Peck v. Montoya, 20-56413
| Docket Number | 20-56413, No. 21-55411 |
| Decision Date | 18 October 2022 |
| Citation | 51 F.4th 877 |
| Parties | Susan PECK, individually and as surviving heir and successor in interest of Paul Mono (deceased), Plaintiff-Appellee, and Courtney Mono; Whitney Mono, Plaintiffs, v. Anthony MONTOYA; Michael Johnson; Brad Carrington; Brent Lind; John Frey, Defendants-Appellants, and County of Orange; Sandra Hutchens, Sherriff; Aaron McFatridge, Defendants. Susan Peck, individually and as surviving heir and successor in interest of Paul Mono (deceased), Plaintiff-Appellee, and Courtney Mono; Whitney Mono, Plaintiffs, v. Brad Carrington; Brent Lind; John Frey, Defendants-Appellants, and County of Orange; Sandra Hutchens, Sherriff; Aaron McFatridge; Anthony Montoya; Michael Johnson, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jesse K. Cox (argued), Norman J. Watkins, S. Frank Harrell, and Marlena R. Mlynarska, Lynberg & Watkins, Orange, California; for Defendants-Appellants.
David C. Washington (argued), Barbara E. Hadsell, Dan Stormer, and Tanya Sukhija-Cohen, Hadsell Stormer Renick & Dai LLP, Pasadena, California; for Plaintiff-Appellee.
Before: Mary M. Schroeder, Richard C. Tallman, and Eric D. Miller, Circuit Judges.
Opinion by Judge Miller ;
OPINION
This case arises from a fatal encounter between Paul Mono and members of the Orange County Sheriff's Department. Five deputies responded to a 911 call reporting that Mono was acting erratically and threatening someone with a firearm. The deputies assert that Mono ignored their warnings, picked up a gun, and began raising it toward them. At that point, two of the deputies shot and killed Mono. Susan Peck, Mono's wife, tells a different story. She claims that eyewitness testimony and ballistics analysis prove that Mono was not moving toward the gun, never touched the gun, and did not pose an immediate threat to himself or others.
Peck sued the deputies under 42 U.S.C. § 1983, claiming that they violated Mono's Fourth Amendment right to be free from excessive force and her own Fourteenth Amendment right to a familial relationship. The district court denied the deputies' motion for summary judgment, and the deputies appeal.
On the excessive-force claim, we conclude that the deputies who shot Mono are not entitled to qualified immunity, but that the deputies who did not shoot him are entitled to qualified immunity. On the familial-association claim, we conclude that all of the deputies are entitled to qualified immunity. We therefore affirm in part and reverse in part.
In 2018, Paul Mono was 65 years old and legally blind. When he and his wife, Susan Peck, bought a house in Laguna Woods, California, they decided to renovate it to accommodate his visual impairment. Their real-estate agent, Jennifer Heflin, recommended the services of Dennis Metzler, a general contractor. Metzler began work, but Mono became dissatisfied with the pace and quality of his work. Mono's relationship with Metzler deteriorated, and Heflin stepped in to serve as intermediary between the two parties.
On February 5, Heflin visited the house, and Mono and Peck told her that they wanted to review Metzler's floor plans so that they could hire a different contractor. At some point during the visit, Mono showed Heflin a gun. The next day, Heflin met Metzler in a carport near Mono's house and obtained the floor plans from Metzler to give to Mono and Peck. Metzler, concerned for Heflin's safety, tried to discourage Heflin from going to the house. Heflin agreed to call Metzler and let him listen in on what was happening in Mono's house.
After Heflin arrived at the house, Mono became angry, claiming that the floor plans Heflin provided were incorrect. When Heflin exited the house and stood outside talking to Peck, Mono came to the front door with a gun, which he waved over his head for about 30 seconds. At one point, he pointed the gun at Heflin and threatened to shoot Metzler. She told him to put the gun down, and he went inside and returned without the gun.
Metzler, who was listening to the conversation over the phone, heard Heflin tell Mono to "put the gun down," at which point he hung up and called 911. Metzler told the dispatcher, "I've got a client that's threatening with a firearm to shoot somebody ... in his house." Metzler went on to say that Mono was screaming that "he wants to shoot Dennis Metzler." He told the dispatcher that Heflin was inside the house and that Heflin had "told [Metzler] that she saw the firearms yesterday when she was there."
Orange County Sheriff's Deputies Anthony Montoya, Michael Johnson, John Frey, Brent Lind, and Brad Carrington responded to the 911 call. Frey was the first on the scene. He spoke briefly with Metzler, who had waited near the carport and who reported that he had called 911, that Mono had threatened to shoot him, and that he believed there was a gun in the house. Heflin was also outside the house, but Frey did not talk to her.
Once they arrived on the scene, the deputies established a perimeter around the house. Johnson, Lind, and Carrington joined Frey in taking positions on one side of the house, from which they could see inside through a large window. Montoya took up position on another side, where he could see inside through a window in the door. Mono was screaming and visibly agitated. He swore at the officers, made obscene gestures toward them, and, at one point, lowered his pants and pressed his bare buttocks against the window. Due to his vision loss, Mono used a cane with red marks, which he began waving around while yelling statements like "Shoot me," "Kill me," and "If you come in my house, I'm going to shoot you." He also asked the deputies, "What are you going to do, shoot a blind man?"
The confrontation escalated when Montoya observed a holstered revolver lying on the couch. Montoya alerted the other deputies, and, in response, Mono began yelling, Johnson commanded Mono not to go near the gun.
The parties dispute what happened next. According to the deputies, Mono began moving toward the gun, bent over, and "reached for and grabbed onto" the gun. As soon as Mono grabbed the gun, Johnson began firing at him through the window. Montoya also began firing but says that he waited to do so until Mono raised the gun toward the other deputies. The two deputies fired independently: Neither was aware that the other had also fired. Only a few seconds elapsed between Johnson's commands not to go near the firearm and the decisions of Johnson and Montoya to open fire.
Peck tells a different version of the events. According to her, Mono never grabbed the gun. When she reached her husband after the shooting, she did not see a gun in his hands or anywhere near his body; the gun was ultimately found unloaded and secured in the holster under the coffee table. Larry Berman, a neighbor who witnessed the interaction, testified that Mono was moving away from the gun several seconds before the shooting. And although Peck herself cannot recall many of the details surrounding the shooting, she points to other discrepancies in the deputies' account. For example, she notes that a ballistics expert concluded that Mono's wounds "attributed to bullets fired by Deputy Johnson do not support Deputy Johnson's version of the shooting."
After the shooting, Johnson attempted to provide medical care to Mono. Paramedics arrived soon thereafter, and Mono was pronounced dead at the scene.
Peck brought this action against the deputies under 42 U.S.C. § 1983, asserting claims of excessive force in violation of the Fourth Amendment and deprivation of a familial relationship in violation of the Fourteenth Amendment. The deputies moved for summary judgment on the basis of qualified immunity. The district court denied summary judgment on both claims for all defendants. As to Montoya and Johnson, who fired the shots that killed Mono, the court reasoned that the "most important factor" in the Fourth Amendment analysis "is whether the suspect posed an immediate threat to the safety of the officers or others." (quoting Bryan v. MacPherson , 630 F.3d 805, 826 (9th Cir. 2010) (internal quotation marks omitted)). The court concluded that "there is a dispute of material fact as to whether [Mono] actually brandished a weapon at the officers" and thus posed an immediate threat. As to Frey, Lind, and Carrington, who did not fire any shots, the court held that "[a] reasonable jury could infer from the circumstances that [they] were integral participants during the time when the allegedly violative applications of force occurred" and were therefore subject to potential liability. Finally, as to the familial-association claim, the court acknowledged some uncertainty as to the governing legal standard. It concluded that the facts could support application of a "deliberate indifference" standard and that there was a genuine issue of material fact as to whether the deputies acted with deliberate indifference.
The deputies appeal. We review de novo the district court's decision denying summary judgment on the basis of qualified immunity. Estate of Lopez v. Gelhaus , 871 F.3d 998, 1005 (9th Cir. 2017).
We first address whether Montoya and Johnson are entitled to qualified immunity on Peck's excessive-force claim, and we conclude that they are not.
A preliminary issue is the scope of our jurisdiction. Congress has given us appellate jurisdiction over "final decisions of the district courts," and ordinarily, an order denying a defendant's motion for summary judgment is not "final" and therefore is not immediately appealable. 28 U.S.C. § 1291 ; see Plumhoff v. Rickard , 572 U.S. 765, 771, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). But because qualified immunity is "an immunity from suit rather than a mere defense to liability," the Supreme Court has treated an order denying qualified immunity as effectively final and...
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