Ernest Foster, Sr., as personal representative of Ernest Foster, Jr.; R. F., minor, by and through his Guardian Ad Litem Raymond Foster; A. F., minor, by and through her Guardian Ad Litem Raymond Foster; Raymond Foster, individually, and as successors in interest to Ernest Foster, Jr., deceased, Plaintiffs-Appellees,
v.
City of Indio; Richard P. Twiss, individually and in his capacity as Indio Police Chief; Does, 1 through 10, inclusive, Defendants, and Jeremy Hellawell, individually and in his capacity as an officer of the Indio Police Department, Defendant-Appellant.
Argued
and Submitted March 6, 2018 Pasadena, California
Appeal
from the United States District Court for the Central
District of California Fernando M. Olguin, District Judge,
Presiding D.C. No. 5:15-cv-01175-FMO-DTB
Konrad
Muth Rasmussen (argued) and John P. McCormick, McCormick
Mitchell & Rasmussen, San Diego, California, for
Defendant-Appellant.
Justin
Palmer (argued), Filer Palmer LLP, Long Beach, California;
NaShaun Neal and Peter L. Carr IV, Sias Carr LLP, Los
Angeles, California; for Plaintiffs-Appellees.
Before: A. Wallace Tashima, Sandra S. Ikuta, and Jacqueline
H. Nguyen, Circuit Judges.
SUMMARY
[*]
Civil
Rights
The
panel dismissed in part an appeal from the district
court's order denying qualified immunity, and reversed in
part the order, in an action brought pursuant to 42 U.S.C.
§ 1983 alleging that a police officer conducted an
unlawful investigatory stop and used excessive deadly force
when he shot Ernest Foster three times in the back during a
response to a 911 call.
The
panel held that it lacked jurisdiction, on interlocutory
review, to consider questions of evidentiary sufficiency as
to the claims that the shooting violated Foster's Fourth
Amendment right and the surviving family's Fourteenth
Amendment rights. The panel held that on interlocutory appeal
it could not reweigh the evidence to evaluate whether the
district court properly determined there was a genuine issue
of material fact, and therefore could neither credit
defendant's testimony that Foster turned and pointed a
gun at defendant, nor assume that Foster took other actions
that would have been objectively threatening.
Addressing
plaintiffs' claim that the officer violated Foster's
Fourth Amendment rights by making an investigative stop of
Foster and by approaching him with an unholstered gun, the
panel held that it had jurisdiction to consider the claims
because the facts were undisputed and the appeal raised a
purely legal issue. The panel held that the officer did not
violate clearly established law when he concluded, based on
the 911 call, that he had reasonable suspicion to stop and
investigate Foster. The panel further held that a reasonable
officer in defendant's position could reasonably conclude
that unholstering a gun during the stop did not constitute a
violation of Foster's right to be free from excessive
force.
Dissenting,
Judge Ikuta stated that she disagreed with the majority's
conclusion that it lacked jurisdiction to consider the
district court's denial of qualified immunity as to
plaintiffs' Fourteenth Amendment claim. Judge Ikuta wrote
that, viewing the evidence in the light most favorable to the
plaintiffs, no reasonable jury could find that the officer
acted with a purpose to harm Foster for reasons unrelated to
legitimate law enforcement objectives.
OPINION
PER
CURIAM
Officer
Jeremy Hellawell was dispatched to investigate a 911 call
from a citizen who reported that a man matching Ernest
Foster's description was walking toward a shopping plaza
armed with a concealed handgun. As the incident unfolded,
Hellawell approached Foster at the shopping plaza to
investigate the report, Foster fled, and Hellawell ultimately
shot Foster fatally three times in the back. Foster's
family (the plaintiffs) claim that Hellawell violated
Foster's Fourth Amendment rights and the plaintiffs'
Fourteenth Amendment rights. The district court denied
Hellawell's motion for summary judgment based on
qualified immunity. Because we lack jurisdiction to consider
questions of evidentiary sufficiency on interlocutory review,
we dismiss Hellawell's appeal of the court's order
with respect to the claims that the shooting violated
Foster's Fourth Amendment right and plaintiffs'
Fourteenth Amendment rights. We reverse the district
court's denial of qualified immunity on Foster's
other Fourth Amendment claims, because Hellawell's
actions during the investigative stop did not violate any
clearly established law.
I
Because
this case arises from the denial of Officer Hellawell's
motion for summary judgment, we view the facts in the light
most favorable to the nonmoving party, here, Foster's
father and minor children (collectively, the
"plaintiffs").[1] On July 4, 2013, at around 1:30 p.m.,
the City of Indio Police Department received an anonymous 911
call reporting an individual carrying a gun. The caller
stated that a man "with a brown hat, aqua shirt, a blue
aqua shirt, [and] black blue jeans" was "walking
down Highway 111 toward subways and smoke shops with a
handgun, with a . . . gun in his right side pocket." The
caller also described the man as a "55-year-old
African-American gentleman weighing about 250 pounds with a
hand gun in his right side pocket" and a "baby
brown or beige ball cap." The caller further stated that
the man did not point the gun at him, but "walked out of
the liquor store" and "just opened the gun."
The caller further stated that the man "was no stress to
me, but . . . he wants to let people know who he is."
The
information provided by the caller was immediately dispatched
over the police radio. Officer Hellawell received information
that "a Black male wearing a tan hat, a[n] aqua-colored
shirt, and dark-colored pants with a handgun in his
pocket" was "last seen going towards Subway."
Hellawell, who was wearing his police uniform, drove to the
Indio Shopping Plaza near Highway 111, where the Subway was
located. Because the Subway and Payday Advance Money Store
had been robbed in the past, Hellawell's first thoughts
were that the tip might indicate a robbery was about to
occur. Hellawell did not use his patrol car sirens on the way
to the plaza and did not believe he was in danger "at
that moment."
As
Hellawell pulled into the parking lot near the Subway, he saw
"a Black male wearing a[n] aqua-green shirt, wearing a
tan hat and dark-colored pants" near the Subway. The man
matched the description of the 911 call and, according to
Hellawell, appeared nervous. The man, Ernest Foster, was
standing against the wall next to the smoke shop adjacent to
Subway. Hellawell exited his vehicle about ten feet from
Foster. Hellawell did not see a gun in Foster's hands or
on his person. Hellawell identified himself as a police
officer and stated: "Let me see your hands. Keep your
hands where I can see them. I just need to talk to you for a
minute." At that point, Foster started running away from
Hellawell. Hellawell gave chase. According to Hellawell, he
might have drawn his gun either when Foster made a movement
or started to run.[2] Hellawell subsequently re-holstered the
gun, because he would not run with a gun in his hand.
Hellawell
chased Foster through the shopping plaza then down an alley
between two stores. According to Hellawell, throughout the
pursuit, Hellawell told Foster to "stop," and to
"show me your hands." Hellawell yelled: "I
believe you have a gun. Stop or I am going to shoot."
Hellawell testified that Foster's left hand was visible,
but his right hand appeared to be holding something against
his body. Hellawell did not see Foster holding a gun. At one
point, Hellawell shot Foster with his taser; although one
dart hit Foster, the taser did not affect him because,
according to Hellawell, the other dart was dragging along the
ground.
As the
chase went on, Hellawell shot Foster with his service firearm
either just before or shortly after Foster rounded the corner
of a nearby store. According to Hellawell, he shot Foster
when he was turning toward him with a gun in his hand. This
account was corroborated by Officer Felipe Escalante and a
civilian witness, Daniel Kelley. Escalante had driven to the
shopping center in response to Hellawell's report of foot
pursuit. He testified that he saw Foster turn towards
Hellawell and that Foster might have had
"something" in his hands, but Escalante could not
tell for sure. In a March 31, 2016 declaration, Kelley
testified that he was smoking a cigarette outside of the
Jack-in-the-Box, and saw Hellawell chase Foster behind the
restaurant. He stated that as Foster ran by him, he saw
Foster holding something in his hand. Kelley followed
Hellawell, and saw Foster lying on the ground with a gun next
to him.
Other
witnesses offered differing accounts. Jaime Perez, who was
waiting in his car in the parking lot, stated in his initial
declaration on April 1, 2016, that he "saw a male
running around the northeast corner of the AutoZone grasping
an object up against his chest." He "watched the
man go down" and he "noticed an object fall from
his hand and land on the ground two feet in front of
him." He stated that the object was a handgun. But in a
second declaration on August 31, 2016, he stated that he had
previously testified that he saw a gun fall from Foster's
hands only because the police officers who interviewed him
said they had found a gun and he was scared and nervous
during his interview. In the August 31st declaration, Perez
stated, "I did not see a gun. Mr Foster did not point a
gun at anyone, nor did I see a gun in his hand." Rather,
according to Perez, Hellawell shot Foster in the back
"for no reason," and Perez "did not see []
Foster bend, shift, twist, or make any sudden movements
before [Hellawell] shot him."
A third
witness, John-David Vallesillo, witnessed the chase from his
car. In his interview with the police on the day of the
shooting, Vallesillo stated that he heard a volley of shots,
after which he turned his head and saw Foster "facing
away from [Hellawell], falling forward onto his face onto the
ground." Vallesillo further explained that from his
perspective, "I didn't see a gun in [Foster's]
hands at any point and it looked like he was, he got shot in
the back." In a later declaration, dated August 31,
2016, Vallesillo again explained: "I heard a volley of
shots coming from [the] general direction [of the police
chase]. I also saw Mr. Foster fall face down onto the
concrete." Vallesillo added that he "did not see
Mr. Foster turn or bend towards the police officer"
before the gunshots, "did not see Mr. Foster with a gun
in his hand," and "did not see a gun on the
sidewalk after the police officer shot him in the back."
Finally,
Jose Flores, who observed the chase from his mother's
car, testified that Foster did not turn toward Hellawell
during the chase. Flores saw Foster "lying face down on
the concrete," but "did not see a gun in
[Foster's] hands or on the ground."
Foster
was treated on the scene and later died at the hospital. The
plaintiffs brought suit under 42 U.S.C. § 1983 against
Hellawell, the City of Indio, the Indio Police Department,
and Chief of Police Richard Twiss. They claimed violations of
Foster's right to be free from excessive force under the
Fourth Amendment; violations of the family's right to
familial association under the Fourteenth Amendment; and
unconstitutional municipal customs, practices, and policies,
see Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978). The plaintiffs alleged that Hellawell (1) conducted
an unlawful investigatory stop without reasonable suspicion;
(2) used excessive force by drawing his firearm in
conjunction with the investigatory stop; (3) used excessive
force by shooting Foster with his taser during the foot
chase; and (4) used excessive force by shooting Foster three
times and killing him. The defendants moved for summary
judgment on all claims, arguing that qualified immunity
applied and no violation occurred.
The
court denied Hellawell's summary judgment motion on the
majority of plaintiffs' Fourth and Fourteenth Amendment
claims. The court concluded that a genuine issue of material
fact existed as to (1) whether Hellawell violated
Foster's Fourth Amendment rights in making the
investigative stop without reasonable suspicion; (2) whether
Hellawell violated Foster's Fourth Amendment right to be
free from excessive force by drawing his firearm during the
investigatory stop; (3) whether Hellawell violated
Foster's Fourth Amendment right to be free from excessive
force by fatally shooting him; and (4) whether Hellawell
violated the plaintiffs' ...