In Cuevas v. City of Tulare,[1] the Ninth Circuit Court of Appeals affirmed on qualified immunity grounds the District Court’s summary judgment in favor of police officers in an action brought pursuant to 42 U.S.C. section 1983 alleging that the officers used excessive force by shooting into a vehicle following a high-speed felony chase, seriously injuring a passenger. The Court found that it was not clearly established that the officers used excessive force when they shot the passenger while defensively returning fire at the shooting driver during an active shooting.
Background
In 2018, Quinntin Castro was driving a car owned by his friend and front-seat passenger Rosa Cuevas. Their friend Cameron Ware sat in the back. Officer Daniel Bradley observed Castro commit multiple driving infractions and started a traffic stop. Officer Bradley told dispatch that two other people were with Castro. Instead of stopping, Castro fled. As officers pursued him for the next four to ten miles, he drove recklessly, resulting in multiple near collisions with other drivers. Because of this, the officers intended to perform a typical felony stop.[2] Neither Cuevas nor Ware gave any reason to suspect them of any wrongdoing.
Castro eventually got stuck in the mud on the roadside. K-9 Officer Ryan Garcia and Officer Edward Puente arrived with Sergeant Andy Garcia. The officers surrounded Cuevas’s car as Castro kept trying to escape. As Castro kept revving the engine, Cuevas’s car sank into the mud. Meanwhile, Cuevas sat in the front seat with her hands up. Castro continued hitting the gas. The officers repeatedly shouted at him to stop, but the engine was so loud that they did not believe Castro could hear their orders. Sergeant Garcia broke the driver’s side window and quickly retreated to continue ordering Castro to turnoff the car. Once Sergeant Garcia broke the window, Castro stopped revving the engine. Without warning, K-9 Officer Garcia threw his police dog, Bane, through the window with a command to bite Castro.
Castro grabbed a gun from the car’s center console and fired at least five shots. Two hit and killed Bane. Another two hit K-9 Officer Garcia. Throughout the incident, Cuevas sat in the front passenger seat with her hands raised. The officers—without warning that they would shoot back—returned thirty-four shots into the vehicle. Although they aimed for Castro, the officers hit Cuevas several times. Once the shooting stopped, Castro climbed out of the car’s passenger side, firing two additional shots, hitting Officer Bradley’s patrol car with one. Castro died at the scene.
Cuevas survived, but she was severely injured. She sued the City of Tulare, Police Chief Matt Machado, Sergeant Garcia, and Officers Garcia (who survived the encounter), Puente, and Bradley under 42 U.S.C. section 1983, alleging in part excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to the defendants, holding that Cuevas was not seized for Fourth Amendment purposes, and alternatively, that even if she were seized the officers were entitled to qualified immunity because it was not clearly established that the officers’ use of force was constitutionally excessive. Cuevas appealed.
Discussion
The Ninth Circuit Court of Appeals initially explained that qualified immunity protects government officials from liability under 42 U.S.C. section 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” Waid v. County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023).
As to the first element of the qualified immunity test, the Ninth Circuit did not explicitly find that the officers’ use of force was not excessive[3]; rather, the Court stated that “because ‘we find the clearly established prong dispositive,’ we ‘exercise our discretion to resolve [the] case only on’ that ground.” Waid, supra, 87 F.4th at 387 (internal citation omitted).
“A [g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A case need not be “directly on point, but existing precedent must have placed the . . . constitutional question beyond debate.” Id.
“The dispositive question is therefore ‘whether the violative nature of particular conduct is clearly established’ in the specific context of the case.” Vos v. City of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The Supreme Court has “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742 (internal citation omitted). The “specificity” of clearly established law “is especially important in the Fourth Amendment context, where the Court has recognized that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.'” Mullenix, 577 U.S. at 12 (alterationin original) (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).
On appeal, Cuevas argued that the District Court erred in granting qualified immunity to the officers on her excessive-force claim, which required (1) a seizure and (2) excessive force. The Court of Appeals observed that “an officer seizes a person when he uses force to apprehend her.” Torres v. Madrid, 592 U.S. 306, 309 (2021). The Ninth Circuit stated that when a person is pulled over by the police, that person is seized. Moreover, passengers in the car are seized together with the driver. Brendlin v. California, 551 U.S. 249, 251 (2007). In 2021, the Ninth Circuit held that, as of 2016, it was established “that a passenger struck by a bullet intended to stop the driver of a vehicle” has been seized. Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021). The Ninth Circuit concluded that under these clearly established principles, the officers seized Castro. The Court explained that Castro was seized, at the very least, when K-9 Officer Garcia put Bane through the broken window instructing him to bite Castro. This was a use of force, as were the shots that the officers fired at Castro after he shot Bane and his handler. Since Cuevaswas Castro’s passenger, she was also seized.
Regarding the excessive-force prong, Cuevas cited three cases to argue that her rights were established when the officers, returning fire at Castro, also shot her. However, the Court found that none of these cases had facts similar enough to “clearly establish” that the officers used excessive force.
Cuevas first cited Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004), but the Court of Appeals found that the material facts here differed from those in Boyd. Boyd involved a high-risk raid with an armed suspect, and the officers there used a flash bang device to gain entry and secure premises where they thought the armed suspect was located. To minimize the risk to someone sleeping, the officers determined that the flash-bang should be deployed against the apartment’s front wall and near the door. Boyd, who was sleeping on the floor and not the suspect, suffered burns on her forearm from the flash bang. The Court here noted that the officers in Boyd had time to decide how to proceed—they had a plan before they deployed the flash bang. The officers devised that plan recognizing the risk that the flash bang could hurt someone in the apartment. Even with the benefit of time and a plan, the Boyd officers deployed the flash bang indiscriminately by throwingit into a building, meaning that they did not know whether they would be affecting the suspect they were seeking to arrest. The Boyd court held that this violated Boyd’s right to be free from excessive force because, given the time available, they did not “consider[] alternatives such as a controlled evacuation followed by a search.” Id. at 779.
The Court here observed that in Boyd,the armed robbery suspect that the officers sought was neither trying to escape nor shooting at the officers when Boyd was injured. Here, however, the officers here did not use force until Castro killed Bane and shot K-9 Officer Garcia. The officers had a compelling interest in ensuring that Castro did not harm themselves or others. They did not have time to produce a better plan—they needed to act to prevent further harm to themselves, Cuevas, or Ware. While some bullets hit Cuevas, the Court explained that the officers were not firing indiscriminately into the car but were instead doing their best to aim at Castro as he moved from the front driver’s seat to the right passenger side during the gunfight. The Court noted that Ware was left unharmed by the encounter despite being in the car with Castro and Cuevas. The Ninth Circuit concluded that Boyd‘s facts differed enough from the case here such that it could not have clearly established that officers returning fire aimed at an armed suspect who has shot an officer and killed a police dog violates the Fourth Amendment.
Cuevas next cited Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012), in which the Ninth Circuit considered whether officers used excessive force against Nelson, a university student, when they fired a pepperball into a crowd to “clear an apartment complex of partying students,” including a group of “individuals hurling both bottles and expletives at officers.” Id. at 872, 883. Nelson was not in that group, and the officers “did not see anyone in Nelson’s group throwing bottles or engaging in any other threatening or dangerous behavior.” Id. at 880. The officers shot “projectiles in the direction of Nelson” as he “stood in the breezeway of the apartment complex, attempting to leave the party and awaiting instruction from the officers.” Id. at 872. The Nelson court held that the officers violated Nelson’s right to be free from excessive force because the application of force was not “justified by the government’s interest in stopping any and all disorderly behavior,” particularly when the rowdy students could have been “dispersed by less forceful means.” Id. at 883.
The Ninth Circuit here observed that Nelson’s group was not engaged in throwing bottles at the police. Nelson was actually trying to leave the party when he was hit, and thus posed no risk to the responding officers. Unlike here where Castro was firing at the officers, no onearound Nelson had done anything to harm the police that would have warranted a violent response. The Court emphasized that Castro’s firing at the officers before they returned fire in Cuevas’s direction was “a material fact—indeed, the material fact—that hinders Nelson‘s ability to establish Cuevas’s rights.”
Cuevas’s third cited case was Villanueva v. California, supra, 986 F.3d 1158, which was decided after the events in this case. There the Ninth Circuit held that it was clearly established that an officer who shoots at a slow-moving car when he can easily step out of the way violates the Fourth Amendment as of 2016. The Court of Appeals explained Villanueva’s established rule did not control here because, unlike in Villanueva, Castro was shooting at the officers. Moreover, there was no evidence that any of the officers could have safely moved out of the way. The Court contrasted Villanueva’s slow-moving car with the bullets here, and noted that K-9 Officer Garcia had already been hit.
The Ninth Circuit found that none of Cuevas’s cited cases clearly established that officers violated her rights when they shot her while defensively returning fire during an active shooting. The Court thus held that it was not clearly established that the force the officers used was excessive.
Finally, Cuevas argued that the officers’ constitutional violation was obvious. The Ninth Circuit disagreed. The Court of Appeals observed that the Supreme Court has only recognized that some constitutional violations are so obvious that qualified immunity is inappropriate in Eighth Amendment cases.[4] While the Ninth Circuit had earlier found an obvious constitutional violation in an excessive-force case, it did so only where officers killed a man who posed “no immediate threat.” Est. of Aguirre v. County of Riverside, 29 F.4th 624, 626-27, 629 (9th Cir. 2022).
Here, however, Castro did pose an immediate threat. The Ninth Circuit noted that the Supreme Court had instructed that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). The Ninth Circuit explained, “[w]e have noted that ‘this obviousness principle, an exception to the specific-case requirement, is especially problematic in the Fourth-Amendment context.'” Waid, 87 F.4th at 388 (quoting Sharp v. County of Orange, 871 F.3d 901, 912 (9th Cir. 2017)). A categorical statement that conduct obviously violates the Fourth Amendment “is particularly hard to make when officers encounter suspects every day in never-before-seen ways,” including “countless confrontations . . . that yield endless permutations of outcomes and responses.” Sharp, 871 F.3d at 912. For this reason, the Court here explained, “in excessive-force cases where police officers face a threat, the obviousness principle will rarely—if ever—be available as an end-run to the requirement that law must be clearly established.” The Ninth Circuit concluded that the officers’ returning fire was not obviously unconstitutional—even though they collaterally hit Cuevas. The Court explained that the alternative would be untenable: officers would have to either not defend themselves or risk liability if they accidentally hit a bystander when they return fire.
In sum, the Court concluded that no case clearly established, and it was not obvious, that the officers could not return fire after Castro killed their police dogand shot K-9 Officer Garcia. The Ninth Circuit Court of Appeals therefore concluded that the officers were entitled to qualified immunity, and accordingly affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that a key component of the Court’s analysis was that Castro fired at the officers before they defensively returned fire aiming at Castro and hitting Cuevas. Castro had killed Bane and struck the K-9 Officer during an active shooting incident. The officers did not have time to fully develop a tactical plan in this situation, which required split-second reactions on their part to prevent further harm to themselves, Cuevas, or Ware.
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[1] 2024 U.S. App. LEXIS 16827 (9th Cir. July 10, 2024).
[2] California Vehicle Code section 2800.2, which criminalizes driving in wanton or willful disregard for public safety while fleeing an officer, can be charged as a misdemeanor or a felony.
[3] See Scott v. Harris, 550 U.S. 372, 381 (2007).The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Court of Appeals noted that the United States Supreme Court has interpreted that amendment to prevent excessive force. Id.
[4] See generally Hope v. Pelzer, 536 U.S. 730, 734-38 (2002); Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam).