546 F.3d 1131 (9th Cir. 2008), 07-35974, Porter v. Osborn

Docket Nº:07-35974.
Citation:546 F.3d 1131
Party Name:Arthur J. PORTER; Christie L. Porter, Plaintiffs-Appellees, v. Arthur J. OSBORN, Defendant-Appellant, and Joseph Whittom, Defendant.
Case Date:October 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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546 F.3d 1131 (9th Cir. 2008)

Arthur J. PORTER; Christie L. Porter, Plaintiffs-Appellees,


Arthur J. OSBORN, Defendant-Appellant,


Joseph Whittom, Defendant.

No. 07-35974.

United States Court of Appeals, Ninth Circuit.

October 20, 2008

Argued and Submitted Aug. 6, 2008.

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Ruth Botstein, Assistant Attorney General, Anchorage, AK, for the defendant-appellant.

Mark D. Osterman, Mark D. Osterman Law Office, Kenai, AK, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-05-00142-A-JWS.


FISHER, Circuit Judge:

This case raises the question of the appropriate standard of culpability to apply to a police officer who kills a suspect in the course of investigating a suspicious car parked alongside an Alaska highway, under circumstances that suggest the officer may have helped to create an emergency situation by his own excessive actions. It comes in the context of a lawsuit brought by the parents of the victim, claiming the officer violated their Fourteenth Amendment substantive due process right of familial association with their deceased son. They contend the officer's actions were so outrageous as to shock the conscience. The district court found that the parents presented sufficient evidence that the officer's conduct violated their constitutional rights to warrant a jury trial, but we are compelled to conclude it did so by applying an incorrect standard of culpability to the officer's actions. We therefore reverse and remand for reconsideration of the officer's culpability under the proper standard and whether he is entitled to qualified immunity on summary judgment.

The plaintiffs and appellees are Arthur J. and Christie L. Porter (collectively “ the Porters" ), who brought this suit after their adult son, Casey Porter, was fatally shot in a brief but tragic confrontation with two Alaska State Troopers. Among several federal and state claims, the Porters principally claimed that their Fourteenth Amendment right of association was violated by the way in which defendant-appellant

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Arthur J. Osborn (“ Osborn" ) and his fellow trooper Joseph Whittom (“ Whittom" ) handled the roadside incident that resulted in Casey's death. As we discuss in more detail later, the troopers were responding to a call about an apparently abandoned vehicle parked in a highway pull-out area. Osborn, who arrived on the scene first, discovered the car was in fact occupied by Casey, who apparently had been asleep in the driver's seat. In a rapidly escalating confrontation, the troopers shouted at a startled and confused Casey to get out of his car. When he failed to comply, both troopers quickly exited their cars and drew their guns, with Osborn taking the lead in approaching the car to get Casey to comply. When Casey rolled down his window but did not move to get out, Osborn pepper sprayed him through the open window. Casey reacted in pain and began to drive the car slowly forward toward Whittom's patrol car, at which point Osborn fired five shots at Casey, killing him. Whittom, questioned shortly thereafter by an investigator, expressed his “ shock" that “ shots were fired ... in a situation like this."

The district court dismissed all state law claims and all claims against Whittom, none of which are before us on this appeal. As to the Fourteenth Amendment claim, the district court found that there were enough disputed facts to preclude granting Osborn summary judgment on qualified immunity grounds, concluding that a jury could find that Osborn's conduct shocked the conscience under a clearly established “ deliberate indifference" standard of culpability.

Osborn has appealed, arguing that his actions did not violate a constitutional standard, but even if they did, the deliberate indifference standard was not clearly established at the time. We conclude that a different and more demanding standard of culpability than deliberate indifference applies. Rather, in an urgent situation of the kind involved here, the established standard is whether Osborn acted with a purpose to harm Casey without regard to legitimate law enforcement objectives. Whether a jury could find Osborn violated that standard is not clear on the record before us. Although Osborn appears to have helped create and even exacerbate the confrontation he then ended by deadly force, the parties and the district court will need to readdress Osborn's summary judgment motion under the more stringent purpose to harm standard. We therefore reverse the court's denial of qualified immunity and remand for further proceedings.


Many of the relevant facts are contested or ambiguous, but on Osborn's motion for summary judgment any doubts must be resolved in favor of the Porters' version of events. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.2006). There is no dispute that it took very little time-probably no more than five minutes-for the entire tragic encounter to play out. Around 2:00 a.m. on January 4, 2003, Trooper Whittom received a call from dispatch regarding a vehicle reported by a highway department employee. The reported vehicle had been parked for about two and a half hours at the Kenai Keys pullout, a large parking lot sized area just off the Sterling Highway in a lightly populated part of the Kenai Peninsula southwest of Anchorage. There was a light snow covering the parking area, and no other vehicles around. The car's lights had been turned on and off whenever the highway employee passed. Trooper Osborn also heard the call and arrived at the scene before Whittom. When Osborn found the car, he initially thought it may have been abandoned, so he turned on his headlights and got out of his car to investigate.

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He returned to his patrol car to call in the license plate number when “ somebody sat up ... in the drivers seat ... very-very fast ... and grabbed the steering wheel and was looking right at me." Osborn testified in his deposition that although it was very dark outside, his headlights were shining eye-level with the driver, Casey, and were bright enough to illuminate the inside of the car. A few seconds later, Casey started slowly steering his car to go around Osborn. At this point, Osborn turned on his overhead flashing blue and red lights “ because [Casey] was trying to leave," which Osborn was not prepared to allow “ because we were investigating a suspicious vehicle." 1 He admitted that the call to dispatch was the only information at the time indicating Casey's conduct required police intervention.

When Casey did not stop, Osborn moved his car a few inches forward to try to block him. Casey continued to turn, so Osborn allowed him to pass because he did not want Casey to hit his car. He testified that “ as he drove by my vehicle I looked out my window, we made eye contact and I pointed and said stop the vehicle ... something like that." Osborn admitted that his window was not down at the time, but emphasized that he had made a motion as well. Whittom arrived as Casey began to maneuver around Osborn, and he tried to pull in front of Casey to stop him from leaving. Whittom's overhead red and blue lights were on and his headlights illuminated Casey's vehicle's interior. Osborn then got out of his car and began walking alongside Casey's slow moving car, ordering him to stop. It was around this time that Osborn activated his tape recorder. The fatal events that followed fill only one page of transcript and approximately two minutes of tape recording.2

Casey's car finally stopped about a car's length away from Whittom, at which point both officers shouted orders at him to get out of the vehicle. Whittom did so from either behind or directly in front of his patrol car door with his service weapon out, whereas Osborn did so from within touching distance of Casey's door with his gun in his hand. In the heat of the moment, Whittom ordered Casey to both get in and get out of his vehicle, and he later acknowledged that it may have been confusing to have had two people yelling at once. While the troopers were ordering Casey out of the car, Casey rolled his window down. Osborn did not answer Casey when he asked “ what's wrong, sir?" He explained he thought Casey was just “ buying time" with this question, that at this point “ the contact had already dissolved to a point where he had shown me by his actions that he was going to ignore anything but a command such as get out of the car" and that “ [a]t this point he was eluding a police officer." Osborn continued to order him to get out while attempting to enter the car through the front and rear doors.

Whittom reported that at this point Casey had “ a confused look on his face," and kept bringing his hands up above and then below their sight line. This also concerned Osborn, and when Casey started to crank the window up Osborn sprayed pepper spray inside the vehicle. Casey went into a fetal position with his hands over his face moaning, “ Ahh ... I didn't do nothing!" Whittom ducked into his vehicle to tell

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dispatch that Casey had been sprayed, at which point Osborn described seeing what he called “ the calm before the storm" :

Then [Casey's] head snaps up, straight up, and his face is looking straight forward, both of his hands actually reach up and grab the wheel like-like you would grab a steering wheel if you wanted to tear it off the steering column. I mean grabbed it. I mean[I] remember seeing his white knuckles and skin stretched, both hands on the wheel, right and left, lit up in Trooper Whittom's headlights. Then I-and he looked stone cold straight forward. Obviously [he] had ignored every command up to that point, you know, he ... was not obeying any commands....

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