Long v. City and County of Honolulu

• Decision Date: 21 December 2007
• Docket Number: No. 05-16567.,05-16567.
• Citation: 511 F.3d 901
• Parties: Cynthia Marie LONG, individually, and as Personal Representative of the Estate of Dustan Dominic Long, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Patrick A. Sterling, Officer, Honolulu Police Department; John Does, 1-10, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

511 F.3d 901

Cynthia Marie LONG, individually, and as Personal Representative of the Estate of Dustan Dominic Long, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Patrick A. Sterling, Officer, Honolulu Police Department; John Does, 1-10, Defendants-Appellees.

No. 05-16567.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2007.

Filed December 21, 2007.

Jack Schweigert, Honolulu, HI, for the plaintiff-appellant.

Brian Y. Hiyane, Honolulu, HI, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Samuel P. King, Senior District Judge, Presiding. D.C. No. CV-02-00271-SPK/KSC.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Cynthia Long (Ms. Long), mother of decedent Dustan Long (Long), appeals the grant of a motion for summary judgment in favor of Defendants, City and County of Honolulu, and police officer, Patrick Sterling. Ms. Long primarily contends that Sterling used deadly force against her son in violation of his Fourth Amendment rights and that the district court erred in granting Sterling qualified immunity. Because we conclude that Sterling acted in an objectively reasonable manner under the circumstances, we affirm the district court's judgment. See Long v. City & County of Honolulu, 378 F.Supp.2d 1241 (D.Haw.2005).

I. Factual Background

On the night of June 3, 2001, Long invited people to a party at his home. At approximately 2 a.m., an uninvited group arrived, harassed another guest, and instigated a fight. In response, Long fired shots from a .22 caliber rifle—once to demand that all of his guests leave and again shortly thereafter in an attempt to stop several uninvited persons from beating his friend, Chauncery Jarvis. As the uninvited group got into a car to leave, Long fired several more shots in their direction, hitting two of the passengers, who then called the police.

As the party ended, Long and his friend, Kurt Umeno, carried Jarvis to the back of the house by the Jacuzzi, where he lay until the police found and awakened him several hours later.

The police arrived soon thereafter and were later replaced by a SWAT team. The SWAT team manned the perimeter of the house. Long and Umeno spoke several times over the phone. Umeno claims that Long was scared that the police would shoot him and that he wanted to surrender. In any event, the police told Long to surrender, but he did not, and initially barricaded himself in the house.

Long was agitated throughout the night and held a .22 caliber rifle as he walked around the property. He shouted various threats at the police. For example, at 4:07 a.m., he told the police that they had ten seconds to get the "fuck out of his yard" and started a countdown. The evidence suggests that he then fired a shot toward the front of the house. He also threatened to shoot out the lights the police were shining on the property.

Officers Sterling and Dalbec were positioned as snipers on the roof of a house across the street, some 220 feet away from where Long was located. Immediately before Sterling fatally shot Long, Officers Marini and Cannella were positioned to the side of the house, behind a large bamboo hedge. Long was walking back and forth between a carport and a garage just on the other side of the hedge where officers Marini and Cannella were located and was aware of the officers' presence.

According to the CAD report, at 4:47 a.m., officers Marini and Cannella reported that they jumped into a ditch for cover because Long was shouting threats.¹ Officer Marini claims that he heard Long yell, "I told you fuckers get the fuck back. Have some of this." At 4:51 a.m. the officers said over the radio, "Shots fired. He just shoot [sic] at us."

Upon hearing this radio call, Sterling shot Long. According to Sterling, he saw Long raise his rifle to about chest level and fire one shot immediately prior to the radio call. The police, however, were not able to recover a shell casing from this alleged shot, so we assume no shot was actually fired. Sterling claims that he then lost sight of Long. Ms. Long's expert contends that Sterling could not have lost sight of Long.

The police waited for a light armored vehicle to arrive before entering the property. The CAD report indicates that the police attempted to contact Long by calling the house phone, were unsure where Long was, and did not know whether it was safe to enter the premises. After the police finally entered the property, Long was found dead at 6:23 a.m., with a rifle located to the right of his body.

II. Procedural Background

Ms. Long, in her individual capacity and as representative of Long's estate, commenced this action against Sterling and the City and County of Honolulu. Ms. Long sought damages under 42 U.S.C. § 1983 for use of excessive force against Long, the city's failure to render medical aid, and the municipality's failure to train officers on the use of deadly force. She also brought related state law claims.

Defendants moved for summary judgment, arguing that Sterling was entitled to qualified immunity and that no evidence existed to support municipal liability. The motion was denied without prejudice to allow for more discovery. Defendants later renewed their motion. The district court then granted the Defendants' motion, holding that there was no constitutional violation and no basis for municipal liability, and entered final judgment. Ms. Long timely appeals.

III. Standard of Review and Jurisdiction

We review the grant of a motion for summary judgment de novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007). The district court's decision on qualified immunity is also reviewed de novo. Id. Under this standard, the facts are viewed in the light most favorable to the nonmoving party, and all reasonable inferences are drawn in that party's favor. Brosseau v. Haugen, 543 U.S. 194, 195 n. 2, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004); Blankenhorn, 485 F.3d at 470. In a Fourth Amendment excessive force case, "defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994).

We have jurisdiction under 28 U.S.C. § 1291.

IV. Discussion

A. Qualified Immunity

The defense of qualified immunity "shields government officials performing discretionary functions from liability for civil damages `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Scott, 39 F.3d at 914 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

Where an officer raises this defense, we undertake a two part analysis. First, we ask, "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no violation occurred on the alleged facts, this ends the inquiry. Id. "On the other hand, if a violation could be made out on a favorable view of the parties' submissions," we then look to see whether the violated right was clearly established. Id.

Claims of excessive and deadly force are analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). We must determine whether this shooting was objectively reasonable in light of the facts and circumstances confronting the officers "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. The use of deadly force is "reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Scott, 39 F.3d at 914 (quoting Garner, 471 U.S. at 3, 105 S.Ct. 1694). We must allow for "the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation." Id. (quoting Graham, 490 U.S. at 396-97, 109 S.Ct. 1865). Factors to consider include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.

We hold that Officer Sterling's conduct meets the objective reasonableness standard. Prior to taking the fatal shot, Sterling had observed Long's agitated behavior, heard him threaten to shoot the police, observed him carrying a .22 caliber rifle, and knew that he had previously shot at a car full of people and wounded two people therein earlier that night. Under these circumstances, when fellow officers radioed that Long was yelling threats at them and then radioed that Long was shooting at them, Sterling had probable cause to believe that Long posed an immediate danger to these officers. In the exigent circumstances of the night, Sterling acted in an objectively reasonable manner.

We are mindful that we must be wary of self-serving accounts by police officers when the only non-police eyewitness is dead. See Scott, 39 F.3d at 915. We note, however, that here, unlike the situation in Scott, we have the benefit of multiple eye witnesses and a CAD report that fairly accurately recorded the SWAT team's activities on the night of Long's death.

Ms. Long's claims of factual error in the police accounts do not change our analysis. From the...