Ninth Circuit Rules Use of Deadly Force Objectively Reasonable to Stop Suspect Pointing a Replica Gun at Officers

    

    Amid increased scrutinization of deadly officer involved shootings, the Ninth Circuit Court of Appeals recently vindicated the objectionably reasonable standard in analyzing lawsuits involving the use of deadly force by peace officers. In Estate of Strickland v. Nevada County, 69 F.4th 614 (9th Cir. 2023)[1], the Ninth Circuit affirmed the district court’s dismissal for failure to state a claim of an action brought pursuant to 42 U.S.C. § 1983 and state law, alleging that police officers used excessive force when they shot and killed Gabriel Strickland after he pointed a black airsoft rifle in their direction. The Court held that the responding officers’ use of deadly force was justifiable and objectionably reasonable under the totality of the circumstances, even though Mr. Strickland was in possession of a replica firearm.

 

    On January 1, 2020, dispatch received reports that a man was walking on a residential road with “what appeared to be a shotgun” slung over his shoulder. Officers from Grass Valley Police Department and Deputies from Nevada County Sheriff’s Office responded to the scene. The responding personnel recognized Strickland and knew he was homeless, suffered from mental health issues, and had been released from custody days before.

 

  The officers maneuvered their patrol vehicles around Strickland and surrounded him with service weapons drawn. The officers immediately ordered him to put down the gun. Strickland held the gun away from his body, said, “It’s a BB gun,” and then slapped the gun with his hand, making a noise that sounded more like plastic than metal. The officers continued to yell commands to Strickland to drop the gun and that they could not confirm the firearm was fake. Strickland pointed to the orange tip on the barrel. One officer responded, “You could have painted that…we don’t want to kill you.” Strickland replied, “I’m not doing nothing wrong.” Until then, Strickland stood with the barrel pointing at the ground.

 

    One officer tried tasing Strickland but failed to attach and disarm him. Seconds later, Strickland lowered the barrel toward the officers, who then shot and killed Strickland. Strickland’s Estate filed suit alleging excessive force under 42 U.S.C. section 1983 and California law.

    The Appellate Court considered whether the officers here employed an “objectively unreasonable” amount of force under the “totality of the circumstances.” See Brooks v. Clark County, 828 F.3d 910, 920, 922 (9th Cir. 2016). The Court explained that this inquiry required balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). These factors included:

1.    “The type and amount of force inflicted.”

2.    “The severity of the crime at issue.”

3.  “Whether the suspect posed an immediate threat to the safety of the officers or others.”

4.   “Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”

     The appellate court noted that other factors should be considered, including “the availability of less intrusive alternatives to the force employed, whether proper warnings were given, and whether it should have been apparent to officers that the person they used force against was emotionally disturbed.” S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).

 

    The Ninth Circuit explained that of all the use-of-force factors, the “most important” is whether the suspect posed an “immediate threat.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The Court stated that because this inquiry was about objective reasonableness, “the objective facts must indicate that the suspect posed an immediate threat to the officer or a member of the public.”

 

    While it is “clearly established that shooting a nonthreatening suspect would violate the suspect’s constitutional rights”, the Court noted that it was well-settled under Ninth Circuit precedent that lethal force is justified if an officer has “probable cause to believe that a suspect poses a significant threat of death or serious physical injury to the officer or others.”

 

    The Court also explained that officers can have reasonable but mistaken beliefs regarding the facts establishing the existence of an immediate threat, and “in those situations, courts will not hold that they have violated the Constitution.” Saucier v. Katz, 533 U.S. 194, 206 (2001). Thus, the Constitution even allows for an officer’s action that resulted from a reasonable “mistake of fact.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009). When an officer’s “use of force is based on a mistake of fact, courts ask whether a reasonable officer would have or should have accurately perceived that fact.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).

 

    The pivotal moment occurred when Strickland pointed the replica gun in the officers’ direction. At that point, they had “probable cause to believe that Strickland posed a significant threat of death or serious physical injury” to themselves, and it became objectively reasonable for them to use lethal force. The Court noted that when a suspect points a gun in an officer’s direction, “the Constitution undoubtedly entitles the officer to respond with deadly force.” Citing, George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013).

 

    The analysis remains the same regardless of whether the weapon turned out to be a replica, given the officers’ reasonable belief that Strickland possessed a real firearm. Even in the light most favorable to Strickland, he was carrying a replica gun, disregarded multiple warnings to drop it, and pointed it at the officers. Therefore, under the totality of the circumstances, it was objectively reasonable for the officers to believe Strickland posed an immediate threat even though he only had a replica gun. The Ninth Circuit concluded that the officers’ mistaken belief that Strickland possessed a dangerous weapon was reasonable, and they were justified in the use of deadly force when he pointed it at them.  

Practical Implications:

    Even in the current political climate in California, this decision upholds long-standing due process and self-defense standards pertaining to the use of deadly force. Thankfully, the appellate court recognized that officers do not have to wait until they are fired upon to confirm that a weapon is real, before they can respond to a perceived deadly threat.

Photo from ABC10's news coverage from January 24, 2020. 

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[1] Link to the Ninth Circuit Opinion in Estate of Strickland v. Nevada County 

David E. Mastagni Testified Against Bill (SB 519) Allowing “Local Detention Monitor” to Interrogate Peace Officers

On July 11, 2023, David E. Mastagni testified before the Assembly Public Safety Committee to oppose SB 519 on behalf of PORAC.  David focused the opposition on the powers this Bill would grant a newly created “Local Detention Monitor” to impair labor contracts and interrogate local peace officers regarding in-custody deaths without regard to their rights against self-incrimination.

As introduced by Senate President pro Tempore Toni G. Atkins, SB 519 would have provided that a board of supervisors may establish a department of corrections and rehabilitation to be headed by an executive officer appointed by the board and thus facilitate boards of supervisors cutting corners to reduce labor costs by supplanting sworn jail personnel and replacing them with lesser trained civilians.  SB 519 also provides that notwithstanding the general confidentiality of peace officer records or any other law, records relating to an investigation conducted by the local detention facility involving a death incident and any local detention facility personnel records shall not be confidential and shall be a public record.

PORAC opposed the sections of the Bill facilitating civilianization of local jails.  PORAC did not oppose the disclosure of records relating to an investigation conducted by the local detention facility involving a death incident, but did raise concerns with the language of this section. 

The Bill was amended on July 5, 2023.  These amendments addressed PORAC’s disclosure concerns and eliminated the provisions for civilianizing local jails.  However, the amendments replaced these sections of the Bill with new language establishing a statewide Local Detention Monitor with expansive powers including the ability to compel local employees to submit to interrogations without provision of their Constitutional rights.  The bill states, “[t]he Local Detention Monitor may require any employee or contractor of the local detention facility to be interviewed … Any employee or contractor requested to be interviewed shall comply….”

Thus, the Bill purports to force employees to waive their 5^th Amendment Rights by mandating cooperation with no option to exercise the right to remain silent.  By comparison, the peace officer licensing statute (SB 2) states, “the lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.” (Penal Code Section 13510.8(b)(8).)

At the Public Safety Committee hearing, David explained that PORAC does not oppose the establishment of a local detention oversight entity with the authority to review in-custody death investigations, and to issue reports and recommendations for improvements.  But PORAC does object to the authority granted the oversight entity because those powers impair its members’ labor and Constitutional rights.  David articulated PORAC’s concerns.

First, the Bill expressly provides for the impairment of existing labor contracts.

Second, the Bill purports to grant the monitor the power to compel union members to submit to interrogations without proper legal authority which is derived from the employment relationship or licensing authority.  The compulsion to cooperate in such investigations is based on the threat of discipline or loss of license.  The Monitor has no employment relationship nor licensing authority, and thus no power to compel cooperation or testimony.

Third, the Bill violates employees’ right against self-incrimination under the 5th Amendment because in-custody death investigations often involve potentially incriminating questions. In Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985) our Supreme Court carefully balanced public employers’ need to investigate against public employees’ 5th Amendment rights by holding an employer can compel potentially incriminating questions so long as the employee is granted immunity.  Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 725 clarified that public entities cannot require “as a condition of remaining on the job” that public employees “surrender his or her right against criminal use of [such] statements.”  

Chief Legislative Advocate Randy Perry, David E. Mastagni and Timothy K. Talbot intend to continue discussions with the author to address the concerns raised at the hearing.  The Public Safety Labor Blog will provide updates on this important legislation. 

You can view the entire hearing here: 

Assembly Public Safety Committee, Tuesday, July 11, 2023

The California Supreme Court Denies Police Officers Broad Immunity Claims in Negligence Suit Alleging Officers Left Dead Body Exposed for Hours

  On June 22, 2023, the California Supreme Court held Government Code § 821.6 does not provide broad immunity to police officers for allegedly negligent actions in the course of a law enforcement investigation. [Leon v. County of Riverside, 2023 WL 4112144]

In Leon, the spouse of a man shot and killed in his driveway sued the responding peace officers for negligent infliction of emotional distress for allegedly leaving his naked body exposed to the public for eight hours.  The Court confirmed that while other provisions of the Government Claims Act may confer immunity for certain investigatory actions, , section 821.6 of the Government Claims Act does not broadly immunize police officers or other public employees for any and all harmful actions they may take in the course of investigating crime.

 

           José Leon was shot and killed in a driveway near his home. Upon arrival at the scene, Riverside County Sherriff’s deputies heard additional shots. They moved Mr. Leon’s body behind a vehicle so that they could attempt to revive him but were unsuccessful. The movement caused Mr. Leon’s pants to drop to his ankles and expose his naked body. Mr. Leon’s body remained uncovered for approximately eight hours while officers searched for the shooter and investigated the shooting. The officers ultimately determined that the shooter had killed himself shortly after killing José. José’s wife, Dora Leon, sued the County of Riverside for negligent infliction of emotional distress.

 

 

           During summary judgment proceedings, the County of Riverside argued that its employees were immune under section 821.6 for “all conduct related to the investigation and filing of charges.” Because the suit arose from steps taken while investigating a homicide, the County argued, both the employees and their employer were immune from liability. More specifically, the County’s position was that injuries caused by police investigations qualify because of the close relationship between investigations and prosecutions. The trial court agreed and entered judgment for the County. The Court of Appeal affirmed that relying on a line of appellate cases that previously “consistently construed section 821.6 as immunizing a public employee from liability for any injury-causing act or omission in the course of the institution and prosecution of any judicial or administrative proceeding, including an investigation that may precede the institution of any such proceeding.” 

 

Supreme Court Disagrees with Previous Court of Appeal Decisions Regarding Claims Act Immunity Under Section 821.6 of the Government Claims Act:

 

           The Supreme Court granted review and held that section 821.6 of the Government Claims Act protects public employees from liability only for initiating or prosecuting official proceedings, thereby disapproving the prior line of appellate cases. Due to the fact the provision of the Government Claims Act relied on by the County did not apply, the County was not immune from the claim for negligent infliction of emotional distress claim. The Court reasoned that while many Courts of Appeal extended section 821.6 immunity to claims for injuries caused by official conduct other than the initiation or prosecution of a proceeding, including claims of harm stemming from police investigations, that conclusion is inconsistent with section 821.6’s text and history, as well as Supreme Court precedent. Specifically, the language of 821.6 does not cover investigatory acts because an investigation does not constitute the initiation or continued prosecution of official proceedings. The Court also found that the Legislature recognized, and the courts should respect, the traditional distinction between mere investigation and the prosecution of legal action. The Court explained that the County’s argument that injuries caused by police investigations qualify because of the close relationship between investigations and prosecutions was at odds with the plain meaning of the statutory language. The Court also highlighted the fact that investigations often do not lead to the institution or prosecution of any proceedings, which is what happened in this case. 

 

           Finally, the legislative history also contains no suggestion that the statute was also designed to create broad immunity for police officers engaged in investigation. Thus, when a claim of injury does not stem from the initiation or prosecution of proceedings, section 821.6 immunity does not apply.  Due to the fact that section 821.6 prosecution immunity was the only defense addressed by the trial court and Court of Appeal, the decision did not address other immunity defenses raised by the County, and the case was remanded for further proceedings consistent with the Court’s opinion.

 

          This ruling has limited impact given the legislative changes under Senate Bill 2, which became effective January 1, 2022.  Under S.B. 2, the state immunity provisions in sections 821.6, 844.6, and 845.6 of the Government Claims Act no longer apply to any cause of action brought against any peace officer, custodial officer, or directly against a public entity that employs them.     However, the decision is important as it demonstrates that the Supreme Court of California is inclined to take up issues that will narrow the immunities and protections previously available to public employees.