Deorle v. Rutherford

• Decision Date: 19 November 2001
• Docket Number: No. 99-17188,99-17188
• Parties: (9th Cir. 2001) RICHARD LEO DEORLE, Plaintiff-Appellant, v. GREG RUTHERFORD, Butte County Deputy Sheriff; MICK GREY, Butte County Sheriff; COUNTY OF BUTTE, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1272

272 F.3d 1272 (9th Cir. 2001)

RICHARD LEO DEORLE, Plaintiff-Appellant, v. GREG RUTHERFORD, Butte County Deputy Sheriff; MICK GREY, Butte County Sheriff; COUNTY OF BUTTE, Defendants-Appellees.

No. 99-17188

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 12, 2000

Filed March 16, 2001

Amended Opinion Filed August 31, 2001

Second Amended Opinion Filed November 19, 2001

NOTE: SEE OPINIONS AT 242 F.3d 1119, AND 263 F.3d 1106.

[Copyrighted Material Omitted] Larry L. Baumbach, Law Offices of Larry L. Baumbach, Chico, California, for the plaintiff-appellant.

Michael R. Deems, Stewart, Humpherys, Burchett & Sandelman, Chico, California, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding. D.C. No. CV-97-434-LKK,

Before: Bright,^* Reinhardt, and Silverman, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Silverman

ORDER AND AMENDED OPINION

REINHARDT, Circuit Judge:

ORDER

The majority opinion filed March 16, 2001, as amended August 31, 2001 is further amended as follows:

1) On slip opinion p. 11965, in the paragraph following heading "A. Nature and Quality of Intrusion", replace the citation "Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1198 (9th Cir. 2000) (internal quotation marks omitted) (quoting Chew, 27 F.3d at 1440) " with:

"Headwaters Forest Def. v. County of Humboldt , 240 F.3d 1185, 1198 (9th Cir. 2000) (vacated and remanded on other grounds sub nom. County of Humboldt v. Headwaters Forest Def., 122 S.Ct. 24 (2001)) (internal quotation marks omitted) (quoting Chew, 27 F.3d at 1440)."

2) Replace the paragraph beginning at the bottom of slip opinion p. 11976 with:

"Although there is no prior case prohibiting the use of this specific type of force in precisely the circumstances here involved, that is insufficient to entitle Rutherford to qualified immunity: notwithstanding the absence of direct precedent, the law may be, as it was here, clearly established. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (rejecting the notion that officer liability cannot exist "unless the very action in question has previously been held unlawful"). Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct. When " `the defendant['s] conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts' that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quoting Castell v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)). This is such a case. No reasonable officer could have believed that Rutherford's action in shooting Deorle with the "less lethal " lead-filled beanbag round was appropriate or lawful. To the contrary, "it would be clear to a reasonable officer that [Rutherford's] conduct was unlawful. " Katz, 121 S.Ct. at 2158. It does not matter that no case of this court directly addresses the use of such weapons; we have held that "[a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury." Mendoza, 27 F.3d at 1362. Given all the circumstances, the error in judgment, such as it was, does not constitute a "reasonable mistake " of fact or law on Rutherford's part. Viewing the facts in the light most favorable to the plaintiff, Rutherford was not entitled to qualified immunity for his use of excessive force."

Judge Reinhardt has voted to deny the Petition for Rehearing En Banc, and Judge Bright has so recommended. Judge Silverman has voted to grant the Petition for Rehearing En Banc.

The full court was advised of the Petition for Rehearing En Banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R. App. P. 35.

The Petition for Rehearing En Banc is therefore denied.

OPINION

Police Officer Greg Rutherford fired a "less lethal" lead-filled "beanbag round" into the face of Richard Leo Deorle, an emotionally disturbed resident of Butte County, California, who was walking at a "steady gait" in his direction. He did so although Deorle was unarmed, had not attacked or even touched anyone, had generally obeyed the instructions given him by various police officers, and had not committed any serious offense. Rutherford did not warn Deorle that he would be shot if he physically crossed an undisclosed line or order him to halt. Rutherford simply fired at Deorle when he arrived at a spot Rutherford had predetermined. The projectile Rutherford fired removed Deorle's eye and left lead shot implanted in his skull. We are presented on appeal with two questions: whether the force used was excessive; and, if so, whether Officer Rutherford is nevertheless entitled to qualified immunity because the law was not clearly established or because the officer made an objectively reasonable error in judgment. Both inquiries are a part of the qualified immunity issue on which the district court granted Rutherford summary judgment.

BACKGROUND¹

On September 9, 1996, in Butte County, California, Richard Deorle (Deorle), upset at being diagnosed with Hepatitis C, and having consumed a half-pint of vodka and some Interferon, his prescribed medication, began behaving erratically. By four o'clock, Deorle had become suicidal. According to Mrs. Deorle, having "lost control of himself, " Deorle began screaming and banging on the walls of their house. In search of someone to help her with her distressed husband, Mrs. Deorle dialed 911.²

Her call was answered by the police, who dispatched Officer Mahon to the Deorle residence. Mrs. Deorle, accompanied by their children, left the house. Deorle did not hinder their departure. He did, however, rather angrily, refuse to let Mahon enter the house without a warrant. Mahon escorted Deorle's family one block from their house, radioed for "Code 3 Backup," and requested that more officers be sent quickly.

At least 13 officers responded to Mahon's request for "back-up."³ These officers set up roadblocks on the streets around the house to ensure that Deorle had no avenue of escape,⁴ and awaited the arrival of a Special Incident Response Team ("SIRT") and a team of negotiators. SIRT members are trained to "arrest . . . suspects in the most efficient and least hazardous manner . . . [and] arrest suspect[s] with a minimum amount of risk or danger to the . . . suspect." Negotiators are "[d]eputies trained in the specialized area of crisis negotiations. . . . Their role as negotiator is essential to the successful resolution of critical incidents as it relates to conflict resolution."⁵

Deorle, though verbally abusive, was physically compliant and generally followed all the officers' instructions. When a canine team "tested" his behavior by making their police dog bark aggressively at Deorle, he retreated towards his house. When a wooden board from the porch railings came away in his hands, Deorle dropped it at the officers' command. Although shouting "kill me" and brandishing a hatchet at a police officer, he threw the hatchet away into a clump of trees when told to put it down. Still, Deorle remained agitated and continued to roam on or about the property but well within the police roadblocks. Officer Rutherford, who was at the scene for thirty to forty minutes, did not observe Deorle touch, let alone attack, anyone; nor had he received any report of any such action on Deorle's part. He did, however, hear Deorle scream at him that he would "kick his ass."

Rutherford was a member of the SIRT team. He was trained in the deployment of force against recalcitrant suspects and had arrived on the scene in response to Mahon's Code 3 call. After a briefing by his superiors and consultation with another officer on the scene, he decided to reconnoiter closer to Deorle, although the negotiators assigned to handle the incident had not yet arrived. Accompanied by officers Estes and Nichols, Rutherford observed Deorle for about five to ten minutes from the cover of some trees before Deorle, carrying an unloaded plastic crossbow in one hand⁶ and what may have been a can or a bottle of lighter fluid in the other,⁷ started shouting at the officers. Rutherford was armed with a twelve-gauge shotgun loaded with what appellees term a "less-lethal" or "beanbag" round. These rounds are made of lead shot contained in a cloth sack, and are small enough to be fired from a shotgun.⁸ The rounds "could have lethal capabilities" at thirty feet, and are potentially lethal at up to fifty feet.⁹

In response to Deorle's taunts, Rutherford shouted at him to put down the crossbow and Deorle "discarded " it.¹⁰ According to Rutherford, Deorle:

walk[ed] directly at me at a steady gate [sic]. . . . He didn't run at me, he didn't take his time getting to me, it was just a steady walk directly at me. . . . Once he started walking towards me I took a little wider stance with my feet to get a good stable base. As I leaned my weapon up against the tree to make it more stable and I focused on his lower right rib area as he was walking towards me for a target area.¹¹

Rutherford had stationed himself in a garden adjacent to Deorle's house and on its east side. He waited until Deorle, who was walking in an easterly direction on his own property, reached a predetermined point, then fired. He did not warn Deorle that he was going to shoot him. He did not ask him to drop the bottle or can. Nor did he order him to halt. The cloth-cased shot struck Deorle in the face, knocked him off his feet, and lodged...