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S. B. v. County of San Diego

United States Court of Appeals, Ninth Circuit

May 12, 2017

S. B., a minor, individually and as Successor in Interest to David Lee Brown, deceased, by and through his Guardian Ad Litem, Angela Caruso; M. B., a minor, individually, by and through her Guardian Ad Litem, Angela Caruso; Angela Caruso, Plaintiffs-Appellees,
v.
County of San Diego, a municipal entity; Adrian Moses, Deputy, Defendants-Appellants.

          Argued and Submitted February 17, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. 3:14-cv-00072-JAH-WVG

          James Chapin (argued), Senior Deputy County Counsel; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendants-Appellants.

          Megan R. Gyongyos (argued) and Bryan T. Dunn, The Cochran Firm California, Los Angeles, California, for Plaintiffs-Appellees.

          Before: Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Edward R. Korman, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed the district court's order, on summary judgment, denying qualified immunity to a San Diego Sheriff's deputy, and remanded, in an action brought under 42 U.S.C. § 1983 alleging that the deputy used excessive force when he shot and killed David Brown in his home.

         The panel agreed with the district court that, reviewing the facts in the light most favorable to plaintiffs, a reasonable juror could find that the deputy's use of deadly force was not objectively reasonable, and therefore that he violated Brown's Fourth Amendment right against excessive force. The panel disagreed, however, with the district court that it was clearly established on August 24, 2013, that using deadly force under the circumstances, even viewed in the light most favorable to plaintiffs, would constitute excessive force under the Fourth Amendment. The panel held that the district court did not have the benefit of White v. Pauly, 137 S.Ct. 548, 551 (2017), and the cases that plaintiffs cited did not satisfy White's exacting standard. Nor did the present case involve an "obvious" or "run-of-the-mill" violation of the Fourth Amendment under Graham v. Connor, 490 U.S. 386, 396-97 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). The panel therefore held that the deputy was immune from liability under section 1983 for his use of deadly force.

         Because this was an interlocutory appeal, the panel did not address plaintiffs' claim for wrongful death under California law, but noted that its conclusion that deadly force was not objectively reasonable as a matter of law supported the district court's denial of summary judgment on plaintiffs' state law claim.

          OPINION

          OWENS, Circuit Judge

         Defendants San Diego Sheriff's Deputy Adrian Moses and the County of San Diego (defendants) appeal interlocutorily from the district court's denial of qualified immunity. The heirs of David Brown (plaintiffs) sued defendants for shooting and killing Brown in his home. While we agree with the district court that plaintiffs established a triable issue as to the reasonableness of the shooting, we disagree about the application of qualified immunity. We therefore reverse.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. The Death of David Brown

         On the early evening of August 24, 2013, Deputies Moses and Vories each overheard a "5150" radio call for a house in San Marcos, California.[1] The radio call stated that family members were concerned about their safety because an individual (Brown), who had mental health issues and was intoxicated, had been acting aggressively. The family members had left the house for a nearby fire station to report the situation.

         At the fire station, the family told Moses and Vories that Brown was bipolar, schizophrenic, diabetic, and under the influence of Valium and alcohol. Brown had been "acting aggressively" all day, and had warned that "someone was gonna get hurt" if he did not get alcohol. Other than typical kitchen knives, Brown did not have access to any weapons (though in the past he had carried a pocket knife). The family did not know if Brown had any knives on his person that day.

         Moses and Vories went to Brown's house, and Deputy Billieux met them there.[2] One of Brown's relatives, working on a car in the driveway, told the officers that Brown was inside the house, had been drinking and taking medications all day, and had been "acting strangely all day, " "ranting and raving, " and not making "sense." And, Brown "wouldn't be happy" if he knew the officers were there.

         Moses and Vories then entered the front door of the house, and Billieux covered the door leading from the garage into the house. Moses had his gun drawn, and Vories had his Taser ready to go, so the officers had both non-lethal and lethal force options. The officers did not see Brown immediately, but heard cabinets or drawers opening and closing in the kitchen area. Moses then announced "Sheriff's Department" and called for Brown by name. A small wall separated the kitchen and living room, with open entryways on ...


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