Isayeva v. Sacramento Sheriff's Dep't

Decision Date02 October 2017
Docket NumberNo. 15-17065.,15-17065.
Citation872 F.3d 938
Parties Diana ISAYEVA, Plaintiff-Appellee, v. SACRAMENTO SHERIFF'S DEPARTMENT, Unknown Deputies; County of Sacramento, Defendants, and Sean Barry, Deputy Officer, Sacramento County Sheriff's Department, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Wendy Motooka (argued) and Robert L. Chalfant, Cregger & Chalfant LLP, Sacramento, California, for Defendants-Appellants.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California; Peter Goldstein, Law Office of Peter Goldstein, Culver City, California; for Plaintiff-Appellee.

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William K. Sessions III,** District Judge.

OPINION

GOULD, Circuit Judge:

On February 18, 2013, Sacramento County Sheriff's Deputy Sean Barry tased and fatally shot Paul Tereschenko inside the home of Tereschenko's father-in-law. Tereschenko's wife, Diana Isayeva, brought this action under 42 U.S.C. § 1983 alleging, among other claims, excessive force in violation of the Fourth Amendment. The district court denied summary judgment for Deputy Barry. We reverse and remand, holding that Deputy Barry is entitled to qualified immunity.

I

The facts of this case are tragic. They involve a combination of mental illness, drug abuse, and domestic conflict that led to a loss of life in a confrontation between Tereschenko and police officers. They also show the dangers that arise when resistance and a brawl require officers to make split-second decisions.

On February 18, 2013, Deputy Barry and Sacramento County Sherriff's Deputy Corbin Gray responded to two family disturbance calls from the same address in Sacramento, California. The first call came from Tereschenko's brother-in-law, who explained that Tereschenko had moved into the home about a month earlier, that he suffered from mental-health issues including hearing voices in his head, and that he was now refusing the family's requests to move out. The second call came from Tereschenko himself, who complained about being told to leave the house. The deputies' dispatch readout described Tereschenko as "rambling" and "talking about random things," but stated that no weapons were involved in the dispute. The deputies each carried a taser and a firearm, and Deputy Barry also carried pepper spray.

Upon arrival, the deputies met two family members outside the home, one of whom was Tereschenko's brother-in-law, the person who first called 911. The family members told the deputies that Tereschenko was rambling and speaking nonsense; that he was mentally ill or possibly was mentally ill; that they believed he was under the influence of methamphetamine; and that they did not think that he had any weapons. They requested that the deputies remove Tereschenko from the house. At his deposition, Deputy Barry recalled that the family members told him Tereschenko had asked them to kill his wife, Isayeva. But during an interview on the day of the incident, Deputy Barry explained it differently: He said that the family members outside the house said Tereschenko had told them about hearing voices in his head, and that the voices talked about family members killing Isayeva—not that Tereschenko urged the family members to kill his wife.

The deputies entered the house, and, once inside, spoke with Isayeva's father. According to Deputy Barry, the father said something along the lines that Tereschenko "had stated he wanted to kill [Isayeva]."

The deputies went into a nearby bedroom, where they found Tereschenko and Isayeva. Tereschenko was large, standing over 6 feet tall and weighing more than 250 pounds. His skin was pockmarked, he was sweating profusely, he spoke quickly, and he moved his hands rapidly. The deputies testified that these physiological symptoms indicated drug use, particularly methamphetamine.

The deputies spoke with Tereschenko for about seven to ten minutes. During the conversation, Tereschenko told the deputies that he was schizophrenic and had been in a mental institution. Rambling, he talked about Ukrainian money and asked that he be taken to an embassy or consulate. He asked the deputies to "[p]lease help [him]," and said "I don't know what to do." The deputies repeatedly told Tereschenko to sit down and to calm down. In response, he would sit but then stand back up again. Eventually, Tereschenko stayed seated while the deputies questioned him.

Deputy Barry asked Isayeva whether Tereschenko used any drugs or was diagnosed with any mental illnesses. She said no and shook her head. Deputy Gray left the room briefly to ask a family member when Tereschenko made his comments about hearing voices and killing Isayeva, and confirmed that it was earlier that same day. While Deputy Gray was out of the room, Tereschenko began speaking again and, in Deputy Barry's words, "started to become agitated a little bit." At Deputy Barry's request, Isayeva stepped out of the room, though she remained by a partially open door where she could still hear and to some extent see what was happening inside the bedroom. Once Isayeva left, Tereschenko got down on his knees and, according to Deputy Barry, said "you're gonna have to shoot or kill me."

The deputies decided to detain Tereschenko pursuant to California Welfare Institutions Code § 5150. This statute allows peace officers in California upon probable cause to take into custody for evaluation or treatment, for up to 72 hours, a person who is a danger to himself or others due to a mental health disorder. See Cal. Welf. & Inst. Code § 5150(a).

Deputy Barry told Tereschenko that he was not being arrested, only detained to be taken to a hospital. He then asked Tereschenko to turn around and face the wall. According to Deputy Barry, Tereschenko said "no, no," and stepped forward towards a wall off to the side. Deputy Gray recounted that Tereschenko at first complied by turning around and facing the wall behind him, but then kept turning back around, so Deputy Barry had to give his order to face the wall five times.

Deputy Barry grabbed Tereschenko's left arm. Deputy Gray explained that this move was in response to Tereschenko suddenly reaching for something past Deputy Barry, though Deputy Gray did not think the reach was a violent gesture. Deputy Gray then grabbed Tereschenko's right arm and tried to put it in a control hold by locking Tereschenko's wrist. Tereschenko stiffened both arms and resisted the attempts to move them. Both deputies told Tereschenko to "stop resisting." With Deputy Barry at 5 foot 7 inches and 185 pounds and Deputy Gray between 5 foot 10 and 5 foot 11 inches and 195 pounds, Tereschenko was considerably larger than each of the deputies. Deputy Barry described the moment: "we were just being tossed around while still hanging onto [Tereschenko]." Through the open doorway, Isayeva saw Tereschenko "push[ ] a little bit the officers" while trying to "get his hands free or something." Deputy Barry said the struggle lasted "a few seconds," while Deputy Gray remembered it going on for about fifteen seconds.

Deputy Barry next tased Tereschenko between his shoulder blades in "drive-stun mode"1 for a five-second cycle. Deputy Gray and Isayeva remember Deputy Barry warning Tereschenko that he was going to tase him. But Deputy Barry recalled giving no such warning.

Through the open doorway, Isayeva saw Tereschenko react violently to the tasing by going "extremely wild" and screaming "like an animal" that was "wounded

." Deputy Barry at once lost control of Tereschenko's arm and flew up against a wall. It is disputed whether Tereschenko purposely threw Deputy Barry or inadvertently "bucked" him into the wall. According to Deputy Gray, Tereschenko then punched him in the face "so hard[ that he] flew back and fell" into several birdcages along one wall. Deputy Barry saw Deputy Gray get thrown across the room but did not see him get punched.

Tereschenko turned back to Deputy Barry and hit him repeatedly in the head, face, neck, and back. As Deputy Barry received punches, his vision became hazy and tunnel-like; he started to pass out. The deputy jumped backwards towards a bed, where he could see Tereschenko still "continuing towards" him with "balled fists" in the air. Deputy Gray got up from the ground and saw Tereschenko standing over Deputy Barry. Tereschenko was throwing punches at the deputy while Barry lay on his back on the bed, though Deputy Gray could not see whether any of the punches landed, and does not remember whether Tereschenko's fists were balled at the time. Deputy Gray tried to reengage Tereschenko by jumping on his back and trying to place him in a "carotid hold,"2 but Tereschenko pushed the deputy off. From her position outside the room, Isayeva did not see Tereschenko punch either of the deputies, but she heard "very deep screaming."

Now the brawl turned deadly. After being thrown off by Tereschenko, Deputy Gray heard Deputy Barry yell "Shoot him. Shoot him." Isayeva remembers hearing something like "I'm going to shoot," but Deputy Gray disputes that Deputy Barry used those precise words. According to Deputy Barry, he just yelled "Shoot him."

Deputy Gray stood up and began to unholster his gun. Right then Deputy Barry, still seated or lying on the bed with Tereschenko standing close in front of and possibly advancing toward him, fired three shots, killing Tereschenko.

Deputy Barry had visible injuries including bruises and swelling around his eyes, bruising and redness to his left ear, and bruising at the base of his neck. After an interview on the shooting, Deputy Barry developed nausea and went to the emergency room, where he was diagnosed with a non-serious head injury

.

Isayeva filed this civil rights action under 42 U.S.C. § 1983 against Deputy Barry and the County of Sacramento, alleging, among other claims, that Deputy Barry used excessive force both when he tased and when he shot...

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