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Ninth Circuit Judges Disagree on ‘Clearly Established Law’
Majority of En Banc Court Says That Jurisprudence Made Evident That Shooting of Man, Writhing on Ground With Knife in Hand, Violates Constitution, Drawing Three Dissenting Opinions
By a MetNews Staff Writer
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TORI MCBRIDE defendant |
A divided en banc panel of the Ninth U.S. Circuit Court of Appeals held yesterday that summary judgment was improperly granted to the City of Los Angeles and one of its police officers, who fatally shot a man who was on the ground when the final bullets were fired, saying that it was clearly established at the time that members of law enforcement may not continue to shoot a wounded suspect absent evidence that he presents a continuing lethal threat.
The question arose after the parents and daughter of decedent Daniel Hernandez filed complaints, which were later consolidated, against Los Angeles Police Department Officer Toni McBride—a popular social media firearms influencer—and the city, asserting constitutional claims under 42 U.S.C. §1983 as well as state law assault, wrongful death, and other causes of action including a due process claim for deprivation of companionship.
After McBride and another officer stopped to investigate a multi-vehicle accident in South Central Los Angeles, Hernandez climbed out of the driver’s side window of one of the cars and advanced toward McBride with a knife, despite her commands that he drop the weapon.
She fired an initial volley of two shots, causing Hernandez to fall to the ground, with the knife still in his hand, but he began to try to stand up again. After again telling him to “Drop it,” she fired an additional two shots.
He fell to the ground, still moving, and McBride fired a fifth and sixth shot. He no longer made any motions and still had what turned out to be a box-cutter in his right hand.
Summary Judgment
District Court Judge Stanley Blumenfeld Jr. of the Central District of California granted summary judgment in favor of the defendants as to all claims, saying that McBride’s use of force was reasonable under the circumstances and the defendants were entitled to qualified immunity because her actions did not violate clearly established law.
A three-judge panel, in an opinion written by Circuit Judge Daniel P. Collins, affirmed the judgment in part, finding that there was a triable issue of fact as to the reasonableness of the shots taken after the decedent was on the ground but that McBride was entitled to qualified immunity.
However, the court took issue with Blumenfeld’s dismissal of the state law claims based on his determination that the use of force was reasonable, saying:
“Because we conclude that the reasonableness of McBride’s final volley of shots presents a question for a trier of fact, the district court erred in dismissing these state law claims on that ground. We therefore reverse the district court’s dismissal of these claims.”
Collins also affirmed the judgment as to the plaintiffs’ familial companionship and other claims.
In an opinion, authored by Circuit Judge Jacqueline H. Nguyen and joined in by Chief Judge Mary H. Murguia, and Circuit Judges Johnnie B. Rawlinson, Holly A. Thomas, Salvador Mendoza Jr., and Anthony D. Johnstone, the court declared:
“We reverse the district court’s Fourth Amendment rulings. It has been clearly established for more than a decade that when an officer shoots and wounds a suspect, and he falls to the ground, the officer cannot continue to shoot him, absent some indication that he presents a continuing threat, without first reassessing the need for lethal force…. We reaffirm circuit precedent that a fallen and injured suspect armed only with a bladed instrument does not present a continuing threat merely because he makes nonthreatening movements on the ground without attempting to get up….Because the officer here continued to shoot Hernandez under such circumstances, a jury could reasonably find that she employed constitutionally excessive force. If so, she is not entitled to qualified immunity.”
Circuit Judges Ryan D. Nelson, Patrick J. Bumatay, and Collins penned partial dissents.
Majority’s View
Nguyen acknowledged that “as a matter of law,…McBride acted reasonably when firing the first four rounds at Hernandez,” but said the analysis changes when considering the final shots. She wrote:
“[A] reasonable jury could find that after the second volley, the immediate threat posed by Hernandez had ended….When McBride fired the third volley of shots, Hernandez was rolling away from her, balled up in a fetal position. Viewing the video footage in the light most favorable to plaintiffs, Hernandez did not constitute an immediate threat, and McBride could have and should have first reassessed the situation to see whether he had been subdued.”
Turning to the question of qualified immunity, she cited the 2017 Ninth Circuit decision in Zion v. County of Orange, in which the court said that an officer acted with excessive force when he fired another rally at a man, already lying on the ground and wounded from earlier shots, who was making no threatening gestures. The man had earlier in the evening charged at an officer with a knife and stabbed him in the arm.
Zion Case
Quoting from Zion, Nguyen said:
“Here, Hernandez was apparently trying to get up after the first volley of shots, but the video footage supports a different conclusion after the second volley. A jury could conclude that his continued movements on the ground were due to pain from four gunshot wounds and that his movements, like Zion’s, were nonthreatening. And, as in Zion, a jury could reasonably conclude that McBride ‘could have sufficiently protected [her]self and others’ after Hernandez fell by pointing her gun at him ‘and pulling the trigger only if [he] attempted to flee or attack.’ ”
She added:
“Judge Collins’s partial dissent would distinguish Zion based on a red herring. In a footnote to Zion, we speculated—based on counsel’s unsupported assertions at argument—that ‘[i]t may be that, once on the ground, Zion had dropped the knife.’…To the extent Zion’s continued possession of the knife was relevant at all…, it was only because the officer was standing a mere four feet away—within striking distance….Here, in contrast, McBride was standing approximately 36 feet from where Hernandez had fallen, a distance at which Hernandez’s possession of the knife did not present an immediate threat if he was not trying to get up.”
As to the other claims, she concluded:
“Because the district court granted summary judgment on plaintiffs’ state law claims solely for lack of a Fourth Amendment violation, we reverse that ruling as well. Plaintiffs also challenge the district court’s grant of summary judgment on their Fourth Amendment claim for municipal liability and Fourteenth Amendment claim for violating their right to family integrity. We agree with and adopt the three-judge panel’s discussion of those issues….”
Nelson’s View
Nelson, joined by Circuit Judges Daniel A. Bress, Bridget S. Bade, and Bumatay, criticized the majority for ignoring the reality of officers having to make split-second judgments and wrote:
“I agree…that Officer Toni McBride was entitled to qualified immunity. But Officer McBride never violated the Fourth Amendment in the first place….Contrary to the majority’s conclusion,…Officer McBride’s six shots over six seconds did not trigger a duty to reassess the risk Hernandez posed, particularly where he remained armed and in motion during that entire time. For similar reasons, I would affirm the district court’s dismissal of the state-law claims.”
He also wrote separately, in a portion of the opinion not joined in by Bade, to assert that “[p]laintiffs’ substantive due process claims” based on a parent’s purported due process right to the companionship of their adult children “fail for a more fundamental reason.”
Saying that the court should apply the analysis set forth by the high court in the 1997 decision in Washington v. Glucksberg regarding recognizing new substantive due process rights, he opined:
“We have never conducted a Glucksberg analysis to recognize whether a parent has substantive rights over their adult children or whether a child has a right to companionship with a parent. And we are unique in recognizing a parental interest in this regard.”
Bumatay joined Nelson’s dissent “in full,” but wrote separately to say that the en banc court should have taken the opportunity to overrule Zion, citing the U.S. Supreme Court’s decision in Barnes v. Felix, decided last month, which he characterized as “reject[ing] the very practice of analyzing use of deadly force cases down to the ‘precise millisecond when an officer deploys force.’ ”
Collin’s Opinion
Collins largely restated the views he expressed in the three-judge panel opinion but also, in a portion of the opinion joined by Nelson, Bade, Bress, and Bumatay, opined:
“According to the majority, the scope of the clearly established rule that emerges from Zion must be framed, not based on what our opinion in Zion actually said about the facts of that case, but rather based on what the court files of that case reveal to be the ‘true’ facts of the case.”
He said:
“Under the majority’s opinion, reasonable officers apparently no longer can rely on what our opinions actually say; now, they must delve into the court records to see whether our precedents described their own facts incorrectly, and officers must also consider that future panels may take considerable liberties…with selectively quoting the opinion’s language.”
The case is Estate of Hernandez v. City of Los Angeles, 21-55994.
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