FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT WILKINSON, in his individual
capacity and as Executor of the
Estate of Jason Scott Wilkinson;
ALISHA WHITE, an individual; No. 09-35098
ESTATE OF JASON SCOTT WILKINSON,
Plaintiffs-Appellees, DC No.
CV 08-5281 BHS
v. OPINION
RICK TORRES, individually and as
City of Vancouver Police Officer,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
January 15, 2010—Seattle, Washington
Filed July 6, 2010
Before: A. Wallace Tashima and Richard C. Tallman,
Circuit Judges, and Consuelo B. Marshall, District Judge*
Opinion by Judge Tashima;
Dissent by Judge Marshall
*The Honorable Consuelo B. Marshall, United States District Judge,
Central District of California, sitting by designation.
9541
WILKINSON v. TORRES 9545
COUNSEL
Beau D. Harlan, Vancouver, Washington, for the plaintiffs-
appellees.
Stewart A. Estes, Keating, Bucklin & McCormack, Seattle,
Washington, for the defendant-appellant.
OPINION
TASHIMA, Circuit Judge:
On May 8, 2005, Defendant-Appellant Rick Torres
(“Torres”) shot and killed Jason Scott Wilkinson
(“Wilkinson”) as Wilkinson was driving a stolen minivan in
a residential yard where the officers were on foot. Plaintiffs-
Appellees Scott Wilkinson, Alisha Wilkinson, and the estate
of Jason Scott Wilkinson (collectively, “Plaintiffs”) brought
an action against Torres and others, alleging that their consti-
tutional rights under the Fourth and Fourteenth Amendments
were violated by Torres’ use of deadly force. Torres moved
for summary judgment on the issue of qualified immunity, but
the district court denied the motion, citing disputed issues of
material fact. Torres appeals, arguing that he is entitled to
qualified immunity because his use of force was reasonable as
a matter of law. We agree and therefore reverse.
9546 WILKINSON v. TORRES
BACKGROUND
On May 8, 2005, at approximately 11:20 a.m., City of Van-
couver Police Officer John Key (“Key”) was on patrol when
he saw a minivan parked near a known drug house. Key
checked the license plate on his mobile data center (i.e., an in-
car computer) and confirmed over the radio that the vehicle
was stolen. Key yelled at the driver to get his attention, but
the driver, instead of responding, leaned down out of Key’s
sight. After half a minute to a minute, the driver sat up, started
the car, and started driving away. Key pursued the minivan in
his car.
While this was happening, Torres, another Vancouver
Police Officer, was on duty nearby. Torres heard Key’s
request on the radio to check the plate. According to Torres,
he “could tell by the tone of [Key’s] voice that something was
up.” Torres joined the pursuit with his siren on and eventually
took the lead in order to execute a Pursuit Immobilization
Technique (“PIT”) maneuver on the minivan.1 The pursuit
proceeded at a moderate speed — five to ten miles over the
speed limit. After the minivan entered a “T” intersection, Tor-
res executed the PIT maneuver, causing the minivan to spin.
The minivan kept going, however, and Torres executed a sec-
ond PIT maneuver, causing the minivan to enter a yard on the
northwest corner of the intersection.
After entering the yard on the eastern side, the minivan
regained control and accelerated in a southwest direction back
toward the road. At this point, Clark County Deputy Sheriff
Scott Schanaker (“Schanaker”), who had arrived at the scene,
positioned his car in the minivan’s path to block the escape.
The minivan swerved and hit a telephone pole next to
Schanaker’s car.
1
A PIT maneuver is a law enforcement procedure whereby a police offi-
cer bumps the rear quarter panel of the suspect’s vehicle with the front
quarter panel of the officer’s vehicle, sending the suspect vehicle into a
spin.
WILKINSON v. TORRES 9547
Key and Torres got out of their patrol cars and approached
the minivan on foot. Torres yelled at the driver to show his
hands. Key attempted to open the driver-side front door and
fell on the ground about the same time as the minivan started
moving in reverse.2 The front of the minivan swung toward
the driver side, and the rear of the minivan swung toward the
passenger side. The wheels on the minivan were spinning and
throwing up mud. After one to two seconds, according to
Plaintiffs’ witness, Key got up and “walked[ ] or jumped out
of the way . . . so he wouldn’t get ran (sic) over.”
Once he saw Key fall down, Torres yelled at the driver to
stop. Torres believed that Key had been run over. The
minivan continued to back up, and Torres began shooting
through the passenger-side window. After a slight pause dur-
ing which he assessed the situation, Torres continued firing at
the driver of the minivan. The minivan continued to arc
around Torres, but eventually straightened out and slowed
down. Torres called in that shots had been fired. Evidence
later showed that Torres had fired eleven rounds of a fifteen-
round magazine. According to radio logs, the elapsed time
between the final PIT maneuver and the radio call after the
shots had been fired was nine seconds.
The driver of the minivan died of multiple gunshot wounds
and was later identified as Wilkinson. Plaintiffs brought this
42 U.S.C. § 1983 action against Torres and others. The dis-
trict court denied Torres’ motion for summary judgment
based on qualified immunity. Torres timely appeals.
JURISDICTION AND STANDARD OF REVIEW
Although an appellate court generally does not have juris-
diction over an interlocutory appeal from the denial of a
2
The parties dispute whether Key slipped on the grass or was knocked
over by the minivan. This dispute is immaterial to our determination of
this case.
9548 WILKINSON v. TORRES
motion for summary judgment, an order denying qualified
immunity is immediately appealable. Scott v. Harris, 550 U.S.
372, 376 n.2 (2007). Our jurisdiction to review an interlocu-
tory appeal of a denial of qualified immunity, however, is lim-
ited exclusively to questions of law. Sanchez v. Canales, 574
F.3d 1169, 1173 (9th Cir. 2009). Where disputed issues of
material fact exist, we must assume the version of facts pres-
ented by the plaintiff. Id.
We review a denial of qualified immunity de novo. Porter
v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). In doing so,
we must “view the facts and draw reasonable inferences ‘in
the light most favorable to the party opposing the [summary
judgment] motion.’ ” Scott, 550 U.S. at 378 (alteration in
original) (citations omitted). However, when the facts, as
alleged by the non-moving party, are unsupported by the
record such that no reasonable jury could believe them, we
need not rely on those facts for purposes of ruling on the sum-
mary judgment motion. Id. at 380.
DISCUSSION
Plaintiffs claim that Torres violated Wilkinson’s Fourth
Amendment right to be free from excessive force and Scott
Wilkinson and Alisha White’s Fourteenth Amendment due
process right to familial association. We analyze each claim
in turn.
I. Fourth Amendment Claim
[1] Apprehension by deadly force is a seizure subject to
the Fourth Amendment’s reasonableness requirement. See
Graham v. Connor, 490 U.S. 386, 395 (1989). However, an
officer using deadly force is entitled to qualified immunity,
unless the law was clearly established that the use of force
violated the Fourth Amendment. See Brosseau v. Haugen,
543 U.S. 194, 198 (2004). The qualified immunity inquiry
consists of two parts: (1) “whether the facts that a plaintiff has
WILKINSON v. TORRES 9549
alleged . . . or shown . . . make out a violation of a constitu-
tional right,” and (2) “whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.”
Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009) (citation
omitted).
[2] Case law has clearly established that an officer may not
use deadly force to apprehend a suspect where the suspect
poses no immediate threat to the officer or others. Tennessee
v. Garner, 471 U.S. 1, 11 (1985). On the other hand, it is not
constitutionally unreasonable to prevent escape using deadly
force “[w]here the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to
the officer or to others.” Id.
In assessing reasonableness, the court should give “careful
attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at
396. “The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id.
(citation omitted). In addition, “[t]he calculus of reasonable-
ness must embody allowance for the fact that police officers
are often forced to make split-second judgments — in circum-
stances that are tense, uncertain, and rapidly evolving —
about the amount of force that is necessary in a particular situ-
ation.” Id. at 396-97.
Whether the use of deadly force is reasonable is highly
fact-specific, see Scott, 550 U.S. at 383 (“Although respon-
dent’s attempt to craft an easy-to-apply legal test in the Fourth
Amendment context is admirable, in the end we must still
slosh our way through the factbound morass of ‘reasonable-
ness.’ ”), but the inquiry is an objective one, Graham, 490
U.S. at 397 (“[T]he question is whether the officers’ actions
9550 WILKINSON v. TORRES
are ‘objectively reasonable’ in light of the facts and circum-
stances confronting them . . . .” (citation omitted)). A reason-
able use of deadly force encompasses a range of conduct, and
the availability of a less-intrusive alternative will not render
conduct unreasonable. Scott v. Henrich, 39 F.3d 912, 915 (9th
Cir. 1994).
[3] Here, Torres did not violate a constitutional right. Even
construing the facts in the light most favorable to Plaintiffs,
a reasonable officer in Torres’ position had probable cause to
believe that Wilkinson posed an immediate threat to the safety
of Key and himself.3 When he fired the shots, Torres was
standing in a slippery yard with a minivan accelerating around
him. The driver of the minivan had failed to yield to police
sirens as well as to direct commands to put his hands up and
to stop the vehicle. Cf. Brosseau, 543 U.S. at 200 (finding that
“shoot[ing] a disturbed felon, set on avoiding capture through
vehicular flight, when persons in the immediate area are at
risk from that flight” was not a clearly established Fourth
Amendment violation). The minivan was accelerating, its tires
were spinning, mud was flying up, and a fellow officer was
nearby either lying fallen on the ground or standing but disori-
ented. The situation had quickly turned from one involving a
crashed vehicle to one in which the driver of a moving vehi-
cle, ignoring police commands, attempted to accelerate within
close quarters of two officers on foot. In this “tense, uncer-
tain, and rapidly evolving” situation, a reasonable officer had
probable cause to believe that the threat to safety justified the
use of deadly force.
[4] Plaintiffs argue that the declaration of Anthony Davis,
a bystander witness, creates triable issues of fact as to whether
Key was in harm’s way during the shooting, and whether Key
and Torres were in each other’s line of sight moments before
3
Torres also argues that Wilkinson posed a risk to the public at large.
Because the threat to the safety of Key and Torres was enough to justify
the use of deadly force, we need not reach this argument.
WILKINSON v. TORRES 9551
the shooting. This argument cannot support the denial of sum-
mary judgment. Although Davis stated that Key immediately
jumped back to his feet after falling, he also stated that he was
worried that Key would get run over, because Key was in
shock after getting up. More importantly, we must view the
facts from Torres’ perspective at the time he decided to fire.
Even if Key was in fact out of harm’s way by the time of the
shooting and Key and Torres were in each other’s line of sight
before the shooting, the critical inquiry is what Torres per-
ceived. Torres’ testimony that he saw Key fall, thought Key
had been run over, and was afraid that the van would arc back
around toward Key, is uncontradicted by any evidence in the
record. To the contrary, the evidence shows that the van was
still moving in the midst of the officers who were trying to
stop it when the fatal shots were fired.
Furthermore, Plaintiffs’ sanitized version of the incident
cannot control on summary judgment when the record as a
whole does not support that version. Plaintiffs state: “Key
stood in front of the minivan as it backed slowly away . . . .
Torres then walked to the front passenger window . . . and fire
(sic) his weapon into the minivan at the driver . . . .” While
perhaps true as far as it goes, this version omits the urgency
of the situation. After all, the record is uncontroverted that
this entire episode occurred in less than nine seconds. Cf.
Scott, 550 U.S. at 378-79 (“Indeed, reading the lower court’s
opinion, one gets the impression that respondent, rather than
fleeing from police, was attempting to pass his driving test
. . . .”). Torres had just run up to the side of the minivan and
put his hand on the window when the vehicle started moving
again after having crashed into a telephone pole. He could
hear the engine revving and the wheels spinning. Although
the vehicle was moving at a slow rate of speed because of the
slippage, it could have gained traction at any time, resulting
in a sudden acceleration in speed. Torres was not observing
the minivan from a distance as Davis was, but was standing
in the partially enclosed yard with a driver desperate to
escape.
9552 WILKINSON v. TORRES
Plaintiffs argue that this court should follow the Eighth Cir-
cuit’s decision in McCaslin v. Wilkins, 183 F.3d 775 (8th Cir.
1999), and the Second Circuit’s decision in Cowan ex rel.
Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003), and
find summary judgment inappropriate. These cases, however,
are distinguishable.
In McCaslin, the decedent’s truck had slid over an embank-
ment into a ditch during a high-speed vehicular pursuit.
McCaslin, 183 F.3d at 777. Although police stated that the
truck started driving back up the embankment toward them
before they fired any shots, two witnesses stated that the gun-
shots began almost immediately after the truck left the road,
and one of the witnesses stated that the tire tracks did not indi-
cate that the truck had ever started back up the embankment.
Id. The Eighth Circuit, finding that the disputed facts were
material, affirmed the denial of summary judgment for the
defendant. Id. at 779.
In Cowan, the defendant fired twice at the driver of an
approaching car from the side of a highway, claiming that he
feared he was in danger of being run over. Cowan, 352 F.3d
at 758-59. The plaintiff presented evidence, however, show-
ing that the car was traveling slowly and that the officer was
not in the vehicle’s path but off to the side. Id. at 759. Further-
more, the officer did not state that the second shot was fired
because of any danger to himself, but rather because he was
trained to fire twice. Id. at 763.
[5] Here, unlike in McCaslin and Cowan, there are no
material disputed facts. Torres, the other witnesses, and even
Plaintiffs’ experts agree that the minivan was backing up in
an arc when Torres fired the shots. Because the van could
have arced around to run over Key or Torres, or stopped and
pulled forward with the same effect, Torres’ fear for the
safety of himself and others was reasonable.
WILKINSON v. TORRES 9553
[6] To the extent that Cowan requires an officer to reevalu-
ate whether a deadly threat has been eliminated after each
shot, we disagree that it should be applied in the circum-
stances of this case. Such a requirement places additional risk
on the officer not required by the Constitution. Torres did not
shoot mindlessly, but responded to the situation by ceasing
fire after he perceived that the van had lost power and that the
threat had been eliminated. Cf. Elliott v. Leavitt, 99 F.3d 640,
643 (4th Cir. 1996) (concluding that the firing of multiple
shots “does not suggest the officers shot mindlessly as much
as it indicates that they sought to ensure the elimination of a
deadly threat”). Because we conclude as a matter of law that
deadly force was authorized to protect a fellow officer from
harm, it makes no difference in this case whether Torres fired
seven rounds or eleven.4
[7] The district court based its denial of summary judg-
ment partially on the following testimony by Torres:
I thought what happened was I fired four rounds,
and [Wilkinson] kept going, and he was — and then,
I fired . . . made a quick assessment, and he had
stopped, and I fired . . . I fired two more. That’s what
I think I did.
(Emphasis added.) The single phrase “he had stopped,”
implying that Wilkinson had stopped before Torres fired the
4
The dissent asserts that two seconds intervened between Torres’ first
and second volley of shots. Dissent at 9561. We do not decide whether a
two-second pause between rapid-fire volleys may be enough time for an
officer to reevaluate the need for deadly force. On the record here, no evi-
dence supports a two-second pause between the volleys. Torres testified
that the second volley immediately followed the first, and Davis himself
did not distinguish one volley from another. Although the radio log shows
a two-second interval between a call of “shots fired” and “shots code 3,”
there is no evidence that these two log entries represent the two volleys
of shots. To the contrary, a review of the audio log suggests that at least
one “shots code 3” call was made by a speaker other than Key.
9554 WILKINSON v. TORRES
second volley, cannot alone support summary judgment
where Torres repeatedly testified — in that same sentence,
multiple times during the same interview, and in a separate
interview — that Wilkinson did not stop until after Torres
began firing his second volley. See Scott, 550 U.S. at 380
(“Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genu-
ine issue for trial.” (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal quo-
tation marks omitted) (emphasis added)). The quoted sentence
from Torres’ deposition is ambiguous because a literal read-
ing of the sentence does not make sense — Torres states that
Wilkinson “kept going” just before he says Wilkinson “had
stopped.” Therefore, in this context, the phrase “had stopped”
is an insufficient basis for the denial of summary judgment.
Cf. Hart v. Parks, 450 F.3d 1059, 1068 (9th Cir. 2006) (find-
ing that a single, arguably ambiguous statement did not raise
a triable issue of fact).
Plaintiffs next argue that Torres fired at least three rounds
into Wilkinson after power was no longer being supplied to
the minivan and any safety risk had been eliminated. This
interpretation of the evidence also cannot support the denial
of summary judgment because, even if it were true, there is
no evidence that Torres had immediately perceived the decel-
eration of the minivan. To the contrary, it suggests that Wil-
kinson had not stopped before Torres began firing the second
volley. Torres testified that he wondered if he had missed
Wilkinson, because Wilkinson did not appear to react after the
first volley. The entire time that elapsed between the time of
the PIT maneuver and the radio call after the last shot was
fired was nine seconds. The shots themselves happened so
fast that Davis does not appear to have distinguished the two
volleys. Torres stopped firing after he perceived that Wilkin-
son had gone limp and the van had straightened out. As the
Fourth Circuit noted in Elliott, “the Fourth Amendment does
not require omniscience,” and absolute certainty of harm need
not precede an act of self-protection. Elliott, 99 F.3d at 644.
WILKINSON v. TORRES 9555
[8] A reasonable police officer confronting this scene
could reasonably believe that the minivan posed a deadly
threat to Key and himself. Thus, Torres’ use of deadly force
on Wilkinson was constitutional.
Because we conclude that Torres did not violate a constitu-
tional right, we need not reach the question of whether that
right was clearly established. See Saucier v. Katz, 533 U.S.
194, 201 (2001), overruled in part by Pearson v. Callahan,
129 S. Ct. 808.
II. Fourteenth Amendment Claim
[9] This circuit has recognized that parents have a Four-
teenth Amendment liberty interest in the companionship and
society of their children. Curnow ex rel. Curnow v. Ridgecrest
Police, 952 F.2d 321, 325 (9th Cir. 1991). Official conduct
that “shocks the conscience” in depriving parents of that inter-
est is cognizable as a violation of due process. Porter, 546
F.3d at 1137. In determining whether excessive force shocks
the conscience, the court must first ask “whether the circum-
stances are such that actual deliberation [by the officer] is
practical.” Id. at 1137 (quoting Moreland v. Las Vegas Metro.
Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998) (internal quo-
tation marks omitted)). Where actual deliberation is practical,
then an officer’s “deliberate indifference” may suffice to
shock the conscience. Id. On the other hand, where a law
enforcement officer makes a snap judgment because of an
escalating situation, his conduct may only be found to shock
the conscience if he acts with a purpose to harm unrelated to
legitimate law enforcement objectives. Id. at 1140. For exam-
ple, a purpose to harm might be found where an officer uses
force to bully a suspect or “get even.” Id.
[10] In Porter, this court found that actual deliberation was
not practical where a five-minute altercation between the offi-
cers and victim evolved quickly and forced the officers to
make “repeated split-second decisions.” Id. at 1139. The court
9556 WILKINSON v. TORRES
noted that “deliberation” should not be interpreted in the nar-
row, technical sense, reasoning that the Supreme Court had
rejected the deliberate indifference standard even in cases
where an officer giving chase could have deliberated while
pursuing the suspect. Id. at 1139-40. Instead, the heightened
purpose-to-harm standard applies where a suspect’s evasive
actions force the officers to act quickly. Id. at 1140.
Here, application of the purpose-to-harm standard is clearly
appropriate. Within a matter of seconds, the situation evolved
from a car chase to a situation involving an accelerating vehi-
cle in dangerously close proximity to officers on foot. Ulti-
mately, Wilkinson’s act of accelerating in reverse despite
repeated warnings to stop forced Torres to make a split-
second decision. As opposed to the five minutes which
elapsed in Porter, the entire sequence of events here from the
PIT maneuver to the final shot occurred in less than nine sec-
onds.
[11] Applying this standard, no evidence shows that Torres
had a purpose to harm Wilkinson apart from legitimate law
enforcement objectives. Plaintiffs argue that Torres’s intent to
harm Wilkinson was apparent because as the minivan slowly
backed up from the telephone pole, Torres walked up to Wil-
kinson and “executed” him. However, no intent to harm sepa-
rate from a legitimate law enforcement objective is evidenced
by the mere fact that Torres shot Wilkinson, especially in the
escalating situation with Key having fallen down, the engine
revving, and the tires throwing up mud. No one could predict
how quickly the minivan would gain traction. Furthermore,
because Torres was in a rapidly evolving situation requiring
him to make “split-second judgments,” we need not scrutinize
as closely as the district court did Torres’ decision about how
best to minimize the risk to his own safety and the safety of
others. See Porter, 546 F.3d at 1139. In sum, Plaintiffs have
not established a substantive due process claim.
WILKINSON v. TORRES 9557
CONCLUSION
[12] For the reasons stated above, we reverse the district
court’s interlocutory order denying Torres’ motion for sum-
mary judgment and remand to the district court with instruc-
tions to grant the motion for summary judgment based on
qualified immunity.
REVERSED and REMANDED.
MARSHALL, District Court Judge, dissenting:
I respectfully dissent on the ground that the majority today
decides as a matter of law what I believe is a question of fact
properly reserved for the jury. The reasonableness of an offi-
cer’s use of excessive force pursuant to the Fourth Amend-
ment is a fact-intensive inquiry for the jury, which if raised on
summary judgment, must be evaluated in the light most favor-
able to the victim. See gen. Jeffers v. Gomez, 267 F.3d 895,
905-06 (9th Cir. 2001) (collecting cases). Similarly, where the
same disputed facts also give rise to both a Fourth Amend-
ment claim and a Fourteenth Amendment “purpose to harm”
claim, material and triable issues of fact exist as to both. See
Porter v. Osborne, 546 F.3d 1131, 1137 (9th Cir. 2008).
JURISDICTION
I find we lack jurisdiction to review Torres’s appeal that he
is entitled to qualified immunity because there are material
issues of fact in dispute. See Johnson v. Jones, 515 U.S. 304,
317-20 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(holding that a “district court’s denial of a claim of qualified
immunity” is immediately appealable only to “the extent it
turns on an issue of law”); see also Jeffers, 267 F.3d at 905-
06 (concluding that jurisdiction extends only to whether,
based on the undisputed facts , the officer is entitled to immu-
9558 WILKINSON v. TORRES
nity as a matter of law); Collins v. Jordan, 110 F.3d 1363,
1370 (9th Cir. 1997). Torres asks us to: (1) accept his version
of the events on the morning of May 8, 2005; and then (2)
enter judgment in his favor as a matter of law. See id.; Armen-
dariz v. Penman, 75 F.3d 1311, 1317 (9th Cir. 1996) (en
banc); Cowan v. Breen, 352 F.3d 756, 763 (2d Cir. 2003)
(“Although [the officer] purports to rely on the undisputed
evidence . . . his brief . . . is replete with his own version of
the . . . to the extent [his version] is disputed by [the victim’s,]
[his] forms no proper basis for this appeal.”) (internal cita-
tions omitted).
A reviewing court may not resolve questions of fact in
order to reach the legal questions. See id. at 762 (“in order to
accept [the officer]’s argument that, as a matter of law, his
actions were objectively reasonable, one would have to
accept, as a matter of fact, that [the victim posed an immedi-
ate threat].”) (emphasis in original). A “defendant, entitled to
invoke a qualified immunity defense, may not appeal a district
court’s summary judgment order insofar as that order deter-
mines whether or not the pretrial record sets forth a genuine
issue of fact.” Johnson, 515 U.S. at 319-20. Accordingly, we
cannot rely on Torres’s version of the events. See Cowan, 352
F.3d at 762; see also McCaslin v. Wilkins, 183 F.3d 775, 779
(8th Cir. 1999) (reasoning that a genuine issue of material fact
with regard to the threat the victim posed prevented a finding
that the officer’s conduct was reasonable as a matter of law).
Based on the foregoing, I would dismiss the appeal for lack
of jurisdiction.
QUALIFIED IMMUNITY ON FOURTH
AMENDMENT CLAIM
If I were to accept jurisdiction of this case, I would none-
theless affirm the district court’s denial of summary judg-
ment.
WILKINSON v. TORRES 9559
The use of deadly force is constitutional only in the most
limited of circumstances. See Tennessee v. Garner, 471 U.S.
1, 9-11 (1985). Because the reasonableness of the use of
deadly force is an extremely fact intensive inquiry, “the pro-
priety of a particular use of force is generally an issue for the
jury.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1995); see
also Reed v. Hoy, 909 F.2d 324, 329-30 (9th Cir. 1989) cert.
denied, 501 U.S. 1250 (1991).
Reasonableness is “judged from the perspective of a rea-
sonable officer on the scene”. Graham v. Connor, 490 U.S.
386, 396 (1989). The inquiry is objective, rather than subjec-
tive. An officer’s own motivations and intentions are irrele-
vant to the Fourth Amendment analysis, see id. at 397,
because deadly force cases “pose a particularly difficult prob-
lem” as “the officer defendant is often the only surviving eye-
witness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 2004).
Thus, courts should consider “circumstantial evidence that, if
believed, would tend to discredit the police officer’s story”.
Id.
The case law requires us to consider whether Torres’s use
of deadly force was reasonable in light of the facts most
favorable to the Wilkinsons, see Jeffers, 267 F.3d at 905-06,
which includes testimony from non-officer eye-witnesses. See
id. (courts must protect against chance that the officer will
“tak[e] advantage of fact that the witness most likely to con-
tradict [the officer’s] story — the victim — is unable to testi-
fy.”); see also Cowan, 352 F.3d at 762 (“[W]here the versions
of the facts differ, we must consider [the victim]’s version and
make all permissible inferences in [his] favor.”). Here, the
only non-officer eye-witness, and the one most likely to con-
tradict Torres’s story, is Anthony Davis. See McCaslin, 183
F.3d at 778 (affidavits from non-party eyewitnesses can create
material issues of fact).
Statements made by eyewitness Davis who watched the van
drive into the sideyard, ER at 307, suggest both that the van
9560 WILKINSON v. TORRES
never hit Key, ER at 313-316, 320, and that Wilkinson put the
van into reverse to prevent hitting Key. ER at 314 (“He was
trying to turn around and go the other direction, because he
didn’t want to run over the cop”), 316 (“He wasn’t, like, being
erratic . . . He was looking for a direction to go . . . Like,
‘Whoa, where do I go?’ ”).
Davis consistently stated — both to the police in an inter-
view that took place just after the shooting and in his affidavit
— that he saw Key:
[S]lip[ ] on the wet grass, f[a]ll on his back side, was
on the ground for only a second or two, then jump[ ]
back on his feet, walk[ ] toward the front of the
[ ]van . . . [and] st[and] in front of the [ ]van as it
backed slowly away from [him].
ER at 307. Davis reiterated on at least three different occa-
sions during his interview with police that: (1) he saw Key
walk to the front of the vehicle; and (2) that Key was standing
at the front of the vehicle when it started to move slowly
backwards. ER at 314, 320, 324.
Then, according to Davis, Torres and Key “made eye con-
tact and appeared to acknowledge each other” and Torres
began firing. ER at 308. Davis states that when Torres began
firing, the “van was moving in almost the opposite direction
from where the officer first stood . . . nowhere near the
[ ]van’s path of travel and not in harm[’s] way.” ER at 308.
Davis’s statement that the “van was traveling at such a slow
rate of speed that the officer was able to walk in pace with [it]
as he repeatedly fired at the driver”, is corroborated by the
undisputed forensic evidence that the vehicle moved back-
wards at about ten miles per hour. Id.
Davis’s declaration and statement to the police create a
material issue of fact as to whether Torres had probable cause
to believe Wilkinson posed a threat of serious physical harm
WILKINSON v. TORRES 9561
to officer Key. See McCaslin, 183 F.3d at 778. “Looking at
only [Davis]’s version of the events,” no reasonable officer
who could see his colleague standing in front of the van
would have “believed that at th[at] crucial moment use of
deadly force was necessary.” Cowan, 352 F.3d at 763
(emphasis in original). Thus, as in McCaslin, the “[h]ow and
what transpired after [the vehicle hit the pole] is the essence
of this case and there remains a genuine issue [of] material
fact as to what happened . . . and how the officers responded”.
183 F.3d at 779 (internal citation omitted). Whether Torres
and Key acknowledged each other and whether Key stood in
front of the van before the shooting are material questions that
cannot be resolved on summary judgment.
Reasonableness is determined from the moment the alleg-
edly deadly shot is fired. Id. at 763 (considering whether sec-
ond, deadly round, was reasonable); Hopkins v. Andaya, 958
F.2d 881, 887 (9th Cir. 1992). Accordingly, whether Torres’s
second round was justified is also a question for the jury.
Davis told police that immediately after the first volley of
shots, he saw Wilkinson slump into his seat and Wilkinson’s
hands drop from the steering wheel to his side. Id. at 316.
Torres shot again.
Here, the evidence suggests that two seconds intervened
between Torres’s first and second volley of shots. First, Tor-
res stated that he made a “quick assessment [after he fired the
first shot], and [Wilkinson] had stopped, and . . . I fired two
more”. ER at 213. Second, the transcript of the audio “radio
traffic” indicates that Officer Key transmitted a call of “Shots
Fired” at 11:24:41 a.m. ER at 169. Another call of “Shots.
Code 3” was transmitted at 11:24:43 a.m. Based on this tran-
script and Torres’s own statement, a jury could infer that two
seconds elapsed before Torres fired again.
Two seconds is sufficient time from which a jury could find
that a reasonable officer on the scene could have glanced over
9562 WILKINSON v. TORRES
at the vehicle, seen that Wilkinson had been shot and that his
hands were no longer on the wheel, and forgone the use of
deadly force. Thus, based on the record before it, the district
court was correct in holding that there were material issues of
fact with respect to whether the second round of deadly shots
was reasonable.
Furthermore, although the reasonableness analysis discour-
ages courts from second-guessing officers who must make
split-second decisions, Graham, 490 U.S. at 396-97, Torres’s
statement that he quickly assessed the scene after he fired the
first shot “and [Wilkinson] had stopped, and I fired [again]”,
ER at 213, creates a question of fact as to whether Wilkinson
had stopped the vehicle before Torres fired the second time.
Thus, I conclude that while “factual conflicts concerning
the sequence of events and the true nature of the threat con-
fronting [Officers Key and Torres] might be resolved in [Tor-
res]’s favor at trial, it is neither our job nor the job of the
district court to resolve these conflicts”. Andaya, 958 F.2d at
888. The issue of reasonableness presents material questions
of fact which must be resolved by the jury. Gates, 27 F.3d at
1443.
QUALIFIED IMMUNITY ON FOURTEENTH
AMENDMENT CLAIM
Next, I agree with the district court that the disputed facts
preclude summary judgment in favor of Torres on the Wilkin-
son’s Fourteenth Amendment claim.
Where “actual deliberation” by a police officer prior to
using force is impractical, a “purpose of harm” standard
applies to due process familial association claims. Porter, 546
F.3d at 1131. “View[ed] in the light most favorable [to the
parents asserting the claims], [the facts] must demonstrate that
[the officer] acted with a purpose to harm [the child] that was
unrelated to legitimate law enforcement objectives.” Id.
WILKINSON v. TORRES 9563
Although I agree with the majority that the purpose to harm
standard applies, I conclude that the disputed facts, including
Anthony Davis’s portrayal of the events, prevent us from
deciding that Torres did not intend to harm Wilkinson as a
matter of law. Whether Torres’s conduct “shocks the con-
science”, id. at 1136, is for the jury to decide.