The Ninth Circuit Court of Appeals in Ventura v. Rutledge[1] concluded that an officer who used deadly force was entitled to qualified immunity. In reaching its conclusion, the Court determined that no existing precedent squarely governed the specific facts here, where the officer shot and killed a man who (1) had a drawn knife as he approached someone he reportedly had been violent towards earlier; (2) ignored repeated commands to stop; and (3) ignored a warning that the officer would shoot if he failed to stop.
Background
In December 2015, Martha Andrade, the mother of Omar Ventura’s children, called 911 and reported that Omar had hit Andrade and his mother, Plaintiff Maria Ventura. Andrade also reported that Omar had smashed Andrade’s vehicle’s window.
Police Officer Jennifer Rutledge of the City of Porterville responded to the call, which was classified as a violent domestic disturbance. When Officer Rutledge arrived at the home, Omar was not present. While Officer Rutledge interviewed Andrade, Omar started walking up the street toward the home. Andrade identified Omar to Officer Rutledge, pointing to him and exclaiming “that’s him.”
Andrade moved behind trash cans in the driveway as Omar continued to approach. Officer Rutledge issued several orders for Omar to “stop.” Despite these orders, Omar continued to advance toward Andrade and took out a knife from his pocket. Continuing to approach Andrade with knife in hand, Omar asked, “Is this what you wanted?” Officer Rutledge then shouted a warning to Omar to “[s]top or I’ll shoot.” When Omar did not stop, Officer Rutledge fired two shots at him. The shots killed Omar. At oral argument before the District Court, the parties agreed that Omar got within 10-15 feet of Andrade before Officer Rutledge fired.
Maria Ventura, individually and on behalf of the Estate of Omar Ventura and the Heirs of Omar Ventura, sued Officer Rutledge and the City of Porterville in Federal District Court arguing, among other things, Fourth Amendment violations based on the shooting of her son. The District Court granted summary judgment to Officer Rutledge and the City of Porterville based on qualified immunity. The Court found that no controlling precedent had “clearly establish[ed] that Omar’s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as he advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and while defying specific police orders to stop.” Ventura appealed.
Discussion
The Ninth Circuit Court of Appeals explained that “[q]ualified immunity attaches when an [officer’s] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). Clearly established law exists when “‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable [officer] would have understood that what [she] is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (first three alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The precedent establishing this right must place the question “beyond debate.” Id. In the Fourth Amendment excessive force context, “specificity is especially important,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), and “thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue,” Kisela, 138 S. Ct. at 1153 (internal quotation marks and citation omitted).
The Court of Appeals stated that it considered two questions in determining whether an officer is entitled to qualified immunity: (1) whether the facts “taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right” and (2) whether “the right was clearly established at the time of the alleged violation.” Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal quotation marks and brackets omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Here, the Court considered only the second question.
Recounting the established undisputed facts, the Ninth Circuit noted that (1) Officer Rutledge was responding to a violent domestic disturbance where Andrade had called 911 to report that Omar had hit her and Plaintiff Maria Ventura and had smashed the window of Andrade’s car; (2) Omar was approaching Andrade with a knife drawn; (3) Omar continued his advance while ignoring multiple commands from Officer Rutledge to stop and a warning that Officer Rutledge would shoot if he failed to stop; and (4) Omar had advanced to within 10-15 feet of Andrade when Officer Rutledge fired.
The Ninth Circuit observed the United States Supreme Court in Kisela considered a similar situation. It concluded that, as of 2010, it was not clearly established in the Ninth Circuit that the use of deadly force was unconstitutional where the decedent “was armed with a large knife,” had advanced “within striking distance” of another individual, and was ignoring the officer’s orders to drop the knife. Kisela, 138 S. Ct. at 1154. The Supreme Court also found that even though the decedent appeared calm and the other woman present did not feel endangered, the shooting officer did not violate clearly established law and was therefore entitled to qualified immunity. Id. at 1151, 1154.
Here, the Court of Appeals determined that Omar posed at least as much of a threat as the decedent in Kisela. The Court explained that Officer Rutledge was responding to a violent domestic dispute rather than the simple “check welfare” call in Kisela. Id. at 1155 (Sotomayor, J., dissenting). Omar had reportedly just physically assaulted Andrade and his own mother and had smashed the window of Andrade’s car. He ignored Officer Rutledge’s repeated orders to stop and continued to advance toward Andrade with a drawn knife. The Court thus found that Kisela demonstrated that, as of 2010, there was no clearly established law demonstrating that Officer Rutledge’s use of deadly force was unconstitutional based on these facts and circumstances.
Nor did the Ninth Circuit uncover any intervening case that provided notice to Officer Rutledge that her actions would violate clearly established law. The Court distinguished and rejected several cases cited by Ventura. Ventura relied, in part, upon Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011). In that case, the Court noted, the decedent had not previously attempted to hurt anyone and had not moved toward anyone else until after he was shot with a beanbag gun. Id. at 874, 878-79. In George v. Morris, 736 F.3d 829 (9th Cir. 2013), while the officers were responding to a domestic disturbance call, decedent’s wife had not been previously assaulted, was not near the decedent, and there was a question of material fact as to whether the decedent, who was using a walker, had raised his gun toward the responding officers. Id. at 832-33, 839. Lastly, the opinion in Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017) did not squarely govern the facts before us. In Gelhaus, an officer shot a teenager who was walking with a toy gun that looked like an AK-47. Id. at 1002-03. The teenager was suspected of no crime and was shot when he turned in response to a single order to drop his gun that came from behind. Id. at 1020-21. Moreover, the opinion postdated the incident here by two years.
Thus, the Ninth Circuit found that the “degrees of apparent danger in these cases [did] not ‘squarely govern’ the facts here.” The Court explained that Omar was advancing with a knife toward a woman whom he had reportedly just assaulted. He ignored Officer Rutledge’s repeated commands to stop and a warning that she would shoot. The aforementioned cases cited by Ventura did not involve an officer acting under similar circumstances as Officer Rutledge.
The Court therefore concluded that Ventura failed to show that it was clearly established that Officer Rutledge’s actions amounted to constitutionally excessive force. Accordingly, the Ninth Circuit Court of Appeals concluded that Officer Rutledge was entitled to qualified immunity and affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies will note the Ninth Circuit’s comparison of the circumstances facing the officer here with those in Kisela, and the cases cited by the Plaintiffs. Here, the officer was responding to a violent domestic dispute, faced an aggressor advancing towards the victim of earlier violence by the same person, who had a drawn weapon, had been provided multiple commands to stop and a warning that the officer would shoot if he failed to stop. In this case, those warnings were ignored by the aggressor. In addition, before the shooting occurred, the aggressor had approached within 10-15 feet of another person to whom he was displaying aggression.
Neither Kisela nor the other cited cases involved circumstances such that the cases clearly demonstrated that the officer’s conduct in shooting the decedent constituted an unconstitutional use of deadly force. If anything, as the Court noted, the circumstances in Kisela demonstrated the contrary, that the officer’s use of deadly force was constitutional under the facts of this case. The Ventura case demonstrates the fact-specific inquiry necessary to effectively determine the second prong of qualified immunity, as guided by Supreme Court precedent.
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[1] 2020 U.S. App. LEXIS 33307 (9th Cir. Oct. 22, 2020).