The Ninth Circuit Court of Appeals in Fuhr v. City of Seattle,[1] affirmed the grant of qualified immunity to a police officer who shot and killed a suspect who was fleeing police despite warnings to stop while holding his infant daughter. The Court did not decide whether a Fourth Amendment violation occurred, but held only that the officer’s conduct did not violate clearly established law under the unique circumstances here in which the suspect’s continued possession of the baby after firing a gun, fleeing from law enforcement, and ignoring commands to stop were factors that distinguished this case from clearly established law.
Background
In April 2020, a woman (“AT”) called 911 from a public playfield in south Seattle in the afternoon, reporting that the father of her one-year-old daughter — against whom AT had a no-contact order and who had beaten her up the day before — was in the park and had just fired a gun. AT had run away and the father, Shaun Fuhr, had left the park with their one-year-old daughter. AT was frantic and afraid for her daughter’s safety. Two minutes earlier, a witness had called to report a man and woman arguing. According to the caller, a black male had pulled out a gun, told the woman to run, and then taken the child. The caller said the man had placed the handgun in the back of his pants and left the area.
Seattle Police Department officers arrived at the park by 2:17 PM, four minutes after AT’s 911 call. AT was upset and had visible bruises. An officer radioed to dispatch that Fuhr had fired a gun and that he had located a shell casing. The officer further informed dispatch that Fuhr was “incredibly intoxicated” and had the child with him, and that the child’s mother “believe[d] the child [was] in grave danger.”
Various police units responded, including a helicopter, canine tracking unit, and Special Weapons and Tactics (“SWAT”) team. Among the SWAT officers was Officer Noah Zech, who integrated with the canine tracking team’s search. Dispatch advised that someone was breaking into a nearby building that was under construction. Zech twice spotted Fuhr fleeing. During the second sighting, Zech observed that Fuhr was “carrying a small baby on his right side down near his hip,” gripping the child’s torso. He recalled that the infant’s “head and arms [were] flopping around pretty violently.” When the search team spotted Fuhr, multiple officers repeatedly yelled at him to stop, but he continued to flee and disappeared from view.
The pursuit ended seconds later, at 2:49 PM, when Zech and another SWAT officer encountered Fuhr in an alley beside a multi-story townhome. As captured on bodycam, as Zech and the other officer ran into the alleyway, Fuhr emerged from behind bushes and advanced down a slope towards them. There was a wooden fence of varying height to one side and behind Fuhr, and the officers did not know what lay beyond the bushes from where Fuhr had emerged. Fuhr held his daughter in front of his chest. Less than two seconds after entering the alley and encountering Fuhr, Zech fired a single round, which struck Fuhr in the face.
Zech testified in his deposition that, when he fired, he believed Fuhr was still armed, although he did not see the weapon. Zech recalled knowing Fuhr “was now cornered” but “believ[ing] that [Fuhr] was using this child as a hostage to gain whatever it was he was after that day.” In Zech’s view, Fuhr presented a grave and immediate threat to the life of the baby, who was at risk as a human shield, bargaining chip, or shooting victim. As a SWAT officer, Zech was trained to intervene when given a window of opportunity and saw the baby’s life and safety as his priority. To protect the baby, Zech’s target was Fuhr’s forehead, a precision shot that Zech was trained to make. When Fuhr fell to the ground, officers retrieved the baby, who was uninjured. Although Fuhr did not have a firearm on him when he was shot, the gun was recovered in the vicinity.
Fuhr’s estate (“Fuhr”) filed an action under 42 U.S.C. section 1983 against Zech and the Seattle Police Department alleging, among other things, that Zech used excessive force. The District Court concluded that Zech was entitled to qualified immunity and granted Zech’s summary judgment motion in full. Fuhr’s estate appealed.
Discussion
The Ninth Circuit Court of Appeals explained that the qualified immunity inquiry has two prongs, which can be addressed in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Under the first prong, the court must consider whether the facts demonstrate violation of a constitutional right. Id. at 232. The second prong asks whether that right was “clearly established” at the time of Zech’s conduct. Id. The Court of Appeals explained that it did not decide whether, viewing the facts in the light most favorable to Fuhr, a Fourth Amendment violation occurred. Instead, the Court considered only the second prong, whether Fuhr’s conduct violated clearly established law.
The Ninth Circuit noted that the Supreme Court has emphasized that a clearly established right “should not be defined ‘at a high level of generality’” and must be “‘particularized’ to the facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam) (first quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011); and then quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
In order “[t]o find that a right is clearly established,” the Ninth Circuit explained that it must “‘identify a case where an officer acting under similar circumstances was held to have violated’ the Constitution.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam) (citation modified) (quoting City of Escondido v. Emmons, 586 U.S. 38, 43 (2019) (per curiam)). Here, that meant looking for precedent that encompassed a noncompliant, fleeing, potentially armed suspect holding a child or potential hostage. However, the Court found that Fuhr’s continued possession of the baby after firing a gun, fleeing from law enforcement, and ignoring commands to stop were factors that, when combined, distinguished this case from clearly established law that set out a constitutional violation.
Fuhr relied on Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997) as clearly established law that that he argued governed the instant case. However, the Court explained that the rule pronounced in Harris that “officers may not shoot to kill” includes an exception for when “the suspect presents an immediate threat to the officer or others.” Id. at 1201.[2] Moreover, the officers in Harris provided no warning to the armed suspect before shooting.[3] Here, however, not only was there an immediate threat to the baby, but also a suspect who ignored warnings. The Ninth Circuit stated, “That Zech did not give a final warning does not bring this case within the ambit of Harris.”
Fuhr also relied on George v. Morris, 736 F.3d 829 (9th Cir. 2013). The Ninth Circuit noted first that George emphasized that the Fourth Amendment does not always require officers to hold their fire until a suspect points his weapon at them or others. Id. at838. Moreover, George, who had terminal cancer, was at the time of officers’ arrival on a balcony with a walker, and his gun was aimed at the ground. He had committed no crime, had taken no objectively provocative actions,[4] engaged in no flight, and posed no immediate threat to officers or others.
Although George clearly established that it is a constitutional violation to use deadly force on an armed person when that person did not “objectively threaten[]” law enforcement officers or others, the Ninth Circuit found that right was not at issue in the case here. The Court explained that Fuhr had posed a threat to others throughout the thirty-eight-minute saga, beginning in the park, where he fired a gun near AT and the baby, and continuing until Zech shot him. Zech did not know that Fuhr no longer possessed the firearm, and thirteen seconds before the shooting, several officers encountered Fuhr and ordered him to stop, a command he ignored. Throughout the pursuit, Fuhr showed no intentions of complying with multiple orders, and he continued carrying the baby with little apparent regard for her safety. Confronted with this situation and Fuhr’s sudden appearance coming toward the officers, Zech made a split-second decision to fire. The Ninth Circuit concluded that viewed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham v. Connor, 490 U.S. 386, 396 (1989), it was reasonable for Zech to believe that Fuhr posed an immediate threat to his baby daughter under these circumstances.
Because no case clearly established a Fourth Amendment right violated by Zech, he was entitled to qualified immunity and Fuhr’s Section 1983 claim failed. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s summary judgment in favor of Zech.
Dissenting, Judge W. Fletcher wrote that the undisputed facts make clear that Fuhr was shot in violation of clearly established law where he presented no immediate threat to either the officers or his daughter at the time of the shooting. Pointing to bodycam video from the officers, the dissent maintained that Fuhr was walking slowly toward the officers, holding his daughter tightly against his chest, both of his hands were clearly visible and did not hold a weapon, and could not have used a firearm to harm the officers even if he had one. Fuhr was surrounded on all sides. On his immediate left and behind him was a high wooden fence. On his immediate right was a rockery with plantings. Fuhr was holding his daughter tightly against his chest.
Moreover, Fuhr was never warned that deadly force would be used, and the officer who yelled for him to stop testified that he was not given adequate time to comply before being killed. The dissent stated that when he was shot, Fuhr posed no immediate threat to the officers. Officer Zech acknowledged under oath in his deposition that both of Fuhr’s hands were visible in the footage taken by his own body camera. If Fuhr had had a firearm and had tried to use it, he would have had to release his daughter with one of his hands, reach for the firearm, pull it out, and aim it at the officers. If Fuhr had taken any of these steps, Officer Zech, whose rifle was already pointed at Fuhr, would have had ample time to respond. The dissent stated that Fuhr also posed no immediate threat to his daughter, stating that there was no evidence to support Officer Zech’s belief that Fuhr was holding his daughter as a hostage. Even if Fuhr had been holding his daughter as a hostage, there was nothing in the record to suggest that she was in imminent danger because she was a hostage. The dissent maintained that the undisputed facts made clear that when he was shot Fuhr presented no immediate threat to either the officers or his daughter.
HOW THIS AFFECTS YOUR AGENCY
It is of significance that the Ninth Circuit majority stated that it did not decide whether, viewing the facts in the light most favorable to Fuhr, a Fourth Amendment violation occurred. Had it done so, there might have been a discussion of the sufficiency of the warnings provided under Fourth Amendment law. As it is, the majority – stressing the unique circumstances of this case in which there was a suspect who ignored prior warnings and the majority found an immediate threat to the baby – explained only as follows: “That Zech did not give a final warning does not bring this case within the ambit of Harris.”
Agencies may observe that the majority and dissent dispute the issue of whether the suspect posed an immediate threat to the officers or the infant under the circumstances here. The majority noted the split-second nature of the decision to fire whereas the dissent stated that body-camera footage clearly showed Fuhr’s hands to be without a weapon. This case demonstrates the nuances of qualified immunity analysis and the necessity of development of the facts for purposes of summary judgment to support this immunity.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] Fuhr v. City of Seattle, 2026 U.S. App. LEXIS 13253 (9th Cir. May 7, 2026).
[2] The Ninth Circuit observed that “[t]he ‘most important’ factor” in the excessive force context “is whether the suspect posed an ‘immediate threat’” to officers or third parties. Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)).
[3] Officers in Harris were also instructed to shoot any armed suspects on sight, without evaluating whether they posed harm to others. The Ninth Circuit here noted that there were no allegations regarding a shoot-on-sightor similarly unconstitutional policy in this case.
[4] See George, 736 F.3d at 839.