Ting v. U.S.

Citation927 F.2d 1504
Decision Date14 March 1991
Docket NumberNo. 89-55303,89-55303
PartiesRonald E. TING, Plaintiff-Appellant, v. UNITED STATES of America; the Federal Bureau of Investigation; Drug Enforcement Administration; Internal Revenue Service; Joe Sheehan, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark P. Robinson, Robinson, Robinson & Phillips, Los Angeles, Cal., for plaintiff-appellant.

Robert A. Pallemon, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT and LEAVY, Circuit Judges, and THOMPSON *, District Judge.

LEAVY, Circuit Judge:

Ronald E. Ting appeals from the district court's grant of summary judgment in favor of the defendants on his Bivens action against five FBI agents and claims against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2674. Ting claims that the agents' use of deadly force to effect his arrest was excessive and unreasonable. We affirm in part, and reverse and remand in part.

FACTS AND PROCEEDINGS

Commencing in 1982, the FBI and DEA conducted a joint investigation of a major In preparation for the operation, all participating officers were briefed at a meeting on May 10, 1984. Nine FBI SWAT agents were assigned to arrest Ting at his home: William Ayers, James Botting, James Burns, Wayne Cassetty, Ronald Durkin, Ronnie Frigulti, Lawrence Gallagher, Dexter Kelly, and William Melson. It was determined that SWAT assistance was needed in light of information that Ting was paranoid and unstable, that he possessed a firearm, and that he had made threats to kill several unidentified individuals in the past. Ting did not have a criminal record.

narcotics organization headed by Alan Mobley. A plan was eventually developed to simultaneously execute arrest warrants on twenty-seven individuals on May 12, 1984. The appellant, Ronald Ting, was one of those individuals.

On the morning of May 12, 1984, SWAT team leader Botting went over the entry plan for Ting's residence. The team was divided into two groups: Agents Ayers, Botting, Burns, Cassetty, and Melson were to enter through the front of the house at exactly 7:00 a.m.; Agents Durkin, Frigulti, Gallagher, and Kelly were to enter simultaneously through the rear. Upon entry, the SWAT team was to locate and arrest Ting. Another team of law enforcement officials would then execute the search warrant.

At approximately 7:00 a.m., the SWAT team began to execute the arrest. The rear team was delayed in their entry, however, due to difficulties in smashing the sliding glass door which led to Ting's bedroom. Upon entry, the agents saw Ting, completely naked, kneeling behind the bed aiming a handgun at them. The agents identified themselves as FBI and instructed Ting to drop the gun.

At that point, Agent Burns entered the bedroom from the front of the house with his 12-gauge Remington shotgun drawn and aimed at Ting and ordered him to drop the gun. Burns testified that Ting dropped the gun on the bed upon his command. Burns then grabbed Ting by his left arm, pulled him to the floor, and tossed his gun to the other side of the bed. Ting was ordered to lie in a prone position face down on the floor. Fearing that a weapon was hidden under the bed, Burns eventually repositioned Ting so that he was lying or kneeling next to the bed with his head pointing towards the center of the room. Agents Ayers and Melson then entered the bedroom from the front, and Agents Frigulti and Durkin entered from the rear, and began to look for weapons or other persons hidden in the room.

According to the FBI agents who were present, Ting then suddenly pulled his arm free from Agent Burns' grasp, stood up, and lunged toward an unsecured, enclosed dressing area located behind a dividing wall on the other side of the room. It is generally agreed that Ting's lunge was not in the direction of any of the other four agents in the room, nor was it toward his gun at the foot of the bed. In response, Burns claims he fired one round at Ting's back at a distance of about four or five feet. The buckshot struck Ting high on his right shoulder. Burns claims he fired because he thought Ting was going for a weapon in the dressing area approximately twelve feet away. Burns admits that he shot to kill, not to wound.

Ting was immediately taken to the hospital emergency room where it was determined that the buckshot wounds had rendered him quadriplegic. X-rays taken at the hospital also revealed that Ting's right arm had been broken and his right shoulder dislocated at some point during the arrest. Ting suffers from traumatic retrograde amnesia and is unable to recall the events of the shooting.

Following the shooting, the SWAT team members gathered in Ting's backyard to discuss the arrest. They were later interviewed by supervisory FBI agents as part of an internal FBI administrative inquiry. A subsequent search of the residence failed to uncover any contraband. However, a knife was found hidden beneath Ting's bed mattress. An unloaded crossbow and crossbow arrows were also found in the residence. No weapons were found in the enclosed dressing area. Ting subsequently pleaded guilty to one count of conspiracy to On October 14, 1986, Ting filed a complaint alleging Bivens and FTCA causes of action against thirty-four federal agents, the Internal Revenue Service, and the United States. On November 2, 1987, Ting filed a motion for leave to file an amended complaint, which the court granted on November 16, 1987. The amended complaint, filed January 5, 1988, alleged Bivens actions against thirty-one federal agents for excessive force under the fourth amendment, civil conspiracy, and inadequate training and supervision, and FTCA claims against the United States for inadequate training and supervision of the individual defendants, assault and battery, false arrest, and civil conspiracy.

possess and distribute cocaine in violation of 21 U.S.C. Sec. 846.

On November 2, 1987, the defendants moved for summary judgment on all of Ting's claims. The individual defendants sought summary judgment on the Bivens claims on the grounds that, as a matter of law, they had not violated Ting's constitutional rights, or alternatively, that they were entitled to qualified immunity. The United States sought summary judgment on Ting's FTCA claims on the ground that, as a matter of law, there was no basis for its liability under the FTCA.

On October 3, 1988, the district court orally granted the defendants' motion for summary judgment. Judgment was entered in favor of the defendants on all of Ting's claims on February 21, 1989. This timely appeal followed.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989). "Summary judgment is only appropriate if, viewing the evidence in the light most favorable to the party opposing the motion, the court finds that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id.

DISCUSSION
I. BIVENS CLAIMS

Ting argues that triable issues of material fact exist as to his Bivens claims 1 against the five agents (Burns, Durkin, Frigulti, Ayers, and Melson) who were present at the shooting. Specifically, Ting claims there are genuine issues of material fact concerning the circumstances of the shooting from which the trier of fact could find that the use of deadly force was unreasonable and excessive, and therefore unconstitutional.

A. Fourth Amendment--Excessive Force

In Graham v. Conner, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held that an excessive force claim arising in the context of an arrest "is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right 'to be secure in their persons ... against unreasonable ... seizures.' " 490 U.S. at 394, 109 S.Ct. at 1871. Accordingly, the Court held that "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest ... of a free citizen should be analyzed under the Fourth Amendment and its '[objective] reasonableness' standard, rather than under a 'substantive due process' approach." Id. 2

Determining the "reasonableness" of the force used to effect an arrest or seizure "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (quotations omitted). Factors to consider include "the severity of The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Id. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Id. Nevertheless, the reasonableness inquiry is "an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id.

                the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."    Id. 109 S.Ct. at 1872
                

Applying the fourth amendment "reasonableness" test in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Court held that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Id. at 11, 105 S.Ct. at 1701. It found that the intrusiveness of a seizure by means of deadly force outweighed the...

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