Torres v. City of Madera, No. 05-16762.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Hawkins
• Citation: 524 F.3d 1053
• Parties: Maria TORRES; Melchor Torres; Everardo Torres, Plaintiffs-Appellants, v. CITY OF MADERA; Marcy Noriega, Defendants-Appellees.
• Docket Number: No. 05-16762.
• Decision Date: 05 May 2008

524 F.3d 1053 Maria TORRES; Melchor Torres; Everardo Torres, Plaintiffs-Appellants,
v.
CITY OF MADERA; Marcy Noriega, Defendants-Appellees. No. 05-16762.^* United States Court of Appeals, Ninth Circuit. Argued and Submission Deferred May 17, 2007. Submitted November 8, 2007. Filed May 5, 2008.

[524 F.3d 1054]

Carl E. Douglas (argued) and Cameron A. Stewart (briefed), The Cochran Firm, Los Angeles, CA, for the plaintiffs-appellants.

Bruce Praet (briefed and argued), Ferguson, Praet & Sherman, Santa Ana, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Anthony W. Ishii, District Judge, Presiding. D.C. No. CV-02-06385-AWI/LJO.

Before: B. FLETCHER, EUGENE E. SILER, JR.,^** and HAWKINS, Circuit Judges.

HAWKINS, Circuit Judge:

In this interlocutory appeal, we face an issue remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir.2007). There, a deputy sheriff, intending to deploy a Taser device holstered near his firearm, instead drew and fired his service weapon, wounding a suspect fleeing arrest. Here, Madera City Police Officer Marcy Noriega ("Officer Noreiga") made the same mistake with even more tragic consequences: she shot and killed Everardo Torres ("Everardo"), an arrestee sitting handcuffed in the back of a patrol car. We conclude that Everardo was seized within the meaning of the Fourth Amendment, and further conclude, as did our sister circuit, that the officer's mistake is governed by Fourth Amendment reasonableness analysis.

Facts and Procedural History

In the process of responding to a loud music complaint, Madera City Police officers arrested two individuals—Erica Mejia and Everardo Torres—handcuffed them, and placed them in the back of a patrol car. After the two were in the patrol car for approximately thirty to forty-five minutes (during which time Everardo had fallen asleep), Mejia was removed from the car and her handcuffs were readjusted. At this time, Everardo awoke and started yelling and began kicking the back window of the patrol car. In response, Officer Noriega approached Everardo's side of the

524 F.3d 1055

patrol car. At least one witness saw Officer Noriega say something as she approached, which Officer Noriega described as "yelling at [Everardo] to stop or he was going to be tased." Officer Noriega then opened the patrol car door and reached down with her right hand to her right side, where she had a Glock semiautomatic pistol in a holster in her officer belt and, immediately below, a Taser M26 stun gun in a thigh holster. She unholstered a weapon, pointed the weapon's laser¹ at Everardo's center mass, and pulled the trigger of her similarly-sized-and-weighted Glock, mortally wounding Everardo.

Plaintiffs-Appellants Maria Torres and Melchor Torres, individually and as Administrators of the Estate of their son, Everardo, and Melchor Torres, Jr., Everardo's brother ("The Torres family") thereafter sought damages from Officer Noriega and the City of Madera Police Department ("Madera") under 42 U.S.C. § 1983 for violation of Everardo's Fourth Amendment right to be free from unreasonable seizures.² Officer Noriega and Madera moved for summary judgment on this claim, and the district court granted this motion, concluding that "[a] Fourth Amendment seizure . . . occur[s] . . . only when there is a governmental termination of freedom of movement through means intentionally applied," and that "the means or instrumentality at issue is the intent to seize Everardo with the [Taser] versus the Glock and not the general intent to seize Everardo by shooting `something.' " Plaintiffs requested, and the district court granted, certification under Rule 54(b) to allow for this interlocutory appeal.

Standard of Review

A district court's grant of summary judgment is reviewed de novo, CreAgri, Inc. v. USANA Health Scis., Inc., 474 F.3d 626, 629 (9th Cir.2007), and we are to affirm if, viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact, Contract Mgmt., Inc. v. Rumsfeld, 434 F.3d 1145, 1146 (9th Cir.2006) (per curiam).

Discussion

Officer Noriega's conduct violated Everardo's constitutional rights if Everardo was seized and Officer Noriega's conduct in the course of the seizure was unreasonable. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Brower v. County of Inyo, 489 U.S. 593, 596, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).

A seizure is a "governmental termination of freedom of movement through means intentionally applied," Jensen v. City of Oxnard, 145 F.3d 1078, 1083 (9th Cir.1998) (internal quotation marks and citation omitted), and occurs "whenever [an officer] restrains the individual's freedom to walk away." Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir.1985). Madera argues that...