Aguirre v. City of West Covina, 063006 FED09, 04-56184

Docket Nº:04-56184
Party Name:PATRICIA MARY AGUIRRE, as the personal representative of the estate of Raymond Leo Aguirre and as an individual; RAYMOND JUNIE AGUIRRE, a minor, as an individual, b and through his guardian ad litem, Felic Rae Valdez, Plaintiffs - Appellants, v. CITY OF WEST COVINA; KENNETH DAVIS, Officer, Defendants - Appellees.
Judge Panel:Before: THOMAS and GOULD, Circuit Judges, and SCHWARZER, District Judge.
Case Date:June 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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PATRICIA MARY AGUIRRE, as the personal representative of the estate of Raymond Leo Aguirre and as an individual; RAYMOND JUNIE AGUIRRE, a minor, as an individual, b and through his guardian ad litem, Felic Rae Valdez, Plaintiffs - Appellants,

v.

CITY OF WEST COVINA; KENNETH DAVIS, Officer, Defendants - Appellees.

No. 04-56184

United States Court of Appeals, Ninth Circuit

June 30, 2006

NOT FOR PUBLICATION

Argued and Submitted June 6, 2006 Pasadena, California.

Appeal from the United States District Court for the Central District of California D.C. No. CV-03-00621-CJC, Cormac J. Carney, District Judge, Presiding

Before: THOMAS and GOULD, Circuit Judges, and SCHWARZER, [**] District Judge.

MEMORANDUM[*]

Plaintiff Patricia Aguirre appeals the district court’s order granting summary judgment to defendants Officer Kenneth Davis and the City of West Covina.

Officer Davis shot and killed Raymond Aguirre, the son of Patricia Aguirre, while he was banging on the front door of 832 West Michelle.1 Raymond Aguirre had run desperately to that door while being pursued by Officer Davis who had observed Aguirre speeding and committing various traffic infractions. Patricia Aguirre sued Davis and the City under 42 U.S.C. § 1983, alleging that Officer Davis’s use of deadly force violated the Fourth Amendment, and that a municipal policy or custom caused a constitutional violation, making the City liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).2 The district court concluded that Officer Davis was entitled to qualified immunity because “Davis’ use of deadly force was reasonable to protect the public from serious harm, ” and that the City was entitled to summary judgment because Appellants did not produce evidence that a municipal policy or custom caused Officer Davis’s allegedly unconstitutional conduct.

The law governing the use of deadly force has been delimited by the United States Supreme Court: A police officer may use deadly force to apprehend a fleeing suspect if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). We consider the facts underlying this excessive force claim from the perspective of a reasonable officer, without regard to the officer’s subjective motivation for using force. Graham v. Connor...

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