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Estate of Lopez v. Gelhaus

United States Court of Appeals, Ninth Circuit

September 22, 2017

Estate Of Andy Lopez, by and through successors in interest, Rodrigo Lopez and Sujay Cruz; Rodrigo Lopez; Sujay Cruz, Plaintiffs-Appellees,
Erick Gelhaus; County Of Sonoma, Defendants-Appellants.

          Argued and Submitted May 10, 2017 Pasadena, California

         Appeal from the United States District Court No. 4:13-cv-05124-PJH for the Northern District of California Phyllis J. Hamilton, Chief District Judge, Presiding

          Noah G. Blechman (argued) and James V. Fitzgerald III, McNamara Ney Beatty Slattery Borges & Ambacher LLP, Walnut Creek, California; Jesse F. Ruiz, Robinson & Wood Inc., San Jose, California; for Defendants-Appellants.

          Gerald P. Peters (argued), Law Office of Gerald Philip Peters, Thousand Oaks, California, for Plaintiffs-Appellees.

          Before: J. CLIFFORD WALLACE, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.



         Civil Rights

         The panel affirmed the district court's order denying defendants' motion for summary judgment on the defense of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 alleging that Sonoma County Sheriff's Deputy Erik Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez.

         Gelhaus shot Andy after witnessing Andy walking down the street with an object that looked like an AK-47 rifle. Andy did not comply with Gelhaus's directive to "drop the gun." The object turned out to be a plastic gun designed to replicate an AK-47, with the bright orange tip removed.

         The panel held that viewing the facts in the light most favorable to plaintiffs, as the panel was required to do at this stage of the proceedings, Gelhaus deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground. Gelhaus also shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior. Pursuant to Graham v. Connor, 490 U.S. 386 (1989), a reasonable jury could find that Gelhaus's use of deadly force was not objectively reasonable.

         The panel further held that taking the facts as it was required to do on interlocutory appeal, Andy did not pose an immediate threat to law enforcement officials and therefore the law was clearly established at the time of the shooting that Gelhaus's conduct was unconstitutional. The panel held that ultimately, Gelhaus's entitlement to qualified immunity depended on disputed facts that needed to be resolved by a jury, and the panel therefore remanded the case for trial.

         Dissenting, Judge Wallace stated that at the time of the shooting, legal precedent did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.



         Sonoma County and Sheriff's Deputy Erick Gelhaus appeal from an order denying their motion for summary judgment on the defense of qualified immunity in an action alleging that Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez in October 2013. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


         A. Jose Licea Drives by Andy Lopez Prior to the Shooting

         On October 22, 2013, at approximately 3:15 p.m., Jose Licea, a civilian with no connection to any of the parties to this litigation, was driving northbound on Moorland Avenue in Santa Rosa, California. He noticed a person later identified as Andy Lopez[1] walking on the sidewalk a few hundred feet in front of him. Licea couldn't tell Andy's age, "but by the height, [Licea] was figuring it was a kid."[2]

         When Licea got within approximately 150 feet of Andy, he saw that Andy was holding an object that looked like an AK-47. The gun was in Andy's left hand, the barrel was pointed at the ground, and Licea "could see it just swinging." Licea thought this was odd: "at that time in the afternoon, you know, someone walking around with an AK-47, to me, just - I couldn't see somebody doing that." Indeed, at "th[at] time of the day, " he said, "someone is not going to be carrying a real rifle."

         When Licea got within approximately fifty feet of Andy, he slowed down to look at the gun. When he saw it, he thought "it look[ed] fake." He suspected it was a BB gun because his mother-in-law had seen some children with them in the area several weeks earlier. Licea did not fear for his life or call the police; he continued on his way.

         B. Deputies Gelhaus and Schemmel See Andy

         At the same time, Sonoma County Sheriff's Deputies Erick Gelhaus and Michael Schemmel were on routine patrol in a marked police car driving northbound on Moorland Avenue. Gelhaus was training Schemmel because Schemmel had just transferred to Sonoma from a nearby police department. Gelhaus was aware that they were patrolling a part of the county known for gang activity and violent crime. Still, he had not worked in the area in the last few years, it was the middle of the day, and there was no activity on the police radio.

         With Schemmel at the wheel and Gelhaus in the passenger seat, the officers approached a stop sign at West Robles Drive. That is when Gelhaus noticed Andy walking in a direction away from the officers along the west sidewalk on Moorland Avenue. Andy was "[w]alking at a normal speed" and, according to Gelhaus, his motions did not appear aggressive. Andy was not "trying to get away from us, " Gelhaus recounts, "he was just walking away from us."

         Gelhaus could not determine Andy's age-Andy was about 100 feet away and was wearing a hooded sweatshirt. To Gelhaus, Andy nonetheless appeared to be "[s]omebody in their mid to late teens, " and did not appear to be a gang member.

         Gelhaus noticed Andy's gun, which he believed to be an AK-47. Gelhaus believed this in part because he had previously confiscated an AK-47 within one mile of Andy's location. That said, he had never seen a person walk down the street in broad daylight carrying an AK-47. Moreover, he had also confiscated what turned out to be toy guns on three prior occasions while on patrol. During the most recent of those occasions, Gelhaus responded to a call involving subjects with rifles in a park. He used his loudspeaker from a distance of 100 yards to direct the individuals to put down their guns. The suspects complied, and the incident was resolved without charges.

         Gelhaus saw Andy holding the gun in his left hand, "by the pistol grip, down at his side, " with the muzzle pointed towards the ground. Schemmel reported he saw Andy holding the gun in his right hand, and Schemmel's subsequent declaration does not specify in which hand the gun was held. As Andy was walking, "the weapon would swing somewhat, " but Gelhaus could not see if Andy's finger was on the trigger. Once Gelhaus noticed Andy's gun, he quickly alerted Schemmel, then called in a "Code 20, " which is used to request that all available units report immediately on an emergency basis.

         C. The Incident

         As Schemmel trained his attention on Andy, he drove past the stop sign and crossed the intersection with West Robles Drive. Simultaneously, he flipped on the emergency lights and "chirped" the patrol car's siren. Schemmel believes he saw Andy "briefly glance backwards" over his right shoulder at this point. Gelhaus did not see Andy make any such turn, nor does he recall ever hearing the patrol car's "chirp."

         Once Schemmel cleared the intersection, he veered into the southbound lane and stopped at a forty-five degree angle with the west sidewalk. As the car was slowing down, Gelhaus removed his seatbelt, drew his pistol, and opened the passenger side door. The deputies were parked approximately forty feet behind Andy at this point. Once stopped, Gelhaus situated himself at the V of his open door, and knelt on the ground.

         Now outside, Gelhaus aimed his pistol at Andy and yelled loudly at least one time, "Drop the gun!" Andy had been walking this whole time, so he was about sixty-five feet from the officers when Gelhaus shouted. Andy did not drop the gun; he paused a few seconds and began to rotate his body clockwise. Gelhaus then "saw the gun come around" as Andy's torso turned. The parties dispute what happened next.

         According to Gelhaus's declaration, "[w]ith the weapon still in [Andy's] left hand swinging around and toward [the officers], and with the barrel of the weapon coming up, " Gelhaus fired eight shots in rapid succession, seven of which hit Andy. In his videotaped deposition, however, Gelhaus stated that Andy "didn't turn towards me when I shot him."[3]Gelhaus shot Andy in the chest, so Andy was facing the officers when Gelhaus opened fire. Gelhaus concedes that he does not know where Andy was pointing the rifle at the time that he was shot. Nor does Gelhaus know if Andy's gun was ever actually pointed at him.

         At his deposition, Gelhaus was asked to reenact how Andy was holding the gun, "his turning motion, " and "what you saw him do." The video depicts the gun in Gelhaus's fully-extended arm and at his side as he turns, consistently pointed straight down towards the ground.[4]

         The defendants' experts opined that it was "likely" that Andy "partially raised" the gun. Plaintiffs' experts disagreed. They created three-dimensional models of Andy's movements, and in each of the re-creations, Andy's gun barrel is pointed down at the ground throughout Andy's turn. One expert further insisted that from the physical evidence alone "[i]t cannot be determined . . . if the [rifle] was held in the left or right hand . . . or if the [rifle] was elevated or pointed at the officers prior to the shooting."

         Because Schemmel was the driver, he insists he was unable to get into position until Gelhaus had already stopped firing. According to Schemmel's declaration, "[Andy] turned to his right with his whole body toward us, and as he did so, the gun was turning with him and it was raising and turning toward us." Asked in his deposition, however, if "[a]t any time before [he] heard gunshots, [he saw] [Andy's] left hand move, " Schemmel responded, "I don't recall."

         Andy collapsed after the shots and Deputies Gelhaus and Schemmel remained crouched behind their car doors. Once other deputies arrived, Gelhaus and two other officers approached Andy with their guns pulled. As he was standing over Andy, Gelhaus realized for the first time that the gun's coloring was different from that of a real AK-47. When he moved the weapon away, he also noticed that Andy's gun was much lighter. It turns out that Andy was holding a plastic gun designed to replicate an AK-47. The toy did not have an orange tip at the end of the barrel, and defendants' experts submit that it was not possible for Gelhaus to visually distinguish Andy's weapon from a real AK-47 at the distance involved in this case.

         At the time of the shooting, Andy was standing next to an open field in a residential neighborhood. The site of the shooting is also close to three schools and the shooting occurred when school was out of session. There were no other people present at the shooting. There were a few individuals outside in the surrounding neighborhood. Andy had been walking in the general direction of several houses before Gelhaus shouted, and Gelhaus submits that he did not want to let Andy get near them.

         Gelhaus stated that he was aware at the time of the shooting that rounds from an assault rifle can penetrate car doors. Thus, when Gelhaus fired, he did not believe that he had any cover or protection.

         Finally, the total elapsed time from the "chirp" to the shots was approximately twenty seconds. Andy died on site from his wounds.

         D. Procedural History

         Andy's estate brought suit on November 4, 2013, asserting, among other things, a claim against Gelhaus pursuant to 42 U.S.C. § 1983 for a Fourth Amendment violation. Gelhaus and Sonoma County filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion in relevant part on January 20, 2016. See Estate of Lopez v. Gelhaus, 149 F.Supp.3d 1154, 1158‒65 (N.D. Cal. 2016).

         At the first step of the qualified immunity analysis, the district court held that a jury could find that Gelhaus acted unreasonably when viewing the evidence in the light most favorable to Andy.[5] Id. at 1162. In particular, after reviewing the relevant evidence, the court held that it could "conclude only that the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly-higher level without posing any threat to the officers." Id. In light of that finding, the record did not compel the conclusion that Gelhaus was threatened with imminent harm. The court distinguished Gelhaus's authority as involving suspects who either (1) physically assaulted an officer, (2) pointed a weapon at officers or others, (3) made a sudden movement towards what officers believed to be a weapon, or (4) exhibited some other threatening, aggressive, or erratic behavior. Id.

         Having concluded that the plaintiffs could show a constitutional deprivation, the court turned to step two. It asked "whether the law was clearly established such that an officer would know that the use of deadly force is unreasonable where the suspect appears to be carrying an AK-47, " but where "officers have received no reports of the suspect using the weapon or expressing an intention to use the weapon, " "the suspect does not point the weapon at the officers or otherwise threaten them with it, " "the suspect does not 'come at' the officers or make any sudden movements towards the officers, " and "there are no reports of erratic, aggressive, or threatening behavior." Id. at 1164. The court said that the law was clearly established that under those "specific circumstances, " the use of deadly force was unreasonable. Id. at 1164‒65. The court did not directly identify a precedent that put Gelhaus on notice that his conduct was unconstitutional.

         Gelhaus filed a timely notice of appeal on February 4, 2016.


         We review summary judgment determinations de novo. Glenn v. Wash. Cty., 673 F.3d 864, 870 (9th Cir. 2011). We also review de novo a defendant officer's entitlement to qualified immunity. Id.


         "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al‒Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         Gelhaus insists he is entitled to qualified immunity on plaintiffs' Fourth Amendment claim. "In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct."[6]Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 232). Here, taking the facts as we must regard them on this interlocutory appeal, a reasonable jury could conclude that Gelhaus deployed excessive force in violation of the Fourth Amendment. Additionally, the alleged violation of Andy's Fourth Amendment right was clearly established at the time of Gelhaus's conduct.

         I. Step One-Whether a constitutional right was violated.

         Plaintiffs assert that Gelhaus deployed excessive force in violation of the Fourth Amendment. This claim is governed by an "objective reasonableness standard, " which requires a "careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 388, 396 (1989) (internal quotation marks omitted). The calculus "must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id. at 396‒97. We therefore judge reasonableness "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396.

         The Supreme Court's decision in Graham identified several factors to consider when evaluating the strength of the government's interest in the force used: (1) "the severity of the crime at issue, " (2) "whether the suspect poses an immediate threat to the safety of the officers or others, " and (3) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id. The "'most important' factor under Graham is whether the suspect posed an 'immediate threat to the safety of the officers or others.'" George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). These factors are non-exhaustive. Bryan, 630 F.3d at 826. Courts still must "examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham" Id. (internal quotation marks omitted). "Other relevant factors may include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed." Hughes v. Kisela, 841 F.3d 1081, 1085 (9th Cir. 2016). "With respect to the possibility of less intrusive force, officers need not employ the least intrusive means available[, ] so long as they act within a range of reasonable conduct." Id.

         We have held that "summary judgment should be granted sparingly in excessive force cases." Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc). "This principle applies with particular force where, " as here, "the only witness other than the officers was killed during the encounter." Id. "In such cases, we must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story-the person shot dead- is unable to testify." Id. (internal quotation marks omitted). "Accordingly, we carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, . . . to determine whether the officer's story is internally consistent and consistent with other known facts." Id. (internal quotation marks omitted). "We must also examine circumstantial evidence that, if believed, would tend to discredit the police officer's story." Id. (internal quotation marks omitted).

         "Although we must view the facts in the light most favorable to the nonmoving party, when considering qualified immunity, we are also limited to considering what facts the officer could have known at the time of the incident." Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017) (citing White v. Pauly, 137 S.Ct. 548, 550 (2017)). Ultimately, in this interlocutory appeal, we ask "whether the defendants would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff's favor." George, 736 F.3d at 836 (internal quotation marks and alteration omitted).

         A. To assess whether a reasonable jury could find a Fourth Amendment violation, we must first resolve several factual disputes.

         Applying Graham, Andy was not committing a serious crime or attempting to evade arrest by flight. The first and third factors thus weigh clearly in Andy's favor. We therefore are left with the "most important" factor-whether Andy posed an "immediate threat to the safety of the officers or others." George, 736 F.3d at 838 (internal quotation marks omitted). To make that determination, we must resolve a number of genuine factual disputes, considering the evidence in the light most favorable to the nonmoving party-here, the plaintiffs.

         First, because Schemmel and Gelhaus disagree as to whether Andy "briefly glance[d] backwards" over his right shoulder after the patrol car's "chirp, " we must assume that Andy did not briefly glance backwards and therefore was unaware that someone was behind him until Deputy Gelhaus shouted "drop the gun." See Saucier v. Katz, 533 U.S. 194, 207 (2001) ("Excessive force claims . . . are evaluated for objective reasonableness based upon the information the officer[] had when the conduct occurred."); Moreno v. Baca, 431 F.3d 633, 642 (9th Cir. 2005) (stating that courts may consider only the facts that were known to the defendant officer). This disputed fact is significant because it sheds light on Andy's possible motivations in turning to face the officers. In particular, Andy's subsequent turn appears less ...

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