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Vos v. City of Newport Beach

United States Court of Appeals, Ninth Circuit

June 11, 2018

Richard Vos, individually and as successor-in-interest to Gerritt Vos, and Jenelle Bernacchi, individual, and as successor-in-interest to Gerritt Vos, Plaintiffs-Appellants,
City of Newport Beach, a governmental entity; Richard Henry; Nathan Farris; Dave Kresge; Does, 1-10, inclusive, Defendants-Appellees.

          Argued and Submitted April 12, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 8:15-cv-00768-JVS-DFM James V. Selna, District Judge, Presiding

          Paul L. Hoffman (argued), Schonbrun Seplow Harris & Hoffman LLP, Los Angeles, California; Milton Grimes, Los Angeles, California; Jason P. Fowler and R. Rex Parris, R. Rex Parris Law Firm, Lancaster, California; for Plaintiffs-Appellants.

          Daniel Phillip Barer (argued), Pollak Vida & Barer, Los Angeles, California; Allen Christiansen and Peter J. Ferguson, Ferguson Praet & Sherman APC, Santa Ana, California; for Defendants-Appellees.

          Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Donald W. Molloy, [*] District Judge.


         Civil Rights

         The panel affirmed in part and reversed in part the district court's summary judgment and remanded in a 42 U.S.C. § 1983 action alleging that police officers used excessive deadly force when they fatally shot Gerritt Vos.

         The police responded to a call about a man behaving erratically and brandishing a pair of scissors at a 7-Eleven. The shooting happened while the police were deciding how to handle the situation, and Vos unexpectedly charged the doorway of the store with what appeared to be a weapon raised above his head.

         The panel held that the facts were such that a reasonable jury could conclude that Vos was not an immediate threat to the officers. The panel noted that the officers had surrounded the front door to the 7-Eleven, had established positions behind cover of their police vehicles, and outnumbered Vos eight to one. The panel further noted that although officers saw that Vos had something in his hand as he charged them, they did not believe he had a gun, and that the officers had less-lethal methods available to stop Vos from charging. The panel noted that it was undisputed that Vos was mentally unstable and that this created a genuine issue of fact as to whether the government's interest in using deadly force was diminished. The panel nevertheless held that the defendant officers were entitled to qualified immunity on the § 1983 claims because existing precedent did not clearly establish, beyond debate, that the officers' acted unreasonably under the circumstances.

         The panel held that because a reasonable jury could find that the officers violated Vos's Fourth Amendment rights, it was appropriate to remand plaintiffs' conspiracy claims and claims brought pursuant to Monell v. Dep't of Soc. Serv. of City of N.Y., 436 U.S. 658 (1978) to the district court to consider in the first instance.

         The panel held that on the record before it, the defendants were not entitled to summary adjudication of plaintiffs' claims under the American with Disabilities Act and the Rehabilitation Act, and reversed the district court's ruling to the contrary. The panel held that the district court erred when it found that there was no failure to accommodate because the officers did not initiate the confrontation. The panel determined that the officers had the time and opportunity to assess the situation and potentially employ accommodations, including de-escalation, communication, or specialized help. The panel also reversed the district court's summary adjudication of plaintiffs' negligence and remaining state law claims.

         Dissenting, Judge Bea stated that because in his view the officers reacted reasonably to the threat they faced, he would affirm the decision of the district court.



         On May 29, 2014, officers of the City of Newport Beach Police Department fatally shot Gerritt Vos ("Vos"). The police responded to a call about a man behaving erratically and brandishing a pair of scissors at a 7-Eleven. The shooting happened while the police were deciding how to handle the situation, and Vos unexpectedly charged the doorway of the store with what appeared to be a weapon raised above his head. Vos's parents filed this action against the officers and the City, raising claims under federal and state law. The district court granted summary judgment in favor of the defendants, concluding that the officers' use of force was objectively reasonable. Vos's parents appeal that decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

         Factual Background

         The record is viewed in the light most favorable to the nonmovants, Richard Vos and Jenelle Bernacchi (the "Parents"), Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), so long as their version of the facts is not blatantly contradicted by the video evidence, Scott v. Harris, 550 U.S. 372, 378-79 (2007). The mere existence of video footage of the incident does not foreclose a genuine factual dispute as to the reasonable inferences that can be drawn from that footage. See id. at 380 (focusing on whether a party's version of events "is so utterly discredited by the record that no reasonable jury could have believed him").

         At approximately 8:15 p.m. on May 29, 2014, Vos entered a 7-Eleven convenience store. Vos became agitated; he ran around the store shouting things like "[k]ill me already, dog." Someone called 911. For approximately the next six minutes, Vos ran around the store cursing at people. Meanwhile, the video footage shows other customers going about their business of shopping and checking out at the cash register. The Newport Beach Police Department dispatch stated that "the reporting party is advising that the subject is holding a pair of scissors inside the store and there are still people inside." At one point, Vos grabbed and immediately released a 7-Eleven employee, yelling "I've got a hostage!"

         At about 8:25 p.m. Officer David Kresge ("Kresge") arrived at the scene. Officer Kresge spoke to some bystanders who indicated Vos was still in the store and Officer Kresge signaled to the remaining clerks to exit the building. The clerks said that Vos had armed himself with scissors and one employee had been cut on the hand while trying to disarm Vos before authorities arrived, resulting in a "half-inch laceration." Officer Kresge saw Vos behind the 7-Eleven's glass doors yelling, screaming, and pretending to have a gun. Officer Kresge broadcasted on the police radio that "the subject is simulating having a hand gun behind his back and is asking me to shoot him." Officer Kresge then saw Vos go into the back room and shut the door. Officer Kresge asked for backup and specifically asked for a 40-millimeter less-lethal projectile launcher.[1] As other officers arrived, Officer Kresge informed them that Vos was agitated and likely under the influence of narcotics.

         By 8:30 p.m., several more officers arrived, including Defendants Officer Richard Henry ("Henry") and Officer Nathan Farris ("Farris"). Immediately before the fatal shooting, at least eight officers were present. The police positioned two police cars outside the store's front entrance in a "v" formation and used the vehicles' doors for cover. Trainee Officer Andrew Shen ("Shen") armed himself with the requested 40 millimeter less-lethal device. The others readied themselves with lethal weapons: Officers Henry and Farris armed themselves with AR-15 rifles, [2] while Officer Kresge held a handgun. The police propped open the 7-Eleven doors and Officer Shawn Preasmyer ("Preasmyer") set up a public address system, getting ready to communicate with Vos. There was also a canine unit on the scene. The officers knew that Vos had been simulating having a gun and that he was agitated, appeared angry, and was potentially mentally unstable or under the influence of drugs. They also heard Vos yell "shoot me" and other similar cries. The police on site talked about using non-lethal force to subdue Vos both over the radio and amongst themselves at the scene.

         At about 8:43 p.m., Vos opened the door of the 7-Eleven's back room. As he did so, some officers shouted "doors opening." Vos then ran around the front check-out counter and towards the open doors. As he ran, he held an object over his head in his hand. The distance between Vos and the officers at the point he started running was approximately 30 feet. One officer shouted that Vos had scissors. Over the public address system, Officer Preasmyer twice told Vos to "Drop the weapon." Vos did not drop the object and instead kept charging towards the officers. Officer Preasmyer then shouted "shoot him." Officer Preasmyer later testified that this order was directed solely to Officer Shen. Officer Shen fired his less-lethal weaponry and, within seconds, Officers Henry and Farris fired their AR-15 rifles.[3] No other officers fired. Vos continued to run as he was struck by the bullets, collapsing on the sidewalk in front of the officers. Vos was shot four times and died from his wounds. About eight seconds elapsed from the time Vos came out of the back room to when he was killed.

         Somewhere around 20 minutes passed from when officers arrived until Vos ran at them. During this time, the officers did not communicate with Vos. Officers Shen and Farris later testified that they did not hear Officer Preasmyer's command to shoot, and Officer Henry testified that he heard it but did not react to it. Neither Henry nor Farris knew that Officer Shen had fired the less-lethal weaponry. They also testified that they saw a metallic object in Vos's hand, which they believed to be scissors. After the shooting, a "pronged metal display hook was found on the ground a few feet from where [Vos] had collapsed." While the officers only suspected the possibility of substance abuse, Vos's blood later tested positive for both amphetamine and methamphetamine. Vos's medical history later revealed that he had been diagnosed as schizophrenic.

         Procedural Background

         Vos's Parents brought this suit as Vos's lawful heirs and successors-in-interest against the City of Newport Beach, Officer Henry, Officer Farris, and Officer Kresge, [4] alleging twelve causes of action: (1) excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131; (3) violation of the Rehabilitation Act, 29 U.S.C. § 701; (4) violation of civil rights due to loss of familial relationship, 42 U.S.C. § 1983; (5) municipal and supervisory liability, 42 U.S.C. § 1983; (6) wrongful death (negligence); (7) wrongful death (negligent hiring, training and retention); (8) battery; (9) assault; (10) violation of civil rights, Cal. Civ. Code § 52.1; (11) survivor claims; and (12) civil conspiracy, 42 U.S.C. § 1983. The district court granted the defendants' motion for summary judgment as to all of the Parents' claims and judgment was entered in favor of the defendants. The Parents appeal that judgment.[5]


         We review de novo a grant of summary judgment, Blankenthorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007), "and in 'determining whether summary judgment is appropriate, view the evidence in the light most favorable to the non-moving party.'" Lal v. California, 746 F.3d 1112, 1115-16 (9th Cir. 2014) (quoting Garcia v. Cty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011)) (alteration omitted). Summary judgment is appropriate where the record, read in the light most favorable to the non-movant, indicates "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).

         I. Excessive Force

         To determine whether the use of force was objectively reasonable, the court balances the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (quotations and citations omitted).

         A. Nature of the Intrusion

         The officers used deadly force against Vos. "The intrusiveness of a seizure by means of deadly force is unmatched." Tennessee v. Garner, 471 U.S. 1, 9 (1985). "The use of deadly force implicates the highest level of Fourth Amendment interests both because the suspect has a 'fundamental interest in his own life' and because such force 'frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.'" A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (quoting Garner, 471 U.S. at 9). Because no one disputes that the officers used the highest level of force against Vos, the issue is determining whether the governmental interests at stake were sufficient to justify it.

         B. Governmental Interests

         The strength of the government's interest is measured by examining three primary factors: (1) "the severity of the crime at issue, " (2) "whether the suspect poses an immediate threat to the safety of the officers or others, " and (3) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. As explained below, on these facts, a reasonable jury could conclude that the government's interests were insufficient to justify the use of deadly force under these circumstances.

         First, the officers were not responding to the report of a crime. See Glenn v. Wash. Cty., 673 F.3d 864, 874 (9th Cir. 2011) (identifying that the "character of the offense" is "an important consideration" especially when no crime has been identified). Rather, law enforcement was contacted because of Vos's erratic behavior. In fact, the officers discussed at the scene what crime may have been committed, speculating "false imprisonment" and stating "let's get a good crime."[6]

         Second, once the officers were at the scene, there was little opportunity for Vos to flee. While closing himself in the back room could be perceived as an attempt to evade arrest, officers never initially spoke to Vos or gave him any commands as to make his behavior noncompliant. See Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (noting that while "passive resistance" can support the use of force, "the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance").

         The most important factor, however, is whether Vos posed an immediate threat to the safety of officers or others. See Longoria v. Pinal Cty., 873 F.3d 699, 705 (9th Cir. 2017) (explaining that the second factor, whether the suspect poses an immediate threat to the safety of the officers or others, is the most important). In considering "whether there was an immediate threat, a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify ...

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