Villanueva v. California

• Decision Date: 28 January 2021
• Docket Number: No. 19-55225,19-55225
• Citation: 986 F.3d 1158
• Parties: Armando VILLANUEVA, individually and as Successor In Interest to Pedro Villanueva, deceased; Hortencia Sainz, individually and as Successor In Interest to Pedro Villanueva, deceased; Francisco Orozco, individually, Plaintiffs-Appellees, v. State of CALIFORNIA, Defendant, and John Cleveland ; Richard Henderson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

986 F.3d 1158

Armando VILLANUEVA, individually and as Successor In Interest to Pedro Villanueva, deceased; Hortencia Sainz, individually and as Successor In Interest to Pedro Villanueva, deceased; Francisco Orozco, individually, Plaintiffs-Appellees,

v. State of CALIFORNIA, Defendant,andJohn Cleveland ; Richard Henderson, Defendants-Appellants.

No. 19-55225

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 2020^* Pasadena, California

Filed January 28, 2021

Donna M. Dean, Deputy Attorney General; Catherine Woodbridge and Joel A. Davis, Supervising Deputy Attorneys General; Danielle F. O'Bannon, Senior Assistant Attorney General; Xavier Becerra, Attorney General of California; Office of the California Attorney General, Los Angeles, California; for Defendants-Appellants.

Paul R. Kiesel and Bryan Garcia, Kiesel Law, LLP, Beverly Hills, California, for Plaintiffs-Appellees Armando Villanueva and Hortencia Sainz.

Dale K. Galipo and Renee V. Masongsong, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiff-Appellee Francisco Orozco.

Before: David M. Ebel,^** Kim McLane Wardlaw, and John B. Owens, Circuit Judges.

WARDLAW, Circuit Judge:

Two police officers appeal the denial of qualified immunity in this § 1983 action alleging excessive force in violation of the Fourth Amendment. We must decide whether these officers’ use of deadly force against a slow-moving vehicle following a high-speed chase violated the victims’ clearly established constitutional rights at the time of the incident. Because we agree with the district court that the law precluding deadly force under the circumstances the officers confronted was clearly established, we affirm.

I.

Many of the facts underlying this case are disputed. We recount them in the light most favorable to Orozco and Villanueva, as the non-moving parties in the district court. Tuuamalemalo v. Greene , 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).

A.

On July 3, 2016, at 10:35pm, Sergeant Cleveland and Officer Henderson ("the Officers") were on patrol near Fullerton, California looking for illegal street racing and "sideshows," events where streets are blocked off for drivers to perform unlawful maneuvers like burnouts and donuts.¹ The Officers wore plain clothes and drove an unmarked black sedan, but they also wore dark tactical vests with police insignia. The unmarked car was equipped with both a red and blue flashing light and a blue and amber light.

During their patrol, the Officers found an approximately twenty-car sideshow taking place in the Santa Fe Springs Swap Meet parking lot. One of the participating cars was a red Chevrolet Silverado pickup truck occupied by Pedro Villanueva, the driver, and Francisco Orozco, his passenger. After witnessing the Silverado perform or attempt to perform an illegal maneuver,² the Officers entered the parking lot, intending to make a traffic stop.

As the Officers drove into the parking lot, Villanueva drove toward the outlet that the Officers had just entered. The Officers then started following the Silverado. According to Orozco, the Officers did not use the regular blue and white light or a typical siren, but only an amber light and an atypical screeching noise that was not identifiable as a police siren. According to Orozco, Villanueva drove out of the lot at a speed that "didn't feel fast," and without incident.

After leaving the lot, Villanueva drove away. The Officers turned off the sirens and lights and followed. Orozco and Villanueva were "scared," and "in fear for [their] lives," because they thought it was "very odd" that a dark car was following them, as they had received warnings on social media and from an acquaintance to be wary of muggers in suspicious black sedans at the truck clubs or truck award shows. Villanueva continued driving away, going between 50 and 70 miles per hour on surface streets and running at least three red lights. The Officers followed at a (disputed) distance, intermittently using their sirens when moving through intersections. After several minutes of driving, Villanueva turned north onto North Pritchard avenue, which dead-ends, and then right onto MacArthur Avenue, which also dead-ends. The Officers continued their pursuit, turning onto North Pritchard and then approaching the intersection with MacArthur, where they saw the Silverado stopped on MacArthur.

All parties agree on the barebones of what happened next. The Officers immediately exited their vehicle and drew their firearms. Cleveland stood near the open driver's side door of the police car and Henderson stood near the open passenger's door. At the same time, Villanueva attempted to reverse out of MacArthur in a three-point turn that resulted in the rear of his vehicle pointing toward the Pritchard dead-end and the front generally facing the Officers, who were approximately 15 to 20 feet away. The Officers then opened fire on the vehicle and shouted a warning of some kind at the same time or within a second of firing. The shots killed Villanueva and injured Orozco. The Silverado then slowly rolled forward, ultimately colliding with the Officers’ car at a very low speed.

A photo of the intersection, taken after the shooting, is reproduced below. The street that runs horizontally in the photo is Pritchard, and the street that runs vertically is MacArthur.

Viewed in the light most favorable to the plaintiffs, Villanueva performed the three-point turn in a controlled manner, and when the Officers opened fire, the Silverado was moving very slowly and was not pointed directly at either officer or accelerating. After the shooting, Orozco was detained in the truck until a supervisor arrived, at which point he was handcuffed and taken to the hospital.

B.

Orozco and Villanueva's parents, on behalf of their son, filed this suit, alleging both constitutional and state law claims, including excessive force in violation of the Fourth Amendment and unreasonable detention and false arrest.³ The Officers moved for summary judgment, arguing that they were entitled to qualified immunity on some claims, including the excessive force claims, and that others failed as a matter of law. The district court denied the Officers’ motion for summary judgment based on qualified immunity for the excessive force claims. First, it found that Orozco had Fourth Amendment standing as a passenger to bring claims against the Officers, relying on Brendlin v. California , 551 U.S. 249, 251, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Second, it held that "there are simply too many disputes of material fact to rule on summary judgment that [the Officers]’s use of deadly force was objectively reasonable," and that, construing the facts in the light most favorable to the plaintiffs, a reasonable jury could find that the Officers used excessive force in violation of clearly established law. The district court also denied the Officers’ motion for summary judgment as to Orozco's unreasonable detention and false arrest claims on the merits. It declined to address qualified immunity as to those claims, because it found the Officers had not properly asserted the defense. The Officers timely appealed.⁴

II.

"[W]e normally have no jurisdiction to hear interlocutory appeals from the denial of summary judgment." Isayeva v. Sacramento Sheriff's Dep't , 872 F.3d 938, 944 (9th Cir. 2017). However, under the collateral order doctrine we have jurisdiction over the interlocutory appeal of a denial of qualified immunity, "to the extent that it turns on an issue of law."

Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, although "[a]ny decision by the district court ‘that the parties’ evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal,’ " George v. Morris , 736 F.3d 829, 834 (9th Cir. 2013) (quoting Eng v. Cooley , 552 F.3d 1062, 1067 (9th Cir. 2009) ), we may exercise jurisdiction by "construing the facts and drawing all inferences in favor of Plaintiffs, to decide whether the evidence demonstrates a violation by [the Officers], and whether such violation was in contravention of federal law that was clearly established at the time," Pauluk v. Savage , 836 F.3d 1117, 1121 (9th Cir. 2016). "We review the district court's conclusions regarding qualified immunity de novo ." Isayeva , 872 F.3d at 946.

III.

"[O]fficers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ " District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (citation omitted). A law is clearly established if "at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." Id. (internal quotation marks and citation omitted). "[C]ourts must not ‘define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.’ " Id. at 590 (quoting Plumhoff v. Rickard , 572 U.S. 765, 779, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ). "While there does not have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’ " Id. (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).

A.

Before addressing whether the Officers used excessive force when they shot at Villanueva and the Silverado, we must determine whether Orozco—a passenger who was not intentionally targeted by the Officers—has a cognizable Fourth Amendment interest. The Officers argue that they are entitled to qualified immunity as to Orozco's Fourth Amendment excessive force claim because it is not clearly established "that a passenger struck by a bullet intended to stop the driver of a vehicle can assert a Fourth...