673 F.3d 864 (9th Cir. 2011), 10-35636, Glenn v. Washington County

Docket Nº:10-35636.
Citation:673 F.3d 864
Opinion Judge:FISHER, Circuit Judge:
Party Name:Hope GLENN, as the personal representative of the Estate of Lukus Glenn, Plaintiff-Appellant, v. WASHINGTON COUNTY; Mikhail Gerba, an individual; Tim Mateski, an individual, Defendants-Appellees.
Attorney:Michael A. Cox (argued) and Lawrence K. Peterson, Law Office of Michael Cox, Tualatin, OR, for the plaintiff-appellant. William G. Blair (argued), William G. Blair, PC, Beaverton, OR, for the defendants-appellees.
Judge Panel:Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.
Case Date:November 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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673 F.3d 864 (9th Cir. 2011)

Hope GLENN, as the personal representative of the Estate of Lukus Glenn, Plaintiff-Appellant,

v.

WASHINGTON COUNTY; Mikhail Gerba, an individual; Tim Mateski, an individual, Defendants-Appellees.

No. 10-35636.

United States Court of Appeals, Ninth Circuit.

November 4, 2011

Argued and Submitted June 6, 2011.

Amended Dec. 27, 2011.

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[Copyrighted Material Omitted]

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Michael A. Cox (argued) and Lawrence K. Peterson, Law Office of Michael Cox, Tualatin, OR, for the plaintiff-appellant.

William G. Blair (argued), William G. Blair, PC, Beaverton, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:08-cv-00950-MO.

Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.

ORDER

The panel acknowledges the amended table of contents in Appellees' corrected petition for rehearing, filed November 21, 2011. Appellees' motion for leave to file a corrected petition for rehearing is DENIED.

The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellees' petition for rehearing and petition for rehearing en banc, filed November 18, 2011, is DENIED.

The changes to the amended opinion filed concurrently with this order are non-substantive. Therefore, no further petitions for rehearing will be considered.

OPINION

FISHER, Circuit Judge:

Eighteen-year-old Lukus Glenn was shot and killed in his driveway by Washington County police officers. His mother had called 911 for help with her distraught and intoxicated son after Lukus began threatening to kill himself with a pocketknife and breaking household property. Within four minutes of their arrival, officers had shot Lukus with a " less-lethal" beanbag shotgun, and had fatally shot him eight times with their service weapons. Lukus' mother filed suit against the officers and Washington County alleging a state law wrongful death claim and a 42 U.S.C. § 1983 claim for excessive force under the Fourth Amendment. The district court granted summary judgment to the defendants after concluding there was no constitutional violation. We reverse and remand for trial.

BACKGROUND1

On September 15, 2006, Lukus Glenn left his home to attend a Tigard High

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School football game with his girlfriend. He had graduated from Tigard High a few months before and was living with his parents, Hope and Brad Glenn, and his grandmother. Lukus had no history of violence or criminal activity. He returned home at 3:00 a.m., agitated, intoxicated and intent on driving his motorcycle. His parents told him he could not take the motorcycle, and to their surprise Lukus became angry. He began to damage household property, including windows and the front door, and the windows of cars parked in the driveway. His parents had never seen Lukus drunk before, and believed they needed help to calm him down. They first called his friends, Tony Morales and David Lucas, who came over to the Glenn home. Lukus' friends were unable to calm him down, however, and his parents became alarmed when he held a pocketknife to his neck and threatened to kill himself.2

Frightened that Lukus would harm himself, Hope called 911 believing that " the police would have the expertise and experience to deal with an emotionally distraught teenager." The transcript of the 911 call states that Hope told the dispatcher her son was " out of control, busting our windows, and has a knife and is threatening us." 3 Hope clarified that the knife was " just a pocket knife" and that Lukus had not hurt anyone, and said he was " just really, really intoxicated." When the dispatcher asked if everyone could move away from Lukus, Hope said " well, yeah," but explained that they were " just trying to talk to him right now." She said Lukus was " threatening the knife to his neck and he keeps saying he's gonna kill himself if the cops come," and " he's not leaving until the cops shoot him and kill him."

Hope asked if paramedics could be sent to the house, remarking that Lukus was " so suicidal right now." She explained that she thought he had attempted suicide once before and had been " really depressed," but that " [h]e's always been a good athlete and a good kid." In response to the dispatcher's questions, Hope said Lukus was born in 1988, was about 5'11" and had a thin build. She explained that he had damaged their windows and front door. She also said the family owned hunting rifles, but they were locked up and Lukus could not get to them.

The 911 dispatcher informed the Washington County Sheriff's Department that officers were needed at the Glenn home for a domestic disturbance involving a " fight with a weapon." Dispatch advised that " Caller has a son. Has a knife ... It's a pocket knife. Glenn Lucas [sic] born in '88.... Caller is advising he is probably going to kill himself if you show up." Officers were informed that there was no " premise history" and that Lukus was suicidal and " very intoxicated." Dispatch relayed that Lukus had broken a window and was out in the driveway. Officers were also told there were hunting rifles inside the house, but Lukus could not get to them. An officer can then be heard asking whether the Glenns could lock the doors since he " [doesn't] want [the son] going inside if there are guns in there," and dispatch responded that Lukus had " busted through the front door." A staging area for responding officers was established

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a short distance from the Glenn home.4

Deputy Mikhail Gerba was not on duty with the Washington County Sheriff's Department that night, but was working on a special assignment for the Oregon Department of Transportation performing traffic control for a construction project. He heard the dispatch, however, and responded. For some unknown reason, he skipped the staging area and went directly to the Glenn home, where he was the first officer to arrive on the scene at 3:11 a.m. Gerba initially encountered David Lucas and, pointing his gun at David, ordered him to " [g]et on the fucking ground." David did as ordered and told Gerba that Lukus was " over there by the garage; we have him calmed down."

Gerba proceeded up the driveway and positioned himself eight to twelve feet from Lukus, who was standing by the garage near his parents and Tony Morales. Gerba had a completely unobstructed view of Lukus, who could be seen clearly under the garage light. Lukus was not in a physical altercation with anyone, nor was he threatening anyone with the pocketknife or in any other way, and no one was trying to get away from him. He was, however, holding the pocketknife to his own neck.

Gerba held his .40 caliber Glock semiautomatic pistol in " ready position, aimed at Lukus." From the moment he arrived, Gerba " only scream[ed] commands loudly at Lukus" such as " drop the knife or I'm going to kill you." As the district court recognized, Lukus may not have heard or understood these commands because he was intoxicated and many people were yelling at once. Gerba " did not attempt to cajol[e] or otherwise persuade Lukus to drop the knife voluntarily." Numerous witnesses described Gerba's behavior as " angry, frenzied, amped and jumpy," and noted that they were " shocked by how [he] approached this situation." Within a minute of Gerba's arrival, Hope began " begging the 911 operator, ‘ Don't let him shoot him. Please don't let him shoot him .... [T]hey're gonna shoot him.’ " The dispatcher tried to reassure her that the police were " gonna try and talk to him," but Hope said " I shouldn't have called but I was so scared," " they're gonna kill him."

Washington County Deputy Timothy Mateski was the next officer to reach the scene, approximately one minute after Gerba's arrival. Mateski had initially headed toward the staging area, but rushed to the Glenn home when he heard from dispatch that Gerba had gone directly there. En route he asked whether Hope and Brad could leave the house, and was advised that dispatch was checking. He never received a response, and did not follow up. Upon arrival, Mateski took a position six to twelve feet from Lukus, where he had a completely unobstructed view of Lukus. Like Gerba, " Mateski drew his gun and began screaming commands as soon as he arrived, including expletives and orders like ‘ drop the knife or you're going to die’ " and " drop the fucking knife." Numerous witnesses described Mateski as " frantic and excited and only pursu[ing] a course of screaming commands at Luke." Tony Morales " implore[d] the officers to ‘ calm down’ and t[old] them that Luke [wa]s only threatening to hurt himself." The officers ordered Morales to crawl behind them and ordered Hope and Brad to go into the house and

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close the door, which officers knew was broken and could not be locked. Everyone complied. Lukus' grandmother, who lived in a residence between the main house and garage, opened her door to come talk to Lukus. The officers ordered her back inside her home, and she complied. All of the people " in and around the house could have easily walked away from the scene to a spot behind the officers or even to the street behind without having to pass any closer to Luke than [they] already had been." Instead, they did as the officers instructed them to do. Having ordered the Glenns to go into their home, the officers could have positioned themselves between Lukus and the front door to the home without having to get any closer to Lukus, but they chose to stand elsewhere.

At about 3:14 a.m., Corporal Musser advised Mateski and Gerba...

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