In Peck v. Montoya,[1] the Ninth Circuit Court of Appeals concluded that three deputies who did not shoot at a decedent, and who was shot by two other deputies, were not liable under the integral-participant doctrine.  The Court of Appeals consequently reversed as to the excessive force claim against these three deputies.


65-year-old Paul Mono and his wife, Susan Peck, bought a house in Laguna Woods.  Mono became dissatisfied with renovation work a general contractor, Dennis Metzler, had performed on the house.  Mono’s real estate agent, Jennifer Heflin, had recommended Metzler to Peck and Mono.  Heflin became an intermediary between the homeowners and Metzler.  In February 2018, Heflin visited the house and the homeowners told Heflin they wanted to review Metzler’s floor plans.  During the visit, Mono showed her a gun.

Heflin met Metzler the next day in a carport near Mono’s house, and obtained Metzler’s floor plans.  After Metzler tried to dissuade Heflin from going to Mono and Peck’s house, Heflin agreed to call Metzler and let him listen in on what was happening in Mono’s house.  Heflin went to the house.  Metzler listened to her talking with the homeowners over the phone.  Mono became angry, claiming that the floor plans Heflin provided were incorrect.  When Heflin exited the house and stood outside talking to Peck, Mono came to the front door with a gun, which he waved over his head for about 30 seconds.  At one point, he pointed the gun at Heflin and threatened to shoot Metzler.  She told him to put the gun down, and he went inside and returned without the gun.

Metzler, who was listening to the conversation over the phone, heard Heflin tell Mono to “put the gun down,” at which point he hung up and called 911.  Metzler told the dispatcher, “I’ve got a client that’s threatening with a firearm to shoot somebody . . . in his house.”  Metzler went on to say that Mono was screaming that “he wants to shoot Dennis Metzler.”  He told the dispatcher that Heflin was inside the house and that Heflin had “told [Metzler] that she saw the firearms yesterday when she was there.”

Orange County Sheriff’s Deputies Anthony Montoya, Michael Johnson, John Frey, Brent Lind, and Brad Carrington responded to the 911 call.  First on the scene, Deputy Frey spoke with Metzler, who had waited near the carport.  Metzler reported that he had called 911, that Mono had threatened to shoot him, and that he believed there was a gun in the house.

Once they arrived on the scene, the deputies established a perimeter around the house.  Johnson, Lind, and Carrington joined Frey in taking positions on one side of the house, from which they could see inside through a large window.  Montoya took up position on another side, where he could see inside through a window in the door.  Mono was screaming and visibly agitated.  He swore at the officers, made obscene gestures toward them, and, at one point, lowered his pants and pressed his bare buttocks against the window.  Due to his vision loss, Mono used a cane with red marks, which he began waving around while yelling statements like “Shoot me,” “Kill me,” and “If you come in my house, I’m going to shoot you.”  He also asked the deputies, “What are you going to do, shoot a blind man?”

Montoya observed a holstered revolver lying on the couch.  Montoya alerted the other deputies, and, in response, Mono began yelling, “I’ll show you my gun!  You wanna see my gun?”  Johnson commanded Mono not to go near the gun.

The parties to this case disputed what happened next.  According to the deputies, Mono began moving toward the gun, bent over, and “reached for and grabbed onto” the gun.  As soon as Mono grabbed the gun, Johnson began firing at him through the window.  Montoya also began firing but stated that he waited to do so until Mono raised the gun toward the other deputies.  The two deputies fired independently:  Neither was aware that the other had also fired.  Only a few seconds elapsed between Johnson’s commands not to go near the firearm and the decisions of Johnson and Montoya to open fire.

Peck, Mono’s wife, had a different recounting of the events.  According to Peck, Mono never grabbed the gun.  When she reached her husband after the shooting, she did not see a gun in his hands or anywhere near his body; the gun was ultimately found unloaded and secured in the holster under the coffee table.  A neighbor who witnessed the interaction testified that Mono was moving away from the gun several seconds before the shooting.  Although Peck herself could not recall many of the details surrounding the shooting, she pointed to other discrepancies in the deputies’ account.  She noted that a ballistics expert concluded that Mono’s wounds “attributed to bullets fired by Deputy Johnson do not support Deputy Johnson’s version of the shooting.”

After the shooting, Johnson attempted to provide medical care to Mono.  Paramedics arrived shortly thereafter.  Mono was pronounced dead at the scene.

Peck brought an action against the deputies under 42 U.S.C. section 1983, asserting claims of excessive force in violation of the Fourth Amendment, among other things.  The deputies moved for summary judgment on the basis of qualified immunity.  The District Court denied summary judgment on both claims for all defendants.  The deputies appealed.


The Ninth Circuit Court of Appeals first considered whether Deputies Montoya and Johnson were entitled to qualified immunity on Peck’s excessive-force claim.  The Ninth Circuit had in a previous case described the scope of its jurisdiction as limited to reviewing “whether the defendant[s] would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff’s favor.”[2]  Further, in Estate of Anderson v. Marsh, 985 F.3d 726 (9th Cir. 2021), the Ninth Circuit expressed the following rule: A “public official may not immediately appeal a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.”  Id. at 731 (internal quotation marks, citation, and emphasis omitted).  In that case, the District Court had denied summary judgment to an officer who shot the driver of a vehicle that the officer had stopped after a high-speed pursuit.  The officer stated that the driver had taken his hands off the steering wheel and made a sudden movement toward the passenger seat, as if trying to retrieve a weapon, but the District Court determined that “a reasonable jury could conclude that [the driver] did not make” such a movement.  On appeal, the officer challenged that determination, but the Ninth Circuit dismissed the appeal for lack of jurisdiction, reasoning that “rather than ‘advanc[ing] an argument as to why the law is not clearly established that takes the facts in the light most favorable to [the plaintiff],’ which we would have jurisdiction to consider, [the officer] contests ‘whether there is enough evidence in the record for a jury to conclude that certain [*14] facts . . . are true,’ which we do not have jurisdiction to resolve.”  Id. at 734 (quoting George, 736 F.3d at 835, 837 (first alteration in original)).

The Court here ruled that Estate of Anderson prevented the Court from considering many of Montoya and Johnson’s arguments in this case.  The District Court had found that there were genuine disputes of fact about whether Mono posed an immediate threat, and it concluded that when the facts were viewed in the light most favorable to the plaintiff, they were sufficient to make out a violation of clearly established Fourth Amendment law.  The Court declared, “Insofar as the deputies argue that the evidence is insufficient to raise a genuine issue of fact, we lack jurisdiction to resolve those factual disputes.”

The Court of Appeals noted that Montoya and Johnson challenged the District Court’s determination that there was a genuine factual dispute as to whether Mono was moving toward the gun when the deputies fired at him.  Although three deputies observed Mono moving toward the gun, Mono’s neighbor witness observed that “seconds” before the shooting, Mono was moving away from the couch (and, consequently, the gun).  The deputies argued that an observation seconds before the shooting was “immaterial” because it left too long a gap between what the neighbor saw and when the shots were fired.  Thus, the deputies insisted that “the [D]istrict [C]ourt did not cite any evidence raising a genuine dispute” regarding Mono’s movements at the critical moment.  The Court explained that the question of whether the record contained sufficient evidence to allow a jury to conclude that Mono was moving away from the gun at the time of the shooting was exactly the kind of question that the Circuit Court could not review in an interlocutory appeal.

The Court explained that in resolving whether Montoya and Johnson were entitled to qualified immunity on summary judgment, courts engage in a two-step inquiry.  Tolan v. Cotton, 572 U.S. 650, 655 (2014) (per curiam).  Courts must first ask whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the deputies violated a constitutional right.  Id. at 655-56.  Next, courts ask whether that right was “clearly established” at the time of the alleged constitutional violation.  Id.  “In evaluating a Fourth Amendment claim of excessive force, [courts] ask whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”  Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (internal quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).  Courts evaluate, among other factors, (1) the”severity of the crime at issue,” (2) whether the suspect “poses an immediate threat to the safety of the officers or others,” and (3) whether the suspect “is actively resisting arrest or attempting to evade arrest by flight.”  Graham, 490 U.S. at 396.  Of these, the Court explained that the “immediate threat to safety” factor is the most important.  See Rice, 989 F.3d at 1121.  Yet a court must ultimately consider the totality of the circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Graham, 490 U.S. at 396.

Drawing all reasonable inferences in Peck’s favor, the Ninth Circuit found that a jury could conclude that Montoya and Johnson fired at an unarmed man who, although in the presence of a gun, never picked it up and in fact was moving away from it when he was shot.  The Court acknowledged that the deputies had received a 911 call about a potentially deadly encounter in which an individual had a weapon, and, once they arrived, that individual was behaving erratically and making statements that could be considered threats.  The Court explained, however, that officers may not kill suspects simply because they are behaving erratically, nor may they “kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.”  Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

The Court of Appeals concluded that a jury could conclude that because Mono was not armed—and was not about to become armed—he did not “pose[] an immediate threat to the police or the public, so deadly force [was] not justified.”  Cruz v. City of Anaheim, 765 F.3d 1076, 1078-79 (9th Cir. 2014).  Moreover, Cruz had established that officers may not fire at a suspect—even an armed suspect—absent some reason to believe that the suspect will soon access or use the weapon.  The Court stated that a jury would have to decide what actually happened in the case here.  On the excessive-force claim, the Court concluded that Deputies Montoya and Johnson who had shot Mono were not entitled to qualified immunity.

Next, the Ninth Circuit Court of Appeals addressed the question of whether the deputies who did not shoot Mono – i.e., Deputies Frey, Lind, and Carrington – could be held liable for using excessive force.  The District Court had held that these deputies were potentially liable and not entitled to qualified immunity because they were “integral participants” in Montoya and Johnson’s use of excessive force.

The Court of Appeals here explained that Section 1983 imposes liability on “[e]very person who . . . subjects, or causes [a plaintiff] to be subjected . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”  Under Ninth Circuit precedent, an official whose “individual actions” do “not themselves rise to the level of a constitutional violation” may be held liable under [S]ection 1983 only if the official is an “integral participant” in the unlawful act.  Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020) (brackets omitted) (quoting Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011)). (citation and internal quotation marks omitted).  Ninth Circuit precedent had permitted liability under the integral-participant doctrine in two circumstances:  those in which (1) the defendant knows about and acquiesces in the constitutionally defective conduct as part of a common plan with those whose conduct constitutes the violation or (2) the defendant “set[s] in motion a series of acts by others which [the defendant] knows or reasonably should know would cause others to inflict the constitutional injury.”  Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Applying that standard, the Ninth Circuit readily concluded that Deputies Frey, Lind, and Carrington were not integral participants in Mono’s shooting.  The Court explained that the shooting was completely unplanned; there was no suggestion that Frey, Lind, and Carrington formed a plan whereby Montoya and Johnson would deploy excessive force.  Nor did the trio have any reason to know that their actions—providing armed backup—would enable the later use of potentially excessive force.  Deputies Frey, Lind, and Carrington had no reason to know that an unconstitutional shooting would take place.  The deputies received a report that a man was using a firearm to threaten others; it was not unreasonable—much less a constitutional violation—for them to treat the situation as a potentially hostile and dangerous encounter, justifying their decision to surround the house with weapons drawn and establish a safety perimeter.  The Court concluded that because Deputies Frey, Lind, and Carrington did not form a plan to shoot Mono, nor did they set in motion acts by Montoya and Johnson that they knew or should have known would cause a constitutional violation, Frey, Lind, and Carrington were not integral participants in the constitutional violation.  The District Court therefore erred in denying their motion for summary judgment on the excessive-force claim.  The Court of Appeals thus reversed the District Court ruling as to these three deputies.


Agencies may note that the deputies contested the District Court’s finding that there were genuine disputes as to whether Mono grabbed or brandished the weapon and whether he was close to the gun at all.  Deputy Johnson asserted that he began firing as Mono grabbed the firearm, and Deputy Montoya asserted that he began firing as Mono began raising the firearm toward deputies positioned outside the windows on the north side of the residence.  The Ninth Circuit explained, however, that several facts, if believed, countered that telling of events.  The District Court found that the deputies’ stories contradicted the ballistics report and each other.

According to Peck’s ballistics expert, the gun was recovered “180-degrees away” from where Montoya claimed the gun was located, and Mono must have been standing at least several feet away from the gun.  Peck, likewise, did not observe a gun near Mono when she reached him after the shooting.  Moreover, a jury might infer from the fact that the gun was recovered in its holster that Montoya could not have observed Mono raising it.  And the ballistics expert concluded that “[t]he wound pattern to Mr. Mono attributed to bullets fired by Deputy Johnson [does] not support Deputy Johnson’s version of the shooting.”  The Ninth Circuit explained that, under Estate of Anderson, whether that evidence was sufficient to create a genuine issue of material fact was not a question it could review.  The Ninth Circuit explained that Estate of Anderson concluded that a “public official may not immediately appeal a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.”  985 F.3d at 731.  To the extent that the deputies contended that the evidence was insufficient to raise a genuine issue of fact, the Circuit Court concluded it lacked jurisdiction to resolve these factual disputes.

The Ninth Circuit also discussed cases describing the contours of the integral-participant doctrine two-part standard in Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020), Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004), and Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007).  In consideration of these legal precedents, and the undisputed facts as to the three non-shooting deputies, the Court concluded that these deputies could not be liable for excessive force and reversed the denial of summary judgment as to them.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.


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[1] 2022 U.S. App. LEXIS 28822 (9th Cir. Oct. 18, 2022).

[2] George v. Morris, 736 F.3d 829, 836 (9th Cir. 2013) (quoting Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012) (brackets in original)).