Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

A. K. H. v. City of Tustin

United States Court of Appeals, Ninth Circuit

September 16, 2016

A. K. H., a minor by and through her Guardian Ad Litem Elizabeth Landeros; Maria Cerda Reyes; Benito Herrera; H. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; A. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; B. H., Jr., a minor by and through his Guardian Ad Litem Eloisa Gutierrez, Plaintiffs-Appellees,
v.
City of Tustin; Officer Villarreal, Defendants-Appellants.

          Argued and Submitted March 7, 2016 Pasadena, California

         Appeal from the United States District Court No. 8:12-cv-01547-JLS-RNB for the Central District of California Josephine L. Staton, District Judge, Presiding

          M. Lois Bobak (argued), Robert L. Kaufman, and Daniel K. Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa, California, for Defendant-Appellant Officer Villareal.

          No appearance by Defendant-Appellant City of Tustin.

          Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellees.

          Before: William A. Fletcher, Mary H. Murguia, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's denial of qualified immunity to a police officer and remanded in an action brought pursuant to 42 U.S.C. § 1983 alleging that the officer used unlawful deadly force when he shot and killed Benny Herrera during an attempted investigatory stop.

         The panel held that the government's interests were insufficient to justify the use of deadly force. The panel noted that the crime at issue was a domestic dispute that had ended before the police became involved, that Herrera did not pose an immediate threat to the safety of the officers or others, that although Herrera did not comply with the officer's commands, he did not attempt to flee, and that the officer escalated to deadly force very quickly and without warning. The panel concluded that viewing the evidence in the light most favorable to the plaintiffs, the intrusion on Herrera's interest substantially outweighed any interest in using deadly force. The panel further held that the officer violated clearly established Fourth Amendment law when he shot and killed Herrera.

          OPINION

          W. FLETCHER, CIRCUIT JUDGE.

         Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. As will be more fully described below, Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera's hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera's hand.

         In a § 1983 suit alleging excessive force, Officer Villarreal moved for summary judgment. The district court denied the motion. In this interlocutory appeal, we affirm.

         I. Factual and Procedural Background

         On December 17, 2011, at approximately 3:00 p.m., Hilda Ramirez called 911. She reported that her ex-boyfriend, Benny Herrera, had "jacked [her] phone." Ramirez stated that she was not hurt, that she did not need paramedics, and that her children were "fine." Initially, Ramirez told the 911 police dispatcher that Herrera stole her phone by "just grabb[ing] it from [her] hand." A short time later, Ramirez modified her story and said that, while ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.