FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL ANN GEORGE, No. 11-55956
Plaintiff-Appellee,
D.C. No.
v. 2:09-cv-02258-
CBM-AGR
DEPUTY JARRETT MORRIS; DEPUTY
JOSEPH SCHMIDT; DEPUTY JEREMY
ROGERS,
Defendants-Appellants.
THE COUNTY OF SANTA BARBARA;
DEPUTY HARRY HUDLEY; DEPUTY
LARRY HESS,
Defendants.
CAROL ANN GEORGE, No. 11-56020
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-02258-
CBM-AGR
JARRETT MORRIS; JOSEPH SCHMIDT;
JEREMY ROGERS,
Defendants-Appellees, OPINION
and
2 GEORGE V. MORRIS
THE COUNTY OF SANTA BARBARA;
HARRY HUDLEY; LARRY HESS,
Defendants.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
February 7, 2013—Pasadena, California
Filed July 30, 2013
Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Trott
GEORGE V. MORRIS 3
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
denying qualified immunity to sheriff’s deputies and
dismissed plaintiff’s cross appeal for lack of jurisdiction in
these actions arising from the shooting by the deputies of an
armed homeowner on his patio.
The panel held that drawing all reasonable inferences in
plaintiff’s favor, as it was required to do at this interlocutory
stage, the specific circumstances did not indicate that the
decedent posed an immediate threat to the safety of the
officers or to others. The panel stated that if the deputies
indeed shot the sixty-four-year-old decedent without
objective provocation while he used his walker, with his gun
trained on the ground, then a reasonable jury could determine
that they violated the Fourth Amendment. Defendants
therefore were not entitled to qualified immunity.
The panel dismissed the cross appeal brought by
decedent’s wife after her counsel conceded at oral argument
that the cross appeal had not been well taken.
Judge Trott concurred in small part and dissented in large
part. He disagreed with the majority’s conclusion that
decedent did not pose an immediate threat to the safety of the
officers called to the scene by decedent’s distraught and
terrified wife in a 9-1-1 emergency call, or an immediate
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 GEORGE V. MORRIS
threat to the safety of others. Judge Trott agreed with the
majority’s disposition of the cross appeal.
COUNSEL
Michael Maury Youngdahl, County of Santa Barbara, CA,
argued the cause for the defendants-appellants/cross-
appellees. Kelly Duncan Scott, Deputy County Counsel, filed
the briefs. With her on the briefs was Dennis A. Marshall,
County Counsel.
Stephen K. Dunkle, Sanger Swysen & Dunkle, Santa Barbara,
CA, argued the cause and filed the briefs for the plaintiff-
appellee/cross-appellant. With him on the briefs were Robert
M. Sanger and Catherine J. Swysen, Sanger Swysen &
Dunkle, Santa Barbara, CA.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a reasonable jury could
determine that three sheriff’s deputies violated the
Constitution when they fatally shot an armed homeowner on
his patio.
GEORGE V. MORRIS 5
I
A
At half past five, on the morning of March 6, 2009, Carol
George awoke. Her husband Donald needed food.1 Donald
had a terminal case of brain cancer and, as a result of his
chemotherapy, ate frequently to manage headaches. His wife
brought him a snack and then, not having slept well, returned
to bed. Shortly after, George took the keys to the couple’s
truck from the night stand and went downstairs. Concerned
for his well-being, Carol followed him. She witnessed him
retrieve his pistol from the truck and load it with ammunition.
Carol called 911. Because she used her cell phone, the
call went to the Ventura California Highway Patrol. On the
audio recording in evidence, she can be heard exclaiming
“No!” and “My husband has a gun!” The highway patrol
dispatcher could only determine that she lived somewhere in
Santa Barbara. Her husband wanted her to hang up, so she
did. The dispatcher then contacted a Santa Barbara County
911 operator who called Carol back and obtained her
complete address.
Deputies were dispatched to the residence for a domestic
disturbance involving a firearm. Santa Barbara Sheriff’s
Deputies Jarrett Morris and Jeremy Rogers responded first.
Carol met them at the front door. She asked them to be quiet
1
We adopt Carol’s “version of the facts,” as she is the non movant.
Scott v. Harris, 550 U.S. 372, 378 (2007). Part II of our opinion explains
why we cannot agree with our dissenting colleague that we are at liberty
to prefer the deputies’ version in this interlocutory appeal.
6 GEORGE V. MORRIS
and not to scare her husband, while also advising that he was
on the patio with his gun.
The deputies decided to established a perimeter around
the house. They crossed the driveway toward a gate on the
east side of the property. Morris was in the lead, with
Schmidt and Rogers following. They carried two AR-15
rifles in addition to their service revolvers. Unable to spot
Donald, and concerned that he might use a door on the west
side of the house to exit, Rogers turned back to cover that
side. Morris tried to assume a position out of sight and
Schmidt lay down in ice plants at the bottom of a steep slope
near the southeast corner of the house. From his position on
the ground, Schmidt could see the back of the house, which
had an outdoor balcony on the second floor with a patio.
The district court concluded there was a dispute as to
which officer made contact with Donald first. Morris said
that Schmidt had—announcing “I see the suspect” on the
radio—while Schmidt claimed that it was Morris who
initially saw Donald. According to an uncontroverted police-
dispatch log, at 8:08 a.m., Donald opened the door to the
balcony. Once he appeared in view of the deputies, Schmidt
identified himself as law enforcement and instructed Donald
to show him his hands. Hearing yelling, Rogers left his post
out front and headed into the backyard.
Four minutes later, dispatch was told that Donald had a
firearm in his left hand. Morris testified to seeing Donald
“carrying [a] silver colored pistol in his left hand, while
holding” what he described “as a walker or a buggy.”2
Rogers stated that when George came into view, he was
2
A silver Walther pistol was recovered from Donald after the incident.
GEORGE V. MORRIS 7
holding a gun with the barrel pointing down. Carol does not
dispute that Donald exited onto the balcony with his walker
and holding his firearm. However, the district court
concluded that Carol’s evidence, which included an expert
witness’s report,3 called into question whether Donald ever
manipulated the gun, or pointed it directly at deputies.4
Soon after the deputies broadcast that Donald had a
firearm, the dispatch log records “shots fired.” Donald fell to
the ground, and Rogers continued to shoot. Together the
three deputies fired approximately nine shots. They then ran
to assist him, applied first aid, and called an ambulance.
3
Although various medical opinions of his were stricken by the district
court, Thomas R. Parker (a former FBI agent and California police officer)
provided an expert report. It gave perspective on how the deputies’
accounts compared with typical police behavior and contained opinions
about how the physical layout of the property may have influenced the
deputies’ and Donald’s on-the-scene perceptions.
4
Morris offers a vivid account of Donald’s final moments that we
cannot credit because the district court found it to be genuinely disputed.
See infra Part II. According to him, although Donald initially had the
pistol braced against his walker, soon after, Donald reached for what
Morris thought was its safety and grasped the gun with both hands. Then
in Morris’s words:
[Donald] made the final motion at the rear of the pistol
and I said to myself . . . if he raises that gun any higher
he’s going to be aiming at [Schmidt] and . . . I gotta
[sic] take that shot and . . . at that moment as he’s
raising, he doesn’t get higher th[a]n the wall he
immediately turns straight east and raises it and is now
pointing it directly at me and I had nowhere to go. I’m,
I’m crouched down and I’m, I remember seeing the, the
black hole actually looking down the barrel as it’s
pointed right at me and that was when, that was when
I fired my first shot.
8 GEORGE V. MORRIS
Donald died two hours later at the hospital following surgery
and admission to the intensive care unit.
B
Carol sued a year later under 42 U.S.C. § 1983 asserting
two constitutional claims.5 Against Morris, Schmidt, and
Rogers she claimed a violation of her late husband’s right to
be free from excessive force under the Fourth Amendment, as
incorporated.6 In a claim chiefly implicating Deputy Harry
Hudley, Carol asserted that her own Fourth Amendment right
against unreasonable seizure was violated when Hudley kept
her from the crime scene in the shooting’s aftermath and
when she was briefly stopped from visiting Donald in the
hospital. The deputies and their supervisors moved for
summary judgment invoking qualified immunity, mainly
arguing that neither Donald’s nor Carol’s constitutional rights
had been violated.
After an evidentiary hearing, the district court concluded
that based on the admissible evidence, “whether Mr. George
presented a threat to the safety of the deputies is a material
5
She also raised a variety of state-law causes of action. Because it is
undisputed “that resolution of the federal constitutional claims would
necessarily dictate the resolution of the state law claims,” we do not
address them separately.
6
“A claim under 42 U.S.C. § 1983 survives the decedent if the claim
accrued before the decedent’s death, and if state law authorizes a survival
action.” Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1093 n.2
(9th Cir. 2006) (citing 42 U.S.C. § 1988(a)). Carol’s complaint alleges
that she is the personal representative of her husband’s estate in full
compliance with California law. She therefore may litigate his Fourth
Amendment claim. See id.; Cal. Civ. Proc. Code §§ 377.30, 377.32.
GEORGE V. MORRIS 9
fact that is genuinely in dispute.”7 This meant a constitutional
violation could be proven and the court denied qualified
immunity on that basis. Concluding that the deputies had not
argued for its application, the court did not address the second
prong of qualified immunity—the clearly established inquiry.
That asks whether “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012)
(en banc). As to Carol’s seizure claim, the district court
decided there was no constitutional violation and, in the
alternative, that “the right at issue was not clearly
established.” It therefore granted summary judgment to
Hudley and the other deputies.
Morris, Rogers, and Schmidt timely appeal the denial of
summary judgment. Carol timely cross appeals, seeking
review of the district court’s grant of summary judgment to
the deputies on her unreasonable seizure claim.
II
Because Morris, Rogers, and Schmidt challenge the
denial of qualified immunity we have jurisdiction over the
denial of summary judgment, an interlocutory decision not
normally appealable. See Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). However, the scope of our review over the
appeal is circumscribed. See Kennedy v. City of Ridgefield,
439 F.3d 1055, 1059–60 (9th Cir. 2006). Any decision by the
district court “that the parties’ evidence presents genuine
7
Like the dissent, in the context of the district court’s preceding
analysis, we understand this statement for what it is: a determination that
the facts about how Donald and the deputies had behaved prior to the
shooting were contested. See Dissent at 32–33.
10 GEORGE V. MORRIS
issues of material fact is categorically unreviewable on
interlocutory appeal.” Eng v. Cooley, 552 F.3d 1062, 1067
(9th Cir. 2009). Stated differently, “we may not consider
questions of eviden[tiary] sufficiency, i.e., which facts a party
may, or may not, be able to prove at trial.” CarePartners,
LLC v. Lashway, 545 F.3d 867, 875 (9th Cir. 2008) (internal
quotation marks omitted).
Noting that we do have authority to consider the
materiality of a fact, Behrens v. Pelletier, 516 U.S. 299,
312–13 (1996),—the issue of whether disputed facts “might
affect the outcome of the suit under the governing law”—the
deputies argue that Carol’s disputed facts are ancillary, and
therefore immaterial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In that respect, they claim that a
review of the district court’s “reasoning establishes that rather
than delineating actual material disputed facts, [the court]
commingled a group of insignificant discrepancies in
statements” in order to conclude that a dispute existed about
what had transpired during Donald’s final minutes. Although
couched in the language of materiality, their argument
actually goes to the sufficiency of George’s evidence. At
bottom, their contention is that Carol could not “prove at
trial” that Donald did not turn and point his gun at deputies.
Johnson v. Jones, 515 U.S. 304, 313 (1995).
In cases where the best (and usually only) witness who
could offer direct testimony for the plaintiff about what
happened before a shooting has died, our precedent permits
the decedent’s version of events to be constructed
circumstantially from competent expert and physical
evidence, as well as from inconsistencies in the testimony of
law enforcement. See Scott v. Henrich, 39 F.3d 912, 915 (9th
Cir. 1994); Santos v. Gates, 287 F.3d 846, 852 (9th Cir. 2002)
GEORGE V. MORRIS 11
(“Nowhere in our cases have we held that police misconduct
may be proved only through direct evidence.”).8 The district
court applied this principle. It parsed the deputies’ testimony
for inconsistencies, found that medical evidence (and Carol’s
declaration) called into question whether Donald was
physically capable of wielding the gun as deputies described,
and found parts of Carol’s expert’s testimony probative.
There were genuine disputes of fact such that a reasonable
jury could “disbelieve the officers’ testimony” and rely on
record evidence to conclude that Donald had not ignored
commands to drop the gun, or taken other threatening
measures such as pointing the weapon at deputies.
Because this inquiry, under Scott v. Henrich and its
progeny, concerns genuineness—namely “the question
whether there is enough evidence in the record for a jury to
conclude that certain facts are true”—we may not decide at
this interlocutory stage if the district court properly
performed it. Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir.
2004) (en banc); see Abdullahi v. City of Madison, 423 F.3d
763, 772 n.8 (7th Cir. 2005) (discussing the Ninth Circuit’s
approach). The dissent, however, would have us effectively
cast off the interlocutory-review framework. Dissent at
40–45. It tells us we may do so under the banner of Scott v.
Harris, a case in which not a single Justice of the Supreme
Court “discussed the limits of the collateral order doctrine in
qualified immunity cases” or even cited the Court’s prior
authorities on the subject. Blaylock v. City of Philadelphia,
8
Other circuits emulate this approach. See, e.g., Lamont v. New Jersey,
637 F.3d 177, 181–82 (3d Cir. 2011); Abdullahi v. City of Madison,
423 F.3d 763, 772 & n.8 (7th Cir. 2005) (describing the role of a police
practices expert and explaining the centrality of inferences “when the
plaintiff’s sole eyewitness is dead”).
12 GEORGE V. MORRIS
504 F.3d 405, 413–14 (3d Cir. 2007) (“[n]either the majority
nor the dissent in Scott cited Johnson or Behrens”).
In Johnson, a unanimous Supreme Court told us these
interlocutory appeals involving qualified immunity (1) would
be suited to our comparative expertise as appellate judges,
centering on “abstract issues of law,” as opposed to “the
existence, or nonexistence, of a triable issue of fact” and (2)
would spare us from pouring over “affidavits, depositions,
and other discovery materials.” Johnson, 515 U.S. at 316–17.
If we could exercise the same plenary review as the district
judge below, or if we were jurors called upon to weigh the
evidence, the arguments of our able colleague in dissent
might persuade us. Yet, his scrutinizing of the record cannot
be squared with the Johnson paradigm.9 Even accepting for
the sake of argument, though, that Scott v. Harris is meant to
establish an exception to the rules for interlocutory review,
9
Our conclusion that the Johnson principle still applies today is by no
means idiosyncratic. In the years since Scott v. Harris (a 2007 decision),
we have consistently held that our court lacks the power to reassess facts
on interlocutory review. The 2009 Eng decision could not be clearer
about what our circuit’s law prescribes, see Dissent at 42, and there are
many other precedents to the same effect. See, e.g., Karl v. City of
Mountlake Terrace, 678 F.3d 1062, 1067–68 (9th Cir. 2012) (explaining
that “[u]nder the collateral order doctrine[,] . . . . [w]here there are
disputed issues of material fact, our review is limited to whether the
defendant would be entitled to qualified immunity as a matter of law”);
Conner v. Heiman, 672 F.3d 1126, 1130 n.1 (9th Cir. 2012) (explaining
that under Johnson it is only when the “disputes involve what inferences
properly may be drawn from . . . historical facts that are not in dispute”
that an interlocutory appeal will lie (alteration in original) (internal
quotation marks omitted)); Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.
2011) (jurisdiction existed because appellants were “not contesting the
district court’s conclusion that genuine issues of fact exist for trial” but
instead were “appealing the purely legal issue of whether they violated
Alston’s clearly established federal rights”).
GEORGE V. MORRIS 13
the dissent does not fit within that case’s terms either. It
points to no videotape, audio recording, or similarly
dispositive evidence that “blatantly contradict[s]” or “utterly
discredit[s]” Carol’s side of the story. Scott, 550 U.S. at
380.10
Our decision not to assume Scott v. Harris implicitly
abrogated a line of precedent also accords with the Supreme
Court’s later guidance. In a more recent section 1983 case,
the Court reaffirmed that “immediate appeal from the denial
of summary judgment on a qualified immunity plea is
available when the appeal presents a ‘purely legal issue.’”
Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011); see also id. at
893 (explaining that “[c]ases fitting that bill typically involve
contests not about what occurred, or why an action was taken
10
After reciting the summary judgment standard, the Scott v. Harris
Court explained “[t]here is, however, an added wrinkle in this case:
existence in the record of a videotape capturing the events in question.
There are no allegations or indications that this videotape was doctored or
altered in any way, nor any contention that what it depicts differs from
what actually happened. The videotape quite clearly contradicts the
version of the story told by respondent and adopted by the Court of
Appeals.” 550 U.S. at 378. While the dissent frames a bystander’s
recollection as that sort of smoking gun, all it might establish is that a
warning was uttered. Dissent at 51–52. Still crucial (and unknown) is
how Donald responded.
Our colleague in dissent also contends that none of the opinions of the
police practices expert are admissible. See Dissent at 58. We will not join
issue on this point because the deputies expressly disclaim an evidentiary
challenge to Parker’s opinions under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
14 GEORGE V. MORRIS
or omitted, but disputes about the substance and clarity of
pre-existing law” (citing Behrens and Johnson)).11
Thus, in this appeal, we are confined to the question of
“whether the defendant[s] would be entitled to qualified
immunity as a matter of law, assuming all factual disputes are
resolved, and all reasonable inferences are drawn, in
plaintiff’s favor.” Karl v. City of Mountlake Terrace,
678 F.3d 1062, 1068 (9th Cir. 2012).
11
Unlike the dissent we are not convinced that Wilkinson v. Torres,
610 F.3d 546, 550 (9th Cir. 2010) is necessarily to the contrary, for there
we confirmed that “[o]ur jurisdiction to review an interlocutory appeal of
a denial of qualified immunity . . . is limited exclusively to questions of
law.” The panel chiefly “looked past the district court’s conclusion,”
Dissent at 42, with respect to the legal significance to be assigned
plaintiff’s facts. See, e.g., Wilkinson, 610 F.3d at 552 (“While perhaps
true as far as it goes, [plaintiff’s] version omits the urgency of the
situation.”). Admittedly, though, other parts of the opinion do read as
though the appeal arose from the grant of summary judgment. See id. at
553.
Although Wilkinson cited Scott v. Harris in service of that approach,
its author (Judge Tashima) has taken the position that Wilkinson did not
“address[] the jurisdictional defect that . . . [fact-related] issues potentially
raise under Johnson.” Conatser v. N. Las Vegas Police Dep’t, 445 F.
App’x 932, 933 (9th Cir. 2011) (per curiam) (a panel including Judge
Tashima dismissed for lack of appellate jurisdiction officer-defendants’
claim that “the evidence cannot support the inference that [the decedent]
never attacked them”). We agree that this is the fairest reading of
Wilkinson. And, because “unstated assumptions on non-litigated issues
are not precedential holdings binding future decisions,” that case does not
dictate how this appeal ought to be resolved. Proctor v. Vishay Intertech.,
Inc., 584 F.3d 1208, 1226 (9th Cir. 2009).
GEORGE V. MORRIS 15
III
The deputies’ appeal touches on two questions of
qualified immunity. First, the deputies claim the shooting did
not violate the Constitution. Second, they assert that even if
Donald’s Fourth Amendment rights were violated, they did
not violate law clearly established at the time they acted.
A
Usually we can start with the second prong of qualified
immunity if we think it advantageous. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Here, though, we are
not satisfied that the deputies have adequately pursued that
argument. As Carol observes, the district court concluded
that the deputies had not “argue[d] that the constitutional
right was clearly established at the time of the alleged
misconduct.” Our review of the record reveals that while
they made passing references to this defense, they did not
develop it in their briefing below. At an oral hearing on the
motion for summary judgment, they made absolutely no
reference to prong two either. “Although no bright line rule
exists to determine whether a matter [has] been properly
raised below, an issue will generally be deemed waived on
appeal if the argument was not raised sufficiently for the trial
court to rule on it.” In re Mercury Interactive Corp. Sec.
Litig., 618 F.3d 988, 992 (9th Cir. 2010) (internal quotation
marks omitted).
We need not definitely decide, however, whether they
waived the argument at the district court. On appeal, the
deputies have not advanced an argument as to why the law is
not clearly established that takes the facts in the light most
favorable to Carol. See Adams v. Speers, 473 F.3d 989, 991
16 GEORGE V. MORRIS
(9th Cir. 2007) (“The exception to the normal rule prohibiting
an appeal before a trial works only if the appellant concedes
the facts and seeks judgment on the law.”). We will not “do
an appellant’s work for it, either by manufacturing its legal
arguments, or by combing the record on its behalf for factual
support.” W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970,
979 (9th Cir. 2012).
Although the deputies’ “briefs lapse into disputing
[Carol’s] version of the facts” as to the threshold
constitutional violation as well, we discern enough of a
distinct legal claim to entertain that first-prong qualified
immunity contention. Adams, 473 F.3d at 990.12
B
As to whether the deputies violated the Fourth
Amendment, two Supreme Court decisions chart the general
terrain. Graham v. Connor, 490 U.S. 386 (1989), defines the
excessive force inquiry, while Tennessee v. Garner,
471 U.S. 1 (1985), offers some guidance tailored to the
application of deadly force.
“Graham sets out a non-exhaustive list of factors for
evaluating [on-the-scene] reasonability: (1) the severity of the
crime at issue, (2) whether the suspect posed an immediate
threat to the safety of the officers or others, and (3) whether
12
Our decision on the clearly established issue does not prevent the
deputies from appropriately raising the second prong of qualified
immunity at a subsequent stage in the litigation, such as in a Rule 50
motion for judgment as a matter of law. See Tortu v. Las Vegas Metro.
Police Dep’t, 556 F.3d 1075, 1080–81 (9th Cir. 2009); Ortiz, 131 S. Ct.
at 889.
GEORGE V. MORRIS 17
the suspect actively resisted arrest or attempted to escape.”
Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir.
2012). In Garner, the Supreme Court considered (1) the
immediacy of the threat, (2) whether force was necessary to
safeguard officers or the public, and (3) whether officers
administered a warning, assuming it was practicable. See
Scott v. Harris, 550 U.S. 372, 381–82 (2007). Yet, “there are
no per se rules in the Fourth Amendment excessive force
context.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.
2011) (en banc).13
The district court applied the Graham factors and found
that the first and third unmistakably weighed in Carol’s favor.
“It is undisputed that Mr. George had not committed a crime,
and that he was not actively resisting arrest or attempting to
evade arrest by flight.” The deputies do not challenge these
conclusions on appeal. They correctly observe, however, that
the “‘most important’ factor under Graham is whether the
suspect posed an ‘immediate threat to the safety of the
officers or others.’” Bryan v. MacPherson, 630 F.3d 805,
826 (9th Cir. 2010). As to this third key factor, while the
deputies certainly aver feeling threatened before they shot
George, such a statement “is not enough; there must be
objective factors to justify such a concern.” Id. When an
individual points his gun “in the officers’ direction,” the
Constitution undoubtedly entitles the officer to respond with
deadly force. Long v. City & Cnty. of Honolulu, 511 F.3d
13
See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (courts
must “examine the totality of the circumstances and consider whatever
specific factors may be appropriate in a particular case, whether or not
listed in Graham”) (internal quotation marks omitted), and Harris,
550 U.S. at 382 (“Garner did not establish a magical on/off switch that
triggers rigid preconditions whenever an officer’s actions constitute
‘deadly force.’”).
18 GEORGE V. MORRIS
901, 906 (9th Cir. 2007). In Scott, we likewise recognized
that officers firing their weapons at a defendant who “held a
‘long gun’ and pointed it at them” had not been
constitutionally excessive. 39 F.3d at 914.
Taking the facts as we must regard them, that specific
circumstance is not present in this case. In Glenn v.
Washington County, we found that in a 911 scenario without
flight or an alleged crime, the officers’ decision to shoot an
individual holding a pocket knife, “which he did not brandish
at anyone,” violated the Constitution. 673 F.3d 864, 873–78
(9th Cir. 2011). Reviewing Long and Scott, we explained that
the fact that the “suspect was armed with a deadly weapon”
does not render the officers’ response per se reasonable under
the Fourth Amendment. Id. at 872–73; see also Harris v.
Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997) (“Law
enforcement officials may not kill suspects who do not pose
an immediate threat to their safety or to the safety of others
simply because they are armed.”).
This is not to say that the Fourth Amendment always
requires officers to delay their fire until a suspect turns his
weapon on them. If the person is armed—or reasonably
suspected of being armed—a furtive movement, harrowing
gesture, or serious verbal threat might create an immediate
threat. On this interlocutory appeal, though, we can neither
credit the deputies’ testimony that Donald turned and pointed
his gun at them, nor assume that he took other actions that
would have been objectively threatening. Given that version
of events, a reasonable fact-finder could conclude that the
deputies’ use of force was constitutionally excessive.
Contrary to the dissent’s charge, we are clear-eyed about the
potentially volatile and dangerous situation these deputies
confronted. Yet, we cannot say they assuredly stayed within
GEORGE V. MORRIS 19
constitutional bounds without knowing “[w]hat happened at
the rear of the George residence during the [four minutes
between when] Mr. George walked out into the open on his
patio and the fatal shot.” Dissent at 40. That is, indeed, “the
core issue in this case.” Id.
The deputies argue that the reasonableness of their actions
is enhanced because they were told to expect a domestic
disturbance. Sitting en banc, this court recently identified this
circumstance as a “‘specific factor[]’ relevant to the totality
of the[] circumstances.” Mattos, 661 F.3d at 450. Domestic
violence situations are “particularly dangerous” because
“more officers are killed or injured on domestic violence calls
than on any other type of call.” Id. At the same time, we
explained in Mattos that the legitimate escalation of an
officer’s “concern[] about his or her safety” is less salient
“when the domestic dispute is seemingly over by the time the
officers begin their investigation.” Id. Years before that we
had held—in another en banc decision—that a husband’s
criminal abuse of his spouse “provide[d] little, if any, basis
for the officers’ use of physical force” because when law
enforcement “arrived [the husband] was standing on his porch
alone and separated from his wife.” Smith v. City of Hemet,
394 F.3d 689, 703 (9th Cir. 2005) (en banc). That
distinguishing feature from Smith and Mattos is present here.
Carol was unscathed and not in jeopardy when deputies
arrived. Donald was not in the vicinity; instead he was said
to be on the couple’s rear patio.
Today’s holding should be unsurprising. If the deputies
indeed shot the sixty-four-year-old decedent without
objective provocation while he used his walker, with his gun
trained on the ground, then a reasonable jury could determine
that they violated the Fourth Amendment. See Saucier v.
20 GEORGE V. MORRIS
Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Pearson, 555 U.S. at 227.14
IV
Owing to the obligation to be satisfied of our jurisdiction,
we asked the parties to address at oral argument whether
Carol’s cross appeal had been well taken. Her counsel
conceded it had not. In contrast to the situation in which an
officer denied immunity finds himself, Carol will not lose any
14
Carol advances another argument about the unconstitutionality of the
shooting which necessarily fails and should be excluded at trial.
Specifically, she faults the deputies for (1) not gathering intelligence from
her before heading to the backyard, (2) bringing assault rifles, and (3)
failing to “set up a non-confrontational, ‘soft’ perimeter around the
house.” Although at one time Ninth Circuit law did permit these kind of
considerations to inform the subsequent excessive force inquiry, “[w]e
have since placed important limitations” on that line of argument.
Billington v. Smith, 292 F.3d 1177,1188 (9th Cir. 2002); see also Espinosa
v. City & Cnty. of San Francisco, 598 F.3d 528, 547–49 (9th Cir. 2010)
(Wu, J., dissenting) (detailing how our law has receded).
In Billington, we explained that intervening caselaw, since Alexander
v. City & County of San Francisco, 29 F.3d 1355, 1366–67 (9th Cir.
1994), “prevent[s] a plaintiff from avoiding summary judgment by simply
producing an expert’s report that an officer’s conduct leading up to a
deadly confrontation was imprudent, inappropriate, or even reckless.”
292 F.3d at 1189. Then, harmonizing Alexander “with the Supreme
Court’s admonition in Graham,” we explained that a plaintiff cannot
“establish a Fourth Amendment violation based merely on bad tactics that
result in a deadly confrontation that could have been avoided.” Id. at
1190. At most, Carol’s cited failings amount to negligence. Only when
“an officer intentionally or recklessly provokes a violent response, and
[when] the provocation is an independent constitutional violation” will
that conduct color the subsequent excessive force inquiry. Id. Moreover,
her proposed alternative measures are plagued with the sort of hindsight
bias the Supreme Court has forbidden. See id. at 1191.
GEORGE V. MORRIS 21
right by having appellate review of her unreasonable seizure
claim deferred until final judgment. See LaTrieste Rest. &
Cabaret, Inc. v. Vill. of Port Chester, 96 F.3d 598, 599 (2d
Cir. 1996) (per curiam).15
We therefore lack appellate jurisdiction over Carol’s cross
appeal in its entirety.
V
For the foregoing reasons, the cross appeal is
DISMISSED for lack of jurisdiction. We also conclude that
the facts, as we must regard them, show that Santa Barbara
Sheriff’s Deputies Morris, Rogers and Schmidt could be
found to have violated the Fourth Amendment’s prohibition
on excessive force. They are therefore not entitled to
qualified immunity on that basis.
AFFIRMED IN PART, DISMISSED IN PART. The
parties shall bear their own costs on appeal.
15
“All circuits that have considered whether the collateral order doctrine
confers appellate jurisdiction over appeals arising from a grant of partial
summary judgment based on qualified immunity have universally held
that such a judgment is not immediately appealable.” Id. (collecting
cases). Pendent appellate jurisdiction might be exercised over non-
reviewable interlocutory decisions that raise issues “inextricably
intertwined” with matters properly appealed. Cunningham v. Gates,
229 F.3d 1271, 1284 (9th Cir. 2000). But as Carol’s counsel rightly
appreciated, the claim that deputies unconstitutionally seized Carol
involves different facts and legal standards from those germane to whether
deputies used excessive force when they shot Donald. See id. at 1285.
22 GEORGE V. MORRIS
TROTT, Circuit Judge, concurring in small part and
disagreeing in large part:
Mrs. George has been through a painful set of
circumstances, and she deserves not to be subjected to these
facts again and again. Nevertheless, with the advice of
counsel, she has chosen to sue the deputies who responded to
her emergency call, and they, too, are entitled to fair and
proper treatment under the law. To render these deputies
subject to this misguided lawsuit misapprehends the
hazardous situation in which they found themselves, and it
devalues case law on the dangers of domestic disputes such
as the failed physical attempt by Mrs. George to disarm her
angry and dangerous husband.
Moreover, the majority opinion misperceives an
important aspect of the doctrine of qualified immunity as
explained by the Supreme Court in Scott v. Harris, 550 U.S.
372 (2007), an aspect since embraced by the Third, Fourth,
Sixth, Eighth, Tenth, and Eleventh Circuits—not to mention
our own. The Court’s holding in Scott v. Harris and the
principle upon which it rests ensures that government
officials will not be required to defend themselves in court if
it appears to an appellate court from the record taken as a
whole that the plaintiff has no case, and therefore as a matter
“of law,” id. at 381 n.8 (emphasis added), the lawsuit cannot
survive summary judgment. Thus, the majority opinion
inadvertently dilutes an essential public interest the doctrine
protects: the ability of government officials to perform their
responsibilities without paralyzing fear of inappropriate
personal lawsuits and potential civil liability.
Let’s make one thing clear. The outcome of the rapidly
evolving events on March 6, 2008, was not a success. Why?
GEORGE V. MORRIS 23
Because Mr. George died, and the best result of interventions
like this is to resolve them with no loss of life or other injury.
No reasonable law enforcement agency or deputy could
disagree with this assessment. On the other hand, fortunately
neither the first responders nor anyone else was harmed.
I
With all respect to my colleagues, I disagree with their
and the district court’s conclusion that Mr. George did not
pose an immediate threat “to the safety of the officers” called
to the scene by his distraught and terrified wife in a 9-1-1
emergency call, or an immediate threat to the safety “of
others.” Bryan v. Mac Pherson, 630 F.3d 805, 826 (9th Cir.
2010). This factor is central to this case because, in the
calculus of whether or not the force used by police to respond
to a hazardous tactical situation was unreasonable and
excessive, it is the “most important.” Id. We must get this
right before we go any further.1
II
I begin with undisputed facts.
This tragic series of events began at 7:44 a.m. on
Thursday, March 6, 2008, when Mrs. George, the decedent’s
wife, placed a 9-1-1 emergency call which was received by
the Ventura Branch of the California Highway Patrol
(“CHP”). A recording of the call indicates that Mrs. George
was hysterically screaming, indeed shrieking almost
incomprehensively as loud as any human being could.
1
I do agree with my colleagues’ disposition of Mrs. George’s cross
appeal.
24 GEORGE V. MORRIS
Repeatedly she is heard amidst the background din of the call
yelling, not “exclaiming” but yelling, at the top of her lungs.
She says, “No, No, No” and “My husband has a gun!” The
911 operator attempts unsuccessfully to calm her down. A
male voice—most certainly her husband’s—can be heard in
the background saying, “nothing,” to which she says “okay.”
A moment of calm during which she said she was in Santa
Barbara is interrupted by more sudden blood curdling
screaming and shrieking, “No, No, No, Stop it.”, and the
phone on Mrs. George’s end went dead. This is indisputable
evidence that a serious domestic dispute was in progress, a
heated quarrel between a desperate wife and a defiant
husband over a firearm.
The Ventura CHP dispatch operator then immediately
called Santa Barbara Sheriff’s emergency and advised that
dispatch operator of Mrs. George’s call. Santa Barbara was
told that Ventura CHP had received a call from a woman in
Santa Barbara “screaming that her husband has a gun.”
Ventura CHP also advised that the operator was unable to get
a complete address. Santa Barbara said, “Okay we’ll give her
a call.”
The following conversation then occurred between the
CHP 9-1-1 dispatcher and the Santa Barbara 9-1-1 dispatcher:
Sheriff’ Dispatcher (“S.D.”): 9-1-1
emergency.
CHP Dispatcher (“CHP”): I had a caller that
was a female caller. The only thing I have is
the number [number omitted].
S.D.: 805-[number omitted]
GEORGE V. MORRIS 25
CHP: [number omitted]. And I got three – the
first three of her address is [address omitted],
and she says she’s in Santa Barbara. She’s
screaming that her husband has a gun.
S.D.: Okay, but you don’t have an address?
CHP: No.
S.D.: And where are you calling from?
CHP: From Ventura CHP.
S.D.: Ventura CHP, okay. I don’t know,
okay, I guess, was she actually in Santa
Barbara City?
CHP: It’s showing off of Cathedral Oaks.
S.D.: Okay, all right, we’ll give her a call.
The Santa Barbara dispatcher operator then called Mrs.
George. Throughout this call, Mrs. George is breathing very
heavily and periodically talking to a man in the background,
presumably her husband. She is anything but calm and
collected. The dispatcher described her as sounding “scared.”
S.D.: Hi, this is the Sheriff’s Department.
Where are you?
Male voice: It’s fine, everything is fine.
S.D.: Ma’am, where are you?
26 GEORGE V. MORRIS
Mrs. George: I’m at home. He said
everything is fine.
S.D.: What is your address?
Mrs. George: I gave it to you earlier.
S.D.: What’s your address ma’am, what’s
your address?
Mrs. George: He said everything is fine.
S.D.: Okay, well, tell me your address.
Male voice: (unintelligible)
Mrs. George: (Apparently addressing her
husband) I’m not talking. (Responding to the
dispatcher’s question) [street address and
name omitted] is my address.
S.D.: [address omitted]?
Mrs. George: Yes. He wants to talk.
At this point, the dispatcher indicated in her deposition
that she thought Mr. George had hung up the phone. The
dispatcher called back:
Mrs. George: Hello.
S.D.: Hi ma’am, it’s the Sheriff’s Department.
Mrs. George: Yeah?
GEORGE V. MORRIS 27
S.D.: We have help on the way, can you talk?
Mrs. George: Yes, he’s outside right now. He
says he won’t do anything. He has cancer and
he just pulled a gun out. I thought all of them
were hidden. He has one, and he says he
won’t do anything but he just wants to have
the – I don’t know. If somebody comes,
please don’t have fire engines.
S.D.: No, we are sending Sheriff’s
Department out.
Mrs. George: All right. I’ll talk to someone at
the front door.
S.D.: Ma’am, what is your name?
Mrs. George: Carol George
S.D.: Carol George?
Mrs. George: Yes I’ve got to go back inside.
S.D.: If you need anything else, let me know,
okay?
Mrs. George: Thank you.
At 7:51 a.m., Sheriff’s deputies were sent to the location,
arriving at 7:56 a.m., just 12 minutes after Mrs. George’s first
9-1-1 call. They had been advised by dispatch (1) of a
domestic violence incident in progress (“415 D”), (2) that a
firearm was involved, (3) that Mr. George had hung up the
28 GEORGE V. MORRIS
phone during the 9-1-1 calls, (4) that Mr. George had cancer,
(5) that Mr. George was the person with the firearm, and (6)
that he had registered firearms in his residence. This
constellation of facts and circumstances amounted to
“probable cause to believe that [Mr. George] pose[d] a
significant threat of death or serious physical injury to the
officers or others.” Tennessee v. Garner, 471 U.S. 1, 3
(1985). For all the deputies knew, Mrs. George herself was
in harms way.
Here, I elaborate on what went on in the George
household immediately before the first 9-1-1 call. These
facts come from Mrs. George’s own words recorded by the
Sheriff’s Department roughly only four hours after the
incident, i.e., “Carol’s version.” Maj. Op. at 5, n.1. After his
brain surgery, Mr. George became an angry man.
[H]e kept on saying I don’t want to live like
this, I don’t want to live like this, I’m going to
be a vegetable. He was angry to the point
where we locked the guns that were in the
house. . . . So there’s a closet that has a lock
on it . . ., there was one handgun in the bed
stand, which I took out, because for a few
weeks he could not go up stairs so, I made
sure that was locked in the closet as well and
I had the key, but we told him Jamie had the
key. . . . And so last night, when he went to
bed he was furious because he couldn’t go to
the bathroom. . . . Very, very angry, and he
goes I’m not going to live like this. And then
this morning I saw that he had gotten this
drawer, in the bed stand had a nail through it
and so nobody else, that’s also where we kept
GEORGE V. MORRIS 29
the jewelry and stuff, you know, because
nobody could get to it. I noticed it was open.
So I got scared and he was very angry and
wanted me to leave, he wanted me to leave the
house. . . . So finally he went downstairs and
I followed him, and he said he wanted me to
leave, he wanted me to leave in my car and I
knew someplace in the trunk there was a gun
hidden, but I had looked for it a couple of
days ago and I could not find it, I don’t know
where it was, and somehow he got the keys to
the car this morning, opened the trunk, pulled
out the gun and I am yanking at him and am
screaming at the top of my lungs and I started
panicking and I called 9-1-1. And he got
furious that I called 9-1-1 and he said “if you
don’t stop it, I will use this gun.” I said “no,
just put it down.” So finally he says, well lets
go in the house. So I walk in the house and
he’s carrying this loaded gun now. . . . Yeah,
I know it was loaded. . . .
(Emphasis added).
When questioned about her knowledge that the gun was
loaded, Mrs. George said, “Yeah, he had stuck a pin in it, I
saw him do that.” (Emphasis added). When asked what she
meant by “pin,” she said, “That clip, something . . . yeah, I
saw him do that because it wasn’t loaded in the car, and I
saw him pull it out from a different place and he stuck it in,
and I said ‘just give it to me, no.’ And I started trying to pull
him, pretty strong, I couldn’t do it.” (Emphasis added).
When Mr. George’s gun was recovered, it was loaded with
hollow-point bullets.
30 GEORGE V. MORRIS
Parenthetically, Mrs. George’s attorney now claims that
Mr. George was so impaired by his condition that he was not
physically able to point his gun at Deputy Rogers. During
oral argument, counsel said, “In particular, Deputy Rogers
says that [Mr. George] lifted it up standing with two hands
standing and pointing it at him. Mrs. George’s statement was
that he was physically incapable of doing that at that time. . . .
The manner in which he was pointing at the officer being
directly contradicted by what his wife . . . .” These factual
assertions and claims by counsel are irreconcilable with Mrs.
George’s detailed description just four hours after the
shooting of her husband’s behavior that morning. He was
ambulatory, obdurate, “pretty strong” enough to resist his
wife’s “yanking” attempt to stop him, threatening to use his
gun, and dexterous enough to load a clip into an automatic
pistol—an action that takes two hands to accomplish.
Moreover, she was not a witness to the shooting. Months
later, now in litigation, and even though she saw her husband
load a clip into his firearm on the morning of the shooting,
she declares “under penalty of perjury” that he “was unable
to stand on his own without holding his walker and hold a
gun with both hands in front of him.” It will be quite
interesting on cross-examination when she is asked to
demonstrate for the jury how her husband loaded the clip into
his gun. This situation is a close cousin to our “sham
affidavit” rule that a “party cannot create an issue of fact by
an affidavit contradicting . . . prior deposition testimony.”
Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.
1991). As we said in Kennedy, “if a party who has been
examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of
fact.” Id. (alteration & internal quotation marks omitted).
GEORGE V. MORRIS 31
After Scott v. Harris, this common sense rule takes on added
significance.
In addition, we have the testimony of Mr. George’s
friend, Lawrence Kaehn. Mr. Kaehn, a cancer survivor, and
Mr. George frequently discussed Mr. Kaehn’s cancer
treatment. On one occasion before Mr. George fell ill, he
said, “Well, I know what I would do if I came down with
cancer. I would get a gun, call the sheriff and have them
shoot me.” Mr. Kaehn, having considered becoming a sheriff
at one time, was “appalled.” He said, “It wouldn’t be very
fair to the sheriff.” Mr. George then “gazed off,” “stared for
a while,” and changed the subject. Unfortunately, “suicide by
cop” is a well-documented, terrible phenomenon always
present when law enforcement responds to a “man with a
gun” call.
On top of all of this, Mrs. George’s cry for help was
accurately conveyed by the dispatcher to the deputies as one
involving armed domestic violence. That is what the deputies
were told, and, according to Mrs. George’s own words, that
is what it was. I repeat, he had threatened to use the gun and
struggled physically with his wife over its possession. These
9-1-1 calls are a textbook case of what local law enforcement
confronts when receiving such a 9-1-1 request for help. In
this respect, “we must view the facts [from the deputies’]
perspective at the time [they] decided to fire.” Wilkinson v.
Torres, 610 F.3d 546, 551 (9th Cir. 2010).
In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en
banc), in connection with our discussion of the
appropriateness of force in that case, we had much to say
about what law enforcement faces when it responds to a 9-1-1
domestic dispute call. We did so in consideration of “the
32 GEORGE V. MORRIS
additional ‘specific factors’ relevant to the totality of [the
relevant] circumstances.” Id. at 450 (quoting Bryan, 630 F.3d
at 826). We said,
We have observed that “[t]he volatility of
situations involving domestic violence”
makes them particularly dangerous. United
States v. Martinez, 406 F.3d 1160, 1164 (9th
Cir. 2005). “When officers respond to a
domestic abuse call, they understand that
violence may be lurking and explode with
little warning. Indeed, more officers are
killed or injured on domestic violence calls
than on any other type of call.” Id. (internal
quotation marks and citation omitted). We
have also “recognized that the exigencies of
domestic abuse cases present dangers that, in
an appropriate case, may override
considerations of privacy.” United States v.
Black, 482 F.3d 1035, 1040 (9th Cir. 2007)
(internal quotation marks omitted).
Mattos, 661 F.3d at 450 (emphasis added).
III
Against this grim backdrop, the majority says, as did the
district court, that when he was on the balcony (1) Mr.
George had not committed a crime, (2) he was not actually
resisting arrest or trying to flee, (3) the domestic disturbance
was over, and (4) thus, Mr. George did not pose an immediate
threat to the safety of the officers or to others that would have
justified the use of force. With all respect, to portray this
incident in this fashion is to expose the irrelevance of the
GEORGE V. MORRIS 33
“missing factors” to these events and a misunderstanding of
domestic disputes, especially those involving firearms.2 If the
majority opinion’s inert view of the events at the George
residence is correct, should the officers have simply left the
scene? After all, Mr. George had not committed a crime, his
wife was supposedly safe, he was not resisting arrest or
attempting to flee, and he was entitled by the Second
Amendment to have a loaded gun on his own property. This
reasoning is illogical, as is George’s purported expert’s,
Thomas Parker, statement in his declaration that the deputies
“apparently did not take into account the fact that under
California law, it is no crime to keep or carry a firearm in
one’s own home or on one’s property as long as it is not fired
and no one is threatened.” In elaboration on this irrelevancy,
Parker, instead of discussing the actual incident, said,
2
The Eleventh Circuit in Harris v. Coweta County, 433 F.3d 807 (11th
Cir. 2005), made the same analytical mistake in its run-up to the Supreme
Court, focusing not on the facts and circumstances of the case before it,
but on phantom facts and circumstances that were not relevant. I quote
from its opinion. “[T]aking the facts from the non-movant’s viewpoint,
Harris remained in control of his vehicle, slowed for turns and
intersections, and typically used his indicators for turns. He did not run
any motorists off the road. . . . Nor was he a threat to pedestrians in the
shopping center parking lot, which was free from pedestrian and vehicular
traffic as the center was closed. Significantly, by the time the parties were
back on the highway and Scott rammed Harris, the motorway had been
cleared of motorists and pedestrians allegedly because of police blockades
of the nearby intersections.” Id. at 815–16. The court continued to
highlight similar irrelevancies in a footnote, saying, “accepting Harris’
version of events, Harris did not attempt to ram, run over, side-swipe, or
swerve into any of the officers. . . .” Id. at 816 n.11. Not one of these
irrelevant observations deterred the Supreme Court from its holding
granting immunity to the officers who rammed Harris’s car in order to
stop him.
34 GEORGE V. MORRIS
In this incident, there was no evidence that
Mr. George had broken any laws prior to the
arrival of the deputies arrival [sic] on scene,
nor that he had threatened anyone. . . . To my
knowledge, and from my years of law
enforcement experience, I know that there is
no state or Federal law in California
prohibiting an individual from possessing or
carrying a non-fully automatic firearm in their
[sic] own house or on their [sic] own property,
absent any illegal discharge of same or threat
to harm an individual. Neither existed in this
case.
Mr. Parker appears in his sanitized version of these events not
to be familiar with California Penal Code Section 246.3
which makes it a crime for any person willfully to discharge
a firearm in a grossly negligent manner which could result in
injury or death to a person. People v. Leslie, 54 Cal. Rptr. 2d
545 (Cal. Ct. App. 1996) describes this crime as a “serious
felony.” Section 417 of the Penal Code makes it a crime to
draw or to exhibit a firearm in a threatening manner. Finally,
the City of Santa Barbara Municipal Code (S.B.M.C.) makes
it unlawful to discharge any firearm of any description in that
city. S.B.M.C. Ch. 9.34.020. To the extent that the abstract
legal landscape of this incident is minimally material, these
are the laws that applied to Mr. George’s actual and intended
behavior that morning.
More about Parker and his declarations later.
Mr. George had terminal brain cancer and was clearly
suicidal. He had armed himself with a loaded gun, he was not
thinking clearly, he was threatening to use it; and his wife,
GEORGE V. MORRIS 35
who had tried unsuccessfully to disarm him, was terrified.
She did not call Mr. George’s doctor, his pastor, her neighbor,
or his friend Mr. Kaehn—she called law enforcement. She
knew what a dangerous situation she had on her hands, as we
plainly did in Mattos, but we waive it off as not dangerous?
Minutes later, a residential neighborhood was the scene of
gunfire and a dead body. This situation could not be “safe”
for anyone until Mr. George no longer had a loaded gun.
Mrs. George certainly understood this, even though Mr.
Parker does not. So do the friends and families of officers
killed or injured responding to this category of 9-1-1 calls.
Contrary to my colleagues’ view, this dispute was not
“seemingly over” when the deputies arrived; and she was
clearly still in jeopardy with an armed, suicidal, defiant, and
angry husband in the house.
Like the Eleventh Circuit in Harris v. Coweta County, my
colleagues place undue emphasis on the absence of the
circumstances specifically identified in Graham, even though
we have clearly labeled them non-exhaustive: “These factors,
however, are not exclusive. Rather, we examine the totality
of the circumstances and consider ‘whatever specific factors
may be appropriate in a particular case, whether or not listed
in Graham.’” Bryan, 630 F.3d at 826 (quoting Franklin v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). We must
understand this situation for what it was, not for what it was
not. A plaintiff’s “sanitized version of the incident cannot
control on summary judgment when the record as a whole
does not support that version.” Wilkinson, 610 F.3d at 551.
I suppose pursuant to the irrelevant and immaterial idea in the
abstract that Mr. George’s possession of the gun was lawful
and that he had not committed a crime, we could say the same
about John Hinkley before he shot President Reagan, Jared
Loughner before he gunned down United States District
36 GEORGE V. MORRIS
Judge John Roll and United States Representative Gabrielle
Giffords, Adam Lanza before the Sandy Hook massacre, and
James Holmes before the Aurora Colorado slaughter. Mr.
George certainly wasn’t in their category, but armed people
who are combative, furious, angry, and mentally
unstable—whatever the reason—are dangerous, period.
When we send law enforcement out to cope with them, it is
wrong to proclaim that the personnel doing so are not in
danger. And, as the United States Supreme Court said in
Graham, we must consider that these deputies were
responding and reacting to a “tense, uncertain, and rapidly
evolving” situation requiring them to make split second
decisions involving—in this case—life and death. Graham
v. Connor, 490 U.S. 386, 397 (1989); Bryan, 630 F.3d at 818
(Tallman dissenting from denial of reh’g en banc). Mrs.
George tried unsuccessfully to disarm her husband. What
might have happened had she tried again? Moreover, once
Mr. George started firing his weapon outside his home, no
telling where the bullets might have gone. I note with some
irony that we continue to search nationally for ways to keep
firearms out of the hands of mentally unstable persons.
Regrettably, our federal courts have had extensive
experience with domestic disputes involving angry and
quarreling spouses, and we have written many opinions on
this subject—including Mattos v. Agarano—on which law
enforcement personnel are entitled to rely. Here is an
example of what we have said.
1. United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir
2005) (emphasis supplied).
The volatility of situations involving
domestic violence make them particularly
GEORGE V. MORRIS 37
well-suited for an application of the
emergency doctrine. When officers respond
to a domestic abuse call, they understand that
“violence may be lurking and explode with
little warning.” Fletcher v. Clinton, 196 F.3d
41, 50 (1st Cir. 1999). Indeed, “more officers
are killed or injured on domestic violence
calls than on any other type of call.”
Hearings before Senate Judiciary Committee,
1994 WL 530624 (F.D.C.H.) (Sept. 13, 1994)
(statement on behalf of National Task Force
on Domestic Violence).
2. United States v. Brooks, 367 F.3d 1128, 1137 (9th Cir.
2004).
Brooks contends that even if there were
probable cause and exigent circumstances to
justify Perez’s warrantless entry, once Perez
heard from Bengis that she was unharmed, the
exigency dissipated and Perez, by staying to
question longer, violated Brooks’s Fourth
Amendment rights. . . .
We disagree. In Perez’s experience, as he
testified in the district court, it was “very
common” for victims of domestic abuse
initially to deny that they had been assaulted.
This view could be credited by the district
court. We, too, agree that a victim of
domestic violence may deny an assault,
especially when an abuser is present. Perez’s
decision to stay and ask more questions was a
reasonable police procedure. A potential
38 GEORGE V. MORRIS
victim in Bengis’s situation with justification
may fear that by complaining to police, he or
she might expose himself or herself to likely
future harm at the hands of a hostile aggressor
who may remain unrestrained by the law.
3. Tierney v. Davidson, 133 F.3d 189, 198 (2nd Cir. 1998)
(emphasis added).
Indeed, it may have been a dereliction of
duty for Davidson to have left the premises
without ensuring that any danger had passed.
See Barone, 330 F.2d at 545. And Davidson
could not tell that the danger had passed
unless he found the other participant in the
dispute. See State v. Raines, 55 Wash.App.
459, 778 P.2d 538, 542-43 (1989) (“[T]he fact
that the occupants appeared to be unharmed
when the officers entered did not guarantee
that the disturbance had cooled to the point
where their continued safety was assured.
Until they had an opportunity to observe [the
boyfriend] and talk to him, they had no
knowledge of his condition and state of
mind.”).
4. Fletcher v. Town of Clinton, 196 F.3d 41, 50–51 (1st Cir.
1999).
The balanced choice the officers must
make is protected by qualified immunity . . . .
Such immunity is given not only for the
protection of the officers, but also to protect
victims of crime. In the domestic violence
GEORGE V. MORRIS 39
context, immunity is given so that officers
will not have strong incentives to do nothing
when they believe a domestic abuse victim is
in danger. Permitting suit against officers
who have acted reasonably when there is
reason to fear would create exactly the wrong
incentives. Indeed, if the officers had done
nothing, and Fletcher had been injured, they
would have faced the threat of suit. In either
event, their choice would be protected if it
was objectively reasonable in light of clearly
settled law.
5. Fletcher v. Town of Clinton, 196 F.3d 41, 52 (1st Cir.
1999).
In domestic violence situations, officers may
reasonably consider whether the victim is
acting out of fear or intimidation, or out of
some desire to protect the abuser, both
common syndromes. See United States v.
Bartelho, 71 F.3d 436, 438 (1st Cir. 1995)
(noting that officers are often trained not to
take the statements of abuse victims at face
value, but instead to consider whether the
victims are acting out of fear). Indeed, one
commentator has estimated that domestic
violence victims are uncooperative in eighty
to ninety percent of attempted criminal
prosecutions against their batterers.
40 GEORGE V. MORRIS
IV
I turn to what is the core issue in this case: What
happened at the rear of the George residence during the time
Mr. George walked out into the open on his patio and the
fatal shot fired by Deputy Rogers? Did they gun down a sick
man who did not even know they were there? Or, did they
fire only when he pointed a gun at one of them? Scott v.
Harris requires that we examine what the evidence shows, not
raw speculation and guesswork, but the evidence. Has Mrs.
George tendered a case sufficient to survive summary
judgment or to support a verdict in her favor? Or, does her
case fail before trial as a matter of law for want of evidence?
A.
Before I tackle this question, however, let’s put in proper
analytical focus the “facts” we must view in the light most
favorable to the nonmoving party. Here, notwithstanding my
colleagues belief to the contrary, the Supreme Court has told
us that we are not automatically bound on interlocutory
appeal by a district court’s statement that a genuine dispute of
material facts exists such as to require a trial. In Scott v.
Harris, the Court said,
When the moving party has carried its burden
under Rule 56(c), its opponent must do more
than simply show that there is some
metaphysical doubt as to the material facts.
. . . Where the record taken as a whole could
not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue
for trial.’
GEORGE V. MORRIS 41
550 U.S. at 380 (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (footnote
& alteration omitted) (emphasis added).
The Court continued:
[T]he mere existence of some alleged factual
dispute between the parties will not defeat an
otherwise properly supported motion for
summary judgment; the requirement is that
there be no genuine issue of material fact.
When opposing parties tell two different
stories, one of which is blatantly contradicted
by the record so that no reasonable jury could
believe it, a court should not adopt that
version of the facts for purposes of ruling on
a motion for summary judgment [on a
question of qualified immunity].
Id. (internal quotation marks & citations omitted) (emphasis
in original). In its opinion, the Court once again noted the
importance of resolving qualified immunity issues as soon as
possible, because “it is effectively lost if a case is erroneously
permitted to go to trial.” Id. at 376 n.2 (internal quotation
mark omitted). In Scott v. Harris, the Court looked at the
“record taken as a whole,” id. at 380, and it overrode the
district court’s and the Eleventh Circuit’s explicit conclusions
that a genuine dispute of material facts precluded the denial
of summary judgment for the defendant officers. Id. at
380–81. The Eleventh Circuit said, “We reject the
defendant’s argument that Harris’ driving must, as a matter of
law, be considered sufficiently reckless to give Scott probable
cause to believe that he posed a substantial threat of imminent
physical harm to motorists and pedestrians. This is a disputed
42 GEORGE V. MORRIS
issue to be resolved by a jury.” Harris v. Coweta County,
433 F.3d at 815. The Court dismissed Justice Stevens’s
dissenting view that the issue of unreasonable and therefore
excessive force was “best reserved for a jury,” and that the
Court was “usurping the jury’s factfinding function.” In
answer to his concerns, the Court said,
At the summary judgment stage, . . . once we
have determined the relevant set of facts and
drawn all inferences in favor of the non-
moving party to the extent supportable by the
record, the reasonableness of [the officer’s]
actions . . . is a pure question of law.
Id. at 381 n.8 (citation omitted) (emphasis in original).
Three years after Scott v. Harris, we followed this
jurisdictional and legal guidance in Wilkinson where we
looked past the district court’s conclusion that summary
judgment was inappropriate because of the perceived
existence of “disputed issues of material facts.” Wilkinson,
610 F.3d at 548.
B.
Some observations about my colleagues concerns arising
from their understanding of Johnson v. Jones, 515 U.S. 304
(1995). In this respect, Judge O’Scannlain writes, “Any
decision by the district court ‘that the parties’ evidence
presents genuine issues of material fact is categorically
unreviewable on interlocutory appeal.’” Maj. Op. at 9–10
(quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009))
(emphasis added). This categorical understanding might have
been correct before Scott v. Harris, but it is no longer.
GEORGE V. MORRIS 43
First, the Court decided Johnson in 1995, Scott v. Harris
in 2007. In deciding Scott v. Harris, the Court no doubt was
aware of Johnson, but my colleagues are correct, it was not
mentioned. Thus, I read the two cases not as in conflict, as
the Supreme Court surely understood, but plainly compatible.
Noting clearly that Jones did offer sufficient information to
support a verdict in his favor, 505 U.S. at 307–08, Johnson
held that we will not on interlocutory appeal revisit that issue,
id. at 313. Scott v. Harris, on the other hand simply says, but
if after examining the “record as a whole” it becomes clear to
an appellate court that the plaintiff has no case sufficient to
survive Rule 50(c), the unique preemptive purpose of
qualified immunity prevails, and the case shall be dismissed
now, not later. 550 U.S. at 380. I repeat what the Court said
in Scott v. Harris about the plaintiff’s alleged facts: they must
be “supportable by the record.” 550 U.S. at 381 n.8
(emphasis omitted). In our case, the complaint’s allegations
find no factual support in the record. Accordingly, as defined
by Scott v. Harris, the record taken as a whole issue is a
quintessential issue of law, not just of disputed facts.
I do not stand alone in my understanding of Scott v.
Harris. To begin with, we have the Wilkinson opinion in our
own circuit. Furthermore, other circuits have weighed in on
this issue. The Third Circuit described Scott as marking “the
outer limit of the principle of Johnson v. Jones—where the
trial court's determination that a fact is subject to reasonable
dispute is blatantly and demonstrably false, a court of appeals
may say so, even on interlocutory review.” Blaylock v. City
of Philadelphia, 504 F.3d 405, 414 (3rd Cir. 2007). The
Sixth and Tenth Circuits view Scott as an exception to
Johnson’s jurisdictional limitation. In Moldowan v. City of
Warren, 578 F.3d 351 (6th Cir. 2009), the Sixth Circuit
described Scott v. Harris as recognizing “an apparent
44 GEORGE V. MORRIS
exception to [Johnson’s] jurisdictional limitation when its
considered and rejected a district court’s denial of summary
judgment even though the district court had found genuine
issues existed as to material facts.” Id. at 370. The court then
said, “In trying to reconcile Scott with the Supreme Court’s
edict in Johnson, this [c]ourt has concluded that where ‘the
trial court's determination that a fact is subject to reasonable
dispute is blatantly and demonstrably false, a court of appeals
may say so, even on interlocutory appeal.’” Id. (quoting
Blaylock, supra); Lewis v. Tripp, 604 F.3d 1221, 1225–26
(10th Cir. 2010) (“[W]hen the ‘version of events’ the district
court holds a reasonable jury could credit ‘is blatantly
contradicted by the record,’ we may assess the case based on
our own de novo view of which facts a reasonable jury could
accept as true.” (quoting Scott, 550 U.S. at 380)). Both
circuits have relied on their understanding of Scott v. Harris
in thorough, unpublished opinions. Rodriguez v. City of
Cleveland, 439 F. App’x 433, 456–57 (6th Cir. 2011);
Blackwell v. Strain, 496 F. App’x 836, 845–847 (10th Cir.
2012). In each case, the circuits granted qualified immunity
to the defendants on appeal notwithstanding the district
courts’ statements regarding the existence of genuine disputes
of material fact.
The Fourth, Eighth, and Eleventh Circuits view Scott as
simply “reinforc[ing] the unremarkable principle that at the
summary judgment stage, facts must be viewed in a light
most favorable the nonmoving party when there is a genuine
dispute as to those facts.” Witt v. W. Va. State Police,
Troop 2, 633 F.3d 272, 277 (4th Cir. 2011) (internal quotation
marks omitted); Wallingford v. Olson, 592 F.3d 888, 892 (8th
Cir. 2010) (“Although we view the facts and any reasonable
inferences in the light most favorable to [the plaintiff], we
cannot ignore evidence which clearly contradicts [the
GEORGE V. MORRIS 45
plaintiff’s] allegations.” (citation omitted)); Morton v.
Kirkwood, 707 F.3d 1276, 1284–85 (11th Cir. 2013)
(recognizing that a circuit court may “discard[] a party’s
account when the account is inherently incredible and could
not support reasonable inferences sufficient to create an issue
of fact,” but holding that the defendants evidence did not
completely discredit the plaintiff’s version of events (internal
quotation marks omitted)).
Furthermore, Scott v. Harris’s rule does not apply only to
situations where a videotape demolishes a plaintiff’s case.
Although some of the cases I refer to did benefit from a
videotape, Scott v. Harris clearly did not create a videotape-
specific rule. Instead, it established a principle to be applied
where it is applicable. The whole record there made that
principle applicable as a matter of law, as I believe it does
here—as a matter of law. The Court referred to the videotape
as “an added wrinkle,” not as a prerequisite to the application
of the articulated principle. 550 U.S. at 378. Wilkinson did
not rely on a videotape either, but we followed Scott v. Harris
nevertheless. 610 F.3d at 549–51.
In summary, Johnson remains viable, but only where the
case involves a genuine issue of material fact, not when it
does not.
C.
I return to the case at hand. Noting that not a single
percipient witness contradicts this evidence, I start with
Deputy Rogers’s description of this event:
We decided to set up a perimeter around
the house to contain the threat of the man with
46 GEORGE V. MORRIS
the gun. I took the “1-2” corner of the house
which covers the front door and east side of
the house, Deputy Schmidt took position in
the “2-3” corner of the house, and Deputy
Morris covered the “3-4” corner of the house.
While holding my position I asked Deputy
Hudley to determine if there are any exits on
the west side of the property. Deputy Hudley
advised that there is a door on the west side,
and he agreed to cover that portion of the
house.
At approximately 8:11:17 a.m. I heard
Deputy Schmidt try to contact me over the
radio and then I heard him broadcast that he
saw a door opening. At this time I decided to
leave my position at the “1-2” corner to assist
Deputies Schmidt and Morris. I walked down
the northeast corner of the house towards the
backyard, and there I saw the suspect with a
gun in his hand and pushing a walker or
buggy walk out of a door onto a patio. I
immediately crouched down behind a tree
with no foliage.
At approximately 8:11:51 a.m. I heard
Deputy Schmidt broadcast over the radio that
the subject (Donald George) was on the back
patio with a firearm in his left hand.
I heard Deputy Schmidt shouting
commands to the suspect, such as, “Drop the
GEORGE V. MORRIS 47
gun,” “Show me your hands,” and “Sheriff’s
Department.”
I observed the suspect manipulating the
rear portion of the gun as if to rack a round or
remove the safety while Deputy Schmidt was
still shouting commands. The suspect held
the gun down towards the yard and began to
scan the backyard. I also heard the suspect
talking, and what appeared to be in response
to Deputy Schmidt’s orders. He said, “No” a
few times and something that sounded like,
“No you won’t.”
The suspect then turned east toward me,
raised his gun and pointed it directly at me. I
saw the barrel of his gun pointed at me, and
fearing for my safety I fired my weapon at
him.
The suspect did not fall down after my
first shot and the barrel of his gun was still
pointed at me. Still fearing for my safety I
fired my weapon five times until I no longer
perceived the threat of serious bodily harm or
death.
Deputy Rogers’s first-person description of his use of a
firearm is corroborated by Deputy Schmidt:
Deputies Morris and Rogers told me that
Mrs. George reported her husband was last
seen on the back patio with a firearm. The
48 GEORGE V. MORRIS
three of us walked down the driveway and
through a side gate that led to the backyard.
We decided to set up a perimeter around
the house to contain the threat of the man with
the gun. Deputy Rogers took the “1-2” corner
of the house which covered the front door and
east side of the house, I took position in the
“2-3” corner of the house, and Deputy Morris
covered the “3-4” corner of the house.
Once I arrived at the “2-3” corner in the
backyard I stayed in position, gathering
information and broadcasting my observations
over the radio. I stayed in this position for
approximately seven minutes when at 8:11:17
a.m. I saw the door to the patio open, and then
at 8:11:51 a.m. the suspect came out on the
patio with a firearm in his left hand. I
immediately broadcast this information over
the radio.
I saw Deputy Rogers take position to the
east of the patio about 10–12 feet from where
the suspect stood, and Deputy Morris moved
his position closer to my west side.
I began to shout commands to the suspect,
such as: “Sheriff’s Department,” “Show me
your hands,” and “Drop the gun.”
At this time the suspect held the gun down
towards the yard, and he appeared to be
GEORGE V. MORRIS 49
scanning the backyard looking for the
direction of my voice.
I saw the suspect manipulate the gun with
his right hand in what appeared to me a move
to take off the safety on his gun. I heard the
suspect say, “No you won’t.”
I then saw the suspect lift his gun and
point it directly at Deputy Rogers. Fearing for
the safety of Deputy Rogers I shot at the
suspect.
After firing two shots I saw the suspect
fall to the ground. I immediately began to run
towards the patio. I heard one more shot.
When I got closer to the patio I saw the
suspect lying on the ground with his gun lying
on the center of his chest.
Next, I turn to Deputy Morris:
Once I arrived at the “3-4” corner in the
backyard I stayed in position, gathering
information and broadcasting my observations
over radio. I stayed in this position for
approximately seven minutes until Deputy
Schmidt announced (over the radio) at 8:11:51
a.m. that he saw the suspect on the back patio
with a firearm in his left hand.
Once I heard Deputy Schmidt’s report, I
moved closer to the patio to aid Deputy
Schmidt. I positioned myself to the west of
50 GEORGE V. MORRIS
Deputy Schmidt. From that position I was
able to see the suspect with the gun in his
hand, and he appeared to be pushing a buggy
or a bicycle.
I saw Deputy Rogers take a position to the
east of the patio where the suspect stood.
At this time the suspect held the gun down
towards the yard, and I heard Deputy Schmidt
shouting commands to him, such as, “Drop
the gun,” “Show me your hands,” and
“Sheriff’s Department.” The suspect
appeared to be scanning the backyard looking
for the direction of Deputy Schmidt’s voice.
I then saw the suspect lift his gun, turn
eastward, and point his gun directly at Deputy
Rogers. Fearing for the safety of Deputy
Rogers I fired at the suspect.
Lawrence Hess was Schmidt’s, Rogers’s, and Morris’s
supervisor. He heard the initial dispatch call to the George
residence and arrived shortly after his deputies. This is his
input:
I arrived at [address omitted] at
approximately 8:06:51. I parked my vehicle
on San Antonio Creek Road, north of Via
Gennita. I walked down Via Gennita and I
found Deputy Hudley talking with a woman,
Carol George, behind his patrol vehicle.
Deputy Hudley told me Mrs. George was the
reporting party, that her husband was
GEORGE V. MORRIS 51
depressed, recently had brain surgery to
remove a tumor, and that she had secured all
of the firearms that she could find in the home
because of his depression. Mrs. George
explained that her husband had been
frustrated, angry and argued with her that
morning. He produced a handgun and she
called 9-1-1 for help.
I used Deputy Hudley’s cell phone to call
the George’s house telephone. Mr. George
did not answer but an answering machine
activated. I repeatedly called out to Mr.
George over the telephone and into the
answering machine to come to the phone in an
attempt to open dialogue with him. Mr.
George did not answer.
During this attempted phone call I heard
one of the deputies in the backyard shouting
commands, such as “Drop it” and “Put it
down.” I next heard several gun shots.
Shortly thereafter I heard radio
transmissions advising “Shots fired” and
“Suspect down” with medical assistance
requested. I quickly walked to the backyard
and instructed Deputy Hudley to stay with
Mrs. George.
In addition to the deputies’ declarations, we have
bystander citizen information from Karla MacDuff
corroborating their description of the sequence of events and
the deputies’ warnings before the shooting started. MacDuff
52 GEORGE V. MORRIS
was a guest and a friend of the Georges who was living in the
lower apartment level of the house. According to MacDuff,
she was awakened at approximately 7:45 a.m. that morning
by someone excitedly shouting “Drop the gun.” She heard
this command two times. After these commands, then she
heard “quite a few gunshots.” There is nothing relevant in the
record that challenges her information.
Finally, Deputy Rogers’s shot that hit Mr. George entered
into the front of his body and emerged through the rear. This
evidence indicates that Mr. George had turned to face Deputy
Rogers—who was stationed to the left side of Mr. George
when he walked onto the patio. I note that the photographs in
the record are consistent with the deputies’ descriptions of
their locations at the time of the shooting.
Was Mr. George suicidal? Was he planning that morning
to use his gun? Mrs. George thought so. Pam Plesons, her
friend and neighbor, recounts this conversation with her on
the morning immediately after the shooting:
A. . . . So as a result of his stroke he was
incontinent that night and apparently
woke up very depressed, and Carol told
me that he asked her to leave the house,
and she said that she did not want to leave
him alone and she was afraid for him
because she thought that he might commit
suicide. And she told me that she didn’t
believe there were any guns in the house,
but apparently he had gone to the truck in
the driveway and there was a gun in the
glove compartment of the truck, and that
he had come back in the house with it.
GEORGE V. MORRIS 53
Q. Okay. Did Carol tell you that she was
concerned about Don was suicidal?
A. She told me that one of the doctors they
were working with had warned her that he
thought he might become suicidal or was
suicidal and to make sure that anything
that was of danger to him in the house was
removed.
Q. Did Carol tell you that she had locked up
or she had thought she locked up all the
guns?
A. Uh-huh, that’s why she didn’t think that
there was anything that he could get to.
Q. Did Carol tell you why she thought Don
asked her to leave that morning?
A. He said that he just wanted to go out and
sit on the back patio and enjoy the
morning. She said that she felt that he
was going to commit suicide.
V
Against the combined force of this compelling evidence,
the district court concluded nevertheless that the defendant’s
motion must fail. On what did the district court rely? (1) A
textbook example of a self-serving declaration from Mr.
George’s wife who did not see the shooting, a declaration
prepared during litigation which is impeached by her own
words, (2) disputed facts that are not material, and (3) a
54 GEORGE V. MORRIS
demonstrably flawed report from an ex-FBI Agent full of
irrelevant inadmissible speculation.
The fatal problems with Mrs. George’s manufactured
declaration have been discussed in Part II of this opinion.
Thus, let’s examine the district court’s “disputed facts.”
Here the court cited to differences between the deputies’
memories as to who “made the decision to set up a perimeter
around the house.” Remembering that this entire event took
only a few minutes and that it was fluid and rapidly evolving,
who set up the perimeter is utterly immaterial. No one
disputes that the deputies set up a perimeter. Who gave the
order is of no moment. Moreover, the record and the
deputies’ declarations previously quoted reveal that two
perimeters were established, the first when Morris and Rogers
arrived, and the second when Schmidt arrived, saw Mr.
George emerge on the patio, and the deputies then moved and
surrounded the rear of the house. I repeat, the perimeter
changed when Mr. George appeared on the patio.
The next “disputed fact” seized upon by the district court
was who saw Mr. George first and how he was holding the
gun. Again, the deputies were not together, and who saw him
first and how he was holding the gun is inconsequential. To
quote the district court, “Deputy Morris stated that it was
Deputy Schmidt who first made contact with Mr. George.
However, Deputy Schmidt stated that Deputy Morris was the
first one to see Mr. George.” Under these kaleidoscopic
circumstances, who saw Mr. George first is immaterial to the
question of whether the deputies’ use of force was reasonable
or excessive. So is how he was holding the gun when he
emerged on the patio. Everyone, everyone agrees he was
carrying a loaded gun in his hands.
GEORGE V. MORRIS 55
In summary, these “disputed facts” add nothing to the
plaintiff’s case. To give them probative weight violates a
central principle of summary judgment law: “Only disputes
over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Next, we get to whether Mr. George provoked the
shooting because instead of dropping his gun as commanded,
he pointed it at Deputy Rogers. Here, the district court relied
on an opinion, purported to be an expert opinion, offered after
the fact by Thomas Parker. Parker says he did not believe
Deputy Schmidt could see Mr. George and therefore Deputy
Schmidt could not tell whether or not Mr. George had a gun.
Again, Mr. George did have a gun, and second, it is news to
me that a witness can testify as an expert that from point A,
he doesn’t believe someone can be fully seen from point B.
This isn’t “expert testimony.” And here, it is no more than
rank and inadmissible result-oriented speculation. Did Parker
simply disregard Karla McDuff’s statements that she heard
the deputies shouting “drop the gun!”?
Mr. Parker’s opinion on the key issue of whether Mr.
George pointed his gun in Deputy Roger’s direction is no
better. Parker’s report makes no mention of the violent
struggle the Georges had over the gun before the deputies
arrived. Parker incompletely describes Mr. George as
handicapped with a right side and arm that were “extremely
weak.”
Moreover, Parker claims a special ability to read body
language and to divine who is “lying” and who is not. He
56 GEORGE V. MORRIS
claims by virtue of his education, training, knowledge, and
experience that he is aware of a “truism of the law
enforcement profession that law enforcement officers lie . . .
[in an attempt] to justify inappropriate, unethical, and illegal
actions taken by them.” Fortunately for all of us, we resolve
cases and controversies with evidence, not self-aggrandizing
“truisms.” His offerings as to whether a witness is telling the
truth will not be admissible as expert— or even lay—opinion.
His report is rife with rank guesswork.
Parker goes on to opine that Mr. George probably could
not have coherently said what the deputies say he said
because he had aphasia. Was not Mr. Parker aware of the pre
9-1-1 conversation between husband and wife? Mr. George’s
voice can be heard clearly on the 9-1-1 call recording, which
Parker claims he listened to when preparing his declaration.
Or of Mrs. George’s description of his responses to her pleas?
Now, Parker is a speech pathology expert in aphasia.
Undaunted, he goes in to guess that Mr. George “had no idea
whatsoever that the deputies were in his yard or issuing
commands to him.” I assume this is part of the “evidence”
the district court struck from the record when the court
concluded that Parker was not a qualified “medical expert.”
More fundamentally, however, Parker’s report—which is
a classic example of Monday morning quarterbacking—is of
restricted value in this setting. His report suffers most of the
problems identified by us in Reynolds v. County of San
Diego, 84 F.3d 1162 (9th Cir. 1996), overruled in part on
other grounds by Acri v. Varian Assoc., Inc., 114 F.3d 999
(9th Cir. 1997) (en banc). There, we said, “The fact that an
expert disagrees with an officer’s actions does not render the
officer’s actions unreasonable. The inquiry is not ‘whether
another reasonable or more reasonable interpretation of
GEORGE V. MORRIS 57
events can be constructed . . . after the fact.’ Rather, the issue
is whether a reasonable officer could have believed that his
conduct was justified.” Id. at 1170 (quoting Hunter v. Bryant,
502 U.S. 224, 228 (1991)). Id. We also said, “The fact that
[the expert] disagrees with the steps [taken by the deputy] is
not enough to create a genuine issue of material fact
regarding the reasonableness of [the deputy’s] conduct.” Id.;
see also Tennessee v. Garner, 471 U.S. at 20 (warning against
“inappropriate second-guessing of police officers’ split-
second decisions”).
Parker also paints a naive picture of domestic calm in the
George residence when the officers arrived, leaving out why
Mrs. George called 9-1-1, focusing instead to the exclusion
of everything else in her statements that “everything is fine,”
and that “he won’t do anything.” Probably Parker is unaware
of our jurisprudence regarding domestic trouble in connection
with police intervention. This might be because the F.B.I.
where he was employed for most of his career does not
respond to local 9-1-1 calls involving this challenging
problem, where danger always lurks and where frightened
spouses cannot always be expected to give a reliable picture
of what had happened to provoke the call.
In summary, Mr. Parker cannot be allowed as an “expert”
to surmise or speculate or opine (1) that the deputies are
lying, (2) that he doesn’t believe Mr. George knew the
deputies were in his backyard or that he could hear the
deputies commands, (3) that Mr. George could not have
uttered any coherent words in response to the deputies
commands, and (4) that Deputy Schmidt could not see a gun
in Mr. George’s hands when Deputy Schmidt was yelling at
him on the patio. What is left of Mr. Parker’s report that is
relevant or material to the issues of excessive force?
58 GEORGE V. MORRIS
Nothing. There is no such thing as an expert on these issues
short of medically-trained personnel familiar with Mr.
George’s senses. Apparently Mr. George was coherent and
responsive—if not rational—in his conversations with his
wife, but Mr. Parker appears to believe that capacity
evaporated when he walked onto his patio.
VI
Simply put, there is no competent admissible direct or
circumstantial evidence in this record to prove or even to
suggest under rigorous Scott v. Henrich3 review that Mr.
George did not point his gun at Deputy Rogers before he was
shot. The disputes cited by the district court are not material,
and the remainder of the plaintiff’s evidence is demonstrably
not competent either to resolve the ultimate issue of excessive
force or the deputies’ credibility.
What we are inexorably left with is a situation (1) where
the deputies had incontrovertible cause to believe Mr. George
posed “a threat of serious physical harm, either to the
officer[s] or to others,” (2) where he had threatened them
with a weapon, and (3) where he had been given a warning to
drop the gun. Tennessee v. Garner, 471 U.S. at 11–12.
These are life and death encounters. Focusing on
inconsequential details out of context distorts the totality of
the facts and leads one to errant conclusions. No reasonable
factfinder could conclude on this record that the disputed use
of force was unreasonable or excessive. A jury verdict in
favor of the plaintiff could not survive Rule 50(a). The
3
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Santos v. Gates,
287 F.3d 846, 852 (9th Cir. 2002).
GEORGE V. MORRIS 59
plaintiff’s theory that the deputies simply gunned down a
harmless man is nothing more than groundless conjecture.
The plaintiff’s evidence in this case examined “as a whole”
is no better than the plaintiff’s evidence in Scott v. Harris or
in Wilkinson v. Torres. Her case is not “supportable by the
record.” Scott v. Harris, 550 U.S. at 381 n.8 (emphasis
omitted); Anderson, 477 U.S. at 249 (“[T]here is no issue for
trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.”). This is not just a case where something like a
videotape demolishes the plaintiff’s factual allegations, it is
a situation where the plaintiff has no case at all, because,
among other deficiencies, her own words spoken just four
hours after the shooting undercut what her lawsuit now
claims. Her statement in the main was the compelling
evidentiary equivalent of the videotape in Scott v. Harris.
VII
Why does all of this matter? It matters because the
doctrine of qualified immunity requires the judiciary to
refrain from inappropriately intruding into and interfering
with the assigned responsibilities of the executive branch of
government. The Supreme Court has repeatedly stressed this
concern and determined it to be so substantial that qualified
immunity is not just a “mere defense to liability,” but an
“immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (emphasis in original). Fleshing out this defense, the
Court has called it “an entitlement not to stand trial or face
the other burdens of litigation . . . .” Id. Moreover, the Court
also emphasized that the immunity “is effectively lost if a
case is erroneously permitted to go to trial.” Id. at 526–27. It
is for this reason that a district court’s denial of qualified
immunity is immediately appealable. Id. This reasoning
60 GEORGE V. MORRIS
distinguishes denials of normal interlocutory decisions which
are not immediately appealable, and this interlocutory
decision which is.
The Supreme Court’s rationale for this doctrine finds it
roots in the Court’s recognition that a rule to the contrary
would have significant and undesirable costs “to society as a
whole.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
These social costs include the expenses of
litigation, the diversion of official energy
from pressing public issues, and the
deterrence of able citizens from acceptance of
public office. Finally, there is the danger that
fear of being sued will “dampen the ardor of
all but the most resolute, or the most
irresponsible [public officials], in the
unflinching discharge of their duties.”
Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.
1949)) (brackets in original).
This doctrine is not of recent vintage. In an article cited
in a footnote by the Court in Harlow, 457 U.S. at 814 n.22,
we discover that
the Lord Mayor of London, in 1666, when
that city was on fire, would not give directions
for, or consent to, the pulling down 40
wooden houses, or to removing the furniture,
&c, belong to the Lawyers of Temple, then on
the Circuit, for fear he should be answerable
for tresspass; and in consequence of this
conduct half that great city was burnt.
GEORGE V. MORRIS 61
Peter H. Schuck, Suing Our Servants: The Court, Congress,
and the Liability of Public Officials for Damages, 1980 S. Ct.
Rev. 281 (quoting Respublica v. Sparhawk, 1 DALL. 357,
363 (PA. Sup. Ct. 1788)). Scott v. Harris follows inexorably
from the preemptive purpose of the doctrine and wisely
calibrates Johnson v. Jones accordingly.
Thus, we must remand with instructions to grant the
motion for summary judgment based on qualified immunity
and enter judgment for the defendants. Mr. Kaehn had it
right: To do otherwise is not fair to the sheriffs.