Metropolitan News-Enterprise


Thursday, December 26, 2019


Page 1


Ninth Circuit:

Officers Who Shot in Defense of Fellow Officers Deserve Immunity

Opinion Rejects View of District Judge That Disputed Isues of Fact Exist, Requiring Jury Determination


By a MetNews Staff Writer


Torrance police officers did not use excessive force when they fatally shot a 39-year-old woman who was charging at officers, who were on foot, in her automobile, the Ninth U.S. Circuit Court of Appeals has held, rejecting the contention of her son, suing through a guardian ad litem, that the woman’s evident mental condition should have been taken into account.

The memoradum opinion, filed Monday, reverses an order by District Court Judge S. James Otero of the Central District of California denying qualified immunity to Torrance Police Officers Jason Sena, Dusty Garver, and Scott Nakayama.

Their opening of fire on motorist Michelle Lee Shirley on Halloween in 2016 culminated events which began with reports to police of erratic driving by the woman, including traveling on the wrong side of the street. The police tried to pin her car in with their own vehicles; she put her automobile in reverse, accelerated, and bashed into the car being driven Officer Edward LaLonde, who fled from the vehicle. According to statements by witnesses, bolstered by cellphone videos and photographs, she shifted into drive, hit another patrol vehicle, and she tried to run down LaLonde and other officers.

An action was brought on March 27, 2017 on behalf of Shirley’s son, identified as “H.B.,” alleging federal civil rights causes of action—asserting that the “intentional use of excessive and deadly force upon Ms. Shirley, who was unarmed” violated constitutional protections—and claims under California law.

Otero’s Ruling

In denying summary judgment to the officers in the civil rights claim against them, Otero said in his Aug. 14, 2018 ruling that factual disputes exist, which were for a jury to resolve. He wrote:

“Here, Plaintiff has put forth a theory of the case that alleges the following: (1) Shirley had a mental or physical impairment at the time of the incident that caused her to drive erratically; (2) despite the impairment, Shirley was attempting to drive slowly, carefully, and avoid obstacles; (3) Shirley’s impairment caused her to be non-responsive and antagonistic towards the officers, but not violent; (4) when Shirley slowly pulled away from the officers’ vehicles in an attempt to escape, she was not a danger to them or to any of the few pedestrians in the vicinity; (5) the officers had less deadly means to stop her vehicle; (6) the officers either knew or should have known that Shirley did not pose an immediate threat to anyone and thus deadly force was inappropriate; and (7) the officer’s conduct was unreasonable because, rather than mitigate the harm to the public, they opened fire near many pedestrians and gas tanks….Construed in the light most favorable to Plaintiff, the evidence plausibly supports these allegations.”

Otero added:

“It is unequivocal that unless the threat to others posed by Shirley was immediate and substantial, the use of deadly force is a violation of the Fourth Amendment….Thus, if it was objectively unreasonable for the officers to believe that they or others were in immediate danger of death or serious physical injury, shooting Shirley to prevent her escape is clearly unconstitutional. Unreasonable excessive force that results in the deprivation of life is the most egregious of Fourth Amendment violations, and, as such, is ‘clearly established’ under the law. As there is a genuine dispute on whether the officers’ conduct was reasonable, the Court cannot determine whether qualified immunity applies at this stage.”

While denying qualified immunity to the officers, Otero did grant summary judgment to the city on the claim against it, finding no “plausible legal basis” for imposing liability on it.

Ninth Circuit Opinion

The Ninth Circuit viewed the facts differently. Its opinion—signed by Circuit Judge Michelle T. Friedland, Senior Circuit Judge Mary M. Schroeder, and District Court Judge Roslyn O. Silver of the District of Arizona, sitting by designation—says:

“The parties do not dispute that the situation confronting the officers is accurately depicted by several videos in the record. The videos show that the decedent drove in an erratic manner, including by swerving repeatedly into oncoming traffic, that posed a danger to members of the public in a busy metropolitan area. The videos also show that the decedent, having been boxed in by the police officers, accelerated outward in the direction of at least one of the officers, toward a lane for oncoming traffic and a nearby gas station.”

It continues:

“Because the decedent accelerated toward the officers from only a few feet away, a reasonable officer under these circumstances would have perceived the decedent’s actions to constitute a significant and immediate threat to the officers in the path of her vehicle and to other members of the public who were in the vicinity.”

Mental Problems

Addressing the contention that the officers should have acted with greater restraint, in light of Shirley’s obvious mental problems, the opinion says:

“[A]ssuming Defendants should have known that the decedent was mentally impaired, that would not have rendered their conduct less reasonable in this case, because the decedent posed a significant and immediate threat, leaving Defendants with no opportunity to attempt to de-escalate the situation.”

The opinion reverses Otero’s denial of summary judgment to the officers on the cause of action under California’s Tom Bane Act—providing a remedy for a civil rights violation—and on a cause of action under state law for battery. Otero based the denial on his conclusion that “Defendants have failed to prove that the force was objectively reasonable as a matter of law.”

The Ninth Circuit’s opinion says:

“Our determination that the officers’ use of force was objectively reasonable ‘necessarily resolves’ those claims.”

State Claims

What remains are causes of action, under California law, for negligence and wrongful death. Otero denied summary judgment based on his perception that reasonableness of lethal force had not been established.

The Ninth Circuit opinion declares that the negligence and wrongful death claims “may be premised on a broader set of conduct than conduct amounting to excessive force under federal law.” The matter is remanded for consideration under state law.

The case is H.B. v. City of Torrance, 18-56180.

H.B., Shirley’s only child, resided at the time of the shooting with his father in Illinois. Shirley had lived with the father there—she graduated from the School of Law at Loyola Marymount in Chicago—but the father was granted sole custody after Shirley had an attack of manic bipolar disorder and locked the child out of the residence.

A separate action by Ronnie Shirley and Debra Shirley, the decedent’s parents, has been stayed pending the outcome of the interloutory appeal of Otero’s order in H.B.’s action.


Copyright 2019, Metropolitan News Company