C.V. v. City of Anaheim

• Decision Date: 25 May 2016
• Docket Number: No. 14-55760,14-55760
• Citation: 823 F.3d 1252
• Parties: C.V., a minor, by and through her Guardian ad Litem, Miguel Villegas; R.V., a minor, by and through his Guardian ad Litem, Miguel Villegas; D.V., a minor, by and through his Guardian ad Litem, Miguel Villegas; Estate of Bernie Cervantes Villegas, Plaintiffs–Appellants, v. City of Anaheim, a California municipal entity; Anaheim Police Department, a California municipal entity; John Welter ; Nick Bennallack, in place of Doe 1, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

823 F.3d 1252

C.V., a minor, by and through her Guardian ad Litem, Miguel Villegas; R.V., a minor, by and through his Guardian ad Litem, Miguel Villegas; D.V., a minor, by and through his Guardian ad Litem, Miguel Villegas; Estate of Bernie Cervantes Villegas, Plaintiffs–Appellants

v.City of Anaheim, a California municipal entity; Anaheim Police Department, a California municipal entity; John Welter ; Nick Bennallack, in place of Doe 1, Defendants–Appellees.

No. 14-55760

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2016 Santa Ana, California

Filed May 25, 2016

Federico C. Sayre (argued), Boris Treyzon, and Francis X. Flynn, Treyzon & Associates, Santa Ana, California, for Plaintiffs–Appellants.

Moses W. Johnson, IV (argued), Assistant City Attorney, and Michael R.W. Houston, City Attorney, Anaheim, California, for Defendants–Appellees.

Before: Raymond C. Fisher, Milan D. Smith, Jr., and John B. Owens, Circuit Judges.

OPINION

OWENS

, Circuit Judge:

C.V., R.V., D.V., and the estate of Bernie Villegas (Plaintiffs) appeal from the district court's order granting summary judgment in favor of the City of Anaheim, the Anaheim Police Department (APD), former Police Chief John Welter, and APD Officer Nick Bennallack (Defendants), in a lawsuit for the 2012 police shooting death of Villegas. Because triable issues of fact remain as to state law claims, we affirm in part, reverse in part, and remand.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 7, 2012, around 11:00 p.m., the APD received a 911 call about a suspected drug dealer, armed with a shotgun, loitering in the visitor parking area of an apartment complex. Four officers—Bennallack, Heitmann, Voorhis, and Ellis—rendezvoused on a street near the complex and planned their approach. They then moved on foot in a “diamond formation” through the carport area of the complex, with Heitmann taking point.

As the officers rounded a corner, they encountered two men, a few yards from each other and twelve to fifteen yards from the officers. Bennallack and Heitmann gave commands to “show me your hands” or “put your hands up.” The first man they saw, Tristan Rosal, put his hands in the air. The second man, Villegas, was standing next to a cinderblock wall on the side of a low stairway.

The four officers' descriptions of what happened next—set out in sworn declarations and deposition testimony—were consistent in many respects, but different in others.

Bennallack : Bennallack saw what he believed to be a shotgun leaning against the wall next to Villegas (it turned out that it was a BB gun lacking any markings to distinguish it from a full-power long gun). In Bennallack's account, Villegas moved quickly to grab the gun near the end of its barrel with one hand and lift it about a foot off the ground. His other hand was not near the trigger area, and Villegas did not point the gun in the officers' direction. Heitmann and Bennallack gave “multiple commands” including “show me your hands,” or “put your hands up,” and “ ‘drop the gun’ or something similar,” but Villegas did not obey. About one second after Villegas lifted the gun from the ground, without providing any warning to Villegas that he was going to shoot, Bennallack fired five times and struck Villegas, causing him to fall to the ground.

Heitmann : In Heitmann's account, when the officers rounded the corner, Villegas was already holding a long gun. Both his hands were around the barrel, near the tip, and the gun was pointed up with the butt on the ground. Heitmann never saw the gun leaning against the wall. He and Bennallack gave repeated commands to “show me your hands,” or “put your hands up,” but at some point he changed his commands to “ ‘drop the gun,’ ‘let go of the gun,’ or something similar.” He saw Villegas “slightly” raise the gun about eight to ten inches off the ground, though it was at all times pointed upward and not in the officers' direction. Heitmann thought there was an immediate threat that Villegas would fire his weapon, and he was “milliseconds” from shooting Villegas when Bennallack fired his gun. Villegas's “facial expression was not panicked, but calm,” while Rosal's showed “fear” and “shock.”

Voorhis : Voorhis did not have a clear view of the shooting, but saw a gun barrel pointed upward “toward the sky.” It did not appear to be leaning against anything. He heard an officer say “drop the gun, drop the gun,” saw the barrel of the gun move either upward or backward, then heard shots. He feared that Villegas could use the gun against the officers.

Ellis : Ellis also did not have a clear view of the shooting, but heard an officer yell something like “put it down,” “drop it,” or “get on the ground.” A second later, he heard gunshots.

After the shooting, Bennallack and Heitmann approached Villegas and administered CPR until paramedics arrived. Villegas died from his wounds

.

In October 2012, Plaintiffs sued Defendants in state court, bringing a 42 U.S.C. § 1983

claim for excessive force in violation of the Fourth Amendment and state law claims for negligence and wrongful death.¹ Defendants removed that suit to federal court, and moved for summary judgment. The district court concluded that summary judgment was appropriate on the Fourth Amendment claim, as “an objectively reasonable officer would reasonably believe that Mr. Villegas posed an ‘immediate threat to the safety of the officers or others'—the ‘most important factor’ in the Graham [v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)

] excessive force analysis,” and that it would “not judge the reasonableness of Officer Bennallack's actions with the 20/20 vision of hindsight.” Alternatively, the district court held that Bennallack was entitled to qualified immunity because it was not clearly established that his conduct violated the Fourth Amendment. The district court also granted summary judgment on the state law claims because it found Officer Bennallack's conduct was objectively reasonable. This appeal followed.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment. Glenn v. Washington County , 673 F.3d 864, 870 (9th Cir. 2011)

. We also review de novo a defendant officer's entitlement to qualified immunity. Id.

III. ANALYSIS

A. Fourth Amendment Claim

“In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct.” Lal v. California , 746 F.3d 1112, 1116 (9th Cir. 2014)

(citing Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). While we have discretion to decide which prong to address first, here we address both. Id.

Graham

provides the framework for reviewing excessive force claims. Its non-exhaustive list of factors for evaluating reasonableness include: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect actively resisted arrest or attempted to escape. Graham , 490 U.S. at 396, 109 S.Ct. 1865 ; see also

George v. Morris , 736 F.3d 829, 837–38 (9th Cir. 2013) (discussing Graham and Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). We must judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham , 490 U.S. at 396, 109 S.Ct. 1865, keeping in mind that the “ ‘most important’ factor under Graham is whether the suspect posed an ‘immediate threat to the safety of the officers or others,’ ” George , 736 F.3d at 838 (internal quotation marks omitted) (quoting Bryan v. MacPherson , 630 F.3d 805, 826 (9th Cir. 2010) ). “[S]ummary judgment should be granted sparingly in excessive force cases. This principle applies with particular force where the only witness other than the officers was killed during the encounter.” Gonzalez v. City of Anaheim , 747 F.3d 789, 795 (9th Cir. 2014) (en banc) (citation omitted).²

Considering the facts in the light most favorable to the nonmoving party, Glenn , 673 F.3d at 870

, a reasonable juror could find in favor of Plaintiffs. While the officers' testimony is largely consistent—Villegas held what resembled a shotgun, and did not put it down when ordered to do so—the officers' sworn declarations and testimony differ on key points. Bennallack testified that merely one second before he shot Villegas, he observed Villegas make “a quick movement” to grab the barrel of the rifle which had previously been resting against the wall. If this were undisputed, then summary judgment might be appropriate: “If the person is armed ... [then] a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.” George , 736 F.3d at 838

.

But that is not what other officers saw. Heitmann did not see Villegas grab the gun from against the wall, as Bennallack testified, but rather observed Villegas already holding the gun. Voorhis also testified he believed Villegas was holding the gun and it did not appear to be leaning against anything. Heitmann recalled Villegas's calm expression as he “slightly” raised the gun from the ground. And none of the officers provided a clear time line of when they switched from ordering Villegas to raise his arms to ordering him to drop the gun, or how long after that switch Villegas had to comply with the new command before Bennallack opened fire. This is particularly important because, viewed in the light most favorable to Plaintiffs, Heitmann's description of Villegas's movement is consistent with Villegas complying with the order to put his arms up: “The butt of the stock was on the ground or close to it, and as [Villegas] moved his arms, the rifle was moving with him, in an upward manner.” Applying the Graham

factors, the first and third factors fall in Plaintiffs...