Angeles v. Mendez, ___ U.S. ___,

137 S. Ct. 1539 (2017) .............................................29

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

2014) ........................................................................22

Curnow By and Through Curnow v. Ridgecrest

Police, 952 F.2d 321 (9th Cir. 1991) ............ 10, 21, 22

District of Columbia v. Wesby, ___ U.S. ___, 138

S. Ct. 577 (2018) .................................... 17, 18, 19, 23

Dooley v. Tharp, 856 F.3d 1177 (8th Cir. 2017) ..... 24, 25

Estate of Andy Lopez v. Gelhaus, 149 F. Supp. 3d

1154 (9th Cir. 2017) ............................................... 1, 7

Estate of Andy Lopez v. Gelhaus, 871 F.3d 998

(9th Cir. 2017)............................................................1

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

2013) ...................................................... 10, 20, 21, 22

Gonzalez v. City of Anaheim, 747 F.3d 789 (9th

Cir. 2014) ............................................................. 7, 28

viii

TABLE OF AUTHORITIES – Continued

Page

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

Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997) .... 10, 21

Hill v. California, 401 U.S. 797 (1971) .......................33

Hughes v. Kisela, 841 F.3d 1081 (9th Cir. 2016)

(amended by 862 F.3d 775 (9th Cir. 2017) and

petition for writ of certiorari filed September

25, 2017, Supreme Court Case No. 17-467) ... 10, 13, 23

Kenning v. Carli, 648 F. App’x 763 (8th Cir. 2016)........ 26

Malley v. Briggs, 475 U.S. 335 (1986) .........................12

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574 (1986) ................................. 15, 35

Messerschmidt v. Millender, 565 U.S. 535 (2012) ......19

Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305

(2015) .......................................................................12

Pearson v. Callahan, 555 U.S. 223 (2009) ............ 24, 25

Plumhoff v. Rickard, ___ U.S. ___, 134 S. Ct.

2012 (2014) ............................................ 15, 18, 27, 28

Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991).........26

Reichle v. Howards, 566 U.S. 658 (2012) .............. 17, 23

Richardson v. McKnight, 521 U.S. 399 (1997)............16

Ryburn v. Huff, 565 U.S. 469 (2012) ...........................19

Safford Unified Sch. Dist. No. 1 v. Redding, 557

U.S. 364 (2009) ........................................................19

Saucier v. Katz, 533 U.S. 194 (2001)..................... 18, 29

Scott v. Harris, 550 U.S. 372 (2007)............................28

TABLE OF AUTHORITIES – Continued

Page

Stanton v. Sims, 571 U.S. 3, 134 S. Ct. 3 (2013) .... 19, 24

Tennessee v. Garner, 471 U.S. 1 (1985) .......................29

Texas v. Brown, 460 U.S. 730 (1983) ...........................33

White v. Pauly, ___ U.S. ___, 137 S. Ct. 548

(2017) ............................................................... passim

Wood v. Moss, ___ U.S. ___, 134 S. Ct. 2056 (2014) ....... 19

CONSTITUTION AND STATUTORY PROVISIONS

United States Constitution, Amendment IV ...... passim

28 U.S.C. § 1254(1) ........................................................1

42 U.S.C. § 1983 .................................................. 2, 5, 17

OTHER AUTHORITIES

https://en.wikisource.org/wiki/AK-47_Operator

%27s_Manual (last visited March 18, 2018) ..........32

http://www.vpc.org/press/new-data-shows-one-infour-law-enforcement-officers-slain-in-the-lineof-duty-in-2016-felled-by-an-assault-weapon/

(last visited March 18, 2018) ..................................15

OPINIONS BELOW

The Ninth Circuit’s opinion, the subject of this petition, is reported at 871 F.3d 998 (9th Cir. 2017) and

reproduced in the Appendix hereto (“App.”) at pages 174. The Ninth Circuit’s order denying rehearing, filed

December 22, 2017, is reproduced in the Appendix at

page 102. The district court’s decision denying petitioner Gelhaus’s motion for summary judgment based

on qualified immunity is reported at 149 F. Supp. 3d

1154 (N.D. Cal. 2016) and is reproduced in the Appendix at pages 75-101.

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

BASIS FOR JURISDICTION IN THIS COURT

The Ninth Circuit entered its judgment and its

opinion on September 22, 2017. 871 F.3d 998 (9th Cir.

2017). After obtaining an extension of time, petitioner

timely filed a petition for panel and en banc rehearing,

and after the panel requested a response, on December

22, 2017, the court denied the petition. (App. 102.)

This Court has jurisdiction to review the Ninth

Circuit’s September 22, 2017 decision on writ of certiorari under 28 U.S.C. § 1254(1).

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

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

Respondents brought the underlying action under

42 U.S.C. § 1983, which states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress,

except that in any action brought against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to

the District of Columbia shall be considered to

be a statute of the District of Columbia.

Respondents allege petitioner violated the rights

of the decedent under the United States Constitution’s

Fourth Amendment, which provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

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

STATEMENT OF THE CASE

A. The Underlying Incident.

On the afternoon of October 22, 2013, patrolling

Deputies Gelhaus and Schemmel observed a male who

appeared to be in his mid to late teens (Mr. Lopez)

walking on the sidewalk away from them in a dark

hooded sweatshirt. Lopez carried what appeared to be

an AK-47 assault weapon in his hand, held by the pistol grip, with the barrel pointed toward the ground.

(ER 437-39.)1 Gelhaus knew this neighborhood had a

history of violent gang and weapon related crimes, he

had previously confiscated that type of weapon nearby

and knew about the destructive capabilities of an AK47 – it could discharge its 30-round magazine in seconds, the bullets capable of penetrating car doors and

armored vests. (ER 438, 441, 458-72, 550.)

Gelhaus radioed “Code 20,” the highest emergency

call to request immediate assistance by other units.

(ER 439.) Schemmel, the driver, “chirped” the siren and

activated all emergency lights/flashers to alert the individual to their police presence. (ER 559-60.) Schemmel proceeded through the intersection and stopped

the patrol car at an angle, approximately 40 feet

from Lopez. (ER 439, 559-60.) When slowing, Gelhaus

“ER” denotes the excerpts of record in the Ninth Circuit.

opened his door, drew his firearm and positioned himself outside his open passenger door when they stopped,

preparing to confront the individual. (ER 439-40, 55960, 557.)

Lopez, still holding the pistol grip of the weapon,

continued to walk away from the patrol car. Now outside of the car, Gelhaus gave at least one loud command (or more per witnesses) to Lopez to “Drop the

gun!” (ER 440, 560, 473-85.) Rather than dropping the

gun, Lopez turned his body towards the deputies in a

clockwise direction while simultaneously bringing the

barrel of the AK-47 up and towards them. (ER 439-40,

560.) In response, believing he was about to be shot,

Gelhaus fired eight rapid gunshots – seven of which hit

Lopez. (ER 439-40, 486-87, 560, 562-69.) It is undisputed that the shots were initiated when Lopez was

facing Gelhaus, approximately 62 feet away. (ER 54457, 562-76.)

After the shooting, it was determined that the gun

was a plastic pellet gun made to look identical to an

AK-47, but missing the legally mandated orange tip on

the barrel. (ER 492-515, 546-48.) The weapon was indistinguishable from a real AK-47. (ER 446-54, 566;

App. 103 (photograph showing real AK-47 [top] above

replica [bottom]).)

B. The District Court Denies Gelhaus’s Motion

For Summary Judgment Based On Qualified

Immunity.

Respondents, the Estate of Andy Lopez, by and

through successors in interest, Rodrigo Lopez and

Sujay Cruz, filed suit against Gelhaus and the County

of Sonoma, alleging various claims, including a claim

against Gelhaus under 42 U.S.C. § 1983 premised upon

a violation of the Fourth Amendment through use of

excessive force, as well as a cause of action against both

Gelhaus and the County of Sonoma for wrongful death.

(ER 587-98, 599-617.)

Defendants filed a motion for summary judgment,

asserting that the Fourth Amendment claim as against

Gelhaus was barred by qualified immunity. (ER 405-36.)

Gelhaus argued he was entitled to qualified immunity

both because the undisputed evidence established that

his use of force was objectively reasonable and hence

no constitutional violation had occurred, and that in

any event, there was no clearly established law that

would have put him on notice that use of force under

these emergency circumstances would be unwarranted. (ER 405-586.)

After plaintiff filed opposition and the district

court held argument, on January 20, 2016, the court

granted the motion in part, but denied qualified immunity to Gelhaus on the Fourth Amendment claim,

as well as summary judgment to Gelhaus and the

County on the state wrongful death claim. (App. 90, 95,

99.) The district court held that there were triable

issues of fact as to whether Gelhaus had reasonably

perceived a serious threat of harm from Lopez, noting

that while it was undisputed that Lopez started to turn

towards the deputies, with the barrel of the gun rising,

a reasonable jury could conclude that the barrel had

not risen far enough up to present a threat to the officers. (App. 89-90.)

In addressing the clearly established law for purposes of qualified immunity, the district court did not

identify a case where officers were confronted by a suspect who refused to drop an assault weapon when commanded to do so and then began raising the barrel of

the weapon towards the officers. Instead, the district

court stated:

[T]he relevant question is whether the law

was clearly established such that an officer

would know that the use of deadly force is unreasonable where the suspect appears to be

carrying an AK-47, but where officers have received no reports of the suspect using the

weapon or expressing an intention to use the

weapon, where the suspect does not point the

weapon at the officers or otherwise threaten

them with it, where the suspect does not

“come at” the officers or make any sudden

movements towards the officers, and where

there are no reports of erratic, aggressive, or

threatening behavior. Based on the review of

the cases above, the court finds that it was

clearly established, and thus, qualified immunity does not shield Gelhaus from liability.

(App. 94-95; 149 F. Supp. 3d at 1164-65 (footnote omitted).)

Gelhaus appealed the denial of qualified immunity to the Ninth Circuit.

The Ninth Circuit, By A 2-1 Decision, Affirms The Denial Of Qualified Immunity To

Gelhaus.

Following briefing and argument, on September

22, 2017, the Ninth Circuit issued a 2-1 decision affirming the denial of qualified immunity to Gelhaus.

Writing for the majority, the Honorable Milan

Smith announced the panel would follow the Ninth

Circuit’s general principle that “ ‘summary judgment

should be granted sparingly in excessive force cases,’ ”

particularly where, as here, “ ‘the only witness other

than the officers was killed during the encounter’ ” noting that the court has to “ ‘ensure that the officer is not

taking advantage of the fact that the witness most

likely to contradict his story – the person shot dead –

is unable to testify.’ ” (App. 13 (citing Gonzalez v. City

of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en

banc)).)

In concluding that a jury could find that Gelhaus’s

use of force was unreasonable, the majority found that

there was a triable issue of fact as to whether or not

Lopez had turned his head in response to the “chirp” of

the police vehicle siren, which may have indicated

Lopez had not heard the siren, which would somehow

make Lopez’s subsequent turn towards the officers

“less aggressive” in that he may have simply been confused about what he was hearing. (App. 15.) The majority also opined that there was a factual dispute as

to the number of times that Gelhaus shouted – it could

be only once or multiple times – and that if a jury determined there was only one command, Lopez might

have been wondering if it was directed at him, or could

have been “processing Gelhaus’s order” before he was

shot. (App. 16.)

The majority also concluded there was an issue of

fact as to whether Lopez was holding the gun in his

right or left hand, asserting it would make a difference

whether Lopez turned the one way or the other, without explaining why that would be so. (Id.) Indeed, the

majority asserted that the officers’ dispute on this issue “provides an important basis for a jury to question

the credibility and accuracy of the officers’ accounts”

(id.) – without explaining what other relevant inference a jury could draw, in light of the fact that the officers both testified the barrel of the weapon was

moving upwards as Lopez turned.

As to the barrel of the gun moving upwards as

Lopez turned, the majority acknowledged that the district court had found that it was undisputed that “ ‘the

rifle barrel was beginning to rise,’ ” but agreed with the

district court that given that it started in a position

where it was pointed down to the ground, it could have

been raised to a slightly higher level (although not

specifying what level that might be), without posing

any threat to the officers. (App. 17.) The majority noted

that neither officer ever stated “how much the barrel

‘began’ to rise” as Lopez commenced his turn, and speculated that “one would expect the barrel to rise an inch

or so as the momentum of Andy’s clockwise turn moved

his left arm slightly away from his body” and “that incidental movement alone would not compel a jury to

conclude that Gelhaus faced imminent danger giving

the starting position of the gun.” (App. 17-18.)

The majority found it significant that Gelhaus

never testified that he knew where the barrel of the

rifle was pointing at the time he shot Lopez, but at

most, that the barrel of the rifle was being raised towards him. (App. 19.)

The majority also stated that although “ambiguous” (App. 7 n.4), a reenactment Gelhaus performed in

his videotaped deposition somehow contravenes his

statements that he fired with the barrel of the weapon

coming up (App. 20) – even though review of the cited

deposition establishes that Gelhaus was simply simulating Lopez’s body turning movement, the subject of

the question, and not the movement of the rifle, and

indeed testified that he could not reproduce that rifle

movement because a table was in his way (App. 7 n.4

and ER 113-14, 342).

The majority also found it significant that a witness who had encountered Lopez earlier and drove

within 50 feet of him thought the gun looked fake.

(App. 20.) It also found it important that Gelhaus had

previously encountered individuals with replica guns,

and that Lopez had been carrying the weapon in broad

daylight in a residential neighborhood at a time when

individuals of his age – mid to late teens – could reasonably be expected to be playing. (App. 23.)

Based on these facts, the majority concluded a jury

could find that the force used by Gelhaus was excessive. (App. 23-24 (citing Hughes v. Kisela, 841 F.3d

1081, 1085-87 (9th Cir. 2016) (amended by 862 F.3d 775

(9th Cir. 2017) (en banc) and petition for writ of certiorari filed September 25, 2017, Supreme Court Case No.

17-467)).)

With respect to the clearly established law prong

of qualified immunity, the majority held that Gelhaus

was on notice that his conduct could subject him to liability based upon George v. Morris, 736 F.3d 829 (9th

Cir. 2013); Harris v. Roderick, 126 F.3d 1189 (9th Cir.

1997); and Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991). (App. 44-46.)

The Honorable Judge Clifford Wallace dissented,

noting that the multiple purported factual disputes

identified by the majority were immaterial to the qualified immunity analysis. (App. 50-51.) Judge Wallace

observed that the key, and undisputed fact, was that

the gun barrel was beginning to rise as Lopez turned

towards the officers, with no evidence that it had

stopped rising, or would stop at any particular point.

(App. 52-53.) As Judge Wallace noted, “the most natural reading of the district court’s finding, and the only

reasonable one, is that the gun was beginning to rise

(i.e., in the process of rising) immediately before Deputy Gelhaus shot Andy.” (App. 53.) The dissent noted

that the “majority has thus identified no evidence that

even suggests that the gun had stopped rising at the

time Deputy Gelhaus resorted to deadly force.” (App.

54.)

As Judge Wallace observed, with respect to the

clearly established law on qualified immunity, none of

the cases cited by the majority addressed a situation

where “the victim’s gun ‘was beginning to rise’ towards

the officer.” (App. 56.)

Nor was there any evidence to suggest that Gelhaus could not reasonably have perceived the AK-47 as

real, given that the third party witness’s assessment of

it as being a potential toy was based on his subjective

belief that it would be odd for someone to be carrying

such a weapon during daylight and identified no physical characteristics of the rifle that would make it appear to be less than the real thing. (App. 60-61.)

In light of the undisputed evidence and the absence of cases cited by the majority indicating the law

was clearly established with respect to the circumstances

confronted by Gelhaus, Judge Wallace concluded that the

officer was entitled to qualified immunity. (App. 64-71,

74.)

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

REASONS WHY CERTIORARI IS WARRANTED

The Ninth Circuit has once again departed from

the decisions of this Court concerning the application

of qualified immunity and use of force under the

Fourth Amendment. The court’s refusal to follow the

controlling authority of this Court would, in and of

itself, warrant review, but this Court’s intervention is

required because the Ninth Circuit’s decision has a direct, adverse impact on the actions of law enforcement

officers confronting one of the gravest threats to public

safety – an individual armed with an assault rifle.

Review is necessary because the Ninth Circuit has

again ignored this Court’s command that an officer is

entitled to qualified immunity unless the plaintiff can

point to a “robust ‘consensus of cases of persuasive authority,’ ” making it clear that the officer’s use of force

in the particular factual circumstances was improper.

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). As the

Court has repeatedly emphasized, in other than the

most egregious cases, for a right to be clearly established for purposes of denying qualified immunity, “existing precedent must have placed the statutory or

constitutional question beyond debate.” al-Kidd, 563

U.S. at 741; Mullenix v. Luna, ___ U.S. ___, 136 S. Ct.

305, 308 (2015); White v. Pauly, ___ U.S. ___, 137 S. Ct.

548, 551 (2017) (per curiam). “Put simply, qualified immunity protects ‘all but the plainly incompetent or

those who knowingly violate the law.’ ” Mullenix, 136

S. Ct. at 308 (citing Malley v. Briggs, 475 U.S. 335, 341

(1986)).

As Judge Wallace noted in his dissent, the panel

majority did not identify a case with a factual scenario

even remotely close to that established by the undisputed evidence here – an officer confronted by a suspect who appears to be carrying an assault weapon,

who is alerted to police presence by a siren chirp and

who disregards the command to drop the weapon and

instead turns towards the officer with the barrel of the

rifle starting to rise. Although the majority claims it is

not analyzing clearly established law at a high level of

generality (App. 39), it makes no attempt to identify

any factual similarity between the cited cases and the

situation confronted by Deputy Gelhaus. The most that

can be gleaned from the panel majority’s analysis is

that the other cases involved issues of fact as to

whether the suspect even had a weapon, or was pointing it at an officer; yet none involved the barrel of a

weapon, much less the barrel of a devastatingly lethal

assault rifle, rising as a suspect turned towards the officer. Indeed, prior Ninth Circuit authority and that of

other circuits support the commonsense proposition

that officers need not wait for a gun to actually be leveled or pointed at them before responding with deadly

force to protect themselves and the public.

In fact, the majority tacitly acknowledges that this

case presented “novel circumstances” but citing its decision in Hughes v. Kisela, supra, noted that this could

be an appropriate basis for denying qualified immunity. (App. 39 n.16.) Yet, as the dissent observed, this is

exactly contrary to this Court’s decision in White,

where the Court observed that the circuit court’s

acknowledgment that the case “ ‘present[ed] a unique

set of facts and circumstances . . . should have been an

important indication . . . that [the officer’s] conduct did

not violate a clearly established right’ ” and hence qualified immunity was appropriate. (App. 72 (citing White,

137 S. Ct. at 552 (emphasis added)).)

Gelhaus was forced to make a decision under

tense, rapidly evolving circumstances in which a split

second delay could have deadly consequences for himself, his partner, and residents of the surrounding

neighborhood, as he confronted an individual apparently armed with an assault weapon that can discharge 30 rounds in seconds, with bullets capable of

penetrating car doors and armored vests. No case

would have alerted Gelhaus to the “magic point” at

which it could be said that the rising barrel of an assault weapon would pose a risk warranting the use of

deadly force, let alone require him to speculate in the

heat of a moment fraught with peril, as to whether

the barrel might cease rising at some point. These are

precisely the circumstances in which this Court has repeatedly recognized that qualified immunity is warranted.

Although the Court should grant plenary review,

or summarily reverse the Ninth Circuit’s decision because the petitioner is entitled to qualified immunity

in light of the absence of clearly established law, nonetheless, because of the importance of the underlying

use of force issue, the Court should exercise its discretion to address the merits of the constitutional claim,

and find that under the circumstances presented,

petitioner’s use of force was objectively reasonable.

Plumhoff v. Rickard, __ U.S. __, 134 S. Ct. 2012, 2020

(2014). Confronting individuals armed with assault

weapons is among the most harrowing circumstances

officers across the nation encounter in the field – statistics for 2016 indicate that 1 out of every 4 officers

slain in the line of duty that year was killed with an

assault rifle.2 It is essential that clear guidelines be

drawn for future cases.

In particular, the mode of analysis employed by

the panel majority here must be repudiated as flatly

inconsistent with this Court’s decision in Graham v.

Connor, 490 U.S. 386 (1989) and its progeny, which

make it clear that use of force must be analyzed from

the perspective of the officer at the time, confronted

with tense, rapidly evolving circumstances, and not be

subject to hindsight. As the dissent notes, the majority

opinion relies largely on immaterial factual conflicts,

and speculative inferences as opposed to actual evidence in concluding there was an issue of fact as to

whether the force employed was reasonable. The undisputed evidence established that Gelhaus had spotted Lopez, an individual appearing to be in his mid to

late teens carrying what appeared to be an assault rifle, alerted Lopez to police presence by chirping the siren and clearly commanded him to drop the weapon,

only to be confronted with Lopez turning towards him

with the barrel of the weapon rising. The suggestion

See, http://www.vpc.org/press/new-data-shows-one-in-fourlaw-enforcement-officers-slain-in-the-line-of-duty-in-2016-felled-byan-assault-weapon/ (last visited March 18, 2018).

that liability could be imposed under those circumstances poses a substantial risk to the safety of law enforcement officers in the field and the general public,

as such armchair quarterbacking and nitpicking could

dissuade officers from taking appropriate and decisive

action when it is all too necessary for them to do so.

Unfortunately, the Ninth Circuit’s approach here

appears emblematic of that court’s “special” treatment

of motions for summary judgment in deadly force cases,

where officers are the only witnesses to the event. By

its own admission, the Ninth Circuit grants summary

judgment only “sparingly” in such cases, and examines

the evidence with particular rigor. That approach, as

the dissent notes, acts as a license to deny summary

judgment based on the “bare absence of evidence definitively disproving the existence of alternative facts for

which there is no record,” as opposed to an actual dispute of fact, and is tantamount to denying summary

judgment based upon “ ‘some metaphysical doubt as to

the material facts,’ ” which is directly contrary to the

authority of this Court. (App. 55-56 (citing Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986)).)

This Court has repeatedly recognized the need to

grant review and correct the erroneous denial of qualified immunity because of the importance of the doctrine to society as a whole (City and County of San

Francisco v. Sheehan, ___ U.S. ___, 135 S. Ct. 1765,

1774 n.3 (2015); White, 137 S. Ct. at 551-52) and, most

particularly, to “protect[ ] the public from unwarranted

timidity on the part of public officials.” Richardson v.

McKnight, 521 U.S. 399, 408 (1997). This case presents

precisely the circumstances in which this Court’s intervention is warranted and necessary.

REVIEW IS WARRANTED BECAUSE THE

PANEL MAJORITY DEPARTED FROM THE

CONTROLLING DECISIONS OF THIS

COURT REQUIRING THAT QUALIFIED IMMUNITY BE GRANTED IN ALL BUT THE

MOST OBVIOUS CASES IN THE ABSENCE

OF A ROBUST CONSENSUS OF CASES

IMPOSING LIABILITY IN FACTUAL CIRCUMSTANCES CLOSELY ANALOGOUS TO

THOSE CONFRONTING AN OFFICER.

A. An Officer Is Generally Entitled To Qualified Immunity In The Absence Of Clearly

Established Law As Set Out In A Robust

Consensus Of Cases Imposing Liability

In Circumstances Closely Analogous To

Those Confronted By The Officer.

As this Court has repeatedly recognized, officers

are entitled to qualified immunity under section 1983

unless they violated a federal statutory or constitutional right, and the unlawfulness of their conduct was

clearly established at the time of the events in question. Reichle v. Howards, 566 U.S. 658, 664 (2012); District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577,

589 (2018). To be “clearly established” the law must

be “ ‘sufficiently clear’ that every ‘reasonable official

would understand that what he is doing’ ” is unlawful.

al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). In short, existing law must

have placed the constitutionality of the officer’s conduct “beyond debate.” Id. As this Court observed in

Wesby:

To be clearly established, a legal principle

must have a sufficiently clear foundation in

then-existing precedent. The rule must be

“settled law,” which means it is dictated by

“controlling authority” or “a robust ‘consensus

of cases of persuasive authority.’ ” It is not

enough that the rule is suggested by thenexisting precedent. The precedent must be

clear enough that every reasonable official

would interpret it to establish the particular

rule the plaintiff seeks to apply. Otherwise,

the rule is not one that “every reasonable official” would know.

138 S. Ct. at 589-90 (citations omitted).

The Court has also repeatedly emphasized that

the law must be clearly established with respect to the

particular factual situation confronted by the officer.

“The rule’s contours must be so well defined that it is

‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” 138 S. Ct. at

590 (citing Saucier v. Katz, 533 U.S. 194, 202 (2001));

Plumhoff, 134 S. Ct. at 2023 (“[T]he crucial question

[is] whether the official acted reasonably in the particular circumstances that he or she faced.”).

Although “there can be the rare ‘obvious case’

where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not

address similar circumstances” nonetheless, a body of

relevant case law is usually necessary to render the

law clearly established. Wesby, 138 S. Ct. at 590; White,

137 S. Ct. at 551 (“While this Court’s case law ‘do[es]

not require a case directly on point’ for a right to be

clearly established, existing precedent must have

placed the statutory or constitutional question beyond

debate.” (internal quotation marks omitted)).

Because of the importance of qualified immunity

to “society as a whole” (Sheehan, 135 S. Ct. at 1774

n.3), this Court has repeatedly reversed the denial of

qualified immunity, frequently via per curiam opinion,

based on the failure of the circuit courts to identify either controlling authority or a robust consensus of

cases imposing liability in factual situations closely

analogous to those confronted by the officer, and instead defining the purported right at too high a level

of generality. See Sheehan, 135 S. Ct. at 1774 n.3 (collecting cases). Indeed, this Court has repeatedly reversed the Ninth Circuit based on the court’s failure to

identify factually analogous case law that would have

put the defendants on notice that their conduct could

subject them to liability.3

al-Kidd, 563 U.S. at 742 (“We have repeatedly told courts –

and the Ninth Circuit in particular – . . . not to define clearly established law at a high level of generality.”); see also, e.g., Ryburn

v. Huff, 565 U.S. 469, 474 (2012) (per curiam); Messerschmidt v.

Millender, 565 U.S. 535 (2012); Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam); Stanton v. Sims, 571 U.S. 3, 134 S. Ct. 3

(2013) (per curiam); Safford Unified Sch. Dist. No. 1 v. Redding,

557 U.S. 364, 378 (2009); Wood v. Moss, __ U.S. __, 134 S. Ct. 2056,

2066-69 (2014); Sheehan, 135 S. Ct. at 1774-78.

B. Existing Ninth Circuit Authority Did

Not Establish The Unlawfulness Of Petitioner’s Conduct “Beyond Debate” And

Hence He Is Entitled To Qualified Immunity.

The Ninth Circuit has once again failed to heed

this Court’s repeated admonition that other than in

the most obvious of cases – which this most certainly

is not – an officer is entitled to qualified immunity unless either controlling authority or a robust consensus

of cases put the officer on notice that his or her conduct

would subject them to liability in light of the particular

factual circumstances confronting the officer. None of

the cases cited by the Ninth Circuit addressed a factual situation closely analogous to that confronting

Deputy Gelhaus – a suspect who disobeys a command

to drop an apparent assault weapon of overwhelming

lethality, and, instead, turns towards the officer with

the barrel of the weapon rising.

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

there was a clear factual dispute as to whether or not

the husband, moving with a walker, manipulated a pistol and/or pointed it directly at deputies or whether he

was even physically capable of wielding the pistol. Id.

at 833, 837. In contrast, here, it is undisputed that

Lopez was manipulating the assault weapon by turning it, along with his body and raising the barrel at

the time Gelhaus fired. Indeed, if anything, George

actually undercuts the majority’s position because in

George the court reiterated that the Fourth Amendment does not always require “officers to delay their

fire until a suspect turns his weapon on them. If the

person is armed – or reasonably suspected of being

armed – a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.”

Id. at 838. At the very least, turning towards an officer

and raising the barrel of an assault rifle is no doubt a

“harrowing gesture” which could be objectively viewed

as an immediate threat by Gelhaus.4

Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997) is

also dissimilar to this case. Harris was shot in the back

and injured by an F.B.I. sniper at the Ruby Ridge siege

when the F.B.I.’s rules of engagement authorized

deadly force to be employed against “any armed adult

male” in the vicinity of the subject cabin. Id. at 119394. Unlike Gelhaus, the F.B.I. sniper in Harris was

perched safely on a hill, out of harm’s way and working

under an unlawful directive. Unlike Lopez, Harris,

though armed, was shot in the back while he was not

making any “threatening movement of any kind,” but

was instead trying to return to the cabin. Id. at 1203.

Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991), is also patently

The majority’s suggestion, made from the comfort of wellsecured chambers, that there is nothing that could reasonably be

perceived as “harrowing” about someone refusing to drop an apparent assault weapon when commanded to do so and slowly raising the barrel as turning towards an officer who has virtually no

protection from a hail of bullets that could be discharged in seconds (App. 46), displays precisely the casual disregard for the

“tense, uncertain, and rapidly evolving” circumstances officers

confront in the field that this Court has expressly repudiated

(Graham, 490 U.S. at 396-97).

distinguishable. There, qualified immunity was denied

because there was evidence that Curnow was not only

unarmed at the time he was shot, but was not even

reaching for a nearby gun. Id. at 323, 325. As the dissent notes, being shot in the back as a result of merely

being in the vicinity of a gun (Curnow) is clearly different than a person being shot in the front of their body,

while holding an assault weapon that is turning, with

the barrel “beginning to rise.” (App. 70-71.)

Indeed, far from there being a robust consensus of

cases suggesting that liability could be imposed unless

Lopez actually pointed the rifle at Gelhaus, a survey of

the legal landscape even within the Ninth Circuit

would have supported the commonsense proposition

that an officer need not wait until the last, and likely

fatal moment, before responding to protect themselves

or others. As noted, in George the Ninth Circuit explicitly recognized that principle. 736 F.3d at 838.

Moreover, in Cruz v. City of Anaheim, 765 F.3d

1076, 1078 (9th Cir. 2014), the Ninth Circuit observed

it “would be unquestionably reasonable for police to

shoot a suspect,” where the suspect was believed to be

armed and “reached” for his waistband, even if he

reached there for some other reason. If the simple act

of reaching for a suspected (or known) weapon justifies

an officer’s use of deadly force, it is untenable that Gelhaus has been denied qualified immunity when confronting the barrel of an assault weapon rising and

turning in his direction.

Nor could the majority rely on the rule announced

in Hughes v. Kisela, that even assuming the facts of

this case are “novel,” it would not foreclose the court

from rejecting qualified immunity. (App. 39 n.16 (citing

Hughes, 841 F.3d at 1088).) As the dissent noted, in

White this Court expressly held that the fact that the

case presented unique circumstances “alone should

have been an important indication to the majority that

White’s conduct did not violate a ‘clearly established’

right.” (App. 72 (citing White, 137 S. Ct. at 552).)

Existing Ninth Circuit precedent did not put the

alleged unlawfulness of Gelhaus’s conduct beyond debate. al-Kidd, 563 U.S. at 741. Gelhaus was therefore

entitled to qualified immunity.

C. Decisions In Other Circuits Have Applied

Qualified Immunity In Closely Analogous Cases, Which Demonstrates That

The Law Is Not Clearly Established, And

Petitioner Is Entitled To Qualified Immunity.

This Court has noted that “[w]e have not yet decided what precedents – other than our own – qualify

as controlling authority for purposes of qualified immunity.” Wesby, 138 S. Ct. at 591 n.8; see also Reichle,

566 U.S. at 665-66 (reserving question whether court

of appeals decisions can be “a dispositive source of

clearly established law”). However, the Court has repeatedly recognized that a conflict among the federal

appellate courts is a strong indication that the law is

not clearly established. Stanton, 134 S. Ct. at 5-7 (fact

that “federal and state courts of last resort around the

Nation were sharply divided” on constitutional issue

means law not clearly established); Pearson v. Callahan, 555 U.S. 223, 243-45 (2009) (decisions by four Federal Courts of Appeals upholding defendant’s conduct

shows law not clearly established). That is the case

here. The Ninth Circuit’s decision is inconsistent with

the decisions of other circuits addressing similar circumstances.

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

two deputies received information about a man

(Dooley) in a military uniform, armed with a rifle,

walking on a highway. The deputies drove up to Dooley

from behind, saw he was carrying an apparent rifle

over his shoulder with the muzzle down and then a

deputy leaned out the window and ordered Dooley to

drop the gun. Dooley turned his body while the muzzle

was still pointed down, but then Dooley quickly took

hold of the barrel and moved the rifle in a manner the

district court described as “arc-like.” Id. at 1178-80.

The deputy fired a single shot, killing Dooley. Five seconds elapsed from the deputy’s command to the gunshot. The rifle turned out to be a pellet gun attached to

a wire sling buttoned to Dooley’s coat, which explained

Dooley’s hand movements as he attempted to remove

the sling to comply with the deputy’s commands. The

district court granted the deputy’s motion for summary judgment on the Fourth Amendment, concluding

that the deputy was entitled to qualified immunity

because the deadly force was objectively reasonable.

Id. at 1180-81.

The Eighth Circuit affirmed. Id. at 1183. Despite

the fact that the deputies had minutes to plan their

approach, Dooley had done nothing illegal and had not

threatened physical harm, and the video evidence from

the patrol car’s dashboard camera contradicted the

deputies’ description of the rifle movements, the court

found that the deputy’s mistaken perception that

Dooley posed a threat of serious physical harm was

nonetheless objectively reasonable. Id.

Dooley strongly supports the proposition that even

if Gelhaus mistakenly perceived the extent of the

threat posed by the turned and rising barrel of the assault rifle, that nonetheless use of deadly force was objectively reasonable, or at the very least its lawfulness

was not “beyond debate” for purposes of qualified immunity. Indeed, Dooley is much closer to the circumstances Gelhaus confronted than George or any other

case cited by the majority in rejecting qualified immunity here.5

Other circuits have also found qualified immunity

applied even where deadly force was prompted by a

subject simply reaching for a suspected or known

Although Dooley was decided after the underlying incident

here, as this Court noted in Pearson, post-event Circuit Court decisions that support a defendant’s actions are relevant to determining clearly established law. 555 U.S. at 244 (noting that the

Sixth Circuit had issued a decision supporting defendant’s conduct “after the events that gave rise to respondent’s suit,” and including it in qualified immunity analysis).

weapon – circumstances much less threatening than

those confronting Gelhaus. See Anderson v. Russell,

247 F.3d 125, 130-31 (4th Cir. 2001) (deadly force reasonable when suspect reaching toward bulge believed

to be a gun); Reese v. Anderson, 926 F.2d 494, 500-01

(5th Cir. 1991) (suspect appeared to be reaching toward

an unseen gun; officer justified in firing); Kenning v.

Carli, 648 F. App’x 763, 764-70 (8th Cir. 2016) (deadly

force lawful when suspect turned back towards where

he placed gun).

D. The Absence Of Clearly Established Law

Mandated That Petitioner Be Granted

Qualified Immunity.

Given the controlling decisions of this Court, existing precedent in the Ninth Circuit, as well as case

law in other circuits, it cannot be said that the law was

clearly established with respect to Gelhaus’s use of

deadly force under the particular circumstances of this

case, i.e., confronting an individual carrying an apparent assault rifle, who was alerted to police presence by

a chirped siren, and who refuses a command to drop

the weapon, and instead, turns with the barrel of the

rifle rising. No case law indicated that an officer confronted with a devastatingly deadly weapon capable of

discharging 30 rounds in mere seconds, penetrating

car doors and ballistic vests, must speculate, in milliseconds, that the barrel might stop rising and halt at

some unknown, and essentially unknowable point, at

which it would not present a danger to the officer or to

anyone else. These are precisely the circumstances in

which an officer is entitled to qualified immunity. The

Ninth Circuit’s refusal to adhere the controlling decisions of this Court necessitates the Court’s intervention.

II.

THE COURT SHOULD GRANT REVIEW TO

COMPEL COMPLIANCE WITH GRAHAM V.

CONNOR’S STANDARD FOR EVALUATING

FOURTH AMENDMENT USE OF FORCE

CLAIMS AND TO REPUDIATE THE NINTH

CIRCUIT’S APPLICATION OF AN ESPECIALLY STRINGENT STANDARD OF REVIEW WITH RESPECT TO SUMMARY

JUDGMENT WHERE OFFICERS ARE THE

ONLY WITNESSES TO AN INCIDENT.

The panel majority’s failure to identify clearly established law concerning the facts confronted by Gelhaus warrants review, and indeed summary reversal

by this Court. However, as this Court has recognized,

it is often beneficial to develop constitutional precedent with respect to use of force in particular circumstances confronted by police officers which may give

rise to a claim of qualified immunity. Plumhoff, 134

S. Ct. at 2020. Petitioner submits that is precisely the

case here. It is, unfortunately, growing more commonplace for officers in the field to confront individuals –

including teenagers – carrying assault weapons capable of discharging devastating firepower in a split second. It would therefore be useful to provide guidance

to the lower courts in analyzing such claims under

Graham v. Connor, 490 U.S. 386. The panel majority

here underscores the need for this Court’s guidance

given, as the dissent notes, its failure to analyze the

use of force from the perspective of the officer on the

scene, but with precisely the “20/20 vision of hindsight”

the Court rejected in Graham. Id. at 396.

Moreover, the focus of the panel majority on irrelevant factual discrepancies and wholly speculative inferences untethered to actual evidence, appears to

stem from the Ninth Circuit’s acknowledged rule that

it will grant summary judgment only “sparingly” in

deadly force cases where officers are the only witnesses

and that the court will particularly scrutinize the evidence in such cases. (App. 13-14 (citing Gonzalez v. City

of Anaheim, 747 F.3d at 795).) This case provides an

appropriate vehicle for the Court to repudiate the notion that there is any sort of special standard applicable to summary judgment motions in deadly force

cases where officers are the only witnesses. The Court

should reaffirm the principle that where the undisputed evidence establishes that the force used was objectively reasonable, an officer is entitled to summary

judgment. Plumhoff, 134 S. Ct. at 2021-22; Scott v. Harris, 550 U.S. 372, 386 (2007).

Here, proper application of the standards set forth

by this Court in Graham and Plumhoff make it clear

that Gelhaus’s use of force was objectively reasonable

and that he was entitled to summary judgment.

A. The Graham Standards.

In Graham, this Court held that claims for excessive force under the Fourth Amendment would be evaluated based upon the objective reasonableness of an

officer’s conduct. 490 U.S. at 395-97. Evaluation of use

of force under the Fourth Amendment “requires careful

attention of the facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id. at 396. “The operative question in excessive

force cases is ‘whether the totality of the circumstances

justifie[s] a particular sort of search or seizure.’ ”

County of Los Angeles v. Mendez, __ U.S. __, 137 S. Ct.

1539, 1546 (2017) (citing Tennessee v. Garner, 471 U.S.

1, 8-9 (1985)).

Moreover, the reasonableness of force must be

evaluated based on the information officers possessed

at the time. Saucier v. Katz, 533 U.S. 194, 207 (2001);

Mendez, 137 S. Ct. at 1546-47; Graham, 490 U.S. at 397

(“the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them . . . ”). Critically, the Court

has emphasized that the reasonableness of “a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the

20/20 vision of hindsight,” making “allowance for the

fact that police officers are often forced to make splitsecond judgments – in circumstances that are tense,

uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.

Although the panel majority recites the Graham

standards (App. 12-13), it effectively ignores them,

finding an issue of fact based largely on conjecture and

Monday-morning quarterbacking.

B. The Majority Departed From Graham

By Applying 20/20 Hindsight Without Regard To The Tense, Fast-Evolving Circumstances Confronting Petitioner And

Relying On Speculation, Not Evidence,

In Denying Summary Judgment.

The majority concludes there is a triable issue of

fact as to whether Gelhaus should have realized that

Lopez did not have a real AK-47, but only a replica,

even though the weapon lacked the bright orange tip

required by law. But the majority based its conclusion

on the testimony of a civilian witness who had seen

Lopez just prior to the incident and concluded that

Lopez did not have a real gun because he subjectively

thought it would be odd “ ‘at that time of the afternoon,

you know, someone walking around with an AK-47, to

me, just – I couldn’t see somebody doing that.’ ” (App.

3.) “Indeed, at ‘th[at] time of the day’ he said, ‘someone

is not going to be carrying a real rifle.’ ” (Id.)

When the witness got within approximately 50

feet of Lopez, he slowed down to look at the gun,

thought it looked fake and suspected it was a BB gun

because his mother-in-law had seen some children

with them in the area several weeks earlier. (Id.)

As the dissent notes, the civilian witness’s conclusion about the rifle was based on his own subjective

experiences – he thought it would be odd for someone

to walk around with an AK-47 in the afternoon (an assumption, Gelhaus as an officer who can encounter a

deadly situation at any time of the day, did not have

the luxury to make), and that it was likely a BB gun,

based upon his having heard that children with BB

guns had recently been active in the area (information

to which Gelhaus was not privy). (See App. 60-61.)

Gelhaus knew what an AK-47 looked like based

both upon his military experience, and the fact that he

had encountered them in the course of serving as a police officer, and had seized an assault rifle in the same

area only weeks before. (Id.) A side-by-side comparison

of a real AK-47 and a replica rifle as Lopez carried underscores the realistic nature of the latter. (See App.

103 (real AK-47 at the top of the frame).)

The only direct, and indeed undisputed evidence –

the testimony from the officers – established that once

the officers had alerted Lopez to their presence by

chirping the siren, he failed to obey Gelhaus’s command to drop the rifle, but, instead, turned with the

barrel beginning to rise towards the officers. As the dissent notes, the majority’s conclusion that a jury could

nonetheless conclude that the weapon did not pose a

risk to Gelhaus or anyone else because it was not yet

pointed at him, and “might” stop rising before it

reached some “magic point” at which it could pose

a danger, is wholly speculative, contrary to Graham

and its progeny, and ignores the specific tense circumstances Gelhaus confronted. This was a weapon of

overwhelming firepower, capable of spraying 30 bullets

in a matter of seconds at a range of less than 70 feet,

each bullet capable of penetrating a car door or body

armor – Gelhaus’s only protection. Once the barrel

turned and started moving upward, Gelhaus had very

little time to react, without putting himself, his partner, and anyone else in the vicinity6 in jeopardy. Gelhaus could reasonably perceive a threat and act

reasonably to protect himself and others.7 These are

precisely the sort of tense, rapidly evolving circumstances in which this Court has made it clear courts

should not exercise hindsight in second-guessing an officer’s actions.

In addition, in armchair analysis akin to an episode of NCIS, the majority postulates that Gelhaus

And the “vicinity” at risk is considerable – a U.S. Army Operator’s Manual for the AK-47 notes that it has an effective range

of at least 300 meters. https://en.wikisource.org/wiki/AK-47_

Operator%27s_Manual (last visited March 18, 2018).

The panel majority’s suggestion that a jury could find the

force unreasonable because Gelhaus did not actually see if Lopez

had his finger on the trigger (App. 24) is untenable and irrational.

The shooting occurred at a distance of over 60 feet, and it was

undisputed that Lopez was holding the gun by its pistol grip with

his finger capable of moving to the trigger in a split second. Not

surprisingly, the majority cites no case suggesting that an officer

must see a finger on a trigger as a gun is raised towards them

before being able to reasonably defend themselves against the

perceived threat.

should have, in the heat of the moment, somehow anticipated that Lopez might not have heard the siren

chirp or thought it was something else though the

chirp was plainly audible (App. 15 n.7) – or that Gelhaus did not know the command to drop the weapon

was directed at him (App. 16) – though nobody else carrying a weapon (save the officers) was nearby. The majority similarly speculates that Gelhaus should have

assumed that the weapon was a BB gun as he had encountered youths with BB guns before (App. 23) – but

that had been at a range of a hundred yards in a park,

not a neighborhood, and the youths had promptly

obeyed his command to drop their weapons (App. 5).

Indeed, the majority effectively requires that an

officer be correct in his perception of a threat; yet the

standard enunciated by the Court in Graham concerns

probable cause to use force – just as “[t]he Fourth

Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested

nor by the mistaken execution of a valid search warrant on the wrong premises,” so too “ ‘[n]ot every push

or shove, even if it may later seem unnecessary in the

peace of a judge’s chambers,’ violates the Fourth

Amendment.” 490 U.S. at 396 (citations omitted). An

officer need only believe that there is probable cause to

believe the force is necessary, and as the Court has observed, “the probable-cause requirement: . . . ‘[D]oes

not deal with hard certainties, but with probabilities.’ ”

Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality); Hill

v. California, 401 U.S. 797, 804 (1971) (“[S]ufficient

probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.”).

C. The Ninth Circuit’s Rule Requiring Especially Stringent Review Of Summary

Judgment Motions In Deadly Force Cases

Where Officers Are The Only Witnesses To

Events, Effectively Requires Defendants

To Affirmatively Disprove Any Conceivable Contrary Scenario, Which Is Directly

Contrary To This Court’s Decisions Concerning Summary Judgment.

As the dissent noted, instead of viewing the facts

as they would be perceived by a reasonable officer under the circumstances as established by undisputed evidence, the panel majority instead posits an analysis

that “rests on the bare absence of evidence definitively

disproving the existence of alternative facts for which

there is no record.” (App. 55.) As the dissent further

observed:

This novel rule – that we must accept as true

all facts not conclusively disproved by evidence in the record even if those facts have no

evidentiary support of their own – is plainly

wrong.

(Id.)

Under the guise of applying its practice of granting summary judgment only “sparingly” in deadly force

cases where officers are the only witnesses and scrutinizing the evidence particularly closely in such cases,

the panel majority effectively placed the burden on

Gelhaus, not simply to prove his version of what occurred, but disapprove any other conceivable set of facts.

This plainly runs afoul of this Court’s decision in Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986), which held that when the “moving

party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.”

The majority’s rejection of summary judgment on

the reasonable use of force issue is not based on what

evidence plaintiff actually has as to what occurred, but

on speculating that the jury might disbelieve the officers’ account and construct, out of whole cloth, a scenario that would not justify the use of deadly force.

(App. 27.) Yet, as the Court emphasized in Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986), to

withstand summary judgment a party must present

affirmative evidence to support their version of events

– it is not enough to say that a jury might disbelieve

the moving party’s evidence:

As we have recently said, “discredited testimony is not [normally] considered a sufficient

basis for drawing a contrary conclusion.” Instead, the plaintiff must present affirmative

evidence in order to defeat a properly supported motion for summary judgment. This is

true even where the evidence is likely to be

within the possession of the defendant, as

long as the plaintiff has had a full opportunity

to conduct discovery.

Id. (citations omitted).

In a post-Sandy Hook, post-Parkland world, neither law enforcement officers nor the public they protect, have the luxury of assuming that someone in their

mid to late teens carrying what appears to be an assault rifle on a sunny afternoon is more likely to be

plinking cans with an illegal BB gun than presenting

a credible threat of violence. This was a tragic incident,

but under the governing decisions of this Court, Petitioner Gelhaus should not, and cannot, be held liable

under the Fourth Amendment.

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

CONCLUSION

For the foregoing reasons, petitioner respectfully

submits that the petition for writ of certiorari should

be granted.

Respectfully submitted,

TIMOTHY T. COATES

Counsel of Record

GREINES, MARTIN, STEIN &

RICHLAND LLP

5900 Wilshire Boulevard, 12th Floor

Los Angeles, California 90036

Telephone: (310) 859-7811

Facsimile: (310) 276-5261

E-mail: tcoates@gmsr.com

NOAH G. BLECHMAN

MCNAMARA, NEY, BEATTY, SLATTERY,

BORGES & AMBACHER LLP

3480 Buskirk Avenue, Suite 250

Pleasant Hill, California 94523

Telephone: (925) 939-5330

Facsimile: (925) 939-0203

E-mail: noah.blechman@

mcnamaralaw.com

Counsel for Petitioner Erick Gelhaus

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.