In Ochoa v. City of Mesa,[1] the Ninth Circuit Court of Appeals concluded that because officers who shot and killed a decedent did not have time to deliberate before firing, the District Court correctly applied the purpose-to-harm test to determine if the officers’ conduct shocked the conscience under the Fourteenth Amendment.  The Court of Appeals affirmed the District Court granted summary judgment in favor of the officers.


In Mesa, Arizona in March 2016, the ex-girlfriend of Sergio Ochoa called 911 and said that she and Ochoa had a fight, that a handgun was involved, that Ochoa used heroin and meth and was under the influence of drugs, and had driven away.  Minutes after the first call, a second 911 call told dispatch that a man entered the caller’s home and said that he had two knives before leaving in a car that matched the description of the car from the first 911 call.  Dispatch radioed police officers about each call.  Police realized that Ochoa had prompted both 911 calls.  A marked police car tried to pull Ochoa’s car over, but he did not stop.  Ochoa drove erratically, including on the wrong side of the road towards police vehicles.

Ochoa eventually abandoned his car and fled to a home nearby.  When officers arrived at the home, they encountered a frantic man on the second floor who said that Ochoa did not belong there and told officers that he had children with him in a locked bedroom.  The man brought several children onto the roof to evacuate them with the help of officers.  More police arrived.  Officers could see people yelling in a back room.  Officers observed Ochoa briefly appear through the front window, looking upset and possibly holding a knife.  Ochoa ignored commands to come outside.  Hoping to prevent a hostage situation from developing, the officers decided to enter the house.  As officers entered the front door, Ochoa ran into the backyard.  Standing between Ochoa and the home, the officers formed an L-shape around Ochoa.  Ochoa had two knives in one hand and refused to obey the officers’ repeated commands to “Drop the knife!”  To officers, Ochoa looked upset and ready to fight.

Police bodycam video displayed subsequent events.  An officer fired a beanbag round at Ochoa and another officer at the same time released a police dog.  Ochoa took a large step sideways (according to plaintiffs, away from the officers).  The officers then fired about 30 shots at Ochoa.  Ochoa died at the scene.  Approximately 16 seconds had elapsed between the officers’ first entry into the home and the shooting.

Ochoa’s children, through their mothers, and Ochoa’s mother together sued on their own behalf.  As the case proceeded, the parties and claims changed.  Ultimately, the remaining defendants were the Town of Gilbert, two Gilbert police officers, the City of Mesa, and seven Mesa police officers.  In their remaining claims, plaintiffs alleged defendants violated the Fourteenth Amendment under 42 U.S.C. section 1983 by wrongfully depriving the plaintiffs of Ochoa’s companionship and familial association, and that they violated Arizona law by wrongfully killing Ochoa.  The plaintiffs did not assert any claims on behalf of Ochoa’s estate, including any Fourth Amendment claims.  After removing the case from state court to federal court, the defendants moved for summary judgment.  The District Court granted the defendants summary judgment on the Fourteenth Amendment claim. The plaintiffs appealed.


The Ninth Circuit Court of Appeals initially explained that the Fourteenth Amendment states in part that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”[2] “ [A] parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child and . . . a ‘child’s interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest.’”[3]

The Court explained that a claim asserting that police officers violated these Fourteenth Amendment rights during a police shooting must show that the officers’ conduct “shocks the conscience.”  Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).  There are two tests used to decide whether officers’ conduct shocks the conscience.  Which test applies depends on whether the officers had time to deliberate their conduct.  The deliberate-indifference test applies if the situation at issue “evolve[d] in a time frame that permits the officer to deliberate before acting.”  Id. at 1137.  Deliberation is not possible if the officers “encounter[ed] fast paced circumstances presenting competing public safety obligations.”  Id. at 1139.

However, the purpose-to-harm test applies if the situation at issue “escalate[d] so quickly that the officer [had to] make a snap judgment.”  Id. at 1137.  This test requires “a more demanding showing that [the officers] acted with a purpose to harm [the decedent] for reasons unrelated to legitimate law enforcement objectives.”  Id.  The Ninth Circuit noted that legitimate objectives can include “arrest, self-protection, and protection of the public,”[4] whereas illegitimate objectives include “when the officer ‘had any ulterior motives for using force against’ the suspect, such as ‘to bully a suspect or “get even,”’ or when an officer uses force against a clearly harmless or subdued suspect.”[5]  The Court noted that the Fourteenth Amendment “shocks the conscience” standard applicable to a claim by a relative requires more of a plaintiff than the standard used in Fourth Amendment excessive-force claims which asks whether the officers’ conduct was “objectively unreasonable.”[6]

The Ninth Circuit concluded that because the officers here did not have time to deliberate before firing, the District Court correctly applied the purpose-to-harm test to determine if the officers’ conduct shocked the conscience.  The Court noted that at the time of the shooting, the officers knew that in the past few hours Ochoa had: engaged in a domestic dispute that allegedly involved a gun while possibly under the influence of heroin or meth; allegedly entered a stranger’s home stating that he was armed with knives; failed to yield when a marked police car tried to pull him over; and had driven erratically, including on the wrong side of the road towards police officers.  When the officers arrived at the home where Ochoa was later shot, the situation escalated.  They encountered a distressed man who said that Ochoa did not belong at the house and evacuated children from a locked bedroom out of the house through a second-story window.  Ochoa ignored repeated commands to come outside and drop any knives he was carrying.  As the officers entered the front door, Ochoa ran into the backyard, where he refused to drop two kitchen knives despite multiple commands from the police to do so.  He then took a large step.  The Court found that with the knowledge of Ochoa’s earlier actions, the officers had to make a snap decision about Ochoa’s intentions and the threat he posed to them, the people in the home, and the public at large.  Thus, the purpose-to-harm test was the correct choice to assess whether the officers’ conduct shocked the conscience.

The Court of Appeals next found that the District Court correctly concluded that under the purpose-to-harm test, the conduct did not violate the plaintiffs’ Fourteenth Amendment rights.  The officers’ actions instead reflected their attempts to satisfy legitimate law enforcement objectives:  apprehension of an armed, dangerous suspect and protection of the safety of the officers, the home’s inhabitants, and (if Ochoa escaped the backyard) the public.  Moreover, nothing in the record suggested that the officers had an improper purpose to harm.  Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s summary judgment.


Agencies will observe that the Court distinguished the Fourteenth Amendment “shocks the conscience” standard from the Fourth Amendment objectively unreasonable standard used in assessing excessive force claims against police officers.  The Court clarified that the Fourteenth Amendment standard requires more and observed that “it may be possible for an officer’s conduct to be objectively unreasonable [under the Fourth Amendment] yet still not infringe the more demanding standard that governs substantive due process claims [under the Fourteenth Amendment].”  Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 n.4 (9th Cir. 1998), as amended (Nov. 24, 1998).  In this case, the timing of the events directed the standard utilized to judge the officers’ actions.  As noted by the Court, the defendant officers only had seconds to choose a course of action to protect the public in this highly volatile incident.  Accordingly, the purpose to harm test applied, rather than the deliberate indifference standard.

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 5240 (9th Cir. Feb. 28, 2022).

[2] U.S. Const. amend. XIV, section 1.

[3] Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (citations omitted) (quoting Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987)).

[4] Foster v. City of Indio, 908 F.3d 1204, 1211 (9th Cir. 2018).

[5] Id. (citations omitted) (quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 798 (9th Cir. 2014)).

[6] Graham v. Connor, 490 U.S. 386, 397 (1989).