In Estate of Strickland v. Nevada Cnty.,[1] the Ninth Circuit concluded that it was objectively reasonable for officers to believe a black toy airsoft replica rifle pointed in their direction by a person known to have mental health issues presented an immediate threat justifying the use of deadly force.


In December 2019, Gabriel Strickland was arrested by the Nevada County Sheriff’s Office and incarcerated at a correctional facility in Nevada City, California.  The Sheriff’s Office had held Strickland in custody at that facility several times before, and a doctor working at the facility had diagnosed Strickland with bipolar disorder, PTSD, and anxiety disorder in 2016.  This time, a physical and mental intake assessment concluded that Strickland needed an urgent mental health evaluation, and they kept him in custody for several days.  During this time, officers and nurses observed that Strickland had active mental health issues and was uncooperative and angry, though a mental health evaluation was not given.  Strickland was not referred to outside providers for further evaluations and he was not held involuntarily.  After a pretrial release hearing on December 30, 2019, the Nevada County Superior Court released Strickland.

Two days later, on January 1, 2020, the Nevada County Region Dispatch received reports that a man was walking on a residential road near a neighboring town, Grass Valley, with “what appeared to be a shotgun” slung over his shoulder.  A Grass Valley Police Department officer, Officer Conrad Ball, responded to the call and found Strickland on the road.  Strickland was carrying a black, plastic airsoft rifle marked with an orange tip, which signified that it was a replica, not a real firearm.  Along with Officer Ball, Grass Valley Police Department Officers Brian Hooper and Denis Grube and Nevada County Sheriff’s Officers Taylor King and Brandon Tripp arrived on scene.  They recognized Strickland and knew he was homeless with mental health issues and had been released from custody days before.  Thus, the officers would have known that Strickland was likely suffering from a mental health episode and would not likely respond to their commands in a normal or expected manner.

The officers maneuvered their patrol vehicles around Strickland and surrounded him with guns drawn.  The officers immediately ordered him to put down the gun.  Strickland held the gun away from his body, said, “It’s a BB gun,” and then slapped the gun with his hand, making a noise that sounded more like plastic than metal.  The officers continued to yell commands to “drop the [expletive] gun, now” and told Strickland “we don’t know that’s a fake gun.”  Strickland pointed to the orange tip on the barrel.  Officer Tripp responded, “you could have painted that . . . . We don’t want to kill you.”  Strickland replied, “I’m not doing nothing wrong.”  Until then, Strickland stood with the barrel pointing at the ground.

The officers did not contact their supervisors for advice or request assistance from other officers with crisis training.  They also did not attempt to bring a professional negotiator, crisis de-escalator, or mental health provider to engage withStrickland.  Instead, three officers approached Strickland with their firearms drawn.  Strickland dropped to his knees, continuing to hold the gun.  Strickland then began pointing the replica gun in the direction of the approaching officers.  At other times, he pointed it up toward the sky.  One officer tried tasing Strickland, but it failed to attach and disarm Strickland.  Seconds later, after Strickland lowered the barrel toward the officers, the three officers fired on Strickland, striking him several times and killing him.  The whole encounter from start to finish lasted a little more than three minutes.

Strickland’s mother, child, and estate (“Estate”) sued on his behalf.  The Estate brought excessive force claims against five police officers, their respective departments, Nevada County, and the City of Grass Valley under 42 U.S.C. section 1983 and state law.  The District Court dismissed the case under Federal Rule of Civil Procedure 12(b)(6).  The Estate appealed.


The Ninth Circuit Court of Appeals initially observed that the Fourth Amendment prohibits the unreasonable seizure of persons.  The Fourth Amendment also prohibits the use of excessive force.  Graham v. Connor, 490 U.S. 386, 395 (1989).  The Court considered whether the officers here employed an “objectively unreasonable” amount of force under the “totality of the circumstances.”  See Brooks v. Clark County, 828 F.3d 910, 920, 922 (9th Cir. 2016).

The Court explained that this inquiry required balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”  Graham, supra,490 U.S. at 396.  In Graham, the Supreme Court looked to several factors: (1) “the type and amount of force inflicted,” (2) “the severity of the crime at issue,” (3) “whether the suspect posed an immediate threat to the safety of the officers or others,” and (4) “whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”  O’Doan v. Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021) (citing Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)).  The Ninth Circuit noted that other relevant factors may also be considered, such as “the availability of less intrusive alternatives to the force employed, whether proper warnings were given[,] and whether it should have been apparent to officers that the person they used force against was emotionally disturbed.”  S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).

Considering these factors, the Court of Appeals observed that Strickland was known to officers as homeless and mentally ill.  The Court stated that at the time of the incident, it was obvious that Strickland was suffering from a mental health crisis.  Although officers were responding to reports of a man walking in the neighborhood with a shotgun, Strickland was not under suspicion for committing a serious or dangerous crime.  At the start of the police encounter with Strickland, he had not yet brandished the gun at anyone or threatened the life or property of others.  The officers failed to employ de-escalation techniques.  The officers did not wait for supervisors or call in for backup with crisis or mental health training and may have exacerbated the situation by aggressively shouting directions at Strickland upon their arrival.[2]  Finally, the officers employed deadly force in firing several rounds at Strickland and killing him.[3]  Thus, in the Court’s assessment, many of the Graham factors favored Strickland.

However, the question remained as to whether these factors were outweighed by the immediacy of the threat that Strickland posed here.  The Ninth Circuit explained that of all the use-of-force factors,the “most important” is whether the suspect posed an “immediate threat.”  Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc).  The Court stated that because this inquiry was about objective reasonableness, “the objective facts must indicate that the suspect pose[d] an immediate threat to the officer or a member of the public. ” Bryan, 630 F.3d at 826.

While it is “clearly established that shooting a nonthreatening suspect would violate the suspect’s constitutional rights” (Tan Lam v. City of Los Banos, 976 F.3d 986, 1001 (9th Cir. 2020)), the Court of Appeals noted that it was well-settled under Ninth Circuit precedent that lethal force is justified if an officer has “probable cause to believe that [a] suspect poses a significant threat of death or serious physical injury to the officer or others.”[4]

The Court also explained that “[o]fficers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of” an immediate threat, and “in those situations courts will not hold that they have violated the [United States]Constitution.”  Saucier v. Katz, 533 U.S. 194, 206 (2001).  Thus, the Constitution even allows for officer’s action that resulted from a reasonable “mistake of fact.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  When an officer’s “use of force is based on a mistake of fact, courts ask whether a reasonable officer would have or should have accurately perceived that fact.”  Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).

In this case, officers encountered Strickland on a residential street carrying what appeared to be a firearm.  The officers remembered Strickland from his prior detentions, and they knew he suffered from mental health issues.  As the complaint alleged, Strickland’s mental challenges were so severe that he was “not likely to respond to directions in a normal or expected manner.”  After surrounding him, the officers immediately ordered him to put down the gun.  The officers warned Strickland that they did “not want to kill [him]” and repeatedly yelled at him to “drop the gun.”  Strickland did not comply.  Instead, while pointing the replica gun’s barrel at the ground, he explained, “I’m not doing nothing wrong.”  After more warnings, three officers approached Strickland with their firearms drawn.  Strickland dropped to his knees, continuing to hold the gun.  Strickland then began pointing the replica gun in the direction of the approaching officers.  One officer tried tasing Strickland but failed to disable him.  Seconds later, the three officers fired on Strickland, striking him several times and killing him.  The entire encounter lasted a little more than three minutes.

The Ninth Circuit stated that the pivotal moment occurred when Strickland began pointing the replica gun in the officers’ direction.  At that point, they had “probable cause to believe that [Strickland] pose[d] a significant threat of death or serious physical injury” to themselves and it became objectively reasonable for them to use lethal force.  Tennessee v. Garner, 471 U.S. 1, 3 (1985).  The Court noted that when a suspect points a gun in an officer’s direction, “the Constitution undoubtedly entitles the officer to respond with deadly force.”  George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013).

The Ninth Circuit stated that this analysis was the same even though the weapon turned out to be a replica, given the officers’ reasonable belief that Strickland possessed a real firearm.  The officers were called to the scene based on reports of a man walking down a residential street with what appeared to be a shotgun.  When officers arrived, they saw Strickland armed with the black replica gun which, as a replica, was presumably intended to look like a real firearm.  According to the complaint, from its appearance, the only indication that the replica was not real was its orange-painted tip.  Although Strickland tried to convince officers that the object was “a BB gun,” even slapping it to make a plastic sound, officers disbelieved him.  They responded, “we don’t know that’s a fake gun” and suggestedthat Strickland “could have painted” the orange tip.  Because misplaced trust in this circumstance could be fatal for the officers, the Court judged that the officers were reasonably justified in not taking Strickland’s assurances at face value.  Cf. Blanford v. Sacramento County, 406 F.3d 1110, 1116 (9th Cir. 2005) (finding it objectively reasonable for officers to attempt to “secure the weapon first” when confronting a suspect who might be “mentally disturbed or under the influence of a controlled substance”).

The Court therefore found that, under the totality of the circumstances, it was objectively reasonable for the officers to believeStrickland posed an immediate threat even though he only had a replica gun.  In the light most favorable to Strickland, he was carrying a replica gun, disregarded multiple warnings to drop it, and pointed it at the officers.[5]  In the light most favorable to Strickland, the Ninth Circuit concluded that the officers’ mistaken belief that Strickland possessed a dangerous weapon was reasonable and they were justified in the use of deadly force when he pointed it at them.  The Ninth Circuit accordingly affirmed the District Court’s dismissal for failure to state a claim.

The Court also held that the District Court did not abuse its discretion in denying Strickland’s estate leave to amend the complaint.  The complaint established that Stricklandpointed the replica gun’s barrel at the officers’ leaving officers with only a moment to act.  They were not required to “delay their fire” until they learned whether the gun was real.  George, supra, 736 F.3d at 838.  Given the immediacy of the threat presented by these allegations, it was objectively reasonable for the officers to respond with lethal force and the Estate could not state a plausible claim for excessive force, regardless of whatever additional facts Strickland might allege.  Under these pleaded facts, the Court of Appeals deemed allowing leave to amend would be futile.


Agencies may note that the Ninth Circuit observed that the facts here differed significantly from other cases when the Court had held it unreasonable for officers to use lethal force when encountering a replica or toy gun.  In Nicholson v. City of Los Angeles, 935 F.3d 685 (9th Cir. 2019), for example, the Court denied qualified immunity to an officer who shot a suspect with a similar plastic, orange-tipped airsoft gun, but the Court did so because of the officer’s failure to deliberate.  Id. at 693.  In that case, the Court did not find it dispositive that the gun turned out to be a “toy”; instead, it was conclusive that the officer did not see the suspect “point it at anyone”and nothing suggested the suspect “was likely to harm anyone.”  Id. at 694.  Thus, the Nicholson decision didn’t hinge on the misidentification of the gun.

The Court added that the instant case also differed from Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017).  In that case, whether a suspect with a toy gun posed an “immediate threat” was in dispute, which precluded qualified immunity at summary judgment.  There, an officer saw a teenager walking with a toy gun, which looked like an AK-47.  The officer yelled at the teenager to “drop the gun” one time from behind.  As the teenager was turning toward the officer, the officer fired eight shots in quick succession at him.  The parties disputed key facts:  whether “the gun was pointed straight down at the ground, [whether] the barrel . . . rose at any point to a position that posed any threat to . . . the officer,” and “if [the teenager’s] finger was on the trigger .”  Id. at 1010-11.  Thus, that decision also did not hinge on the mistaken identification of the gun.  Instead, that Court determined that a reasonable jury could conclude that the teenager did not pose an immediate threat and that the use of deadly force was not objectively reasonable.

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.Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship

[1] 2023 U.S. App. LEXIS 13370 (9th Cir. May 31, 2023).

[2] See Nehad v. Browder, 929 F.3d 1125, 1135 (9th Cir. 2019) (looking at the officer’s role in creating the danger).

[3] See Seidner v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022) (concluding that “shooting a firearm” is “categorically” deadly force).

[4] Long v. City & Cnty. of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007). See also Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (officers’ use of lethal force was not excessive when the suspect held a “long gun and pointed it at them”).

[5] Cf. County of Los Angeles v. Mendez, 581 U.S. 420, 425-26 (2017) (observing that the Ninth Circuit held that a shooting of a person with a BB gun was reasonable given the officers’ belief that the individual had a gun and was threatening them while reversing on other grounds).