NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 25 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH LEVESQUE, SHERYL No. 10-16892
LEVESQUE,
D.C. No. 2:09-cv-00378-SRB
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF MESA, CITY OF MESA
POLICE DEPARTMENT, OFFICER
DAVID KOHLER, OFFICER DANIEL
GLOVER,et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted July 18, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
On February 21, 2008, Joseph Levesque was shot with an automatic assault
rifle by Officer Kohler of the City of Mesa Police Department. On February 12,
2009, Joseph Levesque and his wife, Sheryl Levesque, filed a lawsuit against
defendants, the City of Mesa, Officer Kohler, Officer Glover, Sergeant Ivey, and
fictitious defendants, alleging inter alia excessive force in violation of 42 U.S.C. §
1983. On August 2, 2010, the district court (Bolton, J.) heard oral argument on
defendants’ motions for summary judgment and on August 10, 2010 the district
court issued an order granting defendants’ motions for summary judgment.
Plaintiff-appellants now appeal the district court’s grant of defendants’ motions for
summary judgment. We affirm.
We review the district court’s grant of a summary judgment motion de novo.
A police officer’s use of force is governed by the reasonableness standard set forth
in Graham v. Connor, 490 U.S. 386, 395 (1989). “[T]he ‘reasonableness’ inquiry
in an excessive force case is an objective one: the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at
397 (citations omitted). The test of objective reasonableness is based on the
“perspective of a reasonable officer on the scene,” and not “with the 20/20 vision
of hindsight.” Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The use
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of force must be judged considering the totality of the circumstances, 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.” Id. (citing Tennessee v. Garner, 471 U.S. 1,
8-9 (1985)).
Viewing the facts in the light most favorable to plaintiffs, the district court
did not err in concluding that the defendants’ actions were objectively reasonable
under the circumstances and thus that defendants were entitled to summary
judgment, particularly in light of this Court’s decision in Wilkinson v. Torres, 610
F.3d 546 (9th Cir. 2010). In the instant case, it is undisputed that Mr. Levesque,
after causing a disturbance at a local bar by allegedly pointing a firearm at another
patron, thereupon, rather than surrendering to Officers Kohler and Glover,
accelerated his truck in the general direction of the two officers while both officers
were on foot. Given the officers’ close proximity to the moving vehicle, it was
objectively reasonable for the officers to shoot Mr. Levesque, because the moving
vehicle posed an immediate threat to the officers’ safety. The fact that an
eyewitness proffered the opinion that she did not believe that the officers were
actually in danger is immaterial because the test of objective reasonableness is
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based on the “perspective of the officer on the scene.” See Graham, 490 U.S. at
396; see also Wilkinson, 610 F.3d at 551.
We have considered the appellants’ additional arguments and similarly find
them to be without merit.
AFFIRMED.
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