In Cuevas v. City of Tulare, published July 10, 2024, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant police officers. The plaintiff was riding in the front passenger seat of a car. After the driver violated traffic laws, an officer attempted to stop the car. The driver fled, with multiple near collisions. The officers intended to perform a felony stop. The chase ended when the driver got stuck in mud. Officers, with a dog, surrounded the car as the driver revved the engine, trying to escape. The plaintiff sat with her hands up, waiting for orders. The officers believed the driver could not hear their orders, due to the engine revving. An officer broke the driver’s side window and continued ordering the driver to turn off the car. The driver stopped revving the engine. Without warning, the K-9 officer threw his police dog through the window with a command to bite the driver. The driver grabbed a gun from the car’s center console and fired five shots, killing the police dog and wounding the K-9 officer. The officers, without warning, returned 34 shots into the vehicle. Although they aimed for the driver, they hit the plaintiff several times. The driver then climbed out of the car and fired two shots. The driver died at the scene. The plaintiff survived, and sued the city and officers under 42 U.S.C. section 1983 for use of excessive force. The district court granted the defendants summary judgment. It ruled that the excessive-force claim failed because the plaintiff was not seized; and that the officers were entitled to qualified immunity because the law did not clearly establish the use of force was excessive.
The appellate court disagreed with the first ground for summary judgment. The plaintiff was seized, because use of force toward a person to apprehend him is a seizure, and the passenger in a vehicle is seized when force is used toward the driver. The use of the police dog on the driver and the shots the officers fired at the driver were a seizure of the passenger. The appellate court agreed with the district court, however, that the law was not clearly established. The officers did not use force until the driver killed the police dog and shot an officer. No case law existing at the time of the incident established that use of deadly force, without warning, under those circumstances violated the Fourth Amendment. Further, the Fourth Amendment violation was not obvious. Cases where officers used deadly force against suspects who did not pose a threat do not apply, since the driver posed an immediate threat. In excessive-force cases where police officers face a threat, the obviousness principle will rarely—if ever—be available as an end-run to the requirement that law must be clearly established.
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