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Mahoney v. Sessions

United States Court of Appeals, Ninth Circuit

September 19, 2017

Robert Mahoney, Officer; Sjon C. Stevens, Officer; Cliff Borjeson, Officer; Christopher Myers, Officer; Bridget Hillan, Officer; Lance Basney, Officer; Salvatore Ditusa, Officer; Clarke D. Chase, Officer; Joseph Stankovich, Officer; Weldon C. Boyland, Officer; John L. Farrar, Officer; Dale W. Umpleby, Officer; Richard A. McAuliffe, Officer; George Baseley, Officer; David M. Harrington, Officer; Henry Feldman, Officer; Terry Whalen, Officer; Gilles Montaron, Officer; Robert Stevenson, Officer #5859; Joshua Goodwin, Officer; Ryan Kannard, Officer; Nathan Lemberg, Officer; Jeff Mitchell, Officer; Robert B. Brown, Officer; Ernest T. Hall, Officer; Robert Burk, Officer; Robert Beatty, Officer; Tomas Trykar, Officer; Brien Escalante, Officer; Karen G. Pio, Officer; Michael Gonzalez, Officer; Steve Kim, Officer; Ennis Roberson, Officer; Leroy Outlaw, Officer; Kieran Barton, Officer; JONATHAN REESE, Officer; EUGENE SCHUBECK, Officer #6696; SEAN HAMLIN, Officer; SHANNON WALDORF, Officer; JEFFREY SWENSON, Officer; TABITHA SEXTON, Officer #7430; MICHAEL SPAULDING, Officer #7491; STEVEN STONE, Officer #7540; LILIYA A. NESTERUK, Officer; TODD M. NELSON, Officer; TIMOTHY JONES, Officer; TIMOTHY J. WEAR, Officer; THERESA EMERICK, Officer #5002; ARIEL VELA, Sergeant; MICHAEL A. LARNED, Officer #6955; DEREK B. NORTON, Officer; JASON DEWEY, Officer; DAVID WHITE, Officer; TRENT SCHROEDER, Officer; AUDI A. ACUESTA; STEVE CLARK, Officer; STEVEN L. BERG, Officer; ERIK JOHNSON, Officer; VERNON KELLEY, Officer; SHELLY SAN MIGUEL, Officer; CHRISTOPHER J. ANDERSON, Officer; SUZANNE M. PARTON, Officer; ERIC F. WHITEHEAD, Officer; ALAN RICHARDS, Officer; RON WILLIS, Officer; A. SHEHEEN, Officer; RANDALL HIGA, Officer; TIM OWENS, Officer; TYLER GETTS, Officer #7537; ADAM ELIAS, Officer; JON EMERICK, Officer #4326; LOUIS CHAN, Officer; PAUL PENDERGRASS, Sergeant; AJ MARKS, Officer; RON MARTIN, Sergeant; RUSTY L. LESLIE, Officer; TJ SAN MIGUEL, Officer; JEFFREY C. PAGE, Officer; RYAN ELLIS, Officer; JACK BAILEY, Officer; ALFRED RI WARNER, Officer #6162; MICHAEL R. WASHINGTON, Officer; NINA M. JONES, Officer #7567; ANTHONY JONES REYNOLDS, Officer; RICHARD HEINTZ, Officer; CURTIS GERRY, Officer; ADOLPH TORRESCANO, Officer; CURT E. WILSON, Officer; JAMES G. THOMSEN, Officer; RICHARD W. PRUITT, Officer #5346; DONALD L. WATERS, Detective #6287; ANTHONY J. REYNOLDS, Officer; JONARD A. LEGASPI, Officer #6231, Plaintiffs-Appellants,
v.
JEFFERSON B. SESSIONS III, Attorney General, Defendant, and CITY OF SEATTLE, including the Seattle Police Department, the Seattle Police Monitor Team, and the Seattle Attorney's Office; ED MURRAY, individually and in his official capacity, Mayor, City of Seattle; PETER HOLMES, individually and in his official capacity, Seattle's City Attorney; MERRICK BOBB, individually and in his offical capacity, Seattle Police Monitor, Defendants-Appellees.

          Argued and Submitted May 8, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington D.C. No. 2:14-cv-00794-MJP Marsha J. Pechman, District Judge, Presiding

         COUNSEL

          Athan E. Tramountanas (argued), Short Cressman & Burgess PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of Lisa Ann Battalia, Bethesda, Maryland; for Plaintiffs-Appellants.

          Gregory Colin Narver (argued), Assistant City Attorney; Peter S. Holmes, City Attorney; City Attorney's Office, Seattle, Washington; for Defendants-Appellees.

         SUMMARY[**]

         Second Amendment

         The panel affirmed the district court's judgment upholding the use of force policy adopted by the City of Seattle; and rejected the claims under 42 U.S.C. § 1983 of plaintiffs, a group of approximately 125 Seattle Police Department ("SPD") officers who allege that Seattle violated the Second Amendment right of police officers to use firearms for the core lawful purpose of self-defense.

         The panel applied a two-step inquiry to determine whether the challenged law or regulation violated the Second Amendment. At step one, the panel assumed without deciding that the use of force policy was subject to Second Amendment protection. At step two, the panel held that the use of force policy recognized that the plaintiffs could use their department-issued firearms in self-defense in an encounter with a suspect, and concluded that the use of force policy did not impose a substantial burden on plaintiffs' right to use a firearm for the purpose of lawful self-defense. The panel also concluded that the use of force policy was not such a severe restriction that it amounted to a destruction of the Second Amendment right. The panel, therefore, applied the intermediate level of constitutional scrutiny to determine whether the policy violated the Second Amendment.

         Applying intermediate scrutiny, the panel concluded that the use of force policy was constitutional under the Second Amendment because there was a reasonable fit between the policy of Seattle's important government interest in ensuring the safety of both the public and its police officers.

         The panel also affirmed the district court's dismissal of plaintiffs' substantive due process and equal protection claims.

          Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and William Q. Hayes, [*] District Judge.

          OPINION

          HAYES, District Judge:

         We must decide whether the use of force policy adopted by the City of Seattle violates the Second Amendment right of police officers to use firearms for the core lawful purpose of self-defense. We conclude that the policy survives intermediate scrutiny and is, therefore, constitutional. We affirm the judgment of the district court.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2012, the United States brought a civil action in the United States District Court for the Western District of Washington against the City of Seattle, alleging that the Seattle Police Department ("SPD") engaged in a pattern or practice of excessive use of force. United States v. City of Seattle, Case No. 2:12-cv-01282-JLR (W.D. Wash.). Pursuant to a settlement agreement between the parties, the United States and the City of Seattle worked with a court-appointed monitor to produce a Use of Force Policy ("UF Policy") that would apply to SPD officers' use of approved department firearms while on duty.

         On December 17, 2013, United States District Judge James L. Robart issued an order approving the policy agreed to by the parties.[1] The UF Policy[2] states, in part, that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." The UF Policy provides a set of factors that officers must consider to determine whether a proposed use of force is objectively reasonable, necessary, and proportional to the threat at issue.

          Although the UF Policy requires officers to consider those factors before using a firearm, the UF Policy also states that officers must consider those factors only "[w]hen safe under the totality of circumstances and time and circumstances permit[.]" The UF Policy also requires officers to use de-escalation tactics to reduce the need for force only "[w]hen safe and feasible under the totality of circumstances[.]"

         Appellants, a group of approximately 125 SPD officers, subsequently brought this action pursuant to 42 U.S.C. § 1983 against the City of Seattle, including SPD and other related entities, to challenge the constitutionality of the UF Policy. Appellants brought claims under the Second, Fourth, Fifth, and Fourteenth Amendments, alleging that the UF Policy unreasonably restricts their right to use department-issued firearms for self-defense. On October 17, 2014, the district court granted the motion to dismiss filed by the City of Seattle, concluding that the UF ...


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