In Est. of Hernandez v. City of L.A.,[1] an en banc panel of the Ninth Circuit Court of Appeals determined that although a police officer acted reasonably under the Fourth Amendment when firing the first four rounds at an individual armed with a knife who approached the officer, there was a triable issue of fact as to whether continuing to fire thereafter became unreasonable.
Background
In April 2020, Los Angeles Police Department (“LAPD”) officers Toni McBride and Shuhei Fuchigami were on patrol when they came upon a multi-vehicle collision on San Pedro Street near the intersection of East 32nd Street. Officer McBride’s body camera footage recorded events that followed. Four vehicles had visible damage — two on the west side of the street, where a black truck facing the oncoming (southbound) traffic had collided with an RV parked at the curb, and two sedans on the sidewalk of the east side of the street. At least 25 people had gathered along the sides of the street. As the officers exited their vehicle, the police radio broadcasted that “the suspect’s vehicle is a black Chevrolet truck” and “the suspect is male, armed with a knife.” Bystanders told the officers that a “crazy guy with a knife” was in the truck, threatening to kill himself. The officers instructed the bystanders to move back, and McBride drew her service weapon to the “low-ready” position. The police radio reported that the suspect was “armed with a knife, cutting himself . . . inside his vehicle.” McBride asked Fuchigami if they had “less lethal” force options.
The driver of the truck – later identified as Daniel Hernandez – climbed out through the window and temporarily disappeared from view. McBride called out to Hernandez: “Hey man, let me see your hands. Let me see your hands, man.” Hernandez emerged from behind the rear of the truck, approximately 43 feet from McBride.
As he rounded the truck, Hernandez began walking in McBride’s direction. He was holding something in his right hand — McBride could not tell what — that turned out to be a box cutter. McBride backed up 10 feet. As she did so, she gestured with her hand for Hernandez to stop and ordered: “Stay right there. Drop the knife.” Hernandez continued to advance. McBride repeated: “Drop the knife. Drop the knife.” Hernandez, still approaching, raised his fully extended arms to each side at roughly a 45-degree angle. He did not say anything. McBride pointed her gun at him. Hernandez took three more steps toward her, closing the distance between them to approximately 36 feet. McBride yelled “Drop it!” and without pausing fired two rounds at him.
Hernandez fell to the ground on his right side and yelled out something. He then rolled to the left into a position with his knees, feet, and hands on the pavement, facing down, and started to push himself up, though he did not continue walking toward McBride. McBride again yelled at Hernandez to “drop it” and fired another two rounds.
This second volley caused him to fall onto his back and curl up into a ball with his knees against his chest and his arms wrapped around them. As he rolled away from McBride onto his left side, she fired two more rounds. The third volley caused Hernandez to collapse on the ground and remain down. Hernandez died from his injuries.
The whole shooting sequence lasted approximately 6.2 seconds. Roughly 2.5 seconds elapsed between the first and second volleys and 1.4 seconds between the second and third volleys. The sixth shot caused an immediately fatal wound to his head. The next most serious injury, from the fourth shot, damaged his lung and liver but may have been survivable with immediate medical treatment.
The Los Angeles Board of Police Commissioners found that McBride acted outside of the LAPD’s policy on lethal force when firing the fifth and sixth rounds. The policy permits officers to use lethal force only when necessary, based on the totality of circumstances, “[t]o defend against an imminent threat of death or serious bodily injury to the officer or another person.” The Board found that it was unreasonable to think Hernandez posed such a threat after the second volley because he “did not reposition himself from laying on his side to being” in a position “from which he could resume an advance toward [McBride] or others.”
Hernandez’s parents and his minor daughter (collectively, “Plaintiffs”) filed separate suits which were consolidated by the District Court. Plaintiffs alleged constitutional and state law violations by McBride, the LAPD, and the City of Los Angeles (“City”) in connection with Hernandez’s death. Among other things, Plaintiffs claimed that McBride used excessive force against Hernandez in violation of the Fourth Amendment.
The District Court granted summary judgment in favor of defendants on each of plaintiffs’ claims, concluding in part that McBride did not violate Hernandez’s Fourth Amendment rights because her use of lethal force was reasonable under the circumstances. Alternatively, the District Court ruled that McBride was entitled to qualified immunity because the law did not clearly establish that her actions constituted constitutionally excessive force. The District Court also concluded that the lack of a constitutional violation foreclosed plaintiffs’ municipal liability, familial integrity, and state law claims. The District Court granted summary judgment on plaintiffs’ state law claims solely for lack of a Fourth Amendment violation.
A three-judge panel of the Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded. The panel held that the reasonableness of McBride’s final two shots was a triable issue of fact, and therefore the District Court erred in granting summary judgment on the state law claims at issue. However, the three-judge panel agreed with the District Court that McBride did not violate clearly established law by firing the third volley of bullets and thus was entitled to qualified immunity on Plaintiffs’ Fourth Amendment claim. The panel also affirmed the District Court’s grant of summary judgment on plaintiffs’ municipal liability and familial integrity claims. A majority of the active, non-recused Ninth Circuit judges voted to rehear the case en banc.
Discussion
The Ninth Circuit en banc reviewed the District Court’s summary judgment rulings de novo, including regarding whether qualified immunity should apply. The Ninth Circuit initially explained that the Fourth Amendment’s guarantee of personal security “against unreasonable . . . seizures,” U.S. Const. amend. IV, applies to an officer’s use of force against a suspect to restrain his movement.[2] In determining whether the seizure comports with the Fourth Amendment, the critical question is whether the use of force was objectively reasonable. Courts must carefully balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against “the countervailing governmental interests at stake,” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)), considering “the totality of the circumstances,” Plumhoff v. Rickard, 572 U.S. 765, 774 (2014). The relevant considerations may include “the severity of 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,” Kisela v. Hughes, 584 U.S. 100, 103 (2018) (per curiam) (quoting Graham, 490 U.S. at 396). However, “[w]here the suspect poses no immediate threat to the officer and no threat to others,” deadly force “is constitutionally unreasonable.” Id.
The en banc panel first considered whether Officer McBride acted reasonably when firing atHernandez. When she began firing, McBride had probable cause to suspect that Hernandez had caused a serious traffic collision and saw him moving toward her with a bladed weapon. McBride knew that Hernandez’s actions had likely already injured nearby motorists. McBride backed up several feet, and Hernandez continued walking toward her, refusing her commands to stop and drop his weapon. The Court found a reasonable officer in those circumstances could conclude that Hernandez posed a safety threat to the officer and the bystanders in the vicinity. The Court added that while McBride could have continued backing up and used the rear of a nearby sedan as cover, officers “need not avail themselves of the least intrusive means of responding to an exigent situation.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). The en banc panel concluded that McBride reasonably began shooting at Hernandez.
The Court next considered whether at some point thereafter McBride’s continued fire might have become unreasonable. The Court explained that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Plumhoff, 572 U.S. at 777. However, it is a “different case” if the officer “initiate[s] a second round of shots after an initial round ha[s] clearly incapacitated [the suspect] and ha[s] ended any threat.” Plumhoff, 572 U.S. at 777. The en banc panel observed that in Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017), the Ninth Circuit held that under “long-settled Fourth Amendment law,” “the use of deadlyforce against a non-threatening suspect is unreasonable,” including “continued force against a suspect who has been brought to the ground.” “[T]erminating a threat doesn’t necessarily mean terminating the suspect.” Id. A suspect who “is on the ground and appears wounded . . . may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting.” Id.
The en banc panel recounted events after the first two-shot volley. Hernandez fell to the ground. McBride paused firing and again ordered Hernandez to drop his knife. He ignored her command and, despite being on the ground, reoriented himself in her direction and had risen halfway to a standing position when McBride again fired at him. While Hernandez had not yet resumed walking toward her, and he may have yelled out in pain rather than rage, he was not yet incapacitated. Thus, a reasonable officer could conclude that he continued to present an imminent threat at the time McBride fired her second volley, i.e. rounds three and four. Accordingly, the en banc panel determined that as a matter of law, Officer McBride acted reasonably when firing the first four rounds at Hernandez.
However, the en banc panel determined that a reasonable jury could find that after the second volley, the immediate threat posed by Hernandez had ended. The Court noted that the Board of Police Commissioners reached that same conclusion in finding that McBride’s third volley violated department policy. The Court added that it was not clear whether Hernandez would or even could get up from the ground to continue advancing toward McBride. She had her handgun trained on him, with which she had already successfully knocked him down twice. The Court found that McBride had an obligation to reassess the situation before continuing her fire, and a jury could find that her failure to do so was unreasonable. The en banc panel therefore concluded that plaintiffs had raised a triable issue of fact on their Fourth Amendment claim.
The en banc panel stated that the Ninth Circuit’s earlier decision in Zion clearly established for several years that an officer cannot reasonably “continue shooting” a criminal suspect who “is on the ground,” “appears wounded,” and “shows no signs of getting up” unless the officer first “reassess[es] the situation” — ”particularly . . . when the suspect wields a knife rather than a firearm” — because the suspect “may no longer pose a threat.” Zion, 874 F.3d at 1076. And, as in Zion, a jury could reasonably conclude that McBride “could have sufficiently protected [her]self and others” after Hernandez fell by pointing her gun at him “and pulling the trigger only if [he] attempted to flee or attack.” Id.
The en banc panel stated that because it was clearly established that McBride acted unreasonably if she shot Hernandez after he was on the ground and no longer posed an immediate threat, she was not entitled to qualified immunity. Accordingly, the en banc panel of the Ninth Circuit Court of Appeals reversed the District Court’s grant of summary judgment on plaintiffs’ Fourth Amendment claim for excessive force and remanded for further proceedings.
Judge R. Nelson, joined by Judges Bress and Bumatay, and joined by Judge Bade as to certain aspects, dissented in part. In Judge R. Nelson’s view, McBride never violated the Fourth Amendment in the first place. He argued that McBride’s six shots over six seconds did not trigger a duty to reassess the risk Hernandez posed, particularly where he remained armed and in motion during that entire time.
Judge Collins, joined by Judges R. Nelson, Bade, Bress and Bumatay in some aspects, dissented in part from the majority’s conclusions that McBride’s final volley of shots violated clearly established law, and that McBride therefore was not entitled to qualified immunity with respect to plaintiffs’ Fourth Amendment excessive force claim. Judge Collins maintained that Zion was materially distinguishable and did not establish a broad general rule that placed the outcome of this case beyond debate.
Dissenting, Judge Bumatay wrote that under the totality of the circumstances, McBride did not use excessive force in stopping an obvious threat. Judge Bumatay explained that McBride had no reasonable opportunity to ensure her safety or the safety of the many civilians surrounding Hernandez in the short time. Moreover, though distinguishable from this case, the court should have taken this opportunity to overrule Zion.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that the en banc panel viewed the situation after Officer McBride’s second volley as Hernandez being curled up on the ground and rolling away from McBride, thus requiring McBride to “reassess” the risk Hernandez presented the situation “rather than continue shooting.” Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017). The dissents suggest disagreement on this depiction of events and the reasonableness of McBride’s last two shots, whether reassessment was required of the officer, and whether Zion controlled here considering the factual circumstances of both cases and thereby clearly established a constitutional violation here in the qualified immunity analysis. The particularly troubling aspect of this case was the pace of the event that confronted Officer McBride, which lasted only seconds. This opinion places what appears to be an unreasonable burden on an officer to assess a suspect’s actions in a manner that is difficult for any human being to meet, particularly in the heat of such a confrontation in the field. An officer does not have the luxury of pausing a situation or rewinding and playing it forward in slow motion. Such contention may indicate the potential for appeal. Our office will keep you informed on any further developments in this matter.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] 139 F.4th 790 (9th Cir. 2025).
[2] Torres v. Madrid, 592 U.S. 306, 317-18 (2021).