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Ninth Circuit Revives Action Against Officer in Shooting of Stick-Wielding Homeless Man
Majority Says Judge Improperly Ruled That Shooter Was Entitled to Qualified Immunity at Pleading Stage, Bennett Dissents
By a MetNews Staff Writer
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LUIS GARCIA |
A divided panel of the Ninth U.S. Circuit Court of Appeals on Friday partially reinstated a civil action against the City of Tustin and one of its police officers relating to the fatal shooting of a homeless man who emerged from a hedge, after being told to come out, carrying a large wooden pole that extended above his head, saying a trial judge improperly found that the shooter was entitled to qualified immunity at the pleading stage.
In a memorandum decision, signed by Circuit Judge Michelle T. Friedland and Senior Circuit Judge Richard C. Tallman, the majority said that the case presents disputed issues of material fact relating to whether the decedent posed an imminent threat of deadly harm, a factor that must be resolved before the court could address the immunity claim.
Dissenting, Circuit Judge Mark J. Bennett disagreed that there are material disputes of fact, pointing out that the encounter was captured on body-worn cameras. He said:
“Because I do not believe [the officer’s] s split-second resort to deadly force under the circumstances captured by the uncontroverted video evidence can be described as ‘plainly incompetent’ or ‘knowingly violat[ing] the law,’ I would affirm the district court’s grant of qualified immunity.”
The question of immunity arose after two sets of family members of the decedent, Luis Garcia, filed complaints against Tustin Police Department Officer Estela Silva and the city in 2022, arguing that Silva used excessive force in firing her weapon. Each set of plaintiffs asserted Fourth Amendment and other claims under 42 U.S.C. §1983 and certain state law causes of action; the cases were later consolidated.
In a January 2022 pleading, filed by Garcia’s daughters, the plaintiffs wrote that “[t]his incident occurred on August 9, 2021, just past 10:00 a.m. just outside of the mobile home park in the 15400 block of Williams Avenue” and alleged:
“While attempting to exit the bushes where he lived, DECEDENT had a stick that he used to collect cans and a bag of empty cans in his hands. While barking orders at DECEDENT, an…officer shot DECEDENT with a taser. While receiving a cycle from the taser, without justification, Officer SILVA shot and killed Luis Garcia.”
They added:
“The Plaintiffs are informed and believe that at no time prior to Officer Silva discharging her weapon, that no Tustin officer was facing an immediate threat of serious physical injury; or that no Tustin officer was incapable of neutralizing and/or effectuating the seizure of DECEDENT using any of a variety of readily available less-than-lethal means or strategies. The force used by Officer Silva was unnecessary, excessive, and unreasonable under the totality of the circumstances.”
After the parties each filed motions for summary judgment, District Court Judge Sherilyn P. Garnett of the Central District of California granted the defendant’s request as to the federal causes of action, specifically finding that the Fourth Amendment claim of excessive force was precluded by qualified immunity.
Garnett denied the plaintiffs’ motion in its entirety.
Qualified Immunity
To overcome an assertion of qualified immunity, a plaintiff must show that the defendant violated a constitutional right and that the unlawfulness of the offending conduct was “clearly established.” Garnett noted that the “primary material facts are not in dispute,” saying:
“[T]he…Plaintiffs…cannot dispute that Garcia initially refused to exit the hedge in response to Officer Silva’s repeated commands to do so; that when Garcia did eventually emerge from the hedge he was holding a long wooden pole that, at times, he held vertically; that Officer [Joshua] Yuhas exclaimed that Garcia had a stick; that both officers backed away from the hedge opening and drew their weapons; that Officer Silva drew her firearm and commanded Garcia to get his hands up; that Garcia was standing only a few feet from Officer Silva at the time; and that Garcia continued to hold the pole both while being Tased and after Officer Silva fired her first shot.”
Under those circumstances, Garnett opined that “the facts do not show an ‘obvious’ constitutional violation” and so the plaintiffs must “produce specific binding cases that control the issue,” a mandate they failed to meet.
Garnett also determined that the plaintiffs’ asserted Fourteenth Amendment violation for interference with familial association was unsupported by the evidence and declined to exercise jurisdiction over the surviving state law claims, dismissing them without prejudice. Tallman and Friedland noted that Garnett expressed that “neither moving party is entitled to summary judgment on the question of whether the facts demonstrate” that Silva used excessive force and only granted the defense motion on qualified immunity grounds. They wrote:
“Whether our precedent ‘clearly established’ that using lethal force under these circumstances was unlawful depends upon how the jury resolves the disputed issues of material fact….[H]ere the disputed material facts identified by the district court are solely within the province of the jury. If a jury concludes that Garcia did not pose an immediate threat of death or serious bodily harm, Ninth Circuit precedent has clearly established that using lethal force would be unlawful. Alternatively, a reasonable jury could find that any reasonable officer would have believed Garcia posed an immediate threat….”
In a footnote, they pointed out:
“Material facts at issue include (1) whether Garcia’s wooden pole qualifies as a deadly weapon; (2) whether Garcia was actively ‘advancing’ or ‘lunging at’ Officer Silva with the pole raised when he was shot or whether the Taser caused him to move involuntarily; and (3) whether Garcia was resisting arrest or attempting to flee when, after being tased and shot once, he moved away from Officers Silva and Yuhas.”
The jurists cited the 2017 Ninth Circuit opinion in Longoria v. Pinal County, in which the court reversed a grant of qualified immunity where there were disputes over the officer’s version of events, as supporting their determination of the case.
They affirmed the grant of summary judgment on the familial association claim but declared that “[b]ecause the district court declined to exercise supplemental jurisdiction over Plaintiffs’ state law claims based on its grant of summary judgment to Defendants on Plaintiffs’ federal claims, its dismissal of those claims is also reversed.”
Bennett’s View
Bennett wrote:
“Even assuming Officer Estela Silva’s use of deadly force against Luis Garcia was excessive under the Fourth Amendment, I believe that her conduct was not obviously unlawful and did not violate clearly established law.”
Noting that “[n]o party disputes the authenticity or accuracy of the body-worn camera footage available in this case,” he remarked:
“Even Plaintiffs’ version of the facts, based on what was captured on video, establishes that Garcia was holding vertically a nearly five-foot-long pole, extending from his knee to above his head, and was standing within two to three feet of Officer Silva before she shot him. And Plaintiffs’ version of the facts, based on the video evidence, establishes that Garcia was still holding the pole, ten feet away from another officer but with Garcia turning unknowingly in that officer’s direction, when Officer Silva shot Garcia again.”
He opined that “these facts fall short” of showing an obvious constitutional violation and that “[n]o existing precedent would have put every reasonable official in Officer Silva’s position on notice that she would violate the Fourth Amendment by using deadly force against an individual maneuvering a pole, vertically extended above his head, as he stood within striking distance of herself and then approached another officer, ten feet away.”
The jurist argued:
“The majority posits that a reasonable jury could conclude that Garcia posed no immediate threat to the officers, thereby precluding summary judgment based on qualified immunity….Material facts concerning Garcia’s movements of the pole, including its height and distance in relation to the officers, are captured by the video evidence and undisputed by Plaintiffs. These facts alone support an objectively reasonable belief that deadly force was lawful. That resolves the qualified immunity question here.”
Addressing the Longoria case, he said that the decision involved questions of an officer’s credibility in light of conflicting accounts, factors not at issue in the present case.
The case is Garcia v. City of Tustin, 24-2224.
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