Appendix — City of Oxnard v. Jensen

nee 14 cy

ee

to

DS a

it

me

on

Pee

on ee

9

beg

f

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED MAY 28, 1998

FOR PUBLICATION .

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER JENSEN, individually and

as Administrator of the Estate of

JAMES REx JENSEN, JR., deceased

and LINDSEY ELIZABETH JENSEN and

KATELYN MELISA JENSEN, minors

by and through JenniFER JENSEN,

guardian ad Litem,

Plaintiff-Appellee,

ni No. 97-55936

City oF OXNARD; CHIEF HAROLD : D.C. No

Hurt, individually and as Chief P CV-97-01096-SVW

of Police; STAN MEYERS,

individually and as Assistant Chief OPINION

of Police; Tom Capy, individually

and as Assistant Chief of Police;

JOHN CrRoMBACH, individually and

as Commander; Bitt Lewis,

individually and as Sergeant;

DANIEL CuRISTIAN, individually and

as Sergeant; and Does 1 through

100, inclusive,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

February 5, 1998—Pasadena, California

Filed May 28, 1998

2 ne AAR sue

2a

Before: J. Clifford Wallace, Stephen S. Trott and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins; Concurrence by Judge Wallace

SUMMARY

individual Rights/Civil Rights

The court of appeals affirmed an order of the district court.

The court held that in a civil rights action under 42 U.S.C.

§ 1983, a police officer is not per se entitled to qualified

immunity for the accidental shooting of a fellow officer dur-

ing law-enforcement activity. -

A “SWAT” team of appellant City of Oxnard Police

Department stormed an unoccupied residence to serve a

search warrant. Officer James Jensen threw a smoke-

producing grenade onto a second-floor landing and went

upstairs with appellant Sergeant Daniel Christian and other

officers. Christian mistook Officer Jensen for an armed sus-

pect and shot him dead.

Officer Jensen’s wife, appellee Jennifer Jensen, sued the

City, police officials, and others under 42 U.S.C. § 1983. The

complaint alleged that Oxnard violated Officer Jensen's

Fourth and Fourteenth Amendment rights because Christian

used excessive and unreasonable deadly force; the City and

various officials acted with deliberate indifference to the

maintaining, training, and control of its SWAT team; and the

indifference was a proximate cause in Christian’s violation of

Officer Jensen’s constitutional rights.

Oxnard moved to dismiss on the grounds that Jensen failed

to allege a violation of a specific and well-founded constitu-

tional right, and the individual defendants were entitled to

3a

qualified immunity. The district court denied Oxnard’s

motion. The defendants took an interlocutory appeal.

{1] To sustain an action under § 1983, a plaintiff must show

that the conduct complained of was committed by a person

acting under color of state law, and that the conduct deprived

the plaintiff of a federal constitutional or statutory right. [2]

Moreover, in seeking to establish municipal liability on the

theory that a facially lawful municipal action has led an

employee to violate a plaintiff's rights, one must demonstrate

that the municipal action was taken with “deliberate

indifference” as to its known or obvious consequences.

[3] The complaint adequately stated a cause of action. Jen-

sen alleged that Christian was highly likely to inflict the par-

ticular injury suffered by Cfficer Jensen as a result of

Oxnard’s deliberate. indifference toward the staffing and train-

ing of its SWAT teams. [4] The allegation that by intention-

ally shooting at a figure he mistook for an armed criminal,

Christian engaged in a Fourth Amendment seizure, was sup-

ported in the law. [5] The allegations, that through its training

and control of its SWAT team, Oxnard was the moving force

behind Christian’s actions, were sufficient to state a plausible

link between the policymaker’s inadequate decision and the

particular injury alleged.

[6] The Constitution does not guarantee a right to a safe

workplace. [7] Although this case was similar to safe work-

place cases in that they concerned individuals who voluntarily

accepted an offer of employment, this case was different in

one significant way—the nature of the injury alleged.

[8] The cases cited by Oxnard involved workplace injuries,

including attacks by third parties against public employees,

government failure to protect its employees, and attacks by

prisoners on guards. [9] However, none of those cases

involved the use of excessive force by a government agent

against a government agent. The difference was quite signifi-

4a

cant. While the safe workplace cases concerned the failure of

the state adequately to train, prepare, or protect government

employees from non-state actors, this case involved alleged

intentional or reckless acts of a government employee

directed against another government employee.

[10] Officer Jensen did not forfeit all constitutional rights

when he became a member of the police force. Like all indi-

vidual officers, Officer Jensen maintained some constitutional

rights, which if violated by a state actor, can result in liability

under § 1983. In particular, he retained the Fourth Amend-

ment right to be free from unreasonable seizure by fellow

officers while performing police work.

[11] Government officials are given qualified immunity

from civil liability under § 1983 insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known. In analyzing

a qualified immunity defense, courts must determine: (1) what

right has been violated; (2) whether the right was SO clearly

established at the time of the incident that a reasonable officer

would have been aware of its constitutionality; and (3)

whether a reasonable public officer could have believed that

the alleged conduct was lawful.

[12] The complaint alleged the violation of a specific right:

the Fourth Amendment right to be free from an unreasonable

seizure. Thus, it had to be decided whether that right was

clearly established when Christian killed Officer Jensen. [13]

A right is clearly established if its contours are sufficiently

clear that a reasonable official would understand that what he

is doing violates that right. Jensen had to establish only that

Oxnard’s unlawfulness was apparent in light of preexisting

law.

[14] Officer Jensen had a clearly established right to be free

from unreasonable seizure at the time he was killed. If the

Sa

allegations with respect to Christian’s conduct were true, his

unlawfulness was “apparent” in light of preexisting law.

[15] It was well established that apprehension by the use of

deadly force is a seizure subject to the reasonableness require-

ment of the Fourth Amendment. [16] Moreover, it was long

since established that police officers retain their Fourth

Amendment rights. [17] Finally, it was clearly established that

a police officer may not shoot to kill unless, at a minimum,

the suspect presents an immediate threat to the officer or oth-

ers, or is fleeing and his escape will result in a serious threat

of injury to persons. In addition, a police officer must, if prac-

ticable, issue a warning before using deadly force.

[18] The question was whether, in light of the clearly estab-

-lished principles governing Christian’s conduct, each of the

defendants could reasonably have believed that the conduct

was lawful. Based on the facts alleged, Christian did not act

reasonably when he shot Officer Jensen to death.

[19] The reasonableness of an individual’s use of force is

reviewed from the perspective of a reasonable officer on the

scene. Reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judg-

ments about the amount of force that is necessary in a particu-

lar situation. The question is whether the officers’ actions are

objectively reasonable in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation.

[20] It was clear that some factual issues had to be resolved

to determine the reasonableness of the City’s actions. If Chris-

tian shot Officer Jensen three times in the back from a dis-

tance of three feet in conditions in which he should have been

able to recognize that the figure he was shooting at was a fel-

low officer, such a use of force would have been unreason-

able. If police officials knew that Christian was likely to

inflict a constitutional injury, or if their practices and policies

6a

showed a deliberate indifference to the danger such an indi-

vidual posed, they should be liable under § 1983. Because

under Jensen’s version of the shooting Christian could not

have reasonably believed that the use of deadly force was

lawful, none of the individual defendants were entitled to

qualified immunity.

Judge Wallace concurred separately, writing that the only

inquiry on appeal was whether there was qualified immunity,

and that the court should not have reached the issue of

whether the complaint stated a claim.

COUNSEL

Jeffrey Held and Alan E. Wisotsky, Law Offices of Alan E.

Wisotsky, Oxnard, California, for the defendants-appellants.

Edward Steinbrecher, Steinbrecher and Associates, Encino,

California, for the plaintiff-appellee.

OPINION

HAWKINS, Circuit Judge:

Officer James Jensen was shot and killed by a fellow offi-

cer during a SWAT Unit raid to serve a search warrant on an

unoccupied residence. His widow, Jennifer Jensen, brought a

42 U.S.C. § 1983 action against the City of Oxnard, its police

chief and several individual officers. The defendants moved

to dismiss for failure to state a claim under Rule 12(b)(6). The

district court denied this motion. We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of March 13, 1996, the Special

Weapons and Tactics (“SWAT”) team of the Oxnard Police

7a

Department stormed a two-story townhouse to serve a search

warrant on what turned out to be an unoccupied residence. As

part of the operation, Officer James Jensen (“Officer Jensen”)

threw a “flash-bang” grenade from a staircase onto a second

floor landing. The grenade exploded with a blast of light,

emitting smoke into the surrounding rooms. Officer Jensen

and several other SWAT team members, including Sergeant

Daniel Christian (“Sergeant Christian”), went up the staircase

to the second floor. Shortly thereafter, Sergeant Christian

fired three rounds from his 12-gauge shotgun, killing Officer

Jensen.

Although the parties dispute the facts as to exactly how

Officer Jensen was killed (e.g., whether he was shot in the

back; whether he was entering the room directly in front of

Sergeant Christian; the degree to which vision was obscured

by the grenade smoke), the parties agree that, “[ijn the turmoil

of events, [Sergeant] Christian mistook [Officer Jensen] for a

gun-wielding occupant of the premises and shot him to

death.”

Jennifer Jensen (“Jensen”), widow of Officer Jensen, filed

a complaint against the City of Oxnard, the Chief of Police,

and various individual officers, including Sergeant Chnistian

(collectively “Oxnard” or the “City”). In the complaint, Jen-

sen alleges the intentional and reckless acts of Sergeant Chris-

tian, which were a result of Oxnard’s “deliberate indiffer-

ence” regarding the training and control of those officers who

conducted the March 13 raid, resulted in a violation of her

husband’s civil rights under 42 U.S.C. § 1983.

Oxnard moved to dismiss under Fed. R. Civ. P. 12(b)(6),

arguing that Jensen failed to state a cause of action upon

which relief could be granted. Oxnard argued, as it does in

this appeal, that this action should be dismissed because: (1)

Jensen cannot sustain a § 1983 claim without alleging that

specific and well-founded constitutional rights have been vio-

8a

lated: and (2) the individual defendants are entitled to quali-

fied immunity. The district court denied Oxnard’s motion.

JURISDICTION

We have interlocutory appellate jurisdiction to review the

denial of a 12(b)(6) motion to dismiss as long as that review

does not require the resolution of any controlling facts. See

Behrens v. Pelletier, 516 U.S. 299, 305-07, 116 S. Ct. 834,

838-39 (1996). We can resolve this case simply by answering

questions of law.

STANDARD OF REVIEW

A district court’s @etision of qualified immunity in a 42

te

U.S.C. § 1983 action is reviewed de novo. See Elder v. Hol-

loway, 510 U.S. 510, 516 (1994ye

While a district court’s denial of a 12(b)(6) motion gener-

ally is not a reviewable final order, when the question of

immunity is raised “we use the collateral order doctrine to

exercise jurisdiction” and our review of the district court's

denial is de novo. Figueroa v. United States, 7 F.3d 1405,

1408 (9th Cir. 1993). We must assume the truth of all material

allegations in the complaint and construe them in the light

most favorable to Jensen. See NL Industries, Inc. v. Kaplan,

792 F.2d 896, 898 (9th Cir. 1986). A dismissal is warranted

if it appears beyond doubt that Jensen can prove no set of

facts in support of her claims that would entitle her relief. See

Figueroa, 7 F.3d at 1409.

ANALYSIS

I. Friendly Fire Seizure

A. Violation of a Constitutional Right

[1] “To sustain an action under section 1983, a plaintiff

must show (1) that the conduct complained of was committed

9a

by a person acting under color of state law; and (2) that the

conduct deprived the plaintiff of a federal constitutional or

statutory right.” Wood v. Ostrander, 879 F.2d 583, 587 (9th

Cir. 1989).

[2] Moreover, in “seeking to establish municipal liability

on the theory that a facially lawful municipal action has led

an employee to violate a plaintiff's rights [one] must demon-

Strate that the municipal action was taken with ‘deliberate

indifference’ as to its known or obvious consequences.”

Board of the County Comm'rs v. Brown, __ U.S. __, __.,

117 S. Ct. 1382, 1390 (1997).

[3] This complaint adequately states a cause of action. Spe-

cifically, it alleges that Oxnard violated Officer Jensen’s

Fourth and Fourteenth Amendment rights in two respects: (1)

Sergeant Christian used excessive and unreasonable deadly

force; and (2) the City of Oxnard and various officials in the

Oxnard Police Department acted with deliberate indifference

to the maintenance, training, and control of its SWAT teams,

and that indifference was a proximate cause in Sergeant

Christian’s violation of Officer Jensen’s constitutional rights.

In other words, Jensen alleges that Sergeant Christian was

“highly likely to inflict the particular injury suffered by” Offi-

cer Jensen as a result of Oxnard’s deliberate indifference

towards the staffing and training of its SWAT teams. Brown,

117 S. Ct. at 1392.

[4] The allegation that Sergeant Christian, by intentionally

shooting at a figure he mistook to be an armed criminal,

engaged in a Fourth Amendment seizure is supported in the

law. See Brower v. County of Inyo, 489 U.S. 593, 596-97

(1989) (a seizure is a “governmental termination of freedom

of movement through means intentionally applied” and a -

“seizure occurs even when an unintended person or thing is

the object of the detention or taking”); Tennessee v. Garner,

471 U.S. 1, 7 (1985) (“[T]here can be no question that appre-

10a

hension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.”).

[5] Somewhat less clearly, the complaint alleges that

Oxnard, through its training and control of its SWAT unit,

was the “moving force” behind Sergeant Christian’s actions.

According to the complaint, the City of Oxnard: (1) failed

adequately to train or equip the members of the SWAT team;

(2) failed to control those members of the SWAT team who

have a known propensity for violence; and (3) failed to inves-

tigate SWAT team members for potential substance abuse

and/or mental problems. Moreover, the complaint specifically

alleges that the police chief, assistant police chief, and police

commander assigned Sergeant Christian to the SWAT team

“knowing that he was using mind-altering drugs, including

phenobarbetol and other substances.” These allegations are

sufficient to allege a plausible “link between the policy-

maker’s inadequate decision and the particular injury

alleged.” Brown, 117 S. Ct. at 1391.

B. Right to a Safe Workplace

Oxnard contends that these allegations do not suffice to

state a potential constitutional violation. Without denying that

Sergeant Christian’s shooting of Officer Jensen constitutes a

seizure under the Fourth Amendment, Oxnard attempts to

portray this case as a “safe workplace” case. Oxnard cites a

line of cases, discussed below, in which the Supreme Cour:

and other lower courts have held that there is no constitutional

right to a safe working environment. Essentially, public

employees cannot bring § 1983 claims against their employers

for injuries suffered on the job on the theory that the govern-

ment “violated a federal constitutional obligation to provide

its employees with certain minimal levels of safety and

security.” Collins v. City of Harker Heights, 503 U.S. 115,

127 (1992).

[6] We recognize that the Constitution does not guarantee

a right to a safe workplace. See id. at 126-28. In Collins, a city

lla

sanitation department worker died while trying to clear a

sewer line. His widow brought a § 1983 action against the city

on the theory that her husband “had a constitutional right to

be free from unreasonable risks of harm to his body, mind and

emotions and had a constitutional right to be protected from

the City of Harker Heights’ custom and policy of deliberate

indifference toward the safety of its employees.” Jd. at 117.

She alleged that the city violated that right by following a cus-

tom and policy of inadequate training. Affirming the dis-

missal of this action, the Supreme Court held that the

Constitution contains no right to a safe working environment.

See id. at 126. Accordingly, the city’s alleged failure to train

could not amount to a constitutional violation.

[7] Employing Collins, Oxnard argues that Officer Jensen

could not have had any of his rights violated because he was

injured while performing his duties as a police officer. We

reject this argument and Oxnard’s attempt to turn this into a

safe workplace case. Although this case is similar to the safe

workplace cases in that they both concern individuals who

“voluntarily accepted . . . an offer of employment,” id. at 128,

this case is different in one significant way — the nature of

the injury alleged.

[8] The other cases cited by Oxnard involve a variety of

workplace injuries, including attacks by third parties against

public employees, see Rutherford v. City of Newport News,

919 F. Supp. 885 (E.D. Va. 1996), aff'd, 107 F.3d 867 (4th

Cir. 1997); Hartman v. Bachert, 880 F. Supp. 342 (E.D. Pa.

1995), an alleged government failure to protect its employee,

see Skinner v. City of Miami, 62 F.3d 344 (11th Cir. 1995),

and attacks by prisoners on guards. See Walker v. Rowe, 791

F.2d 507 (7th Cir. 1986).

[9] None of these cases, however, involve the use of exces-

sive force by a government agent against a government agent.

Oxnard argues that this is a “distinction without a difference.”

We conclude that the difference is quite significant. While the

12a

safe workplace cases concer the failure of the state ade-

quately to train, prepare, or protect government employees

from non-state actors, this case involves the allegedly inten-

tional or reckless acts of a government employee directed

against another government employee.’

Oxnard suggests that this case is distinguishable from a

case in which an innocent civilian or even a criminal suspect

is caught in the line of fire. In either of those situations,

Oxnard concedes, the injured party would be able to allege a

§ 1983 action. The only difference here is the decedent was

a police officer injured in the line of duty. Officer Jensen vol-

unteered for the dangerous police work associated with

SWAT teams. Thus, we agree with Oxnard, Jensen cannot

argue that her husband is like those individuals to whom the

State owes a duty to care because they have been deprived of

their liberty. See, e.8., Youngberg v. Romeo, 457 U.S. 307,

315-16 (1982) (persons in mental institutions); Turner v. Saf-

ley, 482 U.S. 78, 94-99 (1987) (convicted felons); City of

Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244-45

(1983) (persons under arrest).

[10] Nonetheless, Officer Jensen did not forfeit all constitu-

tional rights when he became a member of the police force.”

See Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992) (drug test-

‘Althoug:: Skinner, 62 F.3d at 344, involved employee-on-employee

conduct, Skinner did not argue that his Fourth Amendment rights were

violated. Rather, he alleged that the city has a constitutional duty to protect

employees from one another. Because there is no constitutional right to a

safe workplace, the Eleventh Circuit found, this claim must fail. Jensen,

on the other hand, alleges @ particular constitutional violation — Fourth

Amendment seizure — which exists independent of the workplace.

2Oxnard argues for precisely this outcome when it suggests that:

[t]he voluntary acceptance of an offer of public employment pre-

cludes the existence of a constitutional right for tragic physical

injury sustained by that employee in the very course of operations

involved, no matter exactly how the injury may occur, whether

at the hands of a criminal or another officer.

.

13a

ing of police officers subject to reasonableness test of the

Fourth Amendment); Graham v. Davis, 880 F.2d 1414, 1418-

19 (D.C. Cir. 1989) (allowing officer to bring excessive force

§ 1983 action against other officers based on altercation with

those officers in the process of an arrest). Rather, like all indi-

vidual police officers, Officer Jensen maintained some consti-

tutional rights (including Fourth Amendment rights) which, if

violated by a state actor, can result in liability under § 1983.

In particular, he retained the right at issue here — the Fourth

Amendment right to be free from unreasonable seizure by fel-

low officers while performing police work.

Accordingly, we hold that Jensen has properly stated a

claim upon which relief can be granted.”

II. Qualified Immunity

[11] All of the individual defendants claim that they are

*We also reject Oxnard’s contention that traditional state workers’ com-

pensation law precludes Jensen’s § 1983 claim. The cases cited by Oxnard

are inapplicable to this case as none of those cases involved a deprivation

of constitutional rights. See Washington v. District of Columbia, 802 F.2d

1478, 1481 (D.C. Cir. 1986) (prison guard who was attacked by prisoner

failed to state constitutional injury); McClary v. O'Hare, 786 F.2d 83, 87

(2d Cir. 1986) (no recovery against state because deprivation of right “did

not occur as a result of some state procedure”); Hayes v. Vessey, 777 F.2d

1149 (6th Cir. 1986) (prison teacher injured by “a third party not a state

employee or official’).

Moreover, to the extent workers’ compensation precludes recovery for

other causes of action, it does not preclude recovery for claims involving

“substantive rather than procedural constitutional rights.” Smith v. Fon-

tana, 818 F.2d 1411, 1419-20 (9th Cir. 1987); see also Daniels v. Wil-

liams, 474 U.S. 327 106 at 678 (1986) (separate opinion of Stevens, J.)

(“If the claim [concerns a] . . . violation of one of the specific constitu-

tional guarantees of the Bill of Rights[ ], a plaintiff may invoke § 1983

regardless of the availability of state remedy.”). Indeed, we have previ-

ously recognized that personal injury claims that implicate constitutional

rights are not preempted by state workers’ compensation acts. See May-

nard v. City of San Jose, 37 F.3d 1396, 1405 (9th Cir. 1994).

l4a

entitled to qualified immunity. Government officials are given

qualified immunity from civil liability under § 1983 “insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In analyzing a qualified immunity defense, we must

determine: (1) what right has been violated; (2) whether that

right was so “clearly established” at the time of the incident

that a reasonable officer would have been aware of its consti-

tutionality; and (3) whether a reasonable public officer could

have believed that the alleged conduct was lawful. See Gab-

bert v. Conn, 131 F.3d 793, 799 (9th Cir. 1997); Newell v.

Sauser, 79 F.3d 115, 117 (9th Cir. 1996).

[12] As stated above, the complaint alleges the violation of

a specific right: the Fourth Amendment right to be free from

an unreasonable seizure. Thus, we must decide whether that

right was clearly established when Sergeant Christian killed

Officer Jensen.

[13] A particular right is “clearly established” if “the con-

tours of [that] right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). To

show that the right in question here was clearly established,

Jensen need not establish that Oxnard’s “behavior had been

previously declared unconstitutional, only that the unlawful-

ness was apparent in light of preexisting law.” Blueford v.

Prunty, 108 F.3d 251, 254 (9th Cir. 1997). Indeed, “precedent

directly on point is not necessary to demonstrate a clearly

established right.” Jd. at 255. Rather, “[i]f the only reasonable

conclusion from binding authority were that the disputed right

existed, even if no case had specifically declared, [police]

would be on notice of the right and officials would not be

qualifiedly immune if they acted to offend it.” /d.

[14] We conclude that Officer Jensen had a clearly estab-

lished right to be free from unreasonable seizure at the time

15a

he was killed. Although we have been unable to find a case

in which a court has found the exact right at issue here, we

conclude that if the allegations with respect to Sergeant Chris-

tian’s conduct are true, then his unlawfulness was “apparent”

in “light of preexisting law.” Anderson, 483 U.S. at 640.

[15] In Graham v. Connor, 490 U.S. 386, 395 (1989), the

Supreme Court held that “all claims that law enforcement

officers have used excessive force — deadly or not — in the

course of an arrest . . . or other ‘seizure’ of a free citizen

should be analyzed under the Fourth Amendment and its ‘rea-

sonableness’ standard .. . .” Similarly, it was well established

at the time of this incident that “[t]here is no question that the

apprehension by the use of deadly force is a seizure subject

to the reasonableness requirement of the Fourth Amendment.”

Cunrow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.

1991).

[16] Moreover, it has long since been established that

police officers “are not relegated to a watered-down version

of constitutional rights.” Garrity v. New Jersey, 385 U.S. 493,

500 (1967). Regarding the rights at issue here, it was clearly

established that police officers retain their Fourth Amendment

rights. See, e.g., Jackson, 975 F.2d at 652-53 (drug testing of

police officers subject to reasonableness requirements of the

Fourth Amendment); Graham, 880 F.2d at 1418-19 (allowing

officer to bring excessive force § 1983 action against other

officers based on altercation with those officers in the process

of an arrest); Los Angeles Police Protective League v. Gates,

907 F.2d 879 (9th Cir. 1990) (officer’s Fourth Amendment

rights violated by administrative search of his garage);

Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir.

1986) (strip searches of police officers conducted at police

Station violated officers’ Fourth Amendment rights).‘

“Although most of these cases only discuss the police officers’ Fourth

Amendment right to be free from unreasonable searches, the Fourth

Amendment clearly covers unreasonable seizures as well. ,

16a

[17] Finally, concerning the use of deadly force, it was

| clearly established at the time of this incident that a police

| officer “may not shoot to kill unless, at a minimum, the sus-

| pect presents an immediate threat to the officer or others, or

is fleeing and his escape will result in a serious threat of

injury to persons.” Harris v. Roderick, 126 F.3d 1189, 1201

(9th. Cir. 1997), cert. denied sub nom. Smith v. Harris, 118 S.

Ct. 1051 (1998). In addition, if practicable, a police officer

must issue a warning before using deadly force. See Garner,

471 U.S. at 11-12.

“Tt is clearly established, both by common sense and by

precedent,” that, on the day he was killed, Officer Jensen had

a right to be free from unreasonable seizure in violation of his

Fourth Amendment rights. Newell, 79 F.3d at 117. Precedent

informs us that: (1) excessive force claims are to be analyzed

under Fourth Amendment standards; (2) police officers retain

their Fourth Amendment rights; and (3) it is-a violation of the

Fourth Amendment for law enforcement personnel to use

deadly force unless the individual at whom that force is

directed presents an immediate or serious threat of danger.

Common sense tells us that, if these clearly established prece-

dents are to mean anything, Officer Jensen had the right to be

free from an unreasonable seizure even from a fellow officer

in the course of police work.

[18] Thus, the question we must answer is whether, in light

of the clearly established principles governing Sergeant Chris-

tian’s conduct at the time of the incident, each of the defen-

dants “could reasonably have believed that the conduct was

lawful.” Harris, 126 F.3d at 1201. Examining the law cor -

cerning the use of deadly force, we hold that, based on the

facts alleged in the complaint, Sergeant Christian did not act

reasonably when he shot Officer Jensen to death.®

SQxnard argues that this case does not fit within the “deadly force” line

of cases because those cases all concerned the rights of criminal defen-

dants or free citizens. We disagree. The only difference between those

cases and this case is that the injured person happened to be a police offi-

cer. This factor affects neither the rights at stake nor the test we apply in

reviewing Sergeant Christian’s conduct.

a

BE

MR dus tah,

17a

[19] The reasonableness of an individual’s use of force is

reviewed “from the perspective of a reasonahle offices. an. the

scene, rather than with the 20/20 vision of hindsight.”

Graham v. Connor, 490 U.S. at 396. Moreover, the “calculus

of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judg-

ments . . . about the amount of force that is necessary in a par-

ticular situation.” Jd. at 396-97. Nonetheless, this test is “an

objective one: the question is whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circum-

stances confronting them, without regard to their underlying

intent or motivation.” Jd. at 397.

[20] Considering this case, it is clear that some factual

issues need to be resolved in order to determine the reason-

ableness of the City’s actions. If, as is alleged in the com-

plaint, Sergeant Christian shot Officer Jensen three times in

the back from a distance of three feet in conditions in which

he should have been able to recognize that the figure he was

shooting was a fellow officer, such a use of force would be

unreasonable. Similarly, if police officials knew Sergeant

Christian was likely to inflict a constitutional injury or if their

practices and policies showed a “deliberate indifference” to

the danger such an individual posed, they shouid be liable

under § 1983. Because, under Jensen’s version of the shoot-

ing, Sergeant Christian “could not have reasonably believed

the use of deadly force was lawful,” none of the individua!

defendants are entitled to qualified immunity at this stage oi

the action. Cunrow, 952 F.2d at 325 (police not entitled to

qualified immunity where, under plaintiff's version of the

facts, decedent did not point gun at officers nor was he facing

them when they initially shot at him).

Clearly, material and important issues of fact remain to be

determined. Those facts might very well show that neither

Sergeant Christian nor any of the other defendants acted

unreasonably here. As a matter of law, however, they are noi

18a

entitled to immunity simply because the injured party is a

police officer.

CONCLUSION

The complaint adequately states a claim upon which relief

can be granted. It asserts that Officer Jensen’s Fourth Amend-

ment right to be free from unreasonable seizure was violated

when he was shot by another officer. Although individuals

assume a certain level of risk by accepting employment as

police officers, they do not forfeit their constitutional rights

by doing so.

Moreover, while a fully developed set of facts might show

that the individual defendants acted reasonably here, they are

not entitled to qualified immunity as a matter of law and the

district court acted properly when it denied Oxnard’s motion

to dismiss.

AFFIRMED.

WALLACE, Circuit Judge, concurring:

For the reasons stated in part II, I concur in the affirmance

of the holding of the district court that the appellants are not

entitled to qualified immunity as a matter of law, and, there-

fore, the district court properly denied the motion to dismiss

the action. I would not get to the merits of the action under

part I.

The Supreme Court has limited what we may decide on

appeal to the question of immunity separate from the merits

of the underlying action. Mitchell v. Forsyth, 472 U.S. 511,

529 (1985). “An appellate court reviewing the denial of the

defendant’s claim of immunity need not consider the correct-

ness of the plaintiffs version of the facts, nor even determine

19a

whether the plaintiff’s allegations actually state a claim. All

it need determine is a question of law: whether the legal

norms allegedly violated by the defendant were Clearly estab-

lished at the time of the challenged actions ... .” Jd. at 528.

“[T]he legal determination that a given proposition of law was

not clearly established at the time the defendant committed

the alleged acts does not entail a determination of the ‘merits’

of the plaintiff's claim that the defendant’s actions were in

fact unlawful.” Jd. at 529 n.10. We have also recognized that

the proper inquiry in an appeal similar to this is only whether

there is qualified immunity, not whether the complaint states

a claim. Figueroa v. United States, 7 F.3d 1405, 1409 (9th

Cir. 1993).

20a

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DENYING THE PETITION FOR REHEARING

FILED JULY 20, 1998

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER JENSEN, individually )

and as Administrator of the Estate

of JAMES REX JENSEN, JR.,

deceased; LINDSEY ELIZABETH

JENSEN and KATELYN MELISA

JENSEN, minors, by and through

JENNIFER JENSEN as Guardian

ad Litem,

Plaintiff — Appellee,

v.

CITY OF OXNARD; CHIEF

HAROLD HURTT, individually

and as Chief of Police; STAN

MEYERS, individually and as

Assistant Chief of Police; TOM

CADY, individually and as

Assistant Chief of Police; JOHN

CROMBACH, individually and

as Commander; BILL LEWIS,

individually and as Sergeant;

DANIEL CHRISTIAN,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 97-55936

D.C. No. CV-97-01096-SVW

(Central Dist. Calif.)

ORDER

2la

individually and as Sergeant; and

DOES 1 through 100, inclusive,

Defendants — Appellants.

Nee ee ee ee ee”

Before: WALLACE, TROTT and HAWKINS, Circuit Judges

The panel as constituted above has voted to deny the petition for

rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the Suggestion for rehearing

en banc and r> judge of the court has called for a vote to rehear this

matter en banc.

The petition for rehearing is denied and the Suggestion for

rehearing en banc is rejected.

22a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA DENYING MOTION TO DISMISS

FILED JUNE 26, 1997

LAW OFFICES OF ALAN E. WISOTSKY

1000 Town Center Drive, Suite 200

Oxnard, California 93030

(805) 278-0920

State Bar No. 68051

Attorneys for Defendants, CITY OF

OXNARD, CHIEF HAROLD HURTT,

STAN MEYERS, TOM CADY, JOHN

CROMBACH, BILL LEWIS, and

DANIEL CHRISTIAN

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JENNIFER JENSEN, individually ) No. 97-1096 SVW (AJWx)

and as Administrator of the Estate )

of JAMES REX JENSEN, JR., ) ORDER DENYING

deceased; LINDSEY ELIZABETH ) DEFENDANTS’ MOTION

JENSEN and KATELYN MELISA ) TO DISMISS

JENSEN, minors, by and through )

JENNIFER JENSEN as Guardian ) [PROPOSED] [BY

ad Litem, ) PLAINTIFFS]

Plaintiffs,

a ee

23a

CITY OF OXNARD; CHIEF

HAROLD HURTT, individually

and as Chief of Police; STAN

MEYERS, individually and as

Assistant Chief of Police; TOM

CADY, individually and as

Assistant Chief of Police; JOHN

CROMBACH, individually and

as Commander; BILL LEWIS,

individually and as Sergeant;

DANIEL CHRISTIAN,

individually and as Sergeant; and

DOES 1 through 100, inclusive,

Defendants.

ee ee a a a a a

The Honorable Stephen V. Wilson, United States district judge,

orders as follows in reference to defendants’ motion to dismiss:

On May 19, 1997, at 1:30 p.m. in Courtroom 6, the Court heard

a i a

extensive oral presentation concerning defendants’ motion to dismiss

based upon Federal Rule of Civil Procedure 12(b)(6). Having read and

considered the moving, opposing, and reply papers, the Court hereby

orders that the defendants’ motion to dismiss is denied.

IT IS SO ORDERED.

Dated: 6/26/97 /s/ Stephen V. Wilson

STEPHEN V. WILSON

United States District Judge