On May 12, 2017, the Ninth Circuit Court of Appeals held, in the case of S.B. v. County of San Diego, 2017 U.S. App. LEXIS 8452, that a San Diego County Sheriff’s Deputy was protected by qualified immunity for his involvement in a fatal shooting of a suspect armed with a knife. The Ninth Circuit heeded the United States Supreme Court’s recent instruction to “not define clearly established law at a high level of generality,” as articulated in the case of White v. Pauly, and found the deputy was entitled to a finding of qualified immunity by the district court.
Factual Background
On August 24, 2013, San Diego County Sheriff Deputy Adrian Moses responded with several other deputies to a “5150” call at a residence. The call involved David Brown (“Brown”), an intoxicated individual with mental health issues, who was acting aggressively. Family members told deputies that Brown was bipolar, schizophrenic, diabetic, and under the influence of valium and alcohol. Brown had warned his family that “someone was gonna get hurt.” When deputies entered the residence, they heard Brown inside the kitchen but could not see him because a dividing wall blocked their view. Deputies approached the two entryways into the kitchen with their guns drawn and observed Brown with kitchen knives sticking out of his pockets. Deputies ordered Brown to raise his hands, but Brown did not comply. Brown eventually raised his hands to his shoulders but told the deputies to, “Just shoot me,” and dropped his hands. Deputy Moses told Brown “If you go for the knife, you will be shot.” Deputies then ordered Brown to his knees, and he complied.
When one of the deputies approached Brown to place him in handcuffs, Brown reached for a knife in his pocket while simultaneously rising from his kneeling position. Deputy Moses opened fire, killing Brown. The several deputies who were present testified to slightly different versions of these events, specifically as to the distance Brown was from deputies when he was shot and whether Brown had his hand on the knife when (1) he started to stand and (2) when Deputy Moses opened fire.
Brown’s family filed suit under 42 U.S.C. § 1983 in federal district court alleging Deputy Moses used excessive force. The district court denied Deputy Moses qualified immunity, and both he and the County appealed.
Ninth Circuit Decision
In reviewing the district court’s determinations, the Ninth Circuit noted the general rule regarding the granting of qualified immunity: whether there was a violation of a constitutional right and whether that right was clearly established at the time of the incident.
The Ninth Circuit held that, in light of the discrepancy in the deputies’ version of the events, a reasonable juror could find that Deputy Moses used excessive force. However, the Ninth Circuit held that the law was not clearly established at the time of the incident that such conduct amounted to excessive force.
In reaching this conclusion, the Ninth Circuit heeded the instructions from the United States Supreme Court “not to define clearly established law at a high level of generality.” The Ninth Circuit noted that, as of the date of the incident, there was no precedent that would give “fair and clear warning to officers” that Deputy Moses’ use of force was excessive. Additionally, the district court did not have the benefit of the United States Supreme Court’s recent decision, White v. Pauly, which held that “the unlawfulness [of the police conduct] must be apparent” to deny qualified immunity. Because the existing case law on police shootings of suspects armed with a knife did not involve conduct as threatening as Brown’s conduct here, Deputy Moses should have been given qualified immunity.
HOW THIS AFFECTS YOUR AGENCY
Law enforcement officers should be aware of the general standard of reasonableness articulated in Graham v. Connor, 490 U.S. 386 (1989) with respect to excessive force, namely the severity of the crime at issue, the threat posed by the suspect, and whether the suspect actively resists arrest. Here, the Ninth Circuit found that this general standard, and other case law involving police shootings of suspects armed with a knife, did not give Deputy Moses fair notice that shooting Brown under these circumstances was excessive.
This result is refreshing for law enforcement, particularly in light of recent cases where the United States Supreme Court has overturned the Ninth Circuit for improperly denying qualified immunity. In light of the Court’s acknowledgment of these prior “immunity missteps,” we are hopeful that the Ninth Circuit will continue to properly apply the doctrine of qualified immunity to California peace officers as required by Supreme Court precedent.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.
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