Anderson v. Marsh

• Decision Date: 15 January 2021
• Docket Number: No. 19-15068,19-15068
• Parties: ESTATE OF Wayne Steven ANDERSON, Plaintiff-Appellee, v. John MARSH, California Highway Patrol Officer, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

985 F.3d 726

ESTATE OF Wayne Steven ANDERSON, Plaintiff-Appellee,

v.John MARSH, California Highway Patrol Officer, Defendant-Appellant.

No. 19-15068

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 8, 2020 San Francisco, California

Filed January 15, 2021

FRIEDLAND, Circuit Judge:

The Estate of Wayne Steven Anderson brought this action under 42 U.S.C. § 1983 alleging that California Highway Patrol Officer John Marsh used excessive force against Anderson in violation of the Fourth Amendment. Marsh moved for summary judgment based on qualified immunity. The district court denied Marsh's motion, and he filed this interlocutory appeal. Because Marsh's interlocutory appeal challenges only the district court's conclusion that there is sufficient evidence to create a genuine dispute as to the factual question that will determine whether Marsh's use of force was reasonable, we lack jurisdiction to review his arguments. We therefore dismiss this appeal.

I.

A.

In the early afternoon of October 27, 2012, while on patrol in the Fresno area, California Highway Patrol ("CHP") Officer John Marsh saw a Toyota Camry driving westbound on State Route 180 at 70 miles per hour.¹ Marsh followed the car and radioed dispatch to report that he was going to "attempt[ ] to overtake a high-speed vehicle." Shortly after Marsh began following the Camry, its driver, later identified as Wayne Steven Anderson, merged onto State Route 99 northbound. Marsh testified in his later deposition that, at around this point, he activated his patrol car's overhead lights. Anderson took an off-ramp at 70 miles per hour, drove through a stop sign, and reentered Route 99. He then took the next off-ramp, again traveling at a speed that Marsh estimated at 70 miles per hour. Anderson drove through a T-intersection, lost control of his car while attempting to turn, and crashed into a chain-link fence. Approximately three minutes had passed between the start of Marsh's pursuit and the crash.

A few seconds after Anderson crashed into the fence, Marsh stopped his patrol car right behind the Camry. Anderson remained in the Camry. Marsh immediately exited his car and drew his service weapon. He heard the engine of the Camry revving and saw the car rocking forward and backward as if Anderson were attempting to dislodge it from the chain-link fence. Marsh testified that he ordered Anderson to stop. Marsh then approached the driver's side of the Camry and pointed his weapon at Anderson. Marsh saw Anderson's left hand on the steering wheel and his right hand on the gear shift.

According to Marsh's disputed deposition testimony, he ordered Anderson to "[s]top the car" and "[s]how me your hands." Marsh further testified that Anderson suddenly stopped rocking the car, took his hands off the steering wheel and gear shift, and reached toward the front passenger seat or floorboard. Marsh later stated that he feared Anderson was reaching for a weapon.

It is undisputed that Marsh then fired two rounds. One bullet penetrated the Camry's closed window, struck Anderson, and permanently paralyzed him from the chest down. The other bullet hit the Camry's door frame. Marsh had not warned Anderson that he was going to shoot before firing.

Marsh radioed dispatch to report shots fired. One segment of the recording of his dispatch is difficult to understand but was transcribed by CHP as including the phrase "[h]e ran into my car." Marsh did not mention that Anderson may have been armed.

Other officers arrived on the scene within a minute. Marsh did not alert anyone about the possible presence of a weapon in the Camry, and no weapon was ever recovered. One of the responding officers later testified that he believed that Marsh said he fired his weapon because he thought Anderson "was trying to run him over." This officer did not recall Marsh expressing a fear that Anderson had a weapon.

Although Marsh's vehicle had a dashboard camera, subsequent investigation revealed that it had not recorded the incident. A blurry surveillance video (without accompanying audio) from a nearby business captured Anderson's crash, the relative positions of Anderson's and Marsh's vehicles, and Marsh's approach to the Camry, but not the Camry's interior. Marsh was interviewed by the Fresno Police Department later on the day of the shooting. The interviewers showed him the surveillance video before questioning him about what had occurred.²

B.

Anderson filed this action against Marsh in the United States District Court for the Eastern District of California. Anderson died "of causes not directly related" to the shooting several months later, before he ever testified about the events at issue. His Estate took over the litigation. Marsh moved for summary judgment. The Estate thereafter stipulated to dismissal of all claims asserted in the Complaint except the excessive force claim. As to that remaining claim, Marsh asserted the defense of qualified immunity.

The district court denied Marsh's motion for summary judgment. The court identified several aspects of the evidentiary record that undercut Marsh's testimony that Anderson made a sudden, threatening movement toward the passenger side of his car. The court's observations included that no weapon was recovered from Anderson's car; that "Marsh did not report a possible weapon to other officers who arrived on the scene"; and that when Marsh reported the shooting to dispatch, he said something transcribed as "[h]e ran into my car," without mentioning that Anderson may have been armed. As the court summarized, on the Estate's version of the facts in the record, "Anderson was sitting, unarmed, in the driver seat of his car, which was stuck on a chain link fence [and] had already stopped rocking back and forth, and Anderson had one hand on the steering wheel and the other [hand] on the gear-shift" at the time he was shot.

The district court thus reasoned that, "[v]iewing all disputed facts in the light most favorable to [the Estate], as [required] on a motion for summary judgment, a reasonable jury could conclude that Anderson did not make a sudden, furtive reach for the passenger side of the car." The court held that "if a jury finds that Anderson did not reach for the passenger side," there would have been a "lack of imminent threat to Officer Marsh or others," so the jury could find "Officer Marsh's use of deadly force ... was excessive." The court further held, quoting Wilkinson v. Torres , 610 F.3d 546, 550 (9th Cir. 2010), that caselaw at the time of the incident "clearly established that an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others." The court accordingly held that Marsh was not entitled to qualified immunity at the summary judgment stage of the litigation.

Marsh timely filed this interlocutory appeal. The crux of Marsh's appeal is that the district court "erred in finding disputed issues of material fact" concerning whether Anderson made a "sudden movement as though he were reaching for a weapon." Marsh asserts that there is not sufficient evidence for a jury to find for the Estate on this question because "[t]here is no evidence directly contradicting [his] testimony that Anderson made a furtive movement." Marsh accordingly argues that, for purposes of evaluating whether he was entitled to qualified immunity, the district court should have accepted as true his account of Anderson's actions. At oral argument, Marsh's counsel conceded that the qualified immunity analysis turns on "[w]hether Officer Marsh reasonably perceived that [Anderson] was making a threatening movement," and that it was "clearly established" that it would not have been lawful for Marsh to shoot "[i]f the jury d[oes] not believe that [Anderson's] hands ever moved."

II.

A.

The parties dispute whether we have jurisdiction over this interlocutory appeal. An order denying a motion for summary judgment is usually not an immediately appealable final decision. Plumhoff v. Rickard , 572 U.S. 765, 771, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ; see 28 U.S.C. § 1291. "But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity," because "pretrial orders denying qualified immunity generally fall within the collateral order doctrine." Plumhoff , 572 U.S. at 771–72, 134 S.Ct. 2012. Thus, in the qualified immunity context, we typically have jurisdiction over interlocutory appeals from the denial of summary judgment. Foster v. City of Indio , 908 F.3d 1204, 1209 (9th Cir. 2018).

"[T]he scope of our review" in this context, however, is "circumscribed." Id. at 1210 (quoting George v. Morris , 736 F.3d 829, 834 (9th Cir. 2013) ). In Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), the Supreme Court explained that any "portion of a district court's summary judgment order that, though entered in a ‘qualified immunity’ case, determines only a question of ‘evidence sufficiency,’ i.e. , which facts a party may, or may not, be able to prove at trial ... is not appealable." Id. at 313, 115 S.Ct. 2151. By contrast, any portion of a summary judgment order that turns on "the application of ‘clearly established’ law to a given (for appellate purposes undisputed) set of facts" is immediately appealable. Id.

We have understood Johnson to mean "[a] public official may not immediately appeal ‘a fact -related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.’ " Foster , 908 F.3d at 1210 (quoting Johnson , 515 U.S. at 307, 115 S.Ct. 2151 ); see also George , 736 F.3d at 835 (underscoring that we may not review on interlocutory appeal "the question whether there is enough evidence in the record for a jury to conclude that certain facts are true"). Our interlocutory review jurisdiction is limited to resolving a defendant's "purely legal ... contention that ...