145 F.3d 1078 (9th Cir. 1998), 97-55936, Jensen v. City of Oxnard

Docket Nº:97-55936.
Citation:145 F.3d 1078
Party Name:Jennifer JENSEN, individually and as Administrator of the Estate of James Rex Jensen, Jr., deceased and Lindsey Elizabeth Jensen and Katelyn Melisa Jensen, minors by and through Jennifer Jensen, guardian ad Litem, Plaintiff-Appellee, v. CITY OF OXNARD; Chief Harold Hurtt, individually and as Chief of Police; Stan Meyers, individually and as Assista
Case Date:May 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1078

145 F.3d 1078 (9th Cir. 1998)

Jennifer JENSEN, individually and as Administrator of the

Estate of James Rex Jensen, Jr., deceased and Lindsey

Elizabeth Jensen and Katelyn Melisa Jensen, minors by and

through Jennifer Jensen, guardian ad Litem, Plaintiff-Appellee,


CITY OF OXNARD; Chief Harold Hurtt, individually and as

Chief of Police; Stan Meyers, individually and as Assistant

Chief of Police; Tom Cady, individually and as Assistant

Chief of Police; John Crombach, individually and as

Commander; Bill Lewis, individually and as Sergeant;

Daniel Christian, individually and as Sergeant; and Does 1

through 100, inclusive, Defendants-Appellants.

No. 97-55936.

United States Court of Appeals, Ninth Circuit

May 28, 1998

Argued and Submitted Feb. 5, 1998.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Jeffrey Held and Alan E. Wisotsky, Law Offices of Alan E. Wisotsky, Oxnard, CA, for Defendants-Appellants.

Edward Steinbrecher, Steinbrecher and Associates, Encino, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-97-01096-SVW.

Before: WALLACE, TROTT and HAWKINS, Circuit Judges.


Officer James Jensen was shot and killed by a fellow officer during a SWAT Unit raid to serve a search warrant on an unoccupied residence. His widow, Jennifer Jensen, brought a 42 U.S.C. § 1983 action against the City of Oxnard, its police chief and several individual officers. The defendants moved to dismiss for failure to state a claim under Rule 12(b)(6). The district court denied this motion. We affirm.


In the early morning hours of March 13, 1996, the Special Weapons and Tactics ("SWAT") team of the Oxnard Police Department stormed a two-story townhouse to serve a search warrant on what turned out to be an unoccupied residence. As part of the operation, Officer James Jensen ("Officer Jensen") threw a "flash-bang" grenade from a staircase onto a second floor landing. The grenade exploded with a blast of light, emitting smoke into the surrounding rooms. Officer Jensen and several other SWAT team

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members, including Sergeant Daniel Christian ("Sergeant Christian"), went up the staircase to the second floor. Shortly thereafter, Sergeant Christian fired three rounds from his 12-gauge shotgun, killing Officer Jensen.

Although the parties dispute the facts as to exactly how Officer Jensen was killed (e.g., whether he was shot in the back; whether he was entering the room directly in front of Sergeant Christian; the degree to which vision was obscured by the grenade smoke), the parties agree that, "[i]n the turmoil of events, [Sergeant] Christian mistook [Officer Jensen] for a gun-wielding occupant of the premises and shot him to death."

Jennifer Jensen ("Jensen"), widow of Officer Jensen, filed a complaint against the City of Oxnard, the Chief of Police, and various individual officers, including Sergeant Christian (collectively "Oxnard" or the "City"). In the complaint, Jensen alleges the intentional and reckless acts of Sergeant Christian, which were a result of Oxnard's "deliberate indifference" regarding the training and control of those officers who conducted the March 13 raid, resulted in a violation of her husband's civil rights under 42 U.S.C. § 1983.

Oxnard moved to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that Jensen failed to state a cause of action upon which relief could be granted. Oxnard argued, as it does in this appeal, that this action should be dismissed because: (1) Jensen cannot sustain a § 1983 claim without alleging that specific and well-founded constitutional rights have been violated; and (2) the individual defendants are entitled to qualified immunity. The district court denied Oxnard's motion.


We have interlocutory appellate jurisdiction to review the denial of a 12(b)(6) motion to dismiss as long as that review does not require the resolution of any controlling facts. See Behrens v. Pelletier, 516 U.S. 299, 305-07, 116 S.Ct. 834, 838-39, 133 L.Ed.2d 773 (1996). We can resolve this case simply by answering questions of law.


A district court's decision of qualified immunity in a 42 U.S.C. § 1983 action is reviewed de novo. See Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994).

While a district court's denial of a 12(b)(6) motion generally is not a reviewable final order, when the question of immunity is raised "we use the collateral order doctrine to exercise jurisdiction" and our review of the district court's denial is de novo. Figueroa v. United States, 7 F.3d 1405, 1408 (9th Cir.1993). We must assume the truth of all material allegations in the complaint and construe them in the light most favorable to Jensen. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). A dismissal is warranted if it appears beyond doubt that Jensen can prove no set of facts in support of her claims that would entitle her relief. See Figueroa, 7 F.3d at 1409.


I. Friendly Fire Seizure

  1. Violation of a Constitutional Right

    "To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.1989).

    Moreover, in "seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights [one] must demonstrate that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences." Board of the County Comm'rs v. Brown, 520 U.S. 397, ----, 117 S.Ct. 1382, 1390, 137 L.Ed.2d 626 (1997).

    This complaint adequately states a cause of action. Specifically, it alleges that Oxnard violated Officer Jensen's Fourth and Fourteenth Amendment rights in two respects: (1) Sergeant Christian used excessive

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    and unreasonable deadly force; and (2) the City of Oxnard and various officials in the Oxnard Police Department acted with deliberate indifference to the maintenance, training, and control of its SWAT teams, and that indifference was a proximate cause in Sergeant Christian's violation of Officer Jensen's constitutional rights. In other words, Jensen alleges that Sergeant Christian was "highly likely to inflict the particular injury suffered by" Officer Jensen as a result of Oxnard's deliberate indifference towards the staffing and training of its SWAT teams. Brown, 117 S.Ct. at 1392.

    The allegation that Sergeant Christian, by intentionally shooting at a figure he mistook to be an armed criminal, engaged in a Fourth Amendment seizure is supported in the law. See Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (a seizure is a "governmental termination of freedom of movement through means intentionally applied" and a "seizure occurs even when an unintended person or thing is the object of the detention or taking"); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ("[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.").

    Somewhat less clearly, the complaint alleges that Oxnard, through its training and control of its SWAT unit, was the "moving force" behind Sergeant Christian's actions. According to the complaint, the City of Oxnard: (1) failed adequately to train or equip the members of the SWAT team; (2) failed to control those members of the SWAT team who have a known propensity for violence; and (3) failed to investigate SWAT team members for potential substance abuse and/or mental problems. Moreover, the complaint specifically alleges that the police chief, assistant police chief, and police commander assigned Sergeant Christian to the SWAT team "knowing that he was using mind-altering drugs, including phenobarbetol and other substances." These allegations are sufficient to allege a plausible "link between the policymaker's inadequate decision and the particular injury alleged." Brown, 117 S.Ct. at 1391.

  2. Right to a Safe Workplace

    Oxnard contends that these allegations do not suffice to state a potential constitutional violation. Without denying that Sergeant Christian's shooting of Officer Jensen constitutes a seizure under the Fourth Amendment, Oxnard attempts to portray this case as a "safe workplace" case. Oxnard cites a line of cases, discussed below, in which the Supreme Court and other lower courts have held that there is no constitutional right to a safe working environment. Essentially, public employees cannot bring § 1983 claims against their employers for injuries suffered on the job on the theory that the government "violated a federal constitutional obligation to provide its employees with certain minimal levels of safety and security." Collins v. City of Harker Heights, 503 U.S. 115, 127, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

    We recognize that the Constitution does not guarantee a right to a safe workplace. See id. at 126-28, 112 S.Ct. 1061. In Collins, a city sanitation department worker died while trying to clear a sewer line. His widow brought a § 1983 action against the city on the theory that her husband "had a constitutional right to be free from unreasonable risks of harm to his body, mind and emotions and had a constitutional right to be protected from the City of Harker Heights' custom and policy of deliberate indifference toward the safety of its employees." Id. at 117, 112 S.Ct. 1061. She alleged that the city violated that right by following a custom and policy of...

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