In Estate of Hernandez v. City of Los Angeles, published March 21, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part the district court's grant of summary judgment to the defendant police officer and city. The defendant police officer and partner came upon a multi-vehicle accident. As they exited their vehicle, there were at least two dozen people gathered at the side of the road, and others still inside seriously damaged vehicles. The officers' radio stated that the suspect's vehicle was black, and that the suspect was a male armed with a knife. Bystanders directed the officers to a black pickup truck with a heavily damaged front end facing in the wrong direction. The officers instructed the crowd to get back. One officer drew her weapon. A nearby driver told the officer, "He has a knife" and, "He's the one who caused the accident." The officer saw someone climb out of the truck's driver's side window. The officer twice demanded the suspect show his hands. The suspect, shirtless, emerged from behind the truck holding a weapon in his right hand. The suspect ignored the officer's orders to "stay right there" and advanced toward the officer. He continued to do so as the officer yelled, three times, to drop the knife. The officer backed up as the suspect advanced, until the officer stood in front of her patrol car. The suspect began yelling, and raised his arms out by his sides to a 45-degree angle. The officer continued to yell "drop it"; and as the suspect continued yelling and advancing, she fired an initial volley of two shots. The suspect fell to the ground 41-44 feet from the officer, still holding the weapon. Still shouting, the suspect began pushing himself up. As he shifted to stand up, the officer again yelled "drop it" and fired a second volley of two shots, causing the suspect to fall on his back. He began to roll over onto his left side. The officer fired a fifth shot. The suspect rolled over so that he was facing the officer, started to push himself up, then collapsed. Just as he collapsed, the officer fired a sixth shot. As the suspect lay face-down, the officer and other officers approached. The suspect was still holding the weapon, a box-cutter, in his right hand. From the point when the suspect emerged to when he collapsed took 20 seconds; all six shots were fired within eight seconds. A pathologist opined that the sixth shot caused the immediately fatal wound. The suspect's parents and daughter sued the city, its police department, and the shooting officer under 42 U.S.C. section 1983 for violation of the 4th and 14th Amendments, and state law claims for assault, wrongful death, and the Bane Act. The district court ruled that the use of lethal force did not violated the 4th Amendment; that even if she used excessive force, she was entitled to qualified immunity; that the officers' conduct did not shock the conscience, so the 14th Amendment claim failed; that the Monell claim failed because there was no underlying constitutional violation and no basis for holding the city and department liable even if there was a violation; and because the use of force was reasonable, the state law claims failed.
The 9th Circuit agreed with the district court that, as a matter of law, the first volley of shots, as the suspect approached, was reasonable under the 4th Amendment, because the suspect's actions in ignoring the officer's instructions and advancing on her, holding a weapon the officer had been told was a knife, arms out, shouting, imminently posed an objectively apparent threat. The officer did not have to wait until the blade-wielding suspect was within striking range before resorting to deadly force. Further, the second volley of shots was reasonable as a matter of law, because the threat that the suspect posed had not ended. The final volley of two shots presents a much closer question. A reasonable trier of fact could find that at the time of those shots the threat had been sufficiently halted to warrant reassessing the situation rather than continuing to shoot. The district court therefore erred in finding the last shots reasonable as a matter of law. But the officer was entitled to qualified immunity for those shots, because no law at the time clearly established that using lethal force under the circumstances was wrong. Although case law had found using lethal force on a suspect lying on the ground was excessive, in that case there were issues of fact that if resolved in the plaintiffs' favor would show the force was excessive. Here, where the suspect continued to move and hold the weapon while on the ground, the existing precedent did not place reasonableness of use of force beyond debate. Nor was the violation so obvious as to clearly establish unconstitutionality. The appellate court agreed with the district court that, even with the issue of fact on reasonableness of force, the oppositions to the summary judgment motions failed to establish any basis for Monell liability. It also agreed that the plaintiffs had failed to show conscience-shocking conduct that would violate the 14th Amendment. Because of the issue of fact on the reasonableness of use of force, however, the 9th Circuit reversed summary judgment on the state law causes of action.
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