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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,
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.
and Submitted May 8, 2017 Seattle, Washington
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
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.
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.
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.
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.
panel also affirmed the district court's dismissal of
plaintiffs' substantive due process and equal protection
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and
William Q. Hayes, [*] District Judge.
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.
AND PROCEDURAL BACKGROUND
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.
December 17, 2013, United States District Judge James L.
Robart issued an order approving the policy agreed to by the
parties. The UF Policy 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
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 ...