Government Liability Update

Officers Were Entitled to Qualified Immunity for Using Deadly Force on Unarmed Domestic Violence Suspect Who Charged Them in Confined Space

In Waid v. County of Lyon, published November 21, 2023, a divided panel of the  9th Circuit Court of Appeals affirmed summary judgment in favor of two police officers.  The defendant officers responded to a 911 call seeking help with a domestic violence incident.  When one of the officers knocked on the door of the caller’s home, the caller’s minor children came out and told the officer their parents were fighting and their mother needed an ambulance.  One child said there were no weapons in the house except a BB gun.  The officers entered, the lead officer announcing himself and the officer behind him drawing his weapon and pointing it forward as he entered.  As the officers entered the kitchen, the decedent, out of sight, swore at the officers.  The officers saw the decedent at the end of a hallway. Both pointed their weapons at the decedent and told him to get on the ground.  The decedent ignored the commands and ran down the short hallway toward the officers.  The officers shot him five times.  The plaintiffs sued the officers for use of excessive force under the 4th Amendmentand interfering with familial relationships in violation of the 14th Amendment.  The district court granted the officers’ motion for summary judgment based on qualified immunity.

The panel majority affirmed summary judgment on both claims.  The majority held that the facts, even with all disputes resolved in the plaintiffs’ favor, did not show an obvious violation of constitutional rights.  Fourth Amendment violations must be beyond debate to be considered obvious.  Obvious violations are thus found only in exceedingly rare circumstances with extreme facts.  Here, the officers did not obviously violate the decedent’s right to be free of excessive force.  It was not obvious that the use of force was objectively unreasonable in light of the facts and circumstance confronting the officers.  The decedent used aggressive language, ignored an order from the officers, and rushed towards them in a small and confined space.  The officers were responding to an active domestic violence situation, and needed to make split-second decisions.  It is not obvious the officers were constitutionally precluded from firing.  Because there was not an obvious constitutional violation, the plaintiffs had to show controlling authorities or a persuasive consensus that would have put every reasonable officer on notice that the officers’ conduct violated the 4th Amendment.  They failed to do so.  A case holding that shooting a suspect after he had fallen to the ground from gunshots, and stomping his head, violated the 4th Amendment did not apply, because the five shots were continuous, the suspect began falling during the shots, he did not fall until after the shooting stopped, and the officers did not shoot him after he fell.  Other cases where suspects did not advance toward officers or present a danger to the officers or others did not apply where the suspect was advancing, and would have presented a threat to the 911 caller if the officers retreated.  The officers were entitled to summary judgment on the 14th Amendment claim because they did not have time to deliberate, and there was no evidence they acted with a purpose to harm unrelated to the legitimate law-enforcement objective of protecting themselves.

A dissenting judge would have denied qualified immunity as to the use of force claim.  Viewing the facts in the light most favorable to the plaintiffs, the decedent was clearly illuminated, unarmed, shirtless, with both hands visible; and there was nothing to be seen in his hands or waistband.  Further, the decedent was moving away form his wife’s presumed location, and was not actively engaging in a domestic dispute.  The officers were larger than the suspect, and had less-lethal weapons.  They did not warn that they would use deadly force.https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/21/22-15382.pdf

Neither 1st Amendment Right Not to Respond to Police Questioning, Nor 1st Amendment Claim for Retaliatory Police Investigation Was Clearly Established for Purposes of Qualified Immunity

In Moore v. Garnand, published September 29, 2023, the 9th Circuit Court of Appeals reversed an order denying summary judgment on the grounds of qualified immunity.  The defendant police officers investigated the plaintiff on suspicion of arson.  They went to the plaintiff's office with a search warrant.  A plaintiff was present with his attorney.  When the officers questioned the plaintiff, his attorney advised him to remain silent.  One defendant explained he had a warrant to seize the plaintiff's cell phone.  The attorney said the plaintiff would not give up his phone.  The officer took a cell phone out of the plaintiff's hand and handcuffed him.  The plaintiff refused to answer any questions.  The plaintiff was taken to the police station, his DNA and fingerprints were taken, and he was released.  The officers obtained a search warrant for the plaintiff's house and executed it.  During the search, a defendant officer said to the other plaintiff, the first plaintiff's wife, “You know we wouldn’t be here if your husband had just talked to us.” The investigation was closed for lack of evidence.  The plaintiffs sued one of the defendant officers under 42 U.S.C. section 1983, alleging 4th amendment violations related to the search warrants.  After learning about the suit, the defendant officers reopened the criminal investigation against the plaintiffs.  The plaintiffs dismissed their previous suit and brought the current action, alleging that the defendants opened the criminal investigations, arrested the first plaintiff, and obtained the search warrant for the home in retaliation for the first plaintiff's exercise of a 1st Amendment right to remain silent, and that their lawsuit and requests for information from the police were also protected 1st Amendment activities.  The defendants moved for summary judgment.  The plaintiffs moved for an order deferring or denying the motion while they sought discovery.  The district court granted the motion and denied the summary judgment motion without prejudice.

 The court of appeals ruled that it had jurisdiction to hear the interlocutory appeal, despite the district court not ruling on the merits of the summary judgment motion.  The court has jurisdiction to consider purely legal qualified immunity questions when, as here, the district court denies the qualified immunity motion (thereby forcing defendants to undergo burdensome discovery) even if the district court leaves the issue open for reconsideration.  The court addressed only the second prong of qualified immunity:  whether the officers' conduct violated a clearly established right.  The claim that the officers retaliated against them because the first plaintiff exercised his 1st Amendment right to remain silent fails because the plaintiffs identify no case that clearly established that a person has a 1st amendment right to remain silent when questioned by police.  The case law establishing that the 1st Amendment right against state action includes the right to refrain from speaking at all defines the right at too high a level of generality to clearly establish the right at issue.  Case law from other jurisdictions, although nonbinding, reinforces the conclusion that a 1st Amendment right to remain silent during police questioning was not clearly established at the time.  The defendants were therefore entitled to qualified immunity as to that claim.  Similarly, no case law clearly establishes that a retaliatory investigation, per se, violates the 1st Amendment.  Again, nonbinding authority from other jurisdictions supports that the issue was not clearly established.

Trial Court Erred in Redacting information in Officer Investigation Records Produced under CPRA

In Bondgraham v. Superior Court (City of Oakland), published September 25, 2023, the First District Court of Appeal, Division 2 issued a writ directing a trial court to vacate its order allowing redactions to records produced in a California Public Records Act proceeding.  Under a previous trial court order, the real party city produced to requesters a redacted version of an internal affairs report of an investigation into an incident in which multiple police officers had sex with a girl while she was underage.  The requestors challenged certain reductions as improper under the 2018 amendment of the Pitchess statutes, which require production of certain investigation information about police officers and permit certain redactions.  The trial court permitted some of the redactions, which the requesters challenged by petitioning the appellate court for writ relief.

The appellate court ruled that the trial court erred in allowing certain redactions under the amended Pitchess statutes.  The trial court erroneously allowed redaction under Penal Code section 832.7, subdivisions (b)(4) and (b)(5) of the report's training and policy recommendations, witness statements containing general information about the girl and her social-media use, screenshots of the girl's Facebook profile; and large portions of her statements to investigators.  Subdivision (b)(5) permits redaction only of "information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer.”  The policy and training recommendations and Facebook screenshots do not fall under this category.  Under subdivision (b)(5), "“factual information about that action of an
officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a finding against another officer that is subject to release.”  The trial court failed to apply that limitation.  Subdivision (b)(4) provides that “[a] record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.” This provision did not apply to a report that pertained to a single investigation.  Further, the provision permits withholding an entire record; it does not permit redaction of information in a record such as a report.  Even if the city's argument that the report was a compilation of multiple investigation records, the statute would not allow the city to redact "assessments" of separate "incidents" described in the report.  The appellate court further concluded that the trial court erred in allowing the city to redact the names of officers as "witnesses" under Penal Code section 837.2, subdivision (b)(6)(B), which provides that an agency “shall redact a record disclosed pursuant to this section” in order to “preserve the anonymity of . . .witnesses.”  The appellate court concluded that the redacted entries could not be fairly described as one officer describing or witnessing another officer's misconduct.  Redaction under the subdivision was therefore inappropriate.  Finally, the trial court erred in allowing redactions under former Government Code section 6254, subdivision (f) (exempting records of investigations from production under the CPRA), since subdivision of (b)(1) expressly provides that the officer records listed in the statute shall not be confidential and shall be made available for public inspection notwithstanding any other law.

In Fifth-Amendment-Violation Case, Court Abused Its Discretion in Excluding Testimony of Coerced-Confession Expert

In Tekoh v. County of Los Angeles, published August 4, 2023, a divided panel of the 9th Circuit Court of Appeals reversed a jury verdict.  The plaintiff sued for an allegedly coerced confession.  He originally appealed based on the district court instructing the jury that a 42 U.S.C. section 1983 claim could not be grounded in a Miranda alone, and the exclusion of the testimony of his coerced-confession expert.  The 9th Circuit originally ruled in the plaintiff's favor on the Miranda issue, but the Supreme Court reversed that decision.  On remand, the plaintiff conceded that his Miranda claim was no longer viable, but maintained that the district court abused its discretion in excluding the expert.

The panel majority agreed.  The expert would have opined on how the text of confessions can indicate symptoms of coercion, and would have explained to the jury that the alleged tactics of the interrogating officer could elicit false confessions.  A jury could benefit from the expert's knowledge about the science of coercive interrogation tactics, and how they could elicit false confessions.   This is an issue beyond the common knowledge of the average layperson.  The district court incorrectly concluded that the testimony would vouch for or buttress the plaintiff's credibility.  But her opinion assumed the veracity of the plaintiff's claims.  Expert evidence that corroborates a witness's testimony is not a credibility assessment or improper buttressing.  Because the defense disputed that the officer used coercive tactics, despite the apparent obviousness of the coercion.  The testimony therefore had probative value.

A dissenting judge opined that the district court acted within its discretion in excluding the expert, that the interrogation as plaintiff described it was obviously coercive, and that the only issue was the credibility of the plaintiff.

Despite Genuine Issues of Fact on Existence of Probable Cause, Officers Entitled to Qualified Immunity against False Arrest Claims

In Johnson v. Barr. published July 6, 2023, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted by the district court.  The defendant police officer approached a woman with her children parked next to a park at night.  After questioning the woman, finding out she had been drinking, and noting what they believed to be signs of intoxication, they arrested the woman and booked her on one count of public intoxication under Penal Code section 647(f) and five counts of felony child endangerment under Penal Code section 273a(a).  The children were placed with child protective services.  After the woman and her husband (who had also been arrested) paid bail, they were released and picked up their children.  The district attorney declined to prosecute the woman and her husband, and dropped all charges.  The woman sued under 42 U.S.C. section 1983, alleging unlawful and unreasonable arrest under the Fourth Amendment, interference with and retaliation against free exercise of expression under the First Amendment, unlawful and unreasonable search and seizure under the Fourth Amendment, and deprivation of due process under the Fourteenth Amendment.  She also asserted state law claims of false arrest and imprisonment, intentional and negligent infliction of emotional distress, Bane Act violations, trespass to chattals, and negligence.  The district court granted summary judgment to the defendants on all claims, finding both probable cause and qualified immunity.

The 9th Circuit reversed the summary judgment on the state law claims.  Whether the officers had probable cause to arrest the plaintiff presented a jury question.  Probable cause is present if the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.  Some bases on which the defendants attempted to claim probable cause were not supported by the record.  Other facts, viewed in the light most favorable to the plaintiff, suggest probable cause to arrest.  Since a reasonable jury could return a verdict for the plaintiff, summary judgment based on probable cause was not appropriate.  But the section 1983 claims are still subject to qualified immunity.  Even where there is not probable cause to arrest, officers are entitled to qualified immunity so long as reasonable officers could disagree as to the legality of the arrest.  Although officers might seem to lack probable cause under the prudent person standard,  a reasonable officer on the ground might perceive the situation differently. An officer would not be on notice that his or her action was unreasonable unless all reasonable officers would agree that there was no probable cause in this instance.  The plaintiff did not sufficiently show how her arrest violated a clearly established right to be free from an unlawful arrest when the undisputed evidence presented before the district court does not show that every reasonable officer would be on notice that these actions were unconstitutional.  The plaintiff did not adequately identify cases that indicated the defendants' actions in arresting her were clearly prohibited, especially in light of the undisputed facts established by the body cam footage of the incident.  A a plain reading of the public intoxication and child endangerment statutes does not demonstrate that a reasonable officer should have known that the plaintiff's actions were clearly not prohibited. The majority affirmed summary judgment on the federal claims, and vacated the district court's grant of summary judgment on the state law false arrest and negligence claims, which were premised on a finding of probable cause as a matter of law.  The court affirmed summary judgment on the other state law claims, on non-probable-cause grounds.   A concurring/dissenting judge opined that the appellate court should have remanded all of the state law claims to the district court to determine whether to exercise supplemental jurisdiction over them.

Officers Entitled to Qualified Immunity for Pulling Suspects from Car without Identifying Themselves

In Hopson v. Grissom, published June 16, 2023, a divided panel of the 9th Circuit Court of Appeals reversed an order denying summary judgment.  The defendant police detective in an unmarked car parked at a gas station.  He witnessed another driver repeatedly backing into parking spaces, looking around, and backing out.  It appeared to the detective that the driver was casing the station for an armed robbery.  The detective witnessed the plaintiff drive into the parking lot, park alongside the driver, get into the driver's car and converse with him.  Believing the two were about to engage in criminal conduct, the detective called for backup.  A few minutes later, a defendant officer and other officers arrived.  The defendant officer parked behind the suspect's vehicle.  According to the plaintiff's version of the facts (which was disputed), the detective approached the driver's side door with his gun pointed out, opened the door, and forcefully removed the plaintiff from the vehicle, yanking his arm with enough force to "put him in a state of shock" and make him think he was being robbed.  The detective then allegedly forcefully handcuffed the plaintiff and verbally dared him to make a move.  During these events, the defendant officer kept his gun pointed at the plaintiff.  None of the officers identified themselves as police officers.  The plaintiff was not injured, but alleged emotional distress.  The officers questioned the plaintiff about the smell of marijuana emanating from the car, checked his driver's license, and discovered the plaintiff's prior felony convictions and that he was on probation.  The officers searched the car and found marijuana and a handgun with an extended magazine, which the plaintiff was not allowed to possess.  The plaintiff was arrested and charged, but the evidence was thrown out when the trial court concluded there was not reasonable suspicion to support the stop.  The plaintiff sued the defendant detective and officer under 42 U.S.C. section 1983 for violating his 4th and 14th Amendment rights when they stopped him without reasonable suspicion and used excessive force when arresting him.  The district court granted the defendants summary judgment on the unlawful stop claim, but denied it on use of force, finding genuine issues of fact.

The panel majority ruled that the officers were entitled to qualified immunity.  Viewing the evidence in the light most favorable to the plaintiff, the majority ruled that no clearly-established law prevented the officers from reasonably suspecting that the plaintiff was about to engage in armed robbery, or that he might be armed (as he in fact was).  In regard to use of force, the plaintiff failed to provide specific case law that demonstrates the unlawfulness of the detectives' conduct under the particular circumstances they confronted.  No authority placed beyond debate that the defendants violated the constitution by pointing their guns at the plaintiff.  As for the amount of force used, the right to make an arrest or investigatory stop necessarily includes the right to use some degree of physical coercion.  Under the plaintiff's version, the officers forcefully removed him from the vehicle and forcefully handcuffed him, but did not physically injure him.  This was weighed against the government's interest in investigating and preventing a potential armed robbery.  In most cases in which the 9th Circuit has found officers used excessive force, the force used was gratuitous or violent.  Controlling authority did not establish beyond debate that the force used during the plaintiff's arrest was objectively unreasonable.  Similarly, the plaintiff failed to show that precedent clearly established that the officers' failure to identify themselves rendered the use of force excessive.

A dissenting judge opined that there were genuine triable issues as to whether the law clearly established the officers' stop was unconstitutional and their use of force excessive.

Government Code Section 821.6 Immunizes only Liability for Prosecutions, Not for Investigations

In Leon v. County of Riverside, published June 22, 2023, the California Supreme Court reversed summary judgment entered for the defendant county.  The plaintiff sued county sheriff's deputies for negligent infliction of emotional distress, based on the deputies  leaving her husband's remains unclothed for eight hours, in public view, while officers searched for the person who shot the husband.  The trial court granted summary judgment based on Government Code section 821.6', which immunizes public employees for injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if the employee acts maliciously and without probable cause.  The trial court followed case authority applying the immunity to police investigations.  A divided appellate court affirmed.  The Supreme Court granted review.

The Supreme Court held that section 821.6 immunity does not apply to investigations. Section 821.6 provides immunity against liability for claims of injury based on tortious and wrongful prosecution.  The immunity is narrow in the sense that it applies only if the conduct that allegedly caused the plaintiff’s injuries was the institution or prosecution of an official proceeding. But the immunity is broad in the sense that it applies to every such tort claim, whether formally labeled as a claim for malicious prosecution or not.  Where it applies, it is absolute.  The body of case law interpreting the immunity as applying to investigations, because investigations are part of prosecutions of judicial proceedings, are contrary to the plain language of the statute, as well as its historical status as a codification of the common law immunity against malicious prosecution (although the language of the statute extends it beyond traditional malicious prosecution, to negligent prosecutions) and its legislative history.  Other provisions in the Government Claims Act address the concerns that exposure to liability will chill investigations, including the public entity defense of claims and payments of judgments against public employees; Government Code section 820.2's immunity for discretionary acts; Government Code section 820.4, immunizing acts taken with due care in the execution or enforcement of any law (though not for false arrest or false imprisonment); and Government Code section 821, immunizing failure to enforce an enactment.  The court disapproved lower appellate court decisions extending section 821.6 to claims arising out of investigations.

Officers Entitled to Qualified Immunity for Mistakenly Arresting Man under Belief He Was Harboring Suspect

In Hill v. City of Fountain Valley, published June 1, 2023, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendant officers in a 42 U.S.C. section 1983 case.  A man decided to take his wife for a surprise anniversary dinner.  A 911 caller reported seeing the man driving erratically with a blindfolded female passenger, and provided the license plate number.  The defendant officers drove to the man's home to check the well-being of the passenger.  At the house, the officers asked the man's parents about him.  The parents confirmed that the man drove a vehicle matching the 911 caller's description, but said he was not home.  The father of the man demanded the officers tell him what was going on.  The officers related the 911 call to him.  The father said the son was out with his wife.  The officers requested the man's phone number.  While waiting outside for the phone number, the officers noticed a young man who matched the man's description through a window.  (The young man was actually the man's brother.)  The officers asked the father, "Who's the other person here?"  The father did not hear the question, and closed the curtains on the window.  The officers told all occupants to exit the house.  The father stepped outside while the mother and brother stayed inside.  The father closed the door and told the officers they could not come in.  The officers grabbed the father, led him to the lawn, and brought to the ground.  The father alleges that his eyeglasses cut him on the forehead, and that he sustained neck and back injuries when an officer knelt on him.  The family sued the officers, under federal and state law, for use of excessive force and 1st Amendment retaliation on behalf of the father, and unreasonable seizure on behalf of all family members, including two grandchildren who were present.  The district court remanded a state law false arrest claim to state court, and granted the officers summary judgment on all other claims.

The panel majority affirmed summary judgment.  The officers did not seize the mother or brother.  Seizure requires either physical force or submission to assertion of authority.  The mother and brother did not exit the house on the officers' commands, and so did not submit to the officers' show of authority.  They did not leave the house until the officers restrained the father and lead him outside.  Those family members therefore cannot pursue 4th Amendment claims.  Assuming the officers seized the father, their alleged warrantless in-home arrest is protected by qualified immunity.  Officers may make a warrantless in-home arrest if they faced exigent circumstances and had probable cause to arrest.  These officers likely lacked probable cause to arrest the father for obstruction.  Under California law, passively blocking a door or refusing to open a door after proper police demand are examples of permissible refusals to cooperate with police that do not amount to obstruction of justice.  A jury could find there was an arrest without probable cause.  But qualified immunity applies because not all reasonable police officers would believe that they lacked probable cause to arrest, especially given the urgency and unique facts--a perceived ongoing kidnapping, probable cause to arrest the brother because he matched the suspect's description, and the exigent circumstance of investigating a potentially kidnapped woman who might be hidden in the home.  The officers may have believed ordering the family outside would ensure the safety of a potential kidnap victim.  Closing the curtains as an officer asked a question about the unidentified male behind the window could have suggested obstruction of the investigation, or that the occupants were preparing to do battle.  Even though the officers were ultimately mistaken, courts are wary of second-guessing split-second judgments by law enforcement officers.  The plaintiffs did not offer any factually analogous case clearly establishing the officers' actions were unlawful under these circumstances.  On the father's excessive force claim, the relatively minor injuries balanced against a tense, escalating situation during an investigation into a potential kidnapping, the balance of interests favors the government.  The officers therefore did not violate the father's 4th Amendment right against excessive force.  The father's 1st Amendment retaliation claim failed because he could not show retaliatory animus for his statements to the officers was a substantial factor behind his arrest.  There was no evidence the father's statements perturbed the officers; and even if they did, no evidence suggests that they would not have arrested him absent those statements.  The district court properly dismissed the plaintiffs' state-law claims for assault, battery and Civil Code section 52.1, since all of them have similar requirements as an excessive force claim.  The district court also properly dismissed the plaintiffs' claims for negligent and intentional emotional distress, since they failed to show the requisite severe emotional distress.

One judge concurred with the decision to affirm dismissal of the excessive force and 1st Amendment retaliation claims, but opined that clearly established precedent prohibited the officers from making an in-home warrantless arrest without probable cause or exigent circumstances.

Use of Lethal Force on Mentally Ill Man Who Pointed Replica Firearm at Police Was Reasonable

In Estate of Strickland v. Nevada County, published May 31, 2023, the 9th Circuit Court of Appeals affirmed a district court order dismissing a lawsuit at the pleading stage.  The plaintiffs' decedent had been arrested by the county sheriff's department multiple times.  While incarcerated, he was diagnosed with mental illness.  Two days after his most most recent incarceration ended, police received reports of a man walking on a residential road  with what appeared to be a shotgun slung over his shoulder.  City police officers and count sheriff's deputies arrived on the scene. The decedent was carrying a black plastic airsoft rifle with an orange tip, pointed at the ground.  The officers and deputies recognized the decedent, and knew he was homeless, had mental health issues, and that he had been released from custody days before.  They would have known the decedent was likely suffering from a mental health episode and would not likely respond to their commands in a normal or expected manner.  The officers surrounded the decedent with guns drawn, and yelled to him to drop the gun.  The decedent said, "It's a BB gun."  He slapped the gun with his hand, making a noise that sounded more like plastic than metal.  The officers continued to yell orders to drop the gun.  They told the decedent, "We don't know that's a fake gun."  When the decedent pointed to the orange tip, the officers responded that he could have painted that."  The decedent said, "I'm not doing nothing wrong."  The officers did not contact their supervisors, request assistance from other officers with crisis training, or attempt to bring a professional negotiator, crisis de-escalator, or mental health provider to the scene.   Instead, officers approached the decedent while the others covered him.  The decedent dropped to his knees, and then began pointing the gun at the approaching officers, and at other times at the sky.  An officer deployed a taser, but it did not attach.  After the decedent again lowered the barrel at the officers, the approaching officers shot him several times.  He passed away.  His survivors and estate sued the officers, agencies, and entities under 42 U.S.C. section 1983 and state law for use of excessive force, and alleged deliberate disregard of the decedent's mental health needs.  The district court dismissed the case under FRCP 12(b)(6).

The appellate court concluded that the use of force was reasonable.  While the bulk of the Graham v. Connor factors for analyzing use of force favored the decedent (including the decedent's known mental health issues, and the officers' lack of effort to deescalate the situation), the most important factor is whether the suspect posed an immediate threat under an objective standard.  When a suspect points a gun in an officer's direction, the Constitution undoubtedly entitles the officer to respond with deadly force.  Reasonableness does not always require officers to delay fire until a suspect turns a weapon on them.  If a person is reasonably suspected of being armed, a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.  These principles apply even when the officers make a reasonable mistake of fact about the threat.  Taking the allegations of the complaint in the light most favorable to the decedent, the court concluded that the officers' mistaken belief that the decedent possessed a dangerous weapon was reasonable, and that they were justified in using deadly force when he pointed it at them.  That the weapon turned out to be a replica does not change the analysis.  The weapon, like all replicas, was presumably intended to look like a real firearm.  The only indication it was not real was the orange-painted tip.  The officers were reasonably justified in not taking the decedent's assurances that the gun was a BB gun at face value, since misplaced trust could be fatal.  Under the totality of the circumstances, it was objectively reasonable for the officers to believe the decedent posed an immediate threat.  The district court properly concluded that the complaint could not be saved by amendment, especially since the plaintiffs had been given leave to amend previously.  Although the plaintiffs contended discovery could reveal additional circumstances, pleading standards must be met before unlocking the doors of discovery.

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.