Government Liability Update

Police Officers Entitled to Qualified Immunity for Using Deadly Force to Stop Suspect about to Throw Large Rock at Them

In Lal v. State of California, published March 31, 2014, the 9th Circuit Court of Appeals affirmed summary judgment in favor of California Highway Patrol officers who shot and killed a man who was approaching them, holding a football-sized rock over his head, after throwing smaller rocks at the officers and engaging in other provocative acts such as leading the officers on a long high-speed chase, attempting to hit a motorcycle officer, pointing his cellphone at the officers like a pistol, injuring himself violently, and announcing his intent to die.  The events surrounding the shooting show that the officers acted patiently given the circumstances, and avoided use of force until the suspect posed an imminent threat.  The officers were entitled to qualified immunity, because a reasonable officer could have believed their conduct was within the Fourth Amendment.  That the decedent may have been intent on committing "suicide by cop," the court ruled, did not negate the fact that he threatened the officers with such immediate serious harm that shooting him was a reasonable response.

Disputed Facts about Degree of Threat Defeat Summary Judgment for Officer Who Shoots Suspect While Being Kidnapped

In Gonzalez v. City of Anaheim, published March 31, 2014, a divided 9th Circuit Court of Appeal en banc panel reversed summary judgment in favor of two police officers on a Fourth Amendment use-of-excessive force claim by the successor to a man shot during a traffic stop.  The man acted evasively during the stop, and resisted officers' commands.  He started driving his minivan while one of the officers was inside.  The officer drew his gun and shot the man in the head.  The majority held that because the officers were the only witnesses to the incident, the consistency of their accounts was crucial to whether summary judgment was appropriate.  Both officers testified that the driver "floored" the accelerator, and the officer inside the minivan testified that the suspect accelerated violently, threatening the officers.  But the officer who was inside inconsistently testified that the van traveled 50 feet in five to ten seconds, which would mean the van was traveling slowly.  The issue of fact about the circumstances, and thus the degree of threat, prevented the court from resolving the reasonableness of the use of force as a matter of law.  The dissenting judges opined that the seriousness of the driver kidnapping an arresting officer justified the use of lethal force as a matter of law.

The court affirmed summary judgment on the decedent's family's cause of action for deprivation of familial rights in violation of due process.  That cause of action requires conduct that shocks the conscience.  In a situation like this, where deliberation is not possible, that would require that the officers' acts be unrelated to any legitimate law-enforcement purpose.  Under the circumstances, the plaintiffs could not make that showing.

District Court Cannot Stay Incompetent Prisoner's Case until He Becomes Competent

In Davis v. Walker, published March 24, 2014, the 9th Circuit Court of Appeals reversed a district court order staying the 42 U.S.C. section 1983 lawsuit of a pro se mentally ill prisoner until the prisoner became competent -- which might have become an indefinite stay.  The prisoner had moved for appointment of a guardian ad litem or counsel.  FRCP 17(c)(2) requires the court to either appoint a guardian litem to protect a minor or incompetent person who is unrepresented in an action, or issue "another appropriate order."  Because the Pro Bono Coordinator for the district court advised the court that no one was available to undertake the representation, the district court stayed the action, deeming that an "appropriate action."  The 9th Circuit reversed the stay order, and suggested other avenues the district court could pursue to locate either a guardian ad litem or attorney to protect the plaintiff's interests.