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,
City of Tustin; Officer Villarreal, Defendants-Appellants.
and Submitted March 7, 2016 Pasadena, California
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
Lois Bobak (argued), Robert L. Kaufman, and Daniel K.
Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa,
California, for Defendant-Appellant Officer Villareal.
appearance by Defendant-Appellant City of Tustin.
K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale
K. Galipo, Woodland Hills, California, for
Before: William A. Fletcher, Mary H. Murguia, and John B.
Owens, Circuit Judges.
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.
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.
FLETCHER, CIRCUIT JUDGE.
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
§ 1983 suit alleging excessive force, Officer Villarreal
moved for summary judgment. The district court denied the
motion. In this interlocutory appeal, we affirm.
Factual and Procedural Background
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