Ninth Circuit Upholds Officers’ Qualified Immunity in Dynamic Shooting Case

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In Neftali Monzon v. City of Murrieta et al. (No. 19-55164, filed July 22/2020), Plaintiffs Neftali Monzon and Marylou Monzon sued the City of Murrieta and five individually named police officers (collectively “Defendants”) for unlawful use of force under 42 U.S.C. § 1983, and additional state law claims, for the death of their son Junef Monzon (“Monzon”) who died as a result of an officer involved shooting. The District Court granted Defendants’ motion for summary judgment based on qualified immunity. The Ninth Circuit upheld the District Court’s ruling, noting: (1) the severity of Monzon’s crime weighed in favor of use of force; (2) Monzon posed an immediate threat to the safety of officers when he ignored commands to “stop!” and drove near, toward, and amongst officers on foot; (3) Monzon’s driving endangered the officers and left them with only seconds to consider less severe alternatives; and (4) a reasonable officer in the position of the individual defendant officers would have probable cause to believe that Monzon posed an immediate threat to the safety of one or more of the officers.

On October 22, 2016, at about 1:45 am, Officer Zeltner of the City of Murrieta Police Department ran a license plate of a Kia van that was reported stolen. Monzon was driving the van and passenger Jerrico Reyes (“Reyes”) was in the rear seat. Zeltner attempted to conduct a felony traffic stop, but Monzon refused to stop and led Zeltner and Officers Montez, Mikowski, Bradley, and Williams on a high speed chase. Monzon’s evasion proved erratic and dangerous to both the officers and the public. He reached speeds up to 100 mph, exited and reentered the freeway, and ran stop signs and stop lights through residential areas. After a 12 minute pursuit, Monzon turned onto a dead end street with no lights. The four police vehicles positioned themselves in staggered positions behind Monzon, effectively barricading the dead end street. Shortly after the officers parked, Monzon aggressively executed a multi-point turn, at one point running into a fence-post, so his vehicle was pointed in the general direction of the officers.

While Monzon was turning after entering the dead end, Officer Zeltner exited his vehicle, drew his firearm, and shouted for Monzon to stop and put his hands up. Reyes testified that Monzon did put his hands up. Nonetheless, everyone agreed that the van continued forward toward the officers. When the van was about 10 to 15 feet away from Zeltner, he fired his first shot at Monzon through the driver side window. He fired 5 additional shots as the van continued past him. Bradley also fired multiple shots as the van drove toward Mikowski and Williams. At one point, the van was headed directly toward Mikowski and Williams, and then headed for a gap between their vehicles. The van missed the gap and struck Mikowski’s cruiser, pushing it into Williams, injuring him. Williams fired ten shots at Monzon and Mikowski fired seven. Stopped, the van’s engine revved and its tires spun. Believing the van could drive over Mikowski or Williams, Bradley and Montez both fired. The entire time from when Monzon began turning to when the van crashed into the cruiser was 4.5 seconds. Monzon died at the scene.

Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not clearly violate established constitutional rights. To overcome qualified immunity, the court employs a two prong analysis: 1) did the officers violate a constitutional right; and 2) was the right clearly established at the time of the violation. If officers did not violate a constitutional right that was clearly established, then the “doctrine of qualified immunity protects” them “from liability for civil damages.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting in part Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If the officers did not violate a constitutional right the inquiry ends. It is only if the Court concludes that the officer did violate a constitutional right that the second prong of the analysis is necessitated. To surmount the “clearly established” threshold, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012).

Apprehending a suspect through the use of deadly force is considered a Fourth Amendment seizure of the person. To decide whether the Fourth Amendment was violated, the Court determines if the officers acted in an objectively reasonable manner when they “seized” Monzon. See Scott v. Harris, 550 U.S. 372, 381 (2007); Graham v. Connor, 490 U.S. 386, 395–97 (1989). In determining reasonableness, the Supreme Court has instructed courts to examine the “facts and circumstances confronting [the officers], without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397 (citing Scott v. United States, 436 U.S. 128, 137–39 (1978) and Terry v. Ohio, 392 U.S. 1, 21 (1968)). Courts must also view the specific use of force from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight. To assess reasonableness, courts consider the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest. . . .” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). The Court found all of these factors to weigh in favor of the reasonableness of the officers’ actions.

While the Court accepted as true Plaintiffs’ contentions that Decedent put his hands up, the vehicle was not heading directly for Officer Zeltner when he fired, and that there was no deadly force warning, none of those facts were dispositive. In so holding, the Court of Appeals cautioned against “cherry-picking” specific facts in hindsight, as it is not at all reflective of how the event transpired in real life. First, Plaintiffs’ argument that no officers were in the van’s path was not dispositive as the Court has never held that an officer must be in the direct path of a moving vehicle before his use of force is deemed reasonable. Nor could the Court do so, given the Supreme Court’s opinion in Plumhoff v. Rickard 572 U.S. 765 (2014). Second, Plaintiffs’ argument that officers must justify every shot they fired also failed. The Court rejected this argument as the United States Supreme Court in Plumhoff observed that “if lethal force is justified officers are taught to keep shooting until the threat is over,” and “officers need not stop shooting until the threat has ended.” Monzon v. City of Murrieta, supra at 15 (citing Plumhoff v. Rickard 572 U.S. 765, 777 (2014)). Here, the officers were permitted to use deadly force to protect the lives of other officers. Finally, Plaintiffs’ argued Monzon’s slow rate of speed indicated it was not an immediate threat to the lives of the officers. The Ninth Circuit disagreed, citing to its opinion in Wilkinson v. Torres where the Court held that simply because a vehicle was moving slowly, did not mean that a reasonable officer could not believe that the vehicle still posed a threat. Monzon v. City of Murrieta, supra at 18 (citing Wilkinson v. Torres, 610 F.3d 546).

Because none of the officers violated a constitutional right, the Court was not required to reach the question of whether that right was clearly established. However, the Court nonetheless addressed the issue and held that it was not. Even if the officers’ use of deadly force was not reasonable on the uncontested facts of the case, the second prong of the qualified immunity analysis would still compel affirmance because the officers did not violate a clearly established right. The Court found that there was no existing precedent that would clearly put a reasonable officer on notice that using deadly force against Monzon under the circumstances of this case would violate Monzon’s rights. All of the appellants’ attempts to liken this case to prior precedents were summarily distinguished.

This opinion strengthens the viability of the Court-created doctrine of qualified immunity, paying no heed to public cries for a reversal in light of the current climate. Given the U.S. Supreme Court’s refusal to grant certiorari on these issues in the recent term, it seems unlikely that qualified immunity will be unmoored from its foundations by judicial decree in the near future. Whether the federal or state legislatures discover avenues in which to alter the protections of qualified immunity will likely take time to become clear.

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