Lal ex rel. Estate of Lal v. State

• Decision Date: 31 March 2014
• Docket Number: No. 12–15266.,12–15266.
• Citation: 746 F.3d 1112
• Parties: Shelly LAL, individually and in her representative capacity on behalf of the Estate of Kamal L. Lal, decedent, and in her representative capacity as guardian ad litem for Sagar Lal; Estate of Kamal L. Lal; Sagar Lal, a minor, Plaintiffs–Appellants, v. State of CALIFORNIA; California Highway Patrol; Frank Newman, C.H.P. Officer; Matthew Otterby, C.H.P. Officer, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

746 F.3d 1112

Shelly LAL, individually and in her representative capacity on behalf of the Estate of Kamal L. Lal, decedent, and in her representative capacity as guardian ad litem for Sagar Lal; Estate of Kamal L. Lal; Sagar Lal, a minor, Plaintiffs–Appellants,

v.State of CALIFORNIA; California Highway Patrol; Frank Newman, C.H.P. Officer; Matthew Otterby, C.H.P. Officer, Defendants–Appellees.

No. 12–15266.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 2014.

Filed March 31, 2014.

Charles Stephen Ralston (argued), Mi Wuk Village, CA, and A. Catherine LaGarde, Kentfield, CA, for Plaintiffs–Appellants.

Kamala D. Harris, Attorney General of California, Jon Wolff, Steven M. Gevercer, and John P. Devine (argued), San Francisco, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 4:06–cv–05158–PJH.

Before: CONSUELO M. CALLAHAN and MILAN D. SMITH, JR., Circuit Judges, and ALVIN K. HELLERSTEIN, Senior District Judge.^*

OPINION

CALLAHAN, Circuit Judge:

This case arises out of a tragic incident. Kamal Lal (“Lal”), upset over a domestic disturbance with his wife, led police on a 45–minute high-speed chase on and off freeways before the officers were able to disable his vehicle. When Lal exited his truck he first tried to seriously hurt himself, then tried to provoke the officers into shooting him, and finally advanced on two officers holding a large rock over his head. When Lal refused to stop and continued to advance to within a few feet of the officers, the officers shot him. Lal's widow, daughter, and estate (“Plaintiffs”) filed this action, asserting claims under 42 U.S.C. § 1983 and California law. The district court granted summary judgment for the defendants, finding that the officers were entitled to qualified immunity. We affirm the district court's determinations that the officers thought that Lal posed an immediate threat of serious physical harm and that the officers' beliefs were reasonable.

I

On March 6, 2005, the South San Francisco Police Department received a 911 telephone call from Lal's wife reporting a domestic disturbance involving her husband, Lal. Lal interrupted the call, the police called back, and after another disconnect, the police dispatcher managed to speak to Lal's wife and overheard someone hitting her. While the dispatcher was still on the phone, Lal drove away in his grey Toyota pickup truck, and his wife gave the dispatcher the truck's license plate number as well as Lal's cell phone number.

Lal proceeded to the freeway where he entered southbound Highway 101. The California Highway Patrol (“CHP”) was notified and a high-speed chase ensued. For approximately 45 minutes, Lal traveled south and north on Highway 101, exiting the freeway to travel over city streets, and reentering the freeway. He did this at speeds ranging from 50 to over 100 miles an hour. At one point while on the freeway, Lal may have attempted to cause a motorcycle officer who was pursuing him to crash.

A police sergeant contacted Lal on his cell phone and told him to slow down because he would otherwise injure other people. Lal responded that he wanted to kill himself, and on a subsequent call, twice stated that he wanted to kill himself or have the police shoot him.

Meanwhile CHP Officer Frank Newman saw the pursuit heading toward his position and entered traffic to become the lead police vehicle. During the pursuit, Newman learned that Lal wanted officers to shoot him. The dispatcher also learned that Lal did not have any record of gun ownership and did not have any outstanding warrants.

Eventually Lal took an exit from the freeway onto a collector road where the CHP officers deployed a spike strip. Lal drove over the strip, partially disabling his vehicle, and managed to reenter the freeway and reach another off-ramp, where he lost control of his truck and veered off the ramp. The truck came to a stop in a ditch alongside the freeway. When Lal got out of his vehicle, numerous officers, including CHP Officer Otterby, yelled commands at him. Officer Newman addressed Lal through his patrol car loudspeaker and told him to put his hands in the air. Lal briefly complied, and then, putting his hands in his pockets, responded to Newman by saying “just shoot me, just shoot me.”

Lal then reached down to the ground and picked up a big rock that he smashed against his forehead three or four times, causing considerable bleeding. He next attempted to pull a four-foot long metal pole out of the ground and impale himself on it.

Lal started walking toward Officer Newman and CHP Officer Otterby, carrying a rock in his hand. When the officers told him to drop it, he pretended that his cell phone (which was also in his hand) was a pistol and pantomined pointing it at the officers. Officer Otterby recognized that the cell phone was not a gun and yelled to the officers not to shoot. Lal then threw several soft-ball sized rocks at Officers Newman and Otterby. The rocks missed the officers, but one shattered the spotlight on the patrol car.

During these events, Officer Newman requested assistance from any agency that could respond to the situation with less than lethal assistance, and was told that a K–9 unit was on its way.

Lal began walking toward the patrol cars while continuing to throw rocks. As he neared Officers Newman and Otterby, who were standing shoulder to shoulder, he held a large rock about the size of a football above his head. Lal failed to drop the rock when ordered by Officer Otterby to do so. Lal kept advancing at an irregular pace, forcing the officers to back up. Officer Otterby told Lal, “we are going to have to shoot you if you don't drop that rock.” Lal continued to advance, and when he was within a few feet of the officers, they simultaneously shot him. The eight shots killed Lal despite efforts to resuscitate him. Just over four minutes elapsed between the time Lal's truck stopped moving and his shooting.

II

Plaintiffs filed this action in state court in December 2005 against California, the CHP, and Officers Newman and Otterby, asserting that Plaintiffs' rights were violated when Lal was shot and killed. Plaintiffs asserted claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments and under California law for negligence, wrongful death, and assault and battery. In August 2006, the case was removed to the district court for the Northern District of California on the ground of federal question jurisdiction over the central claim that the officers had used excessive force in violation of the Fourteenth Amendment. After removal, Plaintiffs' attorney failed to prosecute the case and the district court dismissed the case. New counsel filed a motion for relief from judgment pursuant to Federal Rule of Civil. Procedure 60(b). The motion was denied, Plaintiffs appealed to the Ninth Circuit, and the Ninth Circuit reversed and remanded. Lal v. State of California, 610 F.3d 518 (9th Cir.2010).

On remand, certain issues were dismissed, a second amended complaint relating to the state court claims was filed, the parties conducted discovery, and the defendants moved for summary judgment. On January 10, 2012, the district court granted the motion and dismissed the case. Plaintiffs filed a timely notice of appeal.

The district court offered the following explanation for its ruling:

[T]aking the totality of circumstances into account, and viewing the undisputed evidence in the light most favorable to plaintiffs, the court finds that the officers acted reasonably. The evidence demonstrates: the officers were aware that officers were originally called to Lal's home for a domestic violence report by Lal's wife about him; Lal led police officers on a long and high speed chase over city streets as well as the freeway, during which Lal drove recklessly and in apparent disregard of others' safety; Lal indicated he wanted to kill himself or have the officers shoot him; when Lal got out of his car near the ditch at the off ramp, he did not comply with the officers' instructions to put his hands up; Lal hit his own head with a rock until he bled and attempted to impale himself on a metal pole; Lal mimed using his cell phone as a gun that he pointed at the officers, which initially prompted Otterby, who recognized the phone was not a gun, to instruct all officers on the scene not to shoot; Lal picked up rocks and threw them at the officers' car, breaking the light on the car; Lal came toward the officers with a football sized rock over his head, and ignored the officers' instructions to put the rock down. Lal advanced with this rock to within a few feet of the officers; and both officers simultaneously shot Lal.... Based on these facts, the court concludes that defendants had probable cause to believe that they faced a threat of serious physical harm from Lal. As such their conduct in using deadly force was objectively reasonable.

III

We review “de novo a grant of summary judgment on the basis of qualified immunity,” and in “determining whether summary judgment is appropriate, [view] the evidence in the light most favorable to the non-moving party.” Garcia v. County of Merced, 639 F.3d 1206, 1208 (9th Cir.2011); see also Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). In Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005) (en banc), we reiterated:

The Supreme Court has said that “the ‘reasonableness' inquiry in an excessive force case is an objective one: The question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them[.]” [Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ].... The question is not simply whether the force was necessary to accomplish a legitimate police objective; it is whether the force used was reasonable...