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Jim Maxwell, Individually and As Guardian of Trevor Allen Bruce and Kelton Tanner Bruce v. County of San Diego; Alpine Fire Protection District; Viejas

September 13, 2012

JIM MAXWELL, INDIVIDUALLY AND AS GUARDIAN OF TREVOR ALLEN BRUCE AND KELTON TANNER BRUCE; KAY MAXWELL, INDIVIDUALLY AND AS GUARDIAN OF TREVOR ALLEN BRUCE AND KELTON TANNER BRUCE; JIM MAXWELL, AS EXECUTOR OF THE ESTATE OF KRISTEN MARIE MAXWELL-BRUCE, PLAINTIFFS-APPELLANTS,
v.
COUNTY OF SAN DIEGO; ALPINE FIRE PROTECTION DISTRICT; VIEJAS FIRE DEPARTMENT; LOWELL BRYAN "SAM" BRUCE, DEPUTY; BRADLEY AVI; JEREMY FELBER; GREGORY REYNOLDS; ANTHONY SALAZAR; M. KNOBBE; JEFFREY JACKSON; WARREN VOTH; GARY KNEESHAW; WILLIAM REILLY; L. RODRIGUEZ; BRIAN BOGGELN; COLBY ROSS; CHIP HOWELL; MICHAEL MEAD; DOES,
DEFENDANTS-APPELLEES.
JIM MAXWELL, INDIVIDUALLY AND AS GUARDIAN OF TREVOR ALLEN BRUCE AND KELTON TANNER BRUCE; KAY MAXWELL, INDIVIDUALLY AND AS GUARDIAN OF TREVOR ALLEN BRUCE AND KELTON TANNER BRUCE; JIM MAXWELL, AS EXECUTOR OF THE ESTATE OF KRISTEN MARIE MAXWELL-BRUCE, PLAINTIFFS-APPELLEES,
v.
COUNTY OF SAN DIEGO; ALPINE FIRE PROTECTION DISTRICT; VIEJAS FIRE
DEPARTMENT; LOWELL BRYAN "SAM" BRUCE, DEPUTY; BRADLEY AVI; JEREMY FELBER; BRIAN BOGGELN; COLBY ROSS; CHIP HOWELL; MICHAEL MEAD; DOES, DEFENDANTS,
AND
GREGORY REYNOLDS; ANTHONY SALAZAR; M. KNOBBE; JEFFREY JACKSON; WARREN VOTH; GARY KNEESHAW; WILLIAM REILLY; L. RODRIGUEZ,
DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. 3:07-cv-02385-JAH-WMC D.C. No. 3:07-cv-02385-JAH-WMC

The opinion of the court was delivered by: Farris, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted March 7, 2012-Pasadena, California

Before: Jerome Farris, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Farris;

Dissent by Judge Ikuta

OPINION

These consolidated appeals concern the aftermath of the shooting of Kristin Marie Maxwell-Bruce by her husband, Lowell Bruce.

I

Around 10:50 PM on December 14, 2006, Lowell, a San Diego County Sheriff's Department deputy, shot Kristin in the jaw in the couple's bedroom.*fn1 At the time, Lowell and Kristin lived in the home of Kristin's parents, Jim and Kay Maxwell, along with Lowell and Kristin's children and Kay's father, Fred Stevens. Kristin was able to call 911 for help. Lowell also called 911 and told the 911 dispatcher that he had shot Kristin.

Deputy Jeffrey Jackson of the Sheriff's Department was dispatched to the scene and arrived at about 10:53 PM. Jackson, along with Bill Davis, a neighbor who happens to be a San Diego Police Department sergeant and who was apparently notified of the shooting via telephone by Jim, went into the Maxwell house. Jackson knew before he went into the house that the suspect was a fellow deputy sheriff. When Jackson arrived, he saw Kristin sitting in a chair, still talking to the 911 dispatcher. Jackson walked past Kristin and determined that Lowell was not a threat. Jackson took Lowell's phone and told the 911 dispatcher to send the fire department. Jackson then escorted Lowell to Jackson's patrol car. Jackson did not frisk Lowell for weapons or handcuff him.

Rani Gibbs, a neighbor of the Maxwells and a nurse, entered the house at about 10:58 PM. Gibbs found Kristin sitting in a chair, conscious, alert and oriented. At about 11:00 PM, an Alpine Fire Protection District fire truck arrived, carrying Captain Brian Boggeln, firefighter Colby Ross, and emergency medical technicians Michael Mead and Gerald Howell II. Their fire truck did not have space for a gurney.

Sheriff's Department Deputies William Reilly, Leonard Rodriguez, Warren Voth, and Gary Kneeshaw also arrived at the scene around 11:00 PM. Voth and Kneeshaw were initially told they were not needed and prepared to leave. Jackson ordered Rodriguez to stay near the former's patrol car and went back into the house with Reilly, where they retrieved Lowell's gun.

The Alpine responders entered the house a few minutes later, and Gibbs left shortly thereafter. Ross and Mead also came in and began a medical examination of Kristin. The Alpine responders determined that Kristin's vital signs and motor responses were normal and that she was able to communicate. They also diagnosed her with an airway obstruction. Boggeln and Ross placed a c-spine collar on Kristin.

The Alpine responders concluded that Kristin had to go to a trauma center quickly. They requested an air ambulance, which they believed to be the fastest mode of transport, and were informed it would arrive in 25 minutes at a landing zone 10 miles away. The air ambulance had advanced medical capabilities for dealing with trauma patients.

Around 11:08 PM, an ambulance from the Viejas Band of Kumeyaay Indians Tribal Fire Department arrived. The Viejas Fire ambulance, which carried paramedics Bradley Avi and Jeremy Felber, could transport Kristin to the landing zone.

At the time, Kristin's vital signs were still within normal limits. The ambulance did not leave immediately. Rather, at some point, the ambulance's engine was turned off. Sometime between 11:10 and 11:15 PM, Fred Stevens saw Kristin sitting alone in the dining room, holding a towel to her jaw.

Eventually, Avi and Felber brought in their backboard and gurney. With help from Ross and Mead, they placed Kristin on the backboard and taped her into place. The four men then carried Kristin to the Viejas Fire ambulance. When they arrived at the ambulance, Kristin began exhibiting signs of distress, expelling blood from her mouth. The four men tilted the backboard to allow the blood to drain, and Ross suctioned the blood. They made other efforts to assist her without success.

Meanwhile, Sergeant Michael Knobbe had arrived at the scene at 11:16 PM. Knobbe believed himself to be in charge. He was in fact outranked by Captain Gregory Reynolds and Lieutenant Anthony Salazar, who arrived around the same time as Knobbe. Nonetheless, Reynolds and Salazar stayed near the end of the driveway and did not interfere with Knobbe taking control of the crime scene.

Knobbe ordered Voth and Kneeshaw to stay at the crime scene. He also ordered the house evacuated and sealed and the Maxwells separated. Kay, Fred, and the children were placed in a motor home on the driveway. Jim was allowed to pace around the front of the driveway. Jim and Kay repeatedly asked to be allowed to stay together and follow Kristin to the hospital. They also told the deputies that they had not seen or heard anything involving the shooting. Nonetheless, they were told they had to stay and wait separately for investigators to interview them.

Based on Alpine's estimates, Kristin was placed in the Viejas Fire ambulance between 11:18 and 11:25 PM. Sergeant Knobbe, however, refused to let the ambulance leave immediately because he viewed the area as a crime scene and thought that Kristin had to be interviewed. As a result of the delay, the ambulance did not leave until 11:30 PM. By that point, the air ambulance had already gotten to the landing zone.

The Viejas Fire ambulance took 11 minutes to get to the landing zone. Kristin died en route. The cause of death was blood loss from her gunshot wound. According to the San Diego County medical examiner, Kristin's injuries were repairable.

At about 12:45 AM, Knobbe told Jim-who was still pacing on his driveway-that Kristin had died. At around 1:00 AM, Knobbe assigned Deputy Kneeshaw to monitor Jim. Jim told Kneeshaw that he was going to tell Kay about Kristin's death. Kneeshaw told Jim that he had to stay put at the end of the driveway, to which Jim responded, "You are gonna have to shoot me, I'm going to see my wife!" Jim started to walk toward the mobile home. Kneeshaw told Jim to stop and tried to block his path. When Jim tried to continue walking, Kneeshaw sprayed him three times with pepper spray, struck him on the leg with his baton, and handcuffed him with Knobbe's help. Salazar and Reynolds were still at the end of the driveway and did not intervene.

Jim was released from his handcuffs about half an hour later. He was still kept separate from the rest of his family until investigators finished interviewing Kay around 5:00 AM. Kay and the other family members did not learn about Kristin's death until then.

The Maxwells sued several parties after the night's events. These interlocutory appeals concern two sets of claims. In the first, the Maxwells allege various constitutional violations by Jackson, Reilly, Rodriguez, Voth, Kneeshaw, Knobbe, Reynolds, and Salazar (the "Sheriff's officers") pursuant to 42 U.S.C. § 1983. In the second, the Maxwells seek tort damages under California law against the Viejas Fire Department and its paramedics, Avi and Felber (the "Viejas defendants"), pursuant to 28 U.S.C. § 1367(a).

After discovery, the Sheriff's officers moved under Federal Rule of Civil Procedure 56 for summary judgment on the basis of qualified immunity. The Viejas defendants moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction, arguing they enjoyed tribal sovereign immunity. The district court denied the former motion and granted the latter.

II

We review de novo the district court's ruling on summary judgment on the basis of qualified immunity. Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1075 (9th Cir. 2011). Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[W]e must view the evidence . . . in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party." Bank of N.Y. v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir. 2008). We also review de novo the district court's determination that it lacks subject matter jurisdiction because of tribal sovereign immunity. Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir. 2002).

III

We begin with the district court's denial of summary judgment to the Sheriff's officers on the ground of qualified immunity. Qualified immunity protects government officers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an officer is entitled to qualified immunity, we ask, in the order we choose, (1) whether the alleged misconduct violated a right and (2) whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). "For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted).

A

[1] The Maxwells' first claim alleges that the delay of Kristin's ambulance violated the Fourteenth Amendment's due process clause. The due process clause guarantees the right to "bodily security." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). The Maxwells contend that the Sheriff's officers violated Kristin's right to bodily security by delaying her ambulance and thus ensuring her death.

[2] Normally, the Sheriff's officers could not be held liable under § 1983 for an injury inflicted by a third party. L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). There are, however, "two exceptions [to this rule]: (1) the 'special relationship' exception; and (2) the 'danger creation' exception." Id. The Maxwells contend there is a dispute of material fact about whether either or both exceptions apply.

[3] We agree that the danger creation exception applies. As of December 2006, it was well-established in this circuit that the danger creation exception applies where government officers "affirmatively placed the [victim] in a position of danger." Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989) (internal quotation marks omitted). Officers affirmatively place a person in danger by leaving her "in a situation that [is] more dangerous than the one in which they found h[er]." Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000). Impeding access to medical care amounts to leaving a victim in a more dangerous situation. See Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997).

[4] The Sheriff's officers found Kristin facing a pre-existing danger from her gunshot wound. There is evidence they affirmatively increased that danger by preventing her ambulance from leaving. This arguably left Kristin worse off than if the ambulance had been allowed to bring her to an air ambulance that had advanced medical capabilities and was ready to fly her to a trauma center.

[5] The Sheriff's officers argue that our danger creation cases are distinguishable because they did not involve first responders securing a crime scene. But "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope, 536 U.S. at 741. The existence of a crime scene does not change our analysis. It was irrelevant to the delay of the ambulance. The ambulance contained no witnesses or evidence apart from the victim herself and her wounds. Lowell had confessed and was in custody. The Sheriff's officers had found the gun used in the crime. The crime scene was sealed.

The Sheriff's officers also argue they lacked the mens rea to be held liable under § 1983, claiming the record does not show "deliberate indifference . . . to known or obvious dangers." Nicholas v. Wallenstein, 266 F.3d 1083, 1087 (9th Cir. 2001). We reject the argument. It was obvious that delaying a bleeding gun shot victim's ambulance increased the risk of death.

Finally, the Sheriff's officers appear to argue that the Maxwells must show that they acted with a "purpose to harm" Kristin since this case involved a medical emergency calling for split-second decisions. See Porter v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008). This contradicts their earlier recognition that the appropriate standard is one of deliberate indifference. It also nonsensically suggests that a medical ...


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