George v. Morris, s. 11–55956

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 736 F.3d 829
• Docket Number: Nos. 11–55956,11–56020.,s. 11–55956
• Parties: Carol Ann GEORGE, Plaintiff–Appellee, v. Deputy Jarrett MORRIS; Deputy Joseph Schmidt; Deputy Jeremy Rogers, Defendants–Appellants. The County of Santa Barbara; Deputy Harry Hudley; Deputy Larry Hess, Defendants. Carol Ann George, Plaintiff–Appellant, v. Jarrett Morris; Joseph Schmidt; Jeremy Rogers, Defendants–Appellees, and The County of Santa Barbara; Harry Hudley; Larry Hess, Defendants.
• Decision Date: 16 September 2013

736 F.3d 829

Carol Ann GEORGE, Plaintiff–Appellee,
v.
Deputy Jarrett MORRIS; Deputy Joseph Schmidt; Deputy Jeremy Rogers, Defendants–Appellants.
The County of Santa Barbara; Deputy Harry Hudley; Deputy Larry Hess, Defendants.
Carol Ann George, Plaintiff–Appellant,
v.
Jarrett Morris; Joseph Schmidt; Jeremy Rogers, Defendants–Appellees,
and
The County of Santa Barbara; Harry Hudley; Larry Hess, Defendants.

Nos. 11–55956, 11–56020.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 7, 2013.
Filed July 30, 2013.
Amended Sept. 16, 2013.

[736 F.3d 831]

Michael Maury Youngdahl, County of Santa Barbara, CA, argued the cause for the defendants-appellants/cross-appellees. Kelly Duncan Scott, Deputy County Counsel, filed the briefs. With her on the briefs was Dennis A. Marshall, County Counsel.

Stephen K. Dunkle, Sanger Swysen & Dunkle, Santa Barbara, CA, argued the cause and filed the briefs for the plaintiff-appellee/cross-appellant. With him on the briefs were Robert M. Sanger and Catherine J. Swysen, Sanger Swysen & Dunkle, Santa Barbara, CA.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, Senior District Judge, Presiding. D.C. No. 2:09–cv–02258–CBM–AGR.
Before DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT, and RICHARD R. CLIFTON, Circuit Judges.

Concurrence and Dissent by Judge TROTT.

ORDER

The opinion and dissent filed in this case on July 30, 2013, and reported at 724 F.3d 1191, are hereby amended. An amended opinion and an amended dissent are filed concurrently with this order.

With these amendments, Judges O' Scannlain and Clifton have voted to deny the petition for rehearing. Judge Trott has voted to grant the petition for rehearing. Judges O' Scannlain and Clifton have voted to deny the petition for rehearing en banc. Judge Trott has recommended granting the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No subsequent petitions for rehearing and rehearing en banc may be filed.

O'SCANNLAIN, Circuit Judge:
OPINION

We must decide whether a reasonable jury could determine that three sheriff's

[736 F.3d 832]

deputies violated the Constitution when they fatally shot an armed homeowner on his patio.

I A

At half past five, on the morning of March 6, 2009, Carol George awoke. Her husband Donald needed food.¹ Donald had a terminal case of brain cancer and, as a result of his chemotherapy, ate frequently to manage headaches. His wife brought him a snack and then, not having slept well, returned to bed. Shortly after, George took the keys to the couple's truck from the night stand and went downstairs. Concerned for his well-being, Carol followed him. She witnessed him retrieve his pistol from the truck and load it with ammunition.

Carol called 911. Because she used her cell phone, the call went to the Ventura California Highway Patrol. On the audio recording in evidence, she can be heard exclaiming “No!” and “My husband has a gun!” The highway patrol dispatcher could only determine that she lived somewhere in Santa Barbara. Her husband wanted her to hang up, so she did. The dispatcher then contacted a Santa Barbara County 911 operator who called Carol back and obtained her complete address.

Deputies were dispatched to the residence for a domestic disturbance involving a firearm. Santa Barbara Sheriff's Deputies Jarrett Morris and Jeremy Rogers responded first. Carol met them at the front door. She asked them to be quiet and not to scare her husband, while also advising that he was on the patio with his gun.

The deputies decided to establish a perimeter around the house. They crossed the driveway toward a gate on the east side of the property. Morris was in the lead, with Schmidt and Rogers following. They carried two AR–15 rifles in addition to their service revolvers. Unable to spot Donald, and concerned that he might use a door on the west side of the house to exit, Rogers turned back to cover that side. Morris tried to assume a position out of sight and Schmidt lay down in ice plants at the bottom of a steep slope near the southeast corner of the house. From his position on the ground, Schmidt could see the back of the house, which had an outdoor balcony on the second floor with a patio.

The district court concluded there was a dispute as to which officer made contact with Donald first. Morris said that Schmidt had—announcing “I see the suspect” on the radio—while Schmidt claimed that it was Morris who initially saw Donald. According to an uncontroverted police-dispatch log, at 8:08 a.m., Donald opened the door to the balcony. Once he appeared in view of the deputies, Schmidt identified himself as law enforcement and instructed Donald to show him his hands. Hearing yelling, Rogers left his post out front and headed into the backyard.

Dispatch was told that Donald had a firearm in his left hand. Morris testified to seeing Donald “carrying [a] silver colored pistol in his left hand, while holding” what he described “as a walker or a buggy.” ² Rogers stated that when George came into view, he was holding a gun with the barrel pointing down. Carol does not

[736 F.3d 833]

dispute that Donald exited onto the balcony with his walker and holding his firearm. However, the district court concluded that Carol's evidence, which included an expert witness's report,³ called into question whether Donald ever manipulated the gun, or pointed it directly at deputies.⁴ Twelve seconds after the deputies broadcast that Donald had a firearm, the dispatch log records “shots fired.” Donald fell to the ground, and Rogers continued to shoot. Together the three deputies fired approximately nine shots. They then ran to assist him, applied first aid, and called an ambulance. Donald died two hours later at the hospital following surgery and admission to the intensive care unit.

B

Carol sued a year later under 42 U.S.C. § 1983 asserting two constitutional claims.⁵ Against Morris, Schmidt, and Rogers she claimed a violation of her late husband's right to be free from excessive force under the Fourth Amendment, as incorporated.⁶ In a claim chiefly implicating Deputy Harry Hudley, Carol asserted that her own Fourth Amendment right against unreasonable seizure was violated when Hudley kept her from the crime scene in the shooting's aftermath and when she was briefly stopped from visiting Donald in the hospital. The deputies and their supervisors moved for summary judgment invoking qualified immunity, mainly arguing that neither Donald's nor Carol's constitutional rights had been violated.

After an evidentiary hearing, the district court concluded that based on the admissible evidence, “whether Mr. George presented a threat to the safety of the deputies is a material fact that is genuinely in dispute.” ⁷ This meant a constitutional violation

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could be proven and the court denied qualified immunity on that basis. Concluding that the deputies had not argued for its application, the court did not address the second prong of qualified immunity—the clearly established inquiry. That asks whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir.2012) (en banc). As to Carol's seizure claim, the district court decided there was no constitutional violation and, in the alternative, that “the right at issue was not clearly established.” It therefore granted summary judgment to Hudley and the other deputies.

Morris, Rogers, and Schmidt timely appeal the denial of summary judgment. Carol timely cross appeals, seeking review of the district court's grant of summary judgment to the deputies on her unreasonable seizure claim.

II

Because Morris, Rogers, and Schmidt challenge the denial of qualified immunity we have jurisdiction over the denial of summary judgment, an interlocutory decision not normally appealable. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, the scope of our review over the appeal is circumscribed. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 (9th Cir.2006). Any decision by the district court “that the parties' evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal.” Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.2009). Stated differently, “we may not consider questions of eviden[tiary] sufficiency, i.e., which facts a party may, or may not, be able to prove at trial.” CarePartners, LLC v. Lashway, 545 F.3d 867, 875 (9th Cir.2008) (internal quotation marks omitted).

Noting that we do have authority to consider the materiality of a fact, Behrens v. Pelletier, 516 U.S. 299, 312–13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996),—the issue of whether disputed facts “might affect the outcome of the suit under the governing law”—the deputies argue that Carol's disputed facts are ancillary, and therefore immaterial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In that respect, they claim that a review of the district court's “reasoning establishes that rather than delineating actual material disputed facts, [the court] commingled a group of insignificant discrepancies in statements” in order to conclude that a dispute existed about what had transpired during Donald's final minutes. Although couched in the language of materiality, their argument actually goes to the sufficiency of George's evidence. At bottom, their contention is that Carol could not “prove at trial” that Donald did not turn and point his gun at deputies. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

In cases where the best (and usually only) witness who could offer direct testimony for the plaintiff about...