Orn v. City of Tacoma, 020320 FED9, 18-35379

Docket Nº:18-35379
Opinion Judge:WATFORD, CIRCUIT JUDGE
Party Name:Than Orn, individually; Thalisa Orn, individually; Clarisse Orn, Guardian on behalf of J. O. and C. O., Plaintiffs-Appellees, v. City of Tacoma, a municipal corporation; Kristopher Clark, in his individual capacity, Defendants-Appellants.
Attorney:Jean P. Homan (argued), Tacoma City's Attorney's Office, Tacoma, Washington, for Defendants-Appellants. Loren A. Cochran (argued) and Darrell L. Cochran, Pfau Cochran Amala Vertetis PLLC, Tacoma, Washington; Thomas A. Balerud, Law Office of Thomas A. Balerud, Tacoma, Washington; for Plaintiffs-Ap...
Judge Panel:Before: Danny J. Boggs, Marsha S. Berzon, and Paul J. Watford, Circuit Judges.
Case Date:February 03, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Than Orn, individually; Thalisa Orn, individually; Clarisse Orn, Guardian on behalf of J. O. and C. O., Plaintiffs-Appellees,

v.

City of Tacoma, a municipal corporation; Kristopher Clark, in his individual capacity, Defendants-Appellants.

No. 18-35379

United States Court of Appeals, Ninth Circuit

February 3, 2020

Argued and Submitted July 11, 2019 Seattle, Washington

Appeal from the United States District Court No. 3:13-cv-05974-RBL for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Jean P. Homan (argued), Tacoma City's Attorney's Office, Tacoma, Washington, for Defendants-Appellants.

Loren A. Cochran (argued) and Darrell L. Cochran, Pfau Cochran Amala Vertetis PLLC, Tacoma, Washington; Thomas A. Balerud, Law Office of Thomas A. Balerud, Tacoma, Washington; for Plaintiffs-Appellees.

Before: Danny J. Boggs, [*] Marsha S. Berzon, and Paul J. Watford, Circuit Judges.

SUMMARY[**]

Civil Rights

The panel affirmed the district court's order, on summary judgment, denying qualified immunity to a police officer in an action brought pursuant to 42 U.S.C. § 1983 alleging that the officer used excessive force when he shot and severely wounded plaintiff after a slow-speed car pursuit.

The panel first held that, viewing the facts in the light most favorable to plaintiff, a reasonable jury could conclude that the police officer violated plaintiff's Fourth Amendment right to be free from the use of excessive force. Thus, the panel determined that defendant did not have an objectively reasonable basis for believing that plaintiff posed a threat of serious physical harm, either to the officer himself or to others. The panel noted that construing the facts in plaintiff's favor, he never targeted officers with his vehicle or forced other vehicles off the road. In addition, he traveled at normal speeds and stopped at traffic lights and stop signs throughout the pursuit.

Turning to the second step of the qualified immunity analysis, the panel held that plaintiff's right to be free from the use of excessive force was clearly established at the time of the shooting. The panel noted that in October 2011, at least seven circuits had held that an officer lacks an objectively reasonable basis for believing that his own safety is at risk when firing into the side or rear of a vehicle moving away from him. The panel stated that, taking the facts in the light most favorable to plaintiff, a reasonable jury could conclude both that the officer was never in the path of plaintiff's vehicle and that he fired through the passenger-side windows and rear windshield as the vehicle was moving away from him. The panel further held that under plaintiff's version of events, he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to another officer on the scene, or to anyone else in the vicinity.

OPINION

WATFORD, CIRCUIT JUDGE

Officer Kristopher Clark of the Tacoma Police Department shot and severely wounded Than Orn on the night of October 12, 2011. Orn sued Clark and the City of Tacoma under 42 U.S.C. § 1983, alleging a violation of his Fourth Amendment right to be free from the use of excessive force. Clark moved for summary judgment on the basis of qualified immunity. The district court denied the motion, and Clark has taken an interlocutory appeal from that order. We have jurisdiction under the collateral-order doctrine, see Plumhoff v. Rickard, 572 U.S. 765, 771-72 (2014), and now affirm.

I

In an interlocutory appeal challenging the denial of qualified immunity, we must construe the facts in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378 (2007). Notwithstanding this clear rule, Clark asks us at several key junctures to credit his version of the facts and to assume that a jury would resolve factual disputes in his favor. This we are not permitted to do. See Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam); Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam). Unless Orn's version of events is "blatantly contradicted by the record, so that no reasonable jury could believe it," we must assume that a jury could find Orn's account of what happened credible, even if it conflicts with Clark's account. Scott, 550 U.S. at 380. Here, nothing in the record blatantly contradicts Orn's account of the events in question. The narrative that follows therefore resolves all disputed factual issues in his favor.

At about 8:30 p.m., Orn was driving his wife's Mitsubishi Montero on city streets when he noticed a police car with its lights activated attempting to pull him over. The officer sought to stop Orn because he was driving without his headlights on. Excerpts of Record (ER) 128, 133. Orn was driving with a suspended license at the time and had just smoked crack cocaine. Rather than pull over, he decided to return home to the apartment complex where he lived with his wife, as he knew she needed the car for work. As he made his way home, Orn traveled at 25-35 miles per hour and stopped at traffic lights and stop signs. ER 133, 305, 308, 351.

It took Orn roughly 15 minutes to drive home. Along the way, additional officers joined the slow-speed pursuit, including Clark and his partner Donald Rose, who were driving in a Tacoma Police Department sport utility vehicle. At one point, in an effort to get Orn to stop, several police units attempted unsuccessfully to box him in. ER 163-65. At another point, officers drove in front of Orn's vehicle to block his path, but Orn drove onto a curb and down a portion of a closed roadway to avoid them. ER 269, 475, 478. Later in the pursuit, officers put down spike strips, which Orn managed to circumvent by swerving away from the officers and into the oncoming lane of traffic. No oncoming vehicles were traveling toward Orn at the time. ER 104-05, 351, 358.

As the pursuit progressed, officers correctly predicted that Orn might be returning home, since by then they had determined the address to which his vehicle was registered. Clark knew that Orn's apartment complex had a long outdoor parking lot with only two entrances, one at the north end and the other at the south end. When Clark saw Orn head toward the south entrance, he drove to the north end of the complex and entered there. Clark positioned his SUV across a narrow point of the single access lane that ran the length of the parking lot, in an effort to prevent Orn from exiting the complex on the north end.

Orn pulled into the south entrance with a caravan of police vehicles following behind him. He proceeded slowly down the access lane toward the north end of the complex. When he approached Clark's SUV and saw that it was blocking his path, he paused and came to a brief stop. ER 180, 353.

The diagram below depicts the scene of the events that transpired next. ER 535. Clark was standing on the grassy area to the left of his SUV as Orn approached. ER 523. He had his gun drawn with the barrel pointed toward the ground and repeatedly yelled at Orn to stop. ER 341-42, 523. Clark had no reason to believe that Orn had a firearm, and in fact he did not. ER 165, 444. Orn saw Clark and heard his commands but ignored them. ER 342.

(Image Omitted)

After briefly stopping in front of Clark's SUV, Orn drove away from where Clark was standing and attempted to navigate through a narrow opening between the passenger side of Clark's SUV and a nearby parked car. To do so, Orn had to drive up a curb onto a small patch of grass between the two vehicles and then turn his vehicle to the right. ER 342. Given the tightness of the space, Orn was driving very slowly as he attempted this maneuver. ER 179-80. He estimated his speed at five miles per hour, as did officers at the scene. ER 193, 352.

When Orn began maneuvering around Clark's SUV, another officer, Steven Butts, backed his patrol vehicle into Orn's line of travel to cut off any path of escape through the complex's north entrance. ER 416. That move caused Orn to turn his vehicle more sharply to the right to avoid hitting Officer Butts's vehicle. ER 355.

As Orn moved past Clark's SUV, the panel near the passenger-side rear wheel of Orn's vehicle clipped the passenger-side rear quarter panel of Clark's SUV. (Officer Rose, who remained inside the SUV and felt the impact, described it as a "glancing blow." ER 109.) The left front corner of Orn's vehicle also struck the right front corner of Officer Butts's vehicle. Just after Orn's vehicle moved past Clark's SUV, Orn saw Clark run toward his vehicle on the passenger side and begin firing at him. ER 270, 354, 356. The first round entered through the front passenger-side window of Orn's vehicle; the second and third rounds entered through the rear passenger-side window. ER 435, 440-41, 513-15, 517-18. One of those rounds struck Orn in the spine, which caused Orn's body to go numb. ER 357, 362, 515. He slumped into the passenger seat and the engine of his vehicle revved loudly as his foot floored the accelerator. Clark ran behind Orn's vehicle as it sped away, firing seven more rounds through the rear windshield. ER 212, 440.

Clark disputes this account of the shooting. His account differs from Orn's in two key respects: the manner in which Orn maneuvered his vehicle around Clark's SUV, and where Clark was standing when that occurred. According to Clark, as soon as he saw Orn drive up the curb onto the patch of grass, he ran from where he had been standing and took up a position behind the rear bumper near the passenger side of his SUV, as depicted by the faint blue figure in the diagram above. ER 299, 524. Clark contends that, as Orn maneuvered between Clark's SUV and the parked car, Orn turned his wheels sharply to the right, which placed...

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