Opposition Brief — Wilkinson v. Torres

Jn the

Supreme Court of the Anited States

SCOTT WILKINSON, et al.,

Petitioners,

Vv.

RICK TORRES,

Respondent.

On Petition for Writ of Certiorart

to the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

STEWART A. ESTES

Counsel of Record

KEATING, BUCKLIN & McCormack, INc., P.S.

800 Fifth Avenue, Suite 4141

Seattle, WA 98104

(206) 623-8861

sestes@kbmlawyers.com

Attorneys for Respondent Rick Torres

January 12, 2011

Becker Gallagher - Cincinnau, OH - Washington, D.C. + 800.890 S001

QUESTION PRESENTED

Whether Petitioners have failed to present

compelling reasons to grant the petition, where the

Ninth Circuit's opinion -- that it was objectively

reasonable under the Fourth Amendment for a

police officer on foot to use deadly force to stop a

dangerous fleeing criminal driving a stolen van

spinning in a circle in a small yard -- is supported

by basic legal principles of qualified immunity and

the record, and the petition fails to identify a

conflict with a decision of this or any other Court,

and merely asks this Court to reweigh the

summary judgment record, relying upon baseless

representations of the record, and quibbling with

immaterial factual issues.

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TABLE OF CONTENTS

QUESTION PRESENTED

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TABLE OF AUTHORITIES ..............:256: ill

SIGs WE ee gg os he ee eee ees

STATEMENT OF THE CASE ...........<4x:. 1

Factual Misstatements ................... |

Statement of Facts ............. 2

REASONS FOR DENYING THE PETITION ... 19

I. Petitioners Offer No “Compelling Reason” Why

this Court Should Grant Certiorari. ........ 19

A. The Ninth Circuit Properly Held that Officer

Torres’ Actions Were Lawful. ........... 20

B. The Fourth Amendment Reason>bleness

Standard: From the Perspective of the

Reasonable Officer on the Scene. ........ 2)

C. Officer Torres Was Entitled To Qualified

Immunity: Brosseau v. Haugen Controls. . 25

D. The Instantaneous “Second Volley” is

RNS, eo lee eee 31

CONCLUSION

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TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc.,

BEd Uae. SSAA SOO) 6k oes See eh. Zo

Atwater v. City of Lago Vista,

532 U.S. 318 (2001)

Brosseau v. Haugen,

549 US. I9E 12004) . 2... ee ce.

Carr v. Tatangelo,

338 F.3d 1259 (11" Cir. 2003) ......

Chew v. Gates,

27 F.3d 1432 (9 Cir. 1994) .........

Cole v. Bone,

993 F.2d 1328 (8 Cir. 1993) ......

Wlliott v. Leavitt,

99 F.3d 640 (1996), reh’g denied,

105 F.3d 174 (4" Cir.), cert. denied,

eet U.S. LIZUCIgeT) ......

Graham v. Connor,

24

99

20, 20

490 U.S. 386 (1989) ............... 21, 22. 24

Hart v. Parks,

450 F.3d 1059 (9 Cir. 2006) .............. 19

Hathaway v. Bazany,

BOT ¥ 3d 312 6" Civ: 2007) =... 2. 6 ees a3

Haugen v. Brosseau,

339 F.3d 857, amended, 351 F.2d 372 (9" Cir.

2003), rev'd, 543 U.S. 194 (9" Cir. 2003) . 26, 28

Kansas v. March,

Ge te. BOP Ce) 6 ee ea hee sb wes 20

Malley v. Briggs,

O70 Ure. Bad CR) ee SS ee et ees 20

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

Pe ee. Pe Cr) ee ee ce ee es 18, 25

McLenagan v. Karnes,

27 F.3d 1002 (4 Cir.), cert. denied, 513 US.

ch Ley. | ) ae ara ere

Pace v. Capobianco,

283 F.3d 1275 (11" Cir. 2002) ........ 30

Pearson v. Callahan,

555 U.S. _, 129 S.Ct. 808 (2009) ......... 2)

Robinson v. Arrugueta,

415 F.3d 1252 (11" Cir.), cert. denied, 546 U.S.

RR Ce) cc cc cw cw ce cece ewe ewan 23

Saucier v. Katz,

533 U.S. 194 (2001)

Scott v. Clay County,

205 F.3d 867 (6" Cir.), cert. denied, 531 U.S. 874

1 aa Seema enya rer Pear A AB Gecnn ie 30

Scott v. Harris,

Se A te CED og os os kee e ees 18, 24, 29

Smith v. Cupp,

430 F.3d 766 (6" Cir. 2005) .

Smith v. Freland,

954 F.2d 343 (6™ Cir. 1992)

Tennessee v. Garner,

471 U.S. 1 (1985)

Wilkinson v. Torres,

610 F.3d 546 551 (9 Cir. 2010)

Williams v. City of Grosse Pointe Park,

496 F.3d 482 (6" Cir. 2007) ..

SUPREME COURT RULES

a ae oe | | |

FEDERAL COURT RULES

Fed. R. Civ. P. 30 .

Fed. R. Civ. P. 56(c) ...

INTRODUCTION

Petitioners have failed to present any “compelling

reasons” for the grant of certiorari. Sup. Ct. R. 10.

Petitioners do not argue there is any conflict between

the Ninth Circuit opinion and any decision of this

Court, or a decision of another federal court of appeals

on an important matter under the Fourth

Amendment’. Nor do they claim the opinion decides

any unsettled important question of federa! law.

Petitioners essentially complain that the court of

appeals found their factual assertions on summary

judgment to be without basis in the record or

immaterial, and that this Court should assert its

“supervisory power” and reweigh the record. The

Petition should be denied.

STATEMENT OF THE CASE

Factual Misstatements

Petitioners make a number. of _— factual

misstatements of the record. These will be addressed

in turn below and identified as such in the discussion

therein. The Court of Appeals was not misled by

Petitioners’ creative writing: “Plaintiffs’ sanitized

version of the incident cannot control on summary

judgment when the record as a whole does not support

that version.” Wilkinson v. Torres, 610 F.3d 546 551

' Petitioners do not request that this Court review the dismissal

of their Substantive Due Process claim. Their analysis is confined

to the Fourth Amendment’s objective reasonableness standard

and qualified immunity thereunder.

2

(9"" Cir. 2010); Pet. App. at 8. Their heavily-edited

story “omits the urgency of the situation.” Jd.

Statement of Facts

This is a Civil Rights Act wrongful death lawsuit

brought by the parents of a criminal whose dangerous

flight from police ended in his being shot by

Respondent/Defendant City of Vancouver, Washington

police officer Rick Torres. Defendant Torres moved for

summary judgment on the basis of qualified immunity.

The District Court denied the motion,

misapprehending the facts and erroneously holding

Defendant Torres to an impossible legal standard of

conduct. The Ninth Circuit reversed this decision, and

held that the case should have been dismissed.

Petitioners’ preposterous assertion is that there

was never any danger that justified the use of deadly

force, as Wilkinson was just slowly and carefully

driving around town. They ignore the undisputed facts

that Wilkinson eluded two marked police cars using

lights and sirens, ran three stop signs, almost rolled

the (stolen) van during a high-speed turn, lost control

on another turn and sideswiped a motorist, drove up

onto the sidewalk at a busy intersection, then sped at

45-50 MPH down a narrow residential street, and

despite being rammed twice by a police car refused to

stop, and drove through someone's yard, crashed into

a telephone pole, and despite having two officers on

either side of the van pointing guns at him, threw it

into reverse and accelerated hard in a backwards

“donut.”

Petitioners illogically assert that the van was

moving “away” from the second officer that the

Respondent officer feared would be run over (he

thought for a second time). But, they conveniently

ignore the fact that the van was traveling in a tight

backwards circle in the small yard of a home. Al! four

witnesses predicted that the vehicle would come back

to within feet of the injured officer. And in fact the van

did just as they feared -- striking a vehicle next to the

other officer with enough force to cause it damage.

Petitioners next fictitiously claim that there were

two distinct volleys of shots with a significant pause in

between them, which would have allowed Respondent

to not only reevaluate the situation, but to diagnose

the criminal suspect’s condition and determine

whether the risk was eliminated. However, based on

Petitioners’ own evidence the entire sequence of shots

occurred with two seconds. The pause was so brief no

other witness even noticed it. The situation was one

created entirely by a desperate criminal, whatever his

age, and placed Respondent in the position of having

to decide in a heartbeat to stop him before he killed or

seriously injured someone. Respondent’s use of force

was lawful, and Petitioners’ request that this Court

intercede on a run of the mill summary judgment case

is not well taken.

Initial Contact at Drug House. On Sunday, May 8,

2005, shortly before noon, Vancouver officer John Key

(former defendant and non-party on appeal) was on

routine patrol in the City of Vancouver, as was officer

Respondent/Defendant Torres. Both were experienced

police officers, in marked police vehicles, wearing

4

standard police uniforms. Record 193-249; 81-161; 88;

933."

Officer Key observed an older Plymouth van parked

near “a known crack house.” Pet. at 5. Upon his

arrival, one occupant of the van bolted from it and

back into the house. Officer Key then confirmed by

radio his suspicion that the van was stolen. Jd. Officer

Key exited his vehicle with his weapon drawn to make

contact with the driver (decedent Jason Wilkinson).

Officer Key stood only 15-20 feet behind the suspect

vehicle, and yelled four to five times “Show me your

hands!” He yelled so loudly that residents came out of

nearby houses. The driver suddenly ducked down

inside the car, for upwards of 60 seconds. Officer Key

assumed that Wilkinson was reaching for a weapon

and that there would be an ambush attempt.

Flight from Police. Suddenly, the driver reappeared

turned the engine on and took off at a high rate of

speed. He quickly ran a stop sign. ‘The suspect vehicle

then turned onto a state highway with Officer Key

pursuing, using lights and siren. The suspect vehicle

ran another stop sign. Wilkinson’s driving placed

Vancouver residents at risk of death or serious injury

that morning, making wide turns “all over the road.”

In total, the van ran three separate stop signs, and at

one intersection almost rolled over. Record 88-94; 103;

202-04; 109.

* Citations to the Record are to Excerpts of Record (“ER”) in

accordance with the Ninth Circuit Court of Appeals’ protocols. See

FRAP 30, as modified by Circuit Rule 30-1.

Officer Torres Joins the Pursuit. Respondent Torres

heard several things over the radio causing him to be

concerned for Officer Key’s safety, including the

location, the stolen vehicle, and the driver’s initial

furtive actions which suggested he had a weapon. He

responded quickly. Officer Torres fell in behind the two

vehicles on the highway, although he had difficulty

negotiating moderate traffic

Wilkinson Loses Control, Strikes a Vehicle and

Drives on Stdewalk. The van then attempted a right

turn, but because it was traveling at such a high rate

of speed it failed to negotiate the corner, and struck a

vehicle waiting to turn at the light.” The suspect van

skidded past that car, into the oncoming lane of travel

and up onto the far sidewalk. Record 109; 191-92. If

a vehicle had been in that lane, or any pedestrians had

been on the sidewalk, they likely would have been

injured or killed

The “PIT” Maneuvers. The officers decided to stop

Wilkinson using a “PIT” maneuver -- an acronym for

“Pursuit Immobilization Technique.” (An officer place:

his vehicle parallel and slightly behind the suspect

vehicle, and bumps the rear quarter panel with the

front quarter panel of his vehicle sending the suspect

Petitioners falsely state that Respondent Torres intention:

rammed the van at this point, causing it to lose control and strike

another car. Pet. at 6, 21. The record (to which Petitioner

conveniently fail to refer) is to the contrary. The eyewitness driver

who Wilkinson struck and Officer Torres both undisputedly staté

that it was Wilkinson’s reckless driving alone that caused the

sideswipe. The driver testified: “The van missed the correct lane

(i.e., east) when it turned because of its speed....” Record 192

(emphasis supplied)

3)

vehicle into a spin, often causing the engine to stall.)

Pet. at 6. The suspect van then turned right, off of the

arterial onto a narrow residential street. Wilkinson

then accelerated to 45-50 mph down this narrow street

Record 96. The van had to slow as it approached a “T”

intersection. This allowed Officer Torres to strike the

rear of the van, spinning it 90 degrees. However,

being struck by a marked police vehicle with lights and

siren was not enough for to convince Wilkinson to stop

He accelerated again. Officer Torres quickly struck the

van again, spinning it sideways. But Wilkinson raced

off, again

Wilkinson Drives through a Yard. The suspect

recovered from the second PIT, then drove into the

yard of a nearby home. Officer Torres jumped out of

his vehicle and followed through the yard on foot. Pet

at 7. Officer Key, who was following the van and

Officer Torres at a distance, saw both vehicles turn left

ahead of him. He was greatly surprised to see the van

accelerating across the lawn of the home and coming

back towards him. A marked County Sheriff's vehicle

had fallen in behind the pursuit. The deputy also saw

th van heading towards him through the yard,

“coming straight at me very quickly " Record 47-59

Wilkinson Crashes Into Telephone Pole, But Still

Does Not Stop. The deputy blocked the van’s path back

onto the street, so Wilkinson “swerved and ran head

on into the telephone pole.” The van was “moving at a

pretty good clip,” accelerating towards the road

Petitioners expert witness calculated that the van was

traveling at least 12-16 MPH when it struck the pole

It was traveling so fast that its rear tires lifted off the

ground when it struck the pole. Record 97-98; 211; 5]

7

Officer Key exited his vehicle and approached the

van from the driver’s side, grabbing the door handle.

The driver appeared to be unconscious. Officer Torres

saw Officer Key on the driver’s side, so he ran up on

the passenger side of the vehicle, with his weapon

displayed yelling “Show me your hands!” “Show me

your hands!” Record 51-52; 209-10; 99

Wilkinson’s Wild Backwards “Donut” Endangers All

Three Officers. Unfortunately, Wilkinson’s dangerous

flight from the law had not yet ended. He opened his

cyes, threw the van into reverse and stomped on the

accelerator. Consistent with his life-threatening

conduct thus far, Wilkinson did not stop despite

Officer Torres’ repeated commands to do so. Instead,

he kept accelerating and spinning in a tight circle.

Record 219.

Petitioners assert that Wilkinson “slowly began to

back away” from the pole. Pet. at 7. This is again a

false assertion, blatantly contradicted by the physical

evidence: deep tire tracks in the lawn caused by rapid

acceleration, and mud sprayed by the tires. The

deputy’s vehicle -- and Officer Key -- were so close that

the hard acceleration in reverse by the front wheel

drive van, threw mud onto both of them. Record 52:

237.

All four witnesses agree -- the van immediately

began a tight spin. The District Court found: “It is

undisputed that the driver accelerated backwards in a

counter clockwise arc.” Pet. App. at 30. Officer Key,

who lay (or stood) stunned and helpless at the edge of

the lawn in Wilkinson’s predicted path, could sce the

van perform a complete circle in the lawn and travel

back towards him in reverse. Record 101-02.

$

Officer Torres Observes Officer Key — on the Other

Side of the Van Get Knocked to the Ground and

Believes he was Run Over. Wilkinson turned the

steering wheel to the right, causing the front end to

swing sharply towards Officer Key. Officer Torres

through the van window -- believed that he saw the

van strike Officer Key hard, knocking him from sight.

“I mean, he was just there and, all of a sudden, I saw

him go down.” Record 210; 99; 52. Officer Torres could

hear the tires spinning in the grass, and felt the van

begin to move away from his left hand, which had been

in contact with the vehicle. The rear end swung

towards him and the front end swung towards Officer

Key. Key stated that he scrambled for his life to get

out from under the van. Record 102.4

Petitioners presented the declaration of a witness,

Anthony Davis, who was sitting in the safety of his

car, a short distance from the scene, but in a very

different) vantage point than was Respondent.

Petitioners’ entire case is premised on two immaterial

assertions by Davis — that in his opinion, Officer Key

actually slipped (rather than being struck by the van)

getting out of the way of the vehicle; and, that Key was

* Photographs of Officer Key taken immediately after the event

show mud and grass smeared on the front and rear his uniform,

and his duty belt, from when he was knocked to the pround.

Record 241; 243; 245; 247. Officer Key fell so hard that the steel

radio holder on the duty belt was damaped. Record 112. He

described the events this way. “I’m just scrambiing, trying to get

out from underneath the van, so that the van didn’t run me over.

I... | though the van was going to run me over.” And despite

Petitioners’ assertion that Key sustained “no injuries,” Pet. at 8-9,

it is undisputed that he Jater received medical treatment for “left

knee strain,” and was photographed wearing a knee brace. Record

99; 296.

able to get back to his feet (something ‘Torres was

unable to see).

These assertions are imimaterial because that ts not

what Officer Torres perceived, or was able to see from

his partially-obscured vantage point. And even if they

were true, this in no way eliminated the danger to

Officer Key who was “stunned” and could have been

run over whether standing or laying. Nor did it

climinate the danger of the van to Officer Torres or to

a nearby deputy. Nor did it eliminate the danger to the

public generally if the van was allowed to speed away

over the sidewalk and 45-50 MPH down the quiet

residential street.

lor purposes of qualified immunity, Officer Torres’

perspective is the only perspective that matters. from

his position, he believed the suspect vehicle struck and

then rolled over Officer Key. Petitioners’ witness

Davis did not believe the van actually impacted Key.

Nonctheless, he completely agreed that Officer Key fell

“hard” to the ground. However, Davis was on the

opposite side of the van as was Officer Torres, and did

not have his view of Officer Key obscured by the

vehicle.” Nor did Davis have to be concerned about

being run down as did Respondent.

* Witness Davis confirms that whatever he was able to see about

Officer Key’s status, Officer Torres could no longer see. Officer

Torres was forced to look away from Officer Key and turn with the

van as it spun in its tight are around him. Record 216. Davis

aprees that Torres had “turned around” to follow the van before he

fired his first shot. Record 316. Petitioners’ unsupported

assertions to the contrary should be ignored

10)

The deputy beheved “we've yot to stop him from

going [escaping] because this puy’s you know, he’s

dangerous.” Record 419. Officer Torres began yelling

“Stop!” “Stop!” “In my mind | was picturing John

[Key] just getting chewed up by these wheels.” Officer

Torres yelled into his radio “Shots fired! Shots fired!

Officer Down!” Record 213; 218-19; 162.

Ignoring the undisputed evidence, and the laws of

geometry, Petitioners’ principle argument is. that

Officer Torres fired when the van was always moving

“away” from Officer Key. Pet. at 7, 8,9, 12, 15, 17, 22,

27. But, given the vehicle’s circular path, this 1s a

baseless assertion. And, in point of fact, the van

actually made a circle and came back to exactly where

all witnesses feared it would. And if the van had been

traveling in a straight line (which no one contends) 1

would have crashed into the house.°

* In one of the more bizarre circumstances of this case, witness

Davis failed to see, or hear, the very significant impact of the van

into the telephone pole. Inconsistent with all the physical evidence

-- and Petitioners’ own admission Davis claimed that as

Wilkinson drove through tiie yard he saw Officer Key and

carefully slowed down so as not to hit him, then placed the van in

reverse and backed away. “Because the cop was in front of him

{Wilkinson}, so he was trying to turn around and go the other

direction, because he didn’t want to run over the cop.” Record 314

Petitioners do not even pretend that this fantasy to be the truth

Petitioners admit (as the forensic evidence and photographs

establish) that Wilkinson crashed into the pole. Their expert

accepted the collision as fact. The District Court even based its

opimon on their expert witness’ testimony. “Mr. Fries also

concludes that the van ‘impacted the telephone pole at 12-15

MPI.” Pet. App. at 28. No one has ever accepted Davis’ patently

false assertion -- except the dissenting opinion below. Pet. App. at

20 (citing Record 314)

lL]

All Four Witnesses Agree: The Van’s Circular Path

Was Back Toward Officer Key. Even according to

witness Davis, Wilkinson “was trying to come right

back this way towards the cop car [the deputy’s

vehicle, only a few feet from Key]. And, I even saw it

turn lke this, to where ... like he was coming this

way.” Record 321. His vehicle was only two to three

feet from Officer Key. Record 417, 425. The deputy

had been standing next to his vehicle, but jumped in it

due to his concern that the suspect van would crash

into him. Record 419, 422. He was so concerned for his

safety that he recalls thinking to himself “crap, I’m

going to ... going to eat this one.” Record 425. Even

after the van was supposedly “coasting,” it struck the

deputy’s vehicle hard enough to cause damage. Record

434.

Lastly, Officer Torres is in agreement with the

other witnesses, stating that “The front end [of the

van] is starting to kind of spin around pretty fast and

1 am thinking he is going to spin back hke this and

right back onto the road where John is.” Record 219.

Mr. Davis was Very Concerned for Officer Key’s

Safety. Even from Mr. Davis’ perspective, Officer Key

appeared to be very concerned that he “could be

getting run over here.” Record 319. Indeed, Davis had

... Ll was, like, worried

a

the same concern himself

that the cop [Key] was going to get ran over.” He

directed his attention away from the van to look back

at Officer Key “to make sure the cop wasn’t

getting ran over.” Record 323, 324 (emphasis

supplied). Petitioners, who fail to apprise the court of

this evidence, simply cannot square their claims with

the reality of the incident.

12

The Van Actually Returns to its Point of Origin and

Strikes the Deputy’s Car. One undisputed fact wholly

undermines’ Petitioners’ fantastic claim that

Wilkinson’s actions created no risk to anyone -- the

suspect van did exactly what officers Torres, Key, the

deputy, and witness Davis all believed would happen.

It completed its “donut” and rolled back towards the

street (striking the deputy’s car) only feet from where

Officer Key had been lying. Record 325. ‘To say that

the van was “no longer a risk” defies the reality of the

moment.

Officer Key Was “Stunned” and Unable to React.

The supposed difference in perceptions between Officer

Torres and Mr. Davis regarding Officer Key’s position

(whether he was still on his back, or back up on his

feet) is completely immaterial. Whether standing or

laying on the ground, Officer Key was injured,

stunned, and still in harm’s way. Davis states that

although Officer Key got back on his feet, he was in a

stunned condition, “you know, like in shock.” Record

317. “Like he wasn’t ready to do anything else until he

figured out what was going on in his own head.”

Record 316.

And, even if Officer Key had struggled back to his

feet “in shock,” Officer Torres (on the opposite side of

the van, looking in the other direction) was not aware

of this. Officer Torres perceived—-through the window

as he moved to avoid being run down himself—that the

van struck Officer Key, knocked him down, ran him

over, and its circular path would run him over again.

Petitioners would have the Court believe that in

the split-second that Officer Torres had to react (to

Wilkinson’s criminal conduct), he should have been

able to 1) take his eyes off the van, 2) look back and

find Officer Key; 3) observe Key long enough to

diagnose his physical and mental status, 4) calculate

whether the van would miss Key and whether Key

would be able to jump out of the van’s path. This 1s

unreasonable.

The Undisputed Sequence: The Van Accelerates In

Reverse, Officer Key Falls to the Ground, Officer Torres

Turns, and Then Shoots. It is not disputed that Officer

Torres did not fire his first shot until after the van

accelerated in its backwards spin. Mr. Davis confirms

that Officer Torres did not begin firing until after

Wilkinson began his final escape attempt: “He

[Wilkinson], like, backed up and turned around, and

then the cop was shooting at him as he’s trying to get

out back this way.” Record 322 (emphasis supplied).

Petitioners falsely contend that a question of fact

exists on the sequence of the events regarding the first

shot and when Officer Key fell. However, the record

does not support any such claim. They distort Mr.

Davis’ statement to be that Officer Torres began to fire

before Officer Key fell to the ground. But, Mr. Davis

said no such thing.

In his interview, Mr. Davis clearly stated that

Officer Key fell to the ground on two separate

occasions; Petitioners simply conflate these distinct

events. “[Officer Key] jumped up to the street and got

... he was out of the way and he was standing there,

like in shock, and then, he laid on the ground after

that.” Record 317. It was after the first fall, but before

this second fall, that the shots were fired. Record 317.

Mr. Davis unequivocally stated that Officer Torres did

not begin to shoot until after Officer Key fell the first

14

time. Record 318. Again, Petitioners misrepresent the

record.

Officer Torres Uses Deadly Force. It was at this

point that Officer Torres determined the need to use

deadly force to stop Wilkinson from running over

Officer Key, whom he last saw laying helpless on the

ground. Officer Torres has explained his split-second

decision-making in order to prevent Officer Key from

being killed. “My major concern was that he was going

to run back over John.” Record 217. Officer Key

concurs with Officer Torres’ belief. “I believe Officer

Torres saved me from serious harm or from maybe

being killed if I got caught up underneath that van.”

Record 108.

A Split-Second Pause Between Shots To Assess.

Petitioners claim that Officer Torres fired a first

“volley,” leisurely spent several seconds examining

Wilkinson and the van, and then shot again for no

reason. Pet. at 8. However, the record does not. support

any such claim. The “pause” in between shots was so

brief that no other witness even noticed it. Davis

described it as “Boom, boom, boom, boom.” Record 317.

Officer Torres believed that his first shots had

missed Wilkinson, who seemed completely unaffected.

Torres almost “immediate|[ly]” began to fire again. (It

is in this blink of an eye the petitioners claim a

constitutional violation.) Wilkinson was “looking at

me and he was just staring right at me.” “He just

keeps going.” Record 213. The first volley “had no

effect on him.” Record 214.

Officer Torres was forced to make a split-second

decision. He made a quick assessment and determined

15

that the threat to Officer Key had not been eliminated.

He shot again. Officer Torres described this split

second as follows:

And this guy’s looking at me and he’s not

stopping. And I thought, “Did I miss him?” You

know. “Or did I shoot, like, across his

stomach?” So then, I shot ... I thought I shot

two more times into him.... Then, that’s when

the van kind of straightened out.

Record 214.

Despite their lawyer’s argument to the contrary,

Petitioners’ own view of the evidence establishes that

Officer Torres did not begin shooting the second volley

in the millisecond after the van began to “slow.”

Rather, they concede that he shot again while the van

was still accelerating. Petitioners claim that three

shots were fired “after there was no longer power in

the minivan.” Pet. at 9. But they also acknowledge that

Officer Torres took four shots in the second volley. Pet.

at 8. The first shot of the second volley was obviously

taken while Wilkinson still had the accelerator pressed

to the floor. Thus, Petitioners’ essential constitutional

theory is that a police officer who is shooting to

eliminate a threat must pause and reassess between

every shot, even in a continuous fire situation. No

court has ever imposed such an unwieldy “frame by

frame” analysis on the use of force in a rapidly

evolving circumstance.

Officer Torres went to check on Officer Key,

believing that Officer Key had been seriously injured

or killed, “and I expected to find him just ruined.”

Officer Torres approached in a very excited state

16

asking Officer Key “Are you okay?” He then stated “I

thought you were dead.” Record 214; 102; 106; 108;

and; 221.

Two Seconds Elapsed from the First Shot to the

Last. Petitioners’ strained notion is that Officer Torres

should have processed all available information in the

heartbeat between the first and second volleys and

calculated that the van would “barely miss” Officer

Key, or that Key was mentally and physically able to

act as a matador and evade the spinning van. (Why a

brief moment of deceleration is of any significance

given Wilkinson’s previous maniacal driving behavior

is not explained.) But Officer Torres did not have the

luxury of casual reflection. Only two seconds elapsed

between his first shot and the last. And as the Circuit

Court observed, “there is no evidence that Torres had

immediately perceived the deceleration of the van.”

Pet. App. at 12.

The fallacy of their position is amply demonstrated

by the forensic investigation conducted by an outside

police agency — and undercut by Petitioners’ own

expert witness. A scale diagram of the scene was made

during the investigation. Record 496. Using this

diagram and other evidence, Petitioners’ expert

witness opined that the van accelerated in reverse for

25-30 feet at 10 MPH. Record 480. At this speed, the

15-foot long van traveled about 15 feet per second, or

two car lengths. Using the expert’s “glass shards”

analysis (broken glass on the lawn is indicative of

where shots struck the van), all 11 shots were fired

within two car lengths of its travel. In other words,

17

from first shot to last only two seconds elapsed.’ There

was no time for reflective deliberation.

A Single Word Taken Out of Context, and at Odds

with A Dozen Other Clear Statements to the Contrary,

Cannot Create an Issue of Fact. Petitioners argue that

a supposed inconsistency in Officer Torres’ statements

creates a question of fact about the reason for the

second volley. Pet. App. at 13. Petitioners’ distorted

interpretation of one clause out of two lengthy

interview transcripts is: J shot Wilkinson because he

stopped.®

Petitioners’ interpretation makes no sense, even in

the context of the sentence itself. Officer Torres states

he shot then paused briefly, saw that Wilkinson

’ The dissent below claimed that two seconds elapsed between the

first and second volleys. Pet. App. at 21. The physical evidence

above proves this to be impossible (the entire event took only two

seconds), and nothing in the record supports this claim. Judge

Marshall came to this conclusion, unaided by any argument,

based on a written transcript of when an emergency

communications operator, at a remote location, manually time-

stamped the officers’ radio transmissions that reported the

shooting. This record keeping act does not occur in real time. It

merely memorialized the radio transmissions of two separate

officers, one who stated “Shots fired,” and the other “Shots. Code

3.” Id. This fact shows nothing except that a third person at

another location took notes of a radio call, and two seconds later

took another note of a separate radio transmission. It is not

completely accurate evidence of when the radio transmissions

reporting the shooting were made, much less when the shots were

actually fired.

® Nothing in the record supports the argument that the van

“stopped” at this point. Indeed, it continued moving until it struck

the deputy’s vehicle out on the street.

18

looking at him and the van was still moving, so he shot

again. Officer Torres began this same sentence by

stating “I thought what happened was I fired four

rounds, and he kept going ....”. Record 213

(emphasis supplied).

Petitioners’ strained interpretation is inconsistent

with Officer Torres’ sixteen (16) other statements on

this exact issue that were consistent and clearly to the

contrary. Record 213; 214; 216; 219; 383; 384. He

unequivocally stated over and over that he shot again

because Wilkinson did not stop. Torres simply

misspoke (or the transcriptionist mistyped). The

single out of context word (“had” instead of “had not”)

cannot be used to create an issue of fact.

The Ninth Circuit explained the illogic of this claim

best:

The single phrase “he had stopped,” implying

that Wilkinson had stopped before Torres fired

the second volley, cannot alone support

summary judgment where Torres repeatedly

testified —in that same sentence, multiple times

during the same interview — that Wilkinson did

not stop until after Torres began firing his

second volley. See Scott [v. Harris], 550 U.S.

[379,] 380 [2007] (“Where the record taken as a

whole could not lead a rational trier of fact to

find for the nonmoving party, there is no

genuine issue for trial.” (quoting Matsushita

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

574, 587 ... (1986)) (internal quotation marks

omitted) (emphasis added)). The quoted

sentence from Torres’ deposition is ambiguous

because a literal reading of the sentence does

19

not make sense — Torres states that Wilkinson

“kept going” just before he says Wilkinson “had

stopped.” Therefore, in this context, the phrase

“had stopped” is an insufficient basis for the

denial of summary judgment. Cf. Hart v. Parks,

450 F.3d 1059, 1068 (9th Cir. 2006) (finding

that a single, arguably ambiguous statement

did not raise a triable issue of fact).

Pet. App. at 11-12.

REASONS FOR DENYING THE PETITION

I. Petitioners Offer No “Compelling Reason”

Why this Court Should Grant Certivrari.

As demonstrated above, this is no more than a

dispute about the import of certain portions of the

district court record. Petitioners advance facts that are

not material to the legal issues (that are agreed upon),

or are not based on the record. Even if Petitioners were

correct, this disagreement does not come close to

presenting issues calling for this Court’s review.

Petitioners fail to offer any “compelling reasons”

(Sup. Ct. R. 10) why this Court should grant their

Petition for Writ of Certiorari. They do not argue that

the Court of Appeals’ decision is in conflict with a

decision of another Circuit. Nor do they convincingly

posit that the decision is even inconsistent with a

decision from this Court.” Rather, they essentially

’ Curiously, Petitioners’ principle citations of authority are not to

conflicting authority, but to concurring and dissenting opinions of

this Court. Pet. at 25-26

20

complain that this Court should reevaluate the

strength of the evidence they presented below and

grant them summary judgment. Pet. at 17 (“an

appellate court [could not] properly decide on this

record ...”); and 29 (“unfair summary judgment

analysis”). This Court’s “decision to grant certiorari is

guided by the considerations set forth in Rule 10.”

Kansas v. March, 548 U.S. 163, 184 (2006) (Scalia, J.,

concurring). Notably, the petition is wholly devoid of

any citation to this Court’s Rule 10.

Nor is Petitioners’ summary judgment argument

persuasive. They ask the Court to accept the

statement of a witness, but this man almost

universally confirmed the three officers’ statements.

And as the Ninth Circuit correctly held, whatever

metaphysical factual discrepancies he might have

created were immaterial. Further, “a writ of certiorari

is rarely granted when the asserted error consists of

erroneous factual findings.” Sup. Ct. R. 10.

A. The Ninth Circuit Properly Held that

Officer Torres’ Actions Were Lawful.

Respondent moved for summary judgment on the

basis of the doctrine of qualified immunity. Whether

an individual officer is entitled to qualified immunity

is a question of law to be decided by the court. In

determining whether officers are entitled to qualified

immunity, the following two issues are considered.

Saucier v. Katz, 533 U.S. 194, 201 (2001). First, “do

the facts alleged show that the officer’s conduct

violated any constitutional right?” /d. This inquiry

must be undertaken in light of the specific context of

the case, not as a broad general proposition. Malley v.

Briggs, 475 U.S. 335, 341 (1986) (qualified immunity

21

protects “all but the plainly incompetent or those who

knowingly violate the law”).

And second, assuming that a violation can be made

out based on a favorable view of the plaintiffs

allegations, whether the right allegedly violated was

clearly established at the time.'® The Ninth Circuit did

not reach the second issue as it held Officer Torres’

actions to be reasonable as a matter of law. Pet. App.

at 13.

B. The Fourth Amendment Reasonableness

Standard: From the Perspective of the

Reasonable Officer on the Scene.

The court in Graham v. Connor, 490 U.S. 386, 394

(1989), set forth the standard of “reasonableness”

under the Fourth Amendment as to uses of force. The

test an objective one, in lhght of the facts and

circumstances confronting the officer.

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.

¢ ‘

The calculus of reasonableness must embody

allowance for the fact that police officers are

often forced to make split-second judgments—in

circumstances that are tense, uncertain, and

" While the questions remain the same, Saucter’s “rigid order of

battle” was recently revised. Pearson v. Callahan, 555 U.S ¥

129 S.Ct. 808 (2009). The mandatory two-step framework was

replaced with a discretionary approach as to which question is

considered first.

22

rapidly evolving—about the amount of force

that ts necessary in a particular situation.

Graham, supra, at 396-97 (citations omitted). Of these

Graham use of force factors, “the most important

single element” is “whether the suspect poses an

immediate threat to the safety of the officers or

others.” Chew v. Gates, 27 F.3d 1432, 1441 (9" Cir.

1994).

The objective reasonableness standard likewise

applies to the use of deadly force. In Tennessee v.

Garner, 471 U.S. 1 (1985), this Court stated that

where the officer has probable cause to believe that the

suspect poses a threat of serious physical harm or

death, either to the officer or to others, it is not

unreasonable to seize the suspect by the use of deadly

force. Garner, supra, at 10.

This standard, appropriately applied by the Court

of Appeals, renders Officer ‘Torres’ actions lawful.

Petitioners endorse this rule, but then ignore it and

ask the Court to view the incident from the perspective

of a witness -- who was in a different physical position

than the officer -- and who observed both less and

more than did the officer. Petitioners compound the

problem by advancing facts that are not material to

the issues or, on occasion, simply made up _ by

misstating the record.

Here, Wilkinson’s outrageous conduct posed a

threat of serious injury (1) to Officer Key (who Officer

Torres last saw lying helpless on the’ ground,

regardless of what Mr. Davis was able to observe from

the opposite side of the van); (2) to Officer Torres,

whether standing or on the ground; (3) to a deputy

sheriff standing outside his car next to Officer Key;

and (4) to nearby residents and local motorists if he

escaped.

Many courts of appeal (which Petitioners fail to

acknowledge) have uniformly held that under the

fourth Amendment an officer may act mistakenly, but

reasonably, when he is given only a brief period of time

11

in which to perceive and react to a potential threat

" See, e.g., Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11"" Cir.),

cert. dented, 546 U.S. 1109 (2006) (officer forced to make a “split

second decision” with a slow moving vehicle approaching him, had

less than three seconds “to react to what he perceived as a threat

of serious physical harm from [the driver].” Even if, in hindsight,

the officer actually could have escaped the slow-moving vehicle's

path unharmed, it was not unconstitutional for him to reasonably

but mistakenly use force. Experience shows that “reconsideration

lafter the uncertainty and the excitement of the moment have

past] will nearly always reveal that something different could

have been done if...the future [was known] before it occurred.”

(quoting, Carr v. Tatanyelo, 338 F.3d 1259, 1270 (11th Cir. 2003));

Hathaway v. Bazany, 507 F.3d 312, 322 (5th Cir. 2007) (no

constitutional violation for the shooting based on the

circumstances that confronted the officer, including the limited

time available to respond. “Given the extremely brief period of

time an officer has to react to a perceived threat like this one, it

is reasonable to do so with deadly force. It 1s this brevity, and the

coordinate rapid response that it demanded from [Officer] Bazany,

that is the distinguishing factor in this case. * * * That his

decision is now subject to second-puessing even legitimate

second-pguessing does not make his actions objectively

unreasonable given the particular circumstances of the shooting.”

(citation omitted), and, McLenagan vu. Karnes, 27 F.3d 1002, 1007

O8 (4th Cir.), cert. dented, 513 U.S. 1018 (1994) (officer shot the

wrong person in a rapidly moving situation. “We will not second

guess the split-second judgment of a trained officer merely

because that judgment turns out to be mistaken, particularly

24

Petitioners claim that “alternative courses of action

were available” to Officer Torres, Pet. at 19. But this

argument is at odds with this Court’s repeated

admonition that the Fourth Amendment does not

require the police to use the _ least-restrictive

alternative to effect a search or seizure. Atwater vu

City of Lago Vista, 532 U.S. 318, 350-51 (2001).

Rather, all that is required is that the use of force

employed was “reasonable.” Graham, 490 U.S. at 396

Additionally, their examples are absurd. First,

“shooting out the minivan’s tires” is dangerous

procedure has been outlawed for years by law

enforcement agencies. Second, “abandoning the chase”

places neighborhood pedestrians and bicyclists, and

the motoring public at substantial risk, something that

officers need not do. Brosseau v. Haugen, 543 U.S. 194

(2004); and, Scott v. Harris, supra. And lastly, their

vague proposal of “otherwise disabling the vehicle with

non-deadly force” is litthe more than an invocation of

deus ex machina

Accepting the issue presented by Petitioners would

essentially require this Court to become embroiled in

the mundane task of reviewing hundreds of pages of

the record and reweighing the “facts” claimed by

Petitioners, which in truth are immaterial or

unsupported by the record, or both

But, “[wlhen the moving party has carried its

burden under Rule 56(c), its opponent must do more

than simply show that there is some metaphysical

where inaction could have resulted in death or serious injury to

the officer and others.”)

Aq

doubt as to the material facts.... Where the record

taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no ‘genuine

issue for trial.” Matsushita Elec. Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)

(footnote omitted). “(T]he mere existence of some

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-248 (1986).

C. Officer Torres Was Entitled To Qualified

Immunity: Brosseau v. Haugen Controls.

Even if it could be argued that a material question

of fact existed concerning the reasonableness of Officer

Torres’ actions, at worst he committed a reasonable

mistake as to Wilkinson’s continuing risk to himself,

other officers, and the public. He would be entitled to

qualified immunity

that

reasonable mistakes can be made as to the legal

Qualified immunity “acknowledgels

constraints on particular police conduct.” Saucier,

supra at 205. For example, “if an officer reasonably,

but mistakenly, believed that a suspect was likely to

fight back, for instance, the officer would be justified in

using more force than in fact was needed.” Jd.'*

“The Fourth Amendment “does not require omniscience.” Elliott

v. Leavitt, 99 F.3d 640, 644 (1996), reh’g denied, 105 F.3d 174 (4"

Cir.), cert. dented, 521 U.S. 1120 (1997). All that is required to

justify deadly force is a “sound reason to believe that the suspect

poses a serious threat to [an officer's] safety or the safety of

others. Officers need not be absolutely sure, however, of the

26

Only one year before this 2005 incident, this Court

addressed a factually similar case. Brosseau v.

Haugen, supra, controls here. The split-second decision

presented to Officer Torres in the instant matter was

very similar to that presented to the officer in

Brosseau:

Whether to shoot a disturbed felon, set on

avoiding capture through vehicular flight, when

persons in the immediate area are at risk from

that flight

Brosseau, supra at 200

The officer pursued a criminal suspect on foot who

jumped into his car and began to flee, despite her

verbal commands to stop. The suspect began to

accelerate out the driveway with two cars parked on

the street at the front of the driveway, and other

officers approaching on foot from the other side of a

building. The officer shot the suspect in the back as he

drove away:

fearful for the other officers on foot who [she]

believed were in the immediate area, [and] for

the occupied vehicles in [Haugen’s] path and for

other citizens who might be in the area.”

Brosseau, supra at 197 (quoting, Haugen v. Brosseau,

339 F.3d 857, 865, amended, 351 F.2d 372, 390-91 (9"

Cir. 2003), rev'd, 543 U.S. 194 (9™ Cir. 2003)).

nature of threat or the suspect’s intent to cause them harm—the

Constitution does not require that certitude precede the act of self

protection.” /d. (emphasis supplied).

27

In reviewing other similar cases -- which had been

decided both for and against police officers -- this

Court observed:

These three [circuit court use of force] cases

taken together undoubtedly show that this area

1s one in which the result depends very much on

the facts of each case. None of them squarely

governs the case here; they do suggest that

Brosseau’s action fell in the “hazy border

between excessive and acceptable force.”

Id. at 13 (quoting, Saucier v. Katz, 533 U.S. at 206)

(emphasis supplied)). The Court then concluded “the

present case is far from the obvious one where Graham

and Garner alone offer a basis for decision.” Jd. at 199.

If the right at issue were not clearly established in

2004 Brosseau, it certainly was not clearly established

in 2005 here. From Officer Torres’ perspective, it was

certainly reasonable to use force to stop the criminal’s

dangerous actions. Evenifhe were mistaken about the

need to use force, his perception was a reasonable one.

Petitioners advance the very same argument this

Court refused to accept in Brosseau -- an officer’s

supposed mental ability to instantly process the

probability that the fleeing criminal can maneuver a

vehicle back onto the street, through a narrow space,

without hitting other people. Petitioners assert that

Officer Torres should have been able to immediately

determine that Officer Key was not in substantial

danger because the van “would have had to avoid both

the telephone pole as well as [the deputy’s] vehicle

before it could have threatened Officer Key.” Pet. at 12

(quoting Pet. App. at 41-42).

The Circuit Court in Brosseau mistakenly found

that the officer there should have been able to

instantly calculate that the criminal could safely

thread the needJe between two parked cars at the end

of a driveway as he fled. In almost identical language

to Petitioners’ arguments here, the lower court had

reasoned that “[t]he photographs of the scene show

that. [the suspect] had more than enough room to

escape without hitting anything or anyone.” Haugen

v. Brosseau, 351 F.2d at 390. Note should be made of

the fact that the suspect in Brosseau was driving

forward in a straight line down a driveway, not

spinning in reverse on a lawn like Wilkinson.

Standing in the vortex, Officer Torres perceived

that the spinning van would come back around and

run over his fellow officer. Nor did Officer Torres have

the luxury of witnessing the event from the relative

safety of a car parked down the street, as did Mr.

Davis. Rather, he was within inches of this dangerous

maneuver, and was himselfat risk if he slipped on the

wet grass. Petitioners also conveniently ignore the

obvious risk from the van to the deputy standing

outside his vehicle, and to members of the

neighborhood who might have been out for a bike ride

or a walk on this pleasant Sunday morning, or a

motorist or bicyclist down the road that Wilkinson

would crash into if he were not stopped.

Wilkinson had already struck one vehicle, sped

through a quiet neighborhood, twice driven over the

sidewalk and through a yard, and was not deterred by

crashing into a telephone pole, or even by being struck

29

twice by a police cruiser. To say that Officer Torres

“ry 13

should have simply let Wilkinson drive off is absurd.

This Court in Scott v. Harris stated “Society...need

not (and assuredly does not) accept a....risk posed by

reckless motorists fleeing the police.” 550 U.S. at 379,

n.6. There, like Wilkinson here, the suspect “posed an

actual and imminent threat to the lives of any

pedestrians who might have been present, to other

civilian motorists, and to the officers involved in the

chase.” Id. at 384.

Let us not forget that Wilkinson had numerous

opportunities to avoid this result. It was his repeated

decisions to engage in wanton conduct that brought

about his tragic end. It is entirely appropriate, when

balancing the interests of the perpetrator and the

public, to take into account “their relative culpability.”

Scott v. Harris, supra. “It was {the suspect], after all,

who intentionally placed himself and the public in

danger by unlawfully engaging in the reckless, high-

speed flight that ultimately produced the choice

between two evils that [the deputy] confronted.” Id.

Numerous courts have rejected claims alleging

excessive deadly force in circumstances involving a

7 «“ ” . ° 1é

lesser risk “to others” than presented by Wilkinson."

13

If he had done so, Officer Torres would likely be facing a

wrongful death action by the family of whatever innocent victim

Wilkinson would have killed in his flight.

'* See, e.g., Brosseau v. Haugen, supra; Cole v. Bone, 993 F.2d

1328, 1333 (8th Cir. 1993) (“[the officer} could reasonably have

believed that the truck would continue to threaten the lives of

travelers as it continued speeding down the crowded interstate

30

Here, the Court of Appeals correctly held that

Officer Torres’ actions were constitutionally reasonable

as a matter of law. Even if it was in error, Officer

Torres at most made a reasonable mistake as to the

need for the use force.

highway.”); Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)

(“In an instant Officer Schulcz had to decide whether to allow his

suspect to escape. He decided to stop him, and no rationa!} jury

could say he acted unreasonably. ...Mr. Smith had proven that he

would do almost anything to avoid capture; Officer Schulcz could

certainly assume he would not stop at threatening others.”);

Williams v. City of Gs se Pointe Park, 496 F.3d 482, 486-87 (6

Cir. 2007)(emphasis supplied) (“At the point [the officer] fired his

weapon he was faced with the difficult choice: 1) use deadly force

to apprehend the suspect who had demonstrated a willingness to

risk the injury of others in order to escape; or 2) allow Williams to

flee, give chase, and take the chance that Williams would further

injure Sergeant Hoshaw or an innocent civilian in his efforts to

avoid capture. Moreover, Miller had only an instant in which to

settle on a course of oction.”); Pace v. Capobianco, 283 F.3d 1275,

1278 (11"" Cir. 2002) (emphasis supplied) (vehicular pursuit in

which the suspect drove dangerously, swerving into the path of

other cars, “drove through someone’s front yard,” almost hit a

motorist, and then, when blocked in a cul-de-sac, his car “began

moving forward.” The deputy at this point fired seven times into

the car as it kept moving, killing the suspect. Officer entitled to

summary judgmentas a matter of law.); and, Scott v. Clay County,

205 F.3d 867, 872-73, 877-78 (6" Cir.), cert. denied, 531 U.S. 874

(2000) (the deputy was “confronted with a momentous, split-

second, life-or-death decision,” and reacted by firing a volley of five

rounds toward the driver, then an additional volley of four rounds

at. the vehicle. Held, the force used was reasonable as a matter of

law, “the culprit posed a serious risk of injury to others, which

standing alone, reconciled his use of force with Fourth

Amendment strictures.”)

3]

D. The Instantaneous “Second Volley” is

Immaterial.

As discussed above, according to Petitioners’ own

evidence the total elapsed time from the first shot to

the last shot was a mere two seconds, during which the

van traveled only two cars lengths. Also according to

their own theory, Officer Torres commenced firing the

second volley before the van began to slow down (of

four shots total, only three were after “deceleration’”).

Officer Torres paused and began to shoot again

“immediate[ly].” Witness Davis did not even recognize

a pause. Officer Key did not even recall that shots

were fired until being told so afterwards. Record 102.

Even if the van was slowing down, this is

immaterial both legally and factually. From a legal

perspective, it ignores the predicament the officer is

placed in. As one court remarked, “this is not a case

where a dangerous situation evolved quickly to a safe

one before the police officer had a chance to realize the

change.” Smith v. Cupp, 430 F.3d 766, 774-75 (6 Cir

2005).

Nor do Petitioners explain the factual significance

to Officer Torres that, for a brief moment, Wilkinson

was not accelerating the van. It is undisputed that the

van was still moving and thus still a danger. Indeed,

despite supposedly “coasting,” it actually traveled back

to within feet of where Officer Key was last seen, and

struck a deputy sheriffs vehicle hard enough to

damage it.

Was Officer Torres supposed to conclude that based

on the van slowing and Wilkinson’s hands moving off

32

the wheel (to grab a gun?), that all was fine now? An

injured person can still drive a car. And, how could

Officer Torres reasonably believe that the risk was

over? Wilkinson could have just as easily stopped and

accelerated forward and run over Officer Torres or

Key, or paused and then re-accelerated in reverse.

Certainly there was nothing in Wilkinson’s prior

conduct that even remotely suggested he would stop.

The interval between the first and second volleys

was so brief, that it appears to have been noticeable

only to Officer Torres. In that split second, nothing

happened to render the situation immediately safe for

the officers in the yard. And even if the van did begin

to slow down, he could have accelerated again and

then become a risk to the neighborhood and local

motorists.

CONCLUSION

In conclusion, Petitioners raise no legal or factual

issue which would justify this Court reviewing the

Ninth Circuit’s opinion, much less address the

considerations set forth in Rule 10. Officer Torres’

actions were constitutionally reasonable in the

emergent situation that he confronted — all of

Wilkinson’s doing. The cases clearly show that police

officers may employ deadly force to end just such a

dangerous incident. Wilkinson presented a danger not

only to the three officers in the yard, but also to

pedestrians and bicyclists in the neighborhood, and to

other vehicles. Even if this Court were to reweigh the

record and find a question of fact exists on the Fourth

Amendment question, Respondent Torres would be

entitled to qualified immunity as he at worst made a

reasonable mistake as to the need to use force. The

Court should deny the certiorari petition

Respectfully submitted,

Stewart A. Estes

Counsel of Record

Keating, Bucklin & McCormack, Inc., P.S

800 Fifth Avenue, Ste. 414]

Seattle, WA 98104

206-623-886]

sestes@kbmlawyers.com

Attorneys for Respondent Rick Torr

January 12. 2011