Wilkins v. City of Oakland

Decision Date20 November 2003
Docket NumberNo. 03-15086.,03-15086.
Citation350 F.3d 949
PartiesKely WILKINS, Individually and as the Successor in Interest to Decedent William Alberto Wilkins; William Alberto Wilkins, Individually; The Estate of William Wilkins; William Randolph Wilkins, a minor, by and through his Guardian Ad Litem, Kely Wilkins; Fernando Wilkins, Individually; Josefina Wilkins, Individually, Plaintiffs-Appellees, v. CITY OF OAKLAND, Defendant, v. Tim Scarrott, individually, and in his official capacity as a Police Officer for the City of Oakland; Andrew Koponen, individually, and in his official capacity as a Police Officer for the City of Oakland, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Todd Boley, Oakland, California, for the Defendants-Appellants.

Michael J. Haddad, Oakland, California, for the Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-01-01402-MMC.



BETTY B. FLETCHER, Circuit Judge:

Defendants-Appellants Tim Scarrott and Andrew Koponen, Police Officers for the City of Oakland ("Scarrott and Koponen," or "the officers"), raise several issues on appeal. We conclude that we have jurisdiction to consider only the district court's denial of their motion for summary judgment on the ground of qualified immunity. We affirm.


This court has jurisdiction under 28 U.S.C. § 1291 over an interlocutory appeal where the ground for the motion in question is qualified immunity. Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001) (per curiam); Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000). In such circumstances, however, appellate review is generally limited to issues of law, see Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and "does not extend to claims in which the determination of qualified immunity depends on disputed issues of material fact." Jeffers, 267 F.3d at 903; see Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

The first question to be resolved, therefore, is whether this court has jurisdiction over all the issues raised on appeal. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that a district court's rejection of a claim of qualified immunity, "to the extent that it turns on an issue of law," is a final decision subject to immediate appeal under 28 U.S.C. § 1291. Nevertheless, we are not precluded from hearing this interlocutory appeal merely because there are issues of fact in dispute. See Jeffers, 267 F.3d at 903; Schwenk, 204 F.3d at 1195; Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997). Where disputed facts exist, we will determine if the denial of qualified immunity, was proper by assuming that the version of events offered by the non-moving party is correct.

It is well-established that "an appellate court lacks jurisdiction over an interlocutory appeal challenging the sufficiency of the evidence supporting the trial court's conclusion that an issue of fact exists." Jeffers, 267 F.3d at 903, citing Johnson, 515 U.S. at 313, 115 S.Ct. 2151. The opinion in Jeffers explained that "any issue of law, including the materiality of the disputed issues of fact, is a permissible subject for appellate review." 267 F.3d at 905 (emphasis added). Thus this court has jurisdiction to consider whether, even accepting the Wilkinses'1 version of the events on January 11, 2001, the alleged conduct of the officers violated a clearly established legal standard. See Knox, 124 F.3d at 1107(distinguishing Johnson, where the defendant simply denied having committed the alleged acts, from the situation where the motion presents only the legal question of whether the alleged conduct violated a clearly established right).

The officers raise three issues in their appeal of the denial of qualified immunity, arguing that: (1) they did not violate the decedent Wilkins' Fourth Amendment right; (2) the trial court did not identify facts which would support such a finding; and (3) even if there were a triable issue of fact on the alleged Fourth Amendment violation, the officers are entitled to qualified immunity. We have no jurisdiction over the first two issues in this interlocutory appeal, because they focus on the merits of the Wilkinses' claim, not the materiality of disputed facts, nor the legal issues relevant to qualified immunity. On an interlocutory appeal of a denial of qualified immunity, this court does not have jurisdiction to rule on the merits of the Wilkinses' Fourth Amendment claim, nor may it conduct an inquiry into the sufficiency of evidence to support a finding that the officers did in fact violate Wilkins' constitutional right. Contrary to the arguments of the officers in their brief, the key issue in this case is not whether the "undisputed facts establish that the actions of the officers were objectively reasonable and not a violation of Wilkins' constitutional right." As we explain below, in this case it is the disputed facts that are crucial for both the qualified immunity analysis and the eventual disposition of the Wilkinses' claim on the merits. The issue for decision is thus whether the officers are eligible for qualified immunity under the Wilkinses' version of the disputed facts.

Resolving all factual disputes in the Wilkinses' favor, therefore, we may consider only whether Scarrott and Koponen are entitled to qualified immunity from the Wilkinses' § 1983 claim.


The parties recount different versions of the events that took place on the night of January 11, 2001. Although some of the relevant facts are undisputed, others that are important to the merits of the Wilkinses' claim remain contested. In reviewing the district court's denial of summary judgment on the ground of qualified immunity, this court must "assume that the version of the facts asserted by the non-moving party is correct in determining whether the denial of qualified immunity was appropriate." Bingham v. City of Manhattan Beach, 341 F.3d 939, 942 (9th Cir.2003); see also Schwenk, 204 F.3d at 1193, n. 3.

The following facts are not in dispute. On January 11, 2001, Officer William Wilkins was assigned to work in plain clothes in the narcotics unit of the Oakland Police Department. At approximately 11:00 p.m., Officer Wilkins and other police officers were pursuing a stolen white Jeep near 90th Avenue and B Street in Oakland. During the pursuit, the suspect, later identified as Demetrius Phillips, left the vehicle and ran away. Police officers, including Officer Wilkins, continued the chase on foot. Several transmissions regarding the theft and subsequent chase were broadcast on the main police radio channel. Appellants Scarrott and Koponen heard these transmissions, and although they were already responding to another incident, they decided to assist in the search for the car theft suspect. The dispatcher directed them to 91st Avenue and B Street, where they were to help form a perimeter of police units, sealing off the area in which the suspect was believed to be located. Upon arriving at the intersection of 91st and B, Scarrott (who was driving the patrol car) saw two men near the sidewalk on B Street between 90th and 91st Avenues. He drove toward the men, and stopped the car at an angle pointing directly to the location of the two men on the sidewalk. When the car stopped, both defendants alighted to investigate. Scarrott and Koponen had each been on the street as a patrol officer for fewer than five months, and neither was acquainted with Officer Wilkins. These are the main undisputed facts.

Accepting the Wilkinses' version of the disputed facts, the following picture emerges. Although conflicting descriptions of the suspect were broadcast on the main channel, at least two of them included the detail that he was wearing a red shirt. Scarrott noticed that one of the two men on the sidewalk was wearing a red shirt; this man was in fact Demetrius Phillips, the suspect. The other man, Officer Wilkins, was wearing a gray sweatshirt. In a voice loud enough to be audible from the corner of 90th and B, Wilkins ordered Phillips to lie on the ground. After this order was repeated, Officer Wilkins punched and kicked Phillips, who then lay spreadeagled on the ground with his head turned to the right. Wilkins pointed his gun at Phillips, and approached him from the left side. Both Mr. Phillips' position and the manner of Wilkins' approach were described by other officers at the scene as consistent with police procedure for high risk arrests, and at least one of those officers — Officer Nash — immediately recognized that the scene he was viewing was a police arrest.

At this point, Koponen said "He's got a gun." Officer Nash, after noting that the suspect was not armed, said either "He's a cop," or "That's Will," speaking to the defendants and referring to Officer Wilkins. This statement was made from less than 30 feet away from Wilkins' position. Officer Wilkins pulled off the hood of his sweatshirt, turned toward the defendants, and said loudly "It's me, Willie." He then turned back to Phillips. Koponen was less than 15 feet away. In the Appellees' version of the incident, Koponen said only "he's got a gun"; Scarrott said nothing, and neither officer ordered Wilkins to drop the gun. The Wilkinses contend that no other warning was given.

Soon after Wilkins' statement, Scarrott and Koponen opened fire. The gunshots began seconds after the officers approached Wilkins and Phillips on the sidewalk. Both officers fired several shots in the space of a few seconds: Scarrott fired six or seven times, while Koponen fired seven shots. Wilkins was hit nine times, and came to...

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