Billington v. Smith

• Decision Date: 21 June 2002
• Docket Number: No. 00-36075.,No. 00-36062.,00-36062.,00-36075.
• Citation: 292 F.3d 1177
• Parties: Patricia BILLINGTON, as Personal Representative of the Estate of Ryan Hennessey and as Guardian Ad Litem for Austin Billington, a minor, and Jenny Hennessey, Plaintiff-Appellee, v. David SMITH, individually and in his official capacity as a Detective for the Boise City Police Department; Larry A. Paulson, individually and in his official capacity as Chief of Police for the City of Boise; John Does 1-10, Defendants, and City of Boise, Defendant-Appellant. Patricia Billington, as Personal Representative of the Estate of Ryan Hennessey and as Guardian Ad Litem for Austin Billington, a minor, and Jenny Hennessey, Plaintiff-Appellee, v. City of Boise, a municipal corporation; Larry A. Paulson, individually and in his official capacity as Chief of Police for the City of Boise; John Does 1-10, Defendants, and David Smith, individually and in his official capacity as a Detective for the Boise City Police Department, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

292 F.3d 1177

Patricia BILLINGTON, as Personal Representative of the Estate of Ryan Hennessey and as Guardian Ad Litem for Austin Billington, a minor, and Jenny Hennessey, Plaintiff-Appellee, v. David SMITH, individually and in his official capacity as a Detective for the Boise City Police Department; Larry A. Paulson, individually and in his official capacity as Chief of Police for the City of Boise; John Does 1-10, Defendants, and City of Boise, Defendant-Appellant.

Patricia Billington, as Personal Representative of the Estate of Ryan Hennessey and as Guardian Ad Litem for Austin Billington, a minor, and Jenny Hennessey, Plaintiff-Appellee, v. City of Boise, a municipal corporation; Larry A. Paulson, individually and in his official capacity as Chief of Police for the City of Boise; John Does 1-10, Defendants, and David Smith, individually and in his official capacity as a Detective for the Boise City Police Department, Defendant-Appellant.

No. 00-36062.

No. 00-36075.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2001.

Filed June 21, 2002.

Kirtlan G. Naylor, Naylor & Hales, Boise, ID, for appellant David Smith.

Martin C. Hendrickson, Moore, Baskin & Parker, Boise, ID, for appellant City of Boise.

John C. Lynn, Lynn, Scott, & Hackney, Boise, ID, for appellee.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-98-00462-BLW.

Before KLEINFELD and GOULD, Circuit Judges, and ROLL,¹ District Judge.

OPINION

KLEINFELD, Circuit Judge.

We consider whether a police officer is entitled to qualified immunity for shooting and killing a motorist.

FACTS

The police officer sued in this case, David Smith, is a detective with the Boise City Police Department. When he came off his shift on the night at issue, he did a stint as a private security guard (as department policy allowed) at a Neil Diamond concert, where his wife and daughter were ushers. Late that evening, as he drove them home in his unmarked police car (also as allowed by department policy), the decedent in this case, Ryan Hennessey, passed him, tires squealing. Hennessey overcorrected when he pulled back into his lane, almost hit a parked car, overcorrected again and careened into the oncoming lane, and almost had a head-on collision with an approaching car. Detective Smith estimated that Hennessey was driving 70 m.p.h. in a 30 or 35 m.p.h. residential zone.² Detective Smith turned on his blue police lights and gave chase. Detective Smith did not know it, but Hennessey had been in a hit-and-run collision minutes before, and officers were already looking for Hennessey when Detective Smith radioed the dispatcher.

Instead of pulling over when he saw the police car chasing him, Hennessey turned off his headlights, despite it being night, and accelerated. Detective Smith turned on his police siren and radioed his dispatcher that he was pursuing a car "on Gekeler [Lane] eastbound." He read the car's license plate number to the dispatcher and said that "he's now cut his lights." Then, as Detective Smith was describing the car, he reported that "he's just had an accident at — stand by." Hennessey had crashed into the curb, making a loud noise heard by several people from their houses near the crash scene. The dispatcher recognized Hennessey's license plate number as that of the hit-and-run suspect who had been reported minutes before and called for "any unit to assist" Detective Smith, reporting that "he was eastbound on Gekeler." Two patrol units immediately reported that they were "en route," the dispatcher reserved a channel, and two more patrol units reported that they were "en route."

Meanwhile, Detective Smith got out of his police car and walked over to the wrecked car, intending to render first aid and arrest Hennessey for felony reckless driving. Since he had radioed the dispatcher, he expected uniformed officers to arrive and assist him within minutes. But he didn't want to await their arrival, because he didn't know how badly injured Hennessey might be. For his own safety and to see what first aid might be needed, Detective Smith walked toward Hennessey's car holding his gun in one hand and a big, 16-inch metal flashlight in the other. He didn't have a side holster for his gun, because he was in plainclothes and wasn't wearing a "duty belt." A "duty belt" holds a side holster, along with other accessories like mace, a baton, and handcuffs. He had a shoulder holster in the car, but he wasn't wearing it because he hadn't wanted to carry a gun at the concert, and he didn't think he had time to take off his jacket and put on the holster before seeing whether Hennessey needed first aid.

Hennessey sat slumped in the driver's seat, his eyes closed. He looked unconscious, but in fact he was just very drunk, with a blood alcohol level of 0.285%. The driver's side window was down. Detective Smith told Hennessey he was a policeman and ordered him to put his hands on the steering wheel. Hennessey didn't respond, so Detective Smith again identified himself and repeated his order. This time Hennessey looked at Detective Smith's badge, looked up, and asked, "If I don't, are you going to shoot me?" Detective Smith answered, "If I have to."

Instead of putting his hands on the wheel, Hennessey started his car, put it in gear, and tried to race away (witnesses heard his engine revving), but the car was too damaged to move. Detective Smith reached inside the car to turn off the ignition. Hennessey grabbed Detective Smith's flashlight, which Smith was using to pry Hennessey's hands from the steering wheel, but the detective pulled it away from him. Hennessey then turned off the car engine.

Detective Smith decided to handcuff Hennessey, and told him to put his hands outside the window, while shouting to his daughter to bring him his handcuffs and turn off the siren. Just as his daughter handed him the handcuffs, Hennessey started hitting him. Because he still couldn't hear the sirens from the backup units he expected, Detective Smith told his daughter to run to the intersection to see what cross street they were near, and radio the dispatcher. While she was doing this, Hennessey grabbed Detective Smith by the throat with one hand and grabbed him by his tie with the other hand. Detective Smith tried to back away, leaving Hennessey behind the closed car door, but Hennessey clambered out of his car window, hanging onto Detective Smith. Then he yelled "Shoot me, motherfucker!" and came at Detective Smith swinging. Detective Smith hit Hennessey repeatedly with his flashlight, hitting one blow squarely on his forehead, but to no effect. Then Hennessey started kicking Detective Smith in the stomach and groin.

Detective Smith tried to back away from Hennessey and fend off his blows and kicks, but Hennessey charged him, held him in a bear hug, and grabbed his gun by the barrel. Hennessey landed a solid blow to Detective Smith's head, cutting him, knocking his glasses off, and forcing him back, out of the glare of the police car's headlights and into the surrounding darkness. As he warded off Hennessey's blows to his head and groin, Detective Smith fought for control of his gun. He could feel Hennessey trying to pry his thumb off the gun. Then he felt the gun's slide move back toward the locked position, where it would prevent the gun from shooting. Detective Smith feared for his life and didn't want to disarm his own weapon, so he moved the slide forward, fighting Hennessey's pressure on the gun. At this point, according to Detective Smith's testimony, when the men were still struggling for control of the gun, Detective Smith fired, hitting and killing Hennessey.

Realizing that he'd hit Hennessey but not that he'd killed him, Detective Smith shouted to his daughter or wife to bring him his first aid kit. Just then a police car drove around the corner, bringing the back-up Detective Smith had been expecting. The police dispatcher's radio traffic was recorded. A tape of the relevant portion was timed, from the moment Detective Smith reported that he was in pursuit of Hennessey's car to the moment his wife reported "shots fired": two minutes and thirty seconds — one hundred fifty seconds — elapsed.

We have commented that "[d]eadly force cases pose a particularly difficult problem... because the officer defendant is often the only surviving eyewitness."³ But in this case there were several witnesses. Besides Detective Smith's wife and daughter, several residents living nearby heard the crash, saw some or all of the fight, and heard the shooting. A man living in the house in front of where the shooting took place testified in his deposition that he was sitting in his hot tub outside smoking a cigar when he heard a car accelerate "like a race car," heard a crash, and saw the police car's flashing blue lights. Hennessey crashed right in front of the man's fence, so he stood up in his hot tub to see what had happened. A high school student was getting a drink of water in his kitchen before going to bed when he heard the crash; he watched the fight and heard the shooting from his living room. An elderly woman was watching television in her home when she heard tires squealing followed by a crash. She watched the confrontation through her window, but didn't see most of the fight, because she had to go to the bathroom in the middle of it (she'd had three beers). The crash and the flashing blue lights awakened another woman, who looked out her blinds, then threw on clothes and ran outside to see what had happened.

The many witnesses' accounts are similar, although they differ in detail. The witnesses who actually saw the men fighting agree that Hennessey was the aggressor and that he was winning the fight. The man in the hot tub testified in his deposition that he could see Detective Smith's shield from where he was, and that Smith kept shouting "police officer, police...