In Foster v. Hellawell, published November 20, 2018, a divided Ninth Circuit panel affirmed in part and reversed in part a district court order denying a police officer summary judgment based on qualified immunity. A 911 call was received that a man had displayed a gun and was walking toward stores that had previously been robbed. The defendant officer arrived at the scene and saw plaintiffs' decedent, who matched the description and was near one of the stores. The officer identified himself and asked to see the decedent's hands. The officer was unsure whether he had his gun drawn. The decedent ran. The officer gave chase. During the pursuit, the officer fired at the decedent, fatally wounding him. The survivors sued the officer under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendment.
The Ninth Circuit majority affirmed denial of summary judgment on the claim of excessive force under the Fourth Amendment and the claim for denial of substantive due process under the Fourteenth Amendment. The evidence created a genuine dispute of fact on whether the decedent had or displayed a gun while he ran. It is clearly established that shooting a fleeing suspect in the back violates the Fourth Amendment. If the factual disputes on whether the suspect had a gun are resolved against the officer, the officer would not be entitled to qualified immunity. The court ruled it lacked jurisdiction to adjudicate the question of whether the evidence was reliable enough to support the district court's conclusion that a genuine dispute existed. On the question of whether the officer had reasonable suspicion to make an investigative stop of the decedent, however, the court found no genuine dispute of fact and that the officer was entitled to qualified immunity. The 911 caller's information, as corroborated by the officer's observations, had sufficient indicia of reliability to support qualified immunity for the officer's conclusion of reasonable suspicion. The court also found that the officer was entitled to qualified immunity for approaching the decedent with gun drawn (but not pointed at the suspect). The law did not clearly establish that doing so constituted excessive force.
A dissenting judge opined that, viewing the facts in the light most favorable to the plaintiffs, there was no evidence that the officer violated the Fourteenth Amendment by using force for a reason other than a legitimate police purpose.