A. K. H. v. City of Tustin

• Decision Date: 16 September 2016
• Docket Number: No. 14-55184,14-55184
• Citation: 837 F.3d 1005
• Parties: A. K. H., a minor by and through her Guardian Ad Litem Elizabeth Landeros; Maria Cerda Reyes; Benito Herrera ; H. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; A. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; B. H., Jr., a minor by and through his Guardian Ad Litem Eloisa Gutierrez, Plaintiffs–Appellees, v. City of Tustin; Officer Villarreal, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

837 F.3d 1005

A. K. H., a minor by and through her Guardian Ad Litem Elizabeth Landeros; Maria Cerda Reyes; Benito Herrera ; H. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; A. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; B. H., Jr., a minor by and through his Guardian Ad Litem Eloisa Gutierrez, Plaintiffs–Appellees,

v.City of Tustin; Officer Villarreal, Defendants–Appellants.

No. 14-55184

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2016—Pasadena, California

Filed September 16, 2016

M. Lois Bobak (argued), Robert L. Kaufman, and Daniel K. Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa, California, for Defendant–Appellant Officer Villarreal.

No appearance by Defendant–Appellant City of Tustin.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs–Appellees.

Before: William A. Fletcher, Mary H. Murguia, and John B. Owens, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. As will be more fully described below, Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera's hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera's hand.

In a § 1983 suit alleging excessive force, Officer Villarreal moved for summary judgment. The district court denied the motion. In this interlocutory appeal, we affirm.

I. Factual and Procedural Background

On December 17, 2011, at approximately 3:00 p.m., Hilda Ramirez called 911. She reported that her ex-boyfriend, Benny Herrera, had “jacked [her] phone.” Ramirez stated that she was not hurt, that she did not need paramedics, and that her children were “fine.” Initially, Ramirez told the 911 police dispatcher that Herrera stole her phone by “just grabb[ing] it from [her] hand.” A short time later, Ramirez modified her story and said that, while the two were arguing about her phone, Herrera “did end up hitting [her] in the head.”

Ramirez told the police dispatcher that Herrera had not used a weapon to take her phone, that Herrera did not carry any weapons, and that Herrera had never been violent with her before. Ramirez told the dispatcher that Herrera was “walking down El Camino Real ... towards Red Hill.” She explained that because he did not have a car and had no friends in the area, Herrera was probably trying to a catch a bus back to his home.

The dispatcher sent out a general call to Tustin police officers. The dispatcher initially reported:

[A] DV [domestic violence] just occurred ... The RP [reporting party] states her ex-boyfriend, Benny Herrera, male Hispanic, 31 years, 5'8?>, thin build, bald head, black hooded sweatshirt was inside her apartment, took her cell phone, he left. He is now walking on ECR [El Camino Real] towards Red Hill.

The dispatcher repeated Ramirez's report, saying that Herrera was heading down El Camino Real “to catch the bus” because he had “no access to a vehicle and no friends in the area.” After Ramirez modified her story, the dispatcher updated the officers, explaining that “originally the RP claimed that there was no physical violence, now she's claiming that the male subject hit her in the head.” The dispatcher reported that Herrera “is not known to carry weapons.” She also reported that Herrera was “shown in-house to be a member of the Southside Gang” and that there was possibly a $35,000 traffic warrant out for Herrera's arrest. The dispatcher reported, further, that Herrera was on “parole for 11350,” a reference to a state drug possession crime. See Cal. Health & Safety Code § 11350.

Driving a large police SUV, Officer Brian Miali was the first to spot Herrera. As Ramirez had reported, Herrera was walking down El Camino Real. A video taken by Miali's dashboard camera shows Herrera walking on the right shoulder of the road in the same direction as traffic. On Herrera's immediate right was a high wall, preventing him from escaping to the right. As he came up to Herrera, Miali turned on the red lights of his SUV. Herrera put his right hand in his sweatshirt pocket and started alternately to skip, walk, and run backwards facing Miali. As Herrera did so, he moved away from the right shoulder toward the middle of the road. Miali drew his gun and opened his driver's side door while driving forward slowly. Herrera kept ahead of Miali's SUV, sometimes at distances of less than ten or fifteen feet. Using the loudspeaker of his SUV, Miali told Herrera three times to “get down.” Herrera did not comply. He stayed on his feet and continued to move down the road at about the same speed as Miali's SUV.

Officer Villarreal was driving on El Camino Real behind Officer Miali. A civilian sedan was directly behind Miali, separating Miali from Villarreal's vehicle. Villarreal testified in his deposition that he did not hear Miali tell Herrera to “get down.” The civilian car moved onto the shoulder to the right, and Villarreal moved left into the opposite lane. He drove his patrol car up beside Herrera, and slightly forward of Miali's SUV, in order to “box” Herrera in and cut off his avenue of escape. Villarreal held his gun in his hand. His front passenger window was open. The video taken by Miali's dashboard camera shows that Herrera was already moving to the left, toward Villarreal's patrol car, as Villarreal pulled up beside Herrera. Villarreal immediately shouted, “Get your hand out of your pocket.” Herrera removed his right hand from his sweatshirt pocket in an arcing motion over his head. Just as Herrera's hand came out of his pocket, Villarreal fired two shots in rapid succession. Villarreal did not give any warning that he would shoot, and Officer Miali later stated that he was not expecting the shots. Both officers admitted that they never saw anything in either of Herrera's hands.

Officer Villarreal testified in his deposition that he shot Herrera because he “believe[ed] that he had a weapon and he was going to use that weapon on [him].” Villarreal testified that Herrera's right hand was “concealed” in his sweatshirt pocket.” Miali testified in his deposition that “there was something in there that appeared to be heavy.” Villarreal testified that Herrera “charged [him] or shortened the distance or closed the distance at [his] passenger window very quickly.” Villarreal said that probably “three to five seconds” passed between when he commanded Herrera to remove his hands from his pocket and when he shot. The recording from Villarreal's dashboard camera, however, shows that the command and the shots were almost simultaneous, separated by less than a second. The total elapsed time from when Miali first encountered Herrera to when Villarreal shot him was less than a minute.

It is undisputed that Herrera was unarmed. Ramirez had reported to the police dispatcher that Herrera did not carry weapons. The dispatcher had reported to the officers that Herrera “is not known to carry weapons.” The only “heavy” object in Herrera's sweatshirt pocket was a cell phone.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging, inter alia , that Villarreal used excessive force against Herrera. Villarreal moved for summary judgment based on qualified immunity. The district court denied the motion. Villarreal brought an interlocutory appeal.

II. Appellate Jurisdiction

The parties dispute whether we have jurisdiction to hear this interlocutory appeal. A denial of summary judgment is not ordinarily appealable because it is not a “final decision.” See 28 U.S.C. § 1291 ; Plumhoff v. Rickard , 572 U.S. ––––, 134 S.Ct. 2012, 2018, 188 L.Ed.2d 1056 (2014). However, there is an exception to the final judgment rule for an appeal denying a motion for summary judgment based on qualified immunity. Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

When analyzing an appellate court's jurisdiction over an appeal from a denial of a motion for summary judgment based on qualified immunity, the Supreme Court distinguishes between “factual” and “legal” questions. We have jurisdiction over “legal” but not “factual” interlocutory appeals. Plumhoff , 134 S.Ct. at 2019 ; Behrens v. Pelletier , 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) ; Johnson v. Jones , 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Officer Villarreal argues that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity. A defendant who appeals a denial of qualified immunity on the ground that his “conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law” has “raise[d] legal issues” that may be properly heard in an interlocutory appeal. Plumhoff , 134 S.Ct. at 2019 ; see also Behrens , 516 U.S. at 312–13, 116 S.Ct. 834. Villarreal has brought such an appeal, and we have jurisdiction.

III. Standard of Review

In reviewing a summary judgment ruling, “we assume the version of the material facts asserted by the non-moving party to be correct.” Jeffers v. Gomez , 267 F.3d 895, 905 (9th Cir. 2001) (emphasis omitted) (quoting Schwenk v. Hartford , 204 F.3d 1187, 1195 (9th Cir. 2000) ). We review “de novo the district court's determination regarding qualified immunity.” Deorle v. Rutherford , 272 F.3d 1272, 1278 (9th Cir. 2001).

IV. Discussion

To...