Metropolitan News-Enterprise


Monday, May 21, 2018


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Ninth Circuit:

Officer Who Shot Fleeing Man Entitled to Qualified Immunity

Visiting Jurist Dissents, Says Judge Hatter Decided Jury Questions


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday affirmed a summary judgment in favor of a Riverside police officer who shot the plaintiff three times while chasing him on foot, causing serious injuries.

The majority of a three-judge panel, in an opinion by Circuit Judge Consuelo M. Callahan, affirmed the decision by Senior District Judge Terry Hatter to grant qualified immunity to Riverside Police Officer Silvio Macias. District Judge Robert W. Pratt of the Southern District of Iowa, sitting by designation, dissented, arguing that the defendant’s right to have facts decided by a jury was abridged.

Macias and his partner were on patrol on Dec. 22, 2011 when they spotted a car with illegally tinted glass and attempted to stop it; the car sped away, but suddenly stopped in a shopping center parking lot and the passenger, Michael Easley, then 22, alighted from it and ran; Macias chased him; his partner shouted that the man had a gun; Macias saw it, and fired at Easley. He shot him within a few seconds after Easley tossed the gun away.

Hatter’s Decision

In his June l, 2016 order, Hatter granted summary judgment, as to Easley’s federal civil rights cause of action, based on qualified immunity, and declined to retain jurisdiction over state causes of action. He wrote:

“Here, given the facts and circumstances at the time of the shooting and that Easley admitted that he possessed a gun, pulled it out of his pants while he was actively evading Officer Macias, and the profile of the gun was visible to Officer Macias, a reasonable officer confronting the scene could reasonably believe that Easley posed a serious and deadly threat to Officer Macias when Easley removed the gun from his pants and lifted the gun to a point where Officer Macias could see the gun’s profile during the foot pursuit….

“It is irrelevant whether Officer Macias saw the profile of the gun while Easley was throwing it away or while turning to point the gun at Officer Macias. Under either scenario, Officer Macias acted reasonably given the very short time passage of a few seconds. Officer Macias did not shoot Easley until he perceived Easley as a threat, which is when Officer Macias saw the profile of the gun on the right side of Easley’s body.”

Circuit Judge Agrees

Agreeing, Callahan said:

“Based on these undisputed facts, a reasonable officer may have reasonably feared that Easley had a gun and was turning to shoot him. Thus, viewing the critical evidence in the light most favorable to Easley, we conclude that Macias is entitled to qualified immunity.”

She also said that a district judge has the prerogative to determine the issue of qualified immunity sua sponte, as Hatter did.

Judge Jacqueline H. Nguyen Joined in Callahan’s Opinion

Pratt’s Dissent

Pratt wrote a 20-page dissent. Summary judgment should not have been granted, he asserted, explaining:

 “In this case, I perceive genuine, material factual disputes in the record that the district court and the majority have either improperly purported to resolve or improperly ignored. In doing so, they have inadvertently encroached upon the constitutional province of the jury and upon Easley’s Seventh Amendment rights.”

One of the factual matters her thought a jury should resolve was how much time elapsed between Easley discarding his weapon and Macias pulling the trigger. On direct examination, Easley estimated it was “three to four seconds,” but on cross examination he said it was “two or three” seconds.

Callahan made reference to a lapse of “two to four seconds.”

Pratt protested:

“Four seconds, two seconds, and zero seconds are not constitutionally equivalent in these circumstances; we cannot so easily dismiss the distinction by statins that the event occurred “within two to four seconds.”

Possible Scenario

He went on to say that the question of qualified immunity should have been left to the jury. Pratt reasoned:

“[I]t is possible for a jury to conclude on this record that Macias first reasonably suspected Easley was armed, then clearly observed Easley divest himself of the suspected firearm, and finally decided—after sufficient time to recognize Easley was unarmed and not dangerous—to fire upon him.

“The district court avoided this conclusion in part by deciding that the timing of this event is immaterial for summary-judgment purposes. I disagree. It is, for example, self-evident, that if an officer observes a suspect disarm himself and then pursues the suspect on foot away from the discarded weapon for thirty seconds, he may not then decide to fire upon the suspect and claim in good faith that he was in fear of the suspect using the discarded weapon to hurt him. Likewise, it is clear that if an officer observes a suspect remove a firearm from his pocket toward the officer and the officer shoots the suspect before the firearm leaves the suspect’s hands, the officer’s fear was reasonable even if the suspect later claims it was his intent to discard the weapon. This case, then, presents a complex line-drawing exercise: at what point between these two extremes does a fear of immediate harm become unreasonable?”

Two-Day Hearing

During oral argument on Feb. 6, the visiting jurist drew attention to Hatter having conducted a two-day hearing, with testimony, on qualified immunity, saying he had never encountered such a procedure, and queried whether it was normal in this district. Alana H. Rotter of Greines Martin Stein & Richland LLP, arguing for the City of Riverside, responded:

“This was probably not your every day procedure.”

Callahan interjected:

“I would agree with you. I don’t think I’ve seen it before.”

The case is Easley v. City of Riverside, 16-55941.


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