FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA TORRES and MELCHOR
TORRES, individually and as
Administrators of the Estate of
Everardo Torres, No. 09-16573
Plaintiffs-Appellants, D.C. No.
v. 1:02-cv-06385-
CITY OF MADERA; MARCY NORIEGA, AWI-GSA
individually and as a member of OPINION
the Madera Police Department;
DOES 1-50,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
February 24, 2011—Seattle, Washington
Filed August 22, 2011
Before: Betty B. Fletcher, Eugene E. Siler,* and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins;
Concurrence by Judge Siler
*The Honorable Eugene E. Siler, Senior Circuit Judge for the Sixth Cir-
cuit, sitting by designation.
11317
11322 TORRES v. CITY OF MADERA
COUNSEL
Thomas A. Brill, Young & Nichols, Bakersfield, California,
for the plaintiffs-appellants.
Bruce D. Praet, Ferguson, Praet & Sherman, Santa Ana, Cali-
fornia, for the defendants-appellants.
OPINION
HAWKINS, Senior Circuit Judge:
While handcuffed in the back seat of a patrol car, Everardo
Torres (“Everardo”) was mortally wounded when Madera
City Police Officer Marcy Noriega (“Officer Noriega”) shot
him in the chest with her Glock semiautomatic pistol, believ-
ing it at the time to be her Taser M26 stun gun. Everardo’s
family filed this survival action under 42 U.S.C. § 1983,
asserting excessive force in violation of the Fourth Amend-
ment, and now appeals from an adverse grant of summary
judgment. Consistent with the Fourth Circuit’s decision in
Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir.
July 14, 2011) (en banc),1 we reverse and remand for trial.
FACTS AND PROCEDURAL HISTORY
I. Background2
1
There, an officer intending to deploy a Taser device instead drew and
fired his service weapon, wounding an unarmed suspect fleeing arrest. The
Fourth Circuit held that, viewing the evidence in the light most favorable
to the nonmovant, the officer’s actions were not objectively reasonable
and furthermore violated clearly established law prohibiting the use of
deadly force against suspects who pose no significant threat of death or
serious physical injury to others. Henry, ___ F.3d ___, 2011 WL 2725816,
at *6, *8.
2
Because this appeal comes to us on summary judgment, we accept
plaintiff’s version of facts as true. See Liberal v. Estrada, 632 F.3d 1064,
1068 n.1 (9th Cir. 2011).
TORRES v. CITY OF MADERA 11323
In the course of responding to a complaint of loud music
on October 27, 2002, Madera City Police officers arrested
Everardo and Erica Mejia (“Mejia”), handcuffed them, and
placed them in the back seat of a patrol car. After approxi-
mately thirty to forty-five minutes (during which time Eve-
rardo had fallen asleep), Mejia was removed from the car and
replaced by another arrestee. Everardo awoke at this time and
began yelling and kicking the rear car door from inside,
though the parties dispute whether he was yelling, “Get me
out of the car,” or simply that his handcuffs were too tight.
Officer Noriega, one of several police officers on site that
evening, was standing a few feet directly behind the patrol car
when she first heard Everardo yelling. She recalls telling her
fellow officers that whoever was closest should tase Everardo
because he could injure himself if he kicked through the glass
window. As it turned out, Officer Noriega herself was closest,
so she approached the car. Upon reaching the rear driver’s
side door, she opened it with her left hand.3 She then reached
down with her right hand to her right side, unsnapped her hol-
ster, removed the Glock, aimed the weapon’s laser4 at Everar-
do’s center mass, put her left hand under the gun, and pulled
the trigger, all without looking at the weapon in her hand. She
had turned off the safety to her Taser earlier that evening,
enabling her to use it more quickly. The parties agree that
Officer Noriega had intended to reach for her Taser, which
she kept in a thigh holster immediately below her holstered
Glock on her dominant right side, and that she had intended
to use her Taser in dart-tase rather than touch-tase mode.5
Everardo died later that evening from the gunshot wound.
3
Officer Noriega claims that she yelled a warning at Everardo to stop
kicking or he would be tased, but that he did not stop and kicked the car
door into her as she opened it. The Torres Family disputes these facts,
which are contradicted by Mejia’s deposition testimony.
4
Both Officer Noriega’s Glock and Taser were equipped with laser-
sighting devices.
5
See generally Bryan v. MacPherson, 630 F.3d 805, 824 & nn.2-4 (9th
Cir. 2010) (describing the type and amount of force applied by a Taser
used in dart-tase mode).
11324 TORRES v. CITY OF MADERA
This was not the first time Officer Noriega had mistakenly
drawn the wrong weapon, though never before with such dire
consequences. The Madera City Police Department first
issued Officer Noriega a Taser, and certified her to use it,
sometime in the winter of 2001, less than one year before
Everardo’s shooting. Her certification training consisted of a
single three-hour class, during which she fired the weapon
only once. She was given a right-side holster for her Taser
and instructed to wear it just below her Glock. There was no
discussion during this training session of a recent incident in
which a Sacramento officer had mistaken his handgun for his
Taser.6
Nonetheless, Officer Noriega soon came to experience
firsthand the risk of confusing the two weapons, both all-
black and of similar size and weight. The first incident
occurred about a month and a half after she was first issued
the Taser when she was at a jail putting her weapons back in
their holsters. She mistakenly put her Glock into the Taser
holster, realizing her error when the weapon did not “sit right”
in the wrong holster. Concerned about the mistake, she noti-
fied her sergeant, Sergeant Lawson, who instructed her to
practice putting each weapon in its proper holster and to prac-
tice drawing them.
Just one week later, Officer Noriega again confused her
weapons, this time during a field call. Seeking to touch-tase
a kicking and fighting suspect who refused to get into the
back seat of a patrol car, Officer Noriega instead pulled out
her Glock. Only when she tried unsuccessfully to remove the
cartridge, which would have been present on her Taser but
was not a feature on her Glock, did she realize she was hold-
ing the wrong weapon “and it was pointing at [her] partner’s
head, the [Glock’s] laser was pointing at his head.” Fright-
6
This instance of weapon confusion occurred on March 10, 2001 and
became the subject of a different lawsuit. See Yount v. City of Sacramento,
43 Cal. 4th 885, 889 (2008).
TORRES v. CITY OF MADERA 11325
ened by this second incident of weapon confusion and by how
narrowly she had averted a potentially fatal mistake, she again
informed Sergeant Lawson, explaining that she “had pulled
out my gun thinking it was my Taser.” Again, Sergeant Law-
son instructed her “to keep practicing like he’s been doing and
that he’s having everybody do.”
For the next nine months, leading up to the day of Everar-
do’s tragic shooting, Officer Noriega followed her sergeant’s
instructions, practicing drawing her two weapons daily, both
before work and during downtime throughout each shift. Offi-
cer Noriega described her daily self-training as follows: “I
would have both my gun and my taser in their holsters. And
I would draw my taser, and then I would draw my gun. And
in my mind thinking taser, taser, taser, gun, gun, taser. Just
practicing that way so I would draw, draw, draw.” In the five
or so times she used her Taser in the field, never again did she
confuse her two weapons, until the night of Everardo’s shoot-
ing. On all previous occasions, however, she had only touch-
tased the subjects, which required her first to remove the
Taser’s safety cartridge. Never before had she dart-tased any-
one, as she had intended to do to Everardo.
II. Procedural History
Everardo’s parents, Maria and Melchor Torres (“the Torres
Family”), as administrators of his estate, brought this action
under 42 U.S.C. § 1983, asserting violation of Everardo’s
Fourth Amendment right against unreasonable seizure and
seeking damages from Officer Noriega.7 The district court ini-
tially granted Officer Noriega’s motion for summary judg-
ment, determining Everardo was not “seized” by Officer
Noriega’s unintended use of her Glock and therefore no
Fourth Amendment violation occurred.
7
None of plaintiffs’ other claims are at issue here.
11326 TORRES v. CITY OF MADERA
On interlocutory appeal, we reversed, concluding that
under the Ninth Circuit’s longstanding “continuing seizure”
doctrine, Everardo was seized within the meaning of the
Fourth Amendment at the time of the shooting. Torres v. City
of Madera, 524 F.3d 1053, 1056 (9th Cir. 2008) (“Torres I”).8
We held that Officer Noriega’s conduct was therefore gov-
erned by Fourth Amendment reasonableness analysis, and we
remanded for the district court to consider in the first instance
whether Officer Noriega’s mistake in using her Glock rather
than her Taser was objectively unreasonable, for only then
would Everardo have suffered a constitutional injury. Id. at
1056-57.
On remand, the district court found Officer Noriega’s mis-
take was reasonable as a matter of law and determined she
was entitled to qualified immunity in any event because it
would not have been clear to a reasonable officer in 2002 that
a mistaken use of force violated the Fourth Amendment. The
Torres Family again appealed.9
STANDARD OR REVIEW
A district court’s grant of summary judgment is reviewed
de novo, as is its determination of whether an officer’s actions
entitle her to qualified immunity. Ramirez v. City of Buena
Park, 560 F.3d 1012, 1019 (9th Cir. 2009). Summary judg-
ment is appropriate only if, taking the evidence and all rea-
sonable inferences drawn therefrom in the light most
8
The “continuing seizure” doctrine provides that “once a seizure has
occurred, it continues throughout the time the arrestee is in the custody of
the arresting officers.” Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir.
1985). Not all circuits adopt this approach. See Torres I, 524 F.3d at 1056
nn.3 & 4.
9
The district court entered final judgment in favor of defendants on the
§ 1983 claim and certified this matter for appeal pursuant to Federal Rule
of Civil Procedure 54(b) on November 18, 2009. We therefore have juris-
diction under 28 U.S.C. § 1291, notwithstanding pendency of the remain-
ing state law claims.
TORRES v. CITY OF MADERA 11327
favorable to the non-moving party, there are no genuine issues
of material fact and the moving party is entitled to judgment
as a matter of law. Corales v. Bennett, 567 F.3d 554, 562 (9th
Cir. 2009). Where the objective reasonableness of an officer’s
conduct turns on disputed issues of material fact, it is “a ques-
tion of fact best resolved by a jury,” Wilkins v. City of Oak-
land, 350 F.3d 949, 955 (9th Cir. 2003); only in the absence
of material disputes is it “a pure question of law,” Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007).
DISCUSSION
Qualified immunity is “ ‘an entitlement not to stand trial or
face the other burdens of litigation.’ ” Saucier v. Katz, 533
U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)), abrogated in part on other grounds by
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 817-18
(2009). Accordingly, we must resolve “immunity questions at
the earliest possible stage in litigation.” Pearson, 129 S. Ct.
at 815.
[1] An officer will be denied qualified immunity in a
§ 1983 action only if (1) the facts alleged, taken in the light
most favorable to the party asserting injury, show that the
officer’s conduct violated a constitutional right, and (2) the
right at issue was clearly established at the time of the inci-
dent such that a reasonable officer would have understood her
conduct to be unlawful in that situation. Saucier, 533 U.S. at
201-02; Liberal v. Estrada, 632 F.3d 1064, 1076 (9th Cir.
2011). To assist the “development of constitutional prece-
dent,” we exercise our “sound discretion” to follow Saucier’s
conventional two-step procedure and address first whether the
Torres Family has alleged the violation of a constitutional
right. See Pearson, 129 S. Ct. at 818.
11328 TORRES v. CITY OF MADERA
I. Violation of a Constitutional Right
A. Legal Standard
[2] An objectively unreasonable use of force is constitu-
tionally excessive and violates the Fourth Amendment’s pro-
hibition against unreasonable seizures. Graham v. Connor,
490 U.S. 386, 394-96 (1989); Tekle v. United States, 511 F.3d
839, 844 (9th Cir. 2007). Determining the reasonableness of
an officer’s actions is a highly fact-intensive task for which
there are no per se rules. Scott, 550 U.S. at 383. We recognize
that “police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation,” Graham, 490 U.S. at 397, and that
these judgments are sometimes informed by errors in percep-
tion of the actual surrounding facts.
[3] Not all errors in perception or judgment, however, are
reasonable. While we do not judge the reasonableness of an
officer’s actions “with the 20/20 vision of hindsight,” id. at
396, nor does the Constitution forgive an officer’s every mis-
take. See Maryland v. Garrison, 480 U.S. 79, 87 n.11 (1987).
Rather, we adopt “the perspective of a reasonable officer on
the scene . . . in light of the facts and circumstances confront-
ing [her].” Graham, 490 U.S. at 396. Where an officer’s par-
ticular use of force is based on a mistake of fact, we ask
whether a reasonable officer would have or should have accu-
rately perceived that fact. Jensen v. City of Oxnard, 145 F.3d
1078, 1086 (9th Cir. 1998) (mistaken shooting of fellow
police officer was unreasonable if it occurred in conditions in
which the officer should have been able to recognize the fig-
ure before him); see also Wilkins, 350 F.3d at 955 (same); cf.
Garrison, 480 U.S. at 86 (validity of warrantless search that
resulted from a mistake of premises turned on whether the
officers “had known, or should have known” about the condi-
tion precipitating the error).
TORRES v. CITY OF MADERA 11329
[4] Standing in the shoes of the “reasonable officer,” we
then ask whether the severity of force applied was balanced
by the need for such force considering the totality of the cir-
cumstances, including (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 the suspect
was actively resisting arrest or attempting to evade arrest by
flight. Graham, 490 U.S. at 396; Blanford v. Sacramento
Cnty., 406 F.3d 1110, 1115 (9th Cir. 2005).
B. Analysis
[5] The question that confronts us now is whether Officer
Noriega’s conduct in mistakenly applying deadly force to
Everardo was objectively unreasonable under the totality of
the circumstances. In Jensen, we held that
[i]f, as is alleged in the complaint, [the officer defen-
dant] shot Officer Jensen three times in the back
from a distance of three feet in conditions in which
he should have been able to recognize that the figure
he was shooting was a fellow officer, such a use of
force would be unreasonable.
145 F.3d at 1086 (emphasis added). Similarly here, if Officer
Noriega knew or should have known that the weapon she held
was a Glock rather than a Taser, and thus had been aware that
she was about to discharge deadly force on an unarmed, non-
fleeing arrestee who did not pose a significant threat of death
or serious physical injury to others, then her application of
that force was unreasonable. See Tennessee v. Garner, 471
U.S. 1, 3 (1985). That she intended to apply lesser force is of
no consequence to our inquiry, for objective reasonableness
must be determined “without regard to [the officer’s] underly-
ing intent or motivation.” Graham, 490 U.S. at 397. Just as
“[a]n officer’s evil intentions will not make a Fourth Amend-
ment violation out of an objectively reasonable use of force[,]
nor will an officer’s good intentions make an objectively
11330 TORRES v. CITY OF MADERA
unreasonable use of force constitutional.” Id. (citing Scott v.
United States, 436 U.S. 128, 138 (1978)).
To guide the determination of whether Officer Noriega
should have known she was holding the wrong weapon, we
identified five factors for consideration in Torres I:
(1) the nature of the training the officer had received
to prevent incidents like this from happening; (2)
whether the officer acted in accordance with that
training; (3) whether following that training would
have alerted the officer that [s]he was holding a
handgun; (4) whether the defendant’s conduct
heightened the officer’s sense of danger; and (5)
whether the defendant’s conduct caused the officer
to act with undue haste and inconsistently with that
training.
524 F.3d at 1057 (citing Henry v. Purnell, 501 F.3d 373, 383
(4th Cir. 2007)).
The district court considered these factors and found: (1)
Officer Noriega “did act inconsistently with what she had
practiced”; (2) “to the extent [Everardo]’s own conduct cre-
ated a heightened sense of danger, that sense of danger was
focused on [Everardo]’s danger to himself, not any personal
danger [Officer] Noriega felt for her own safety or the safety
of others”; and (3) there was a “lack of evidence from [Offi-
cer] Noriega that she actually felt danger and that she had to
act hastily.”
[6] Nevertheless, the district court chose to discount these
factors, relying instead on the following findings: (1) Officer
Noriega’s formal training was minimal and contained no dis-
cussion of “other incidents where officers confused their
weapons”; (2) although her two previous instances of weap-
ons confusion had prompted her to practice drawing her
weapons, she lacked “formal training on this potential mistake
TORRES v. CITY OF MADERA 11331
if both weapons were worn on the dominant side”; and (3)
Everardo’s conduct in kicking the door into Officer Noriega
as she opened it “forced” her to “make a split-second judg-
ment in a tense, uncertain, and rapidly evolving situation
about firing a weapon.” The district court concluded that
“[a]ll factors at least tilt toward finding that [Officer] Norie-
ga’s mistake was reasonable.”
The standard on summary judgment review requires that
we “draw all reasonable inferences in favor of [the Torres
Family], the nonmoving party,” and prohibits us from “substi-
tut[ing] [our] judgment concerning the weight of the evidence
for the jury’s.” Raad v. Fairbanks N. Star Borough Sch. Dist.,
323 F.3d 1185, 1194 (9th Cir. 2003); see also Hauk v. JP
Morgan Chase Bank USA, 552 F.3d 1114, 1123-24 (9th Cir.
2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). Because the reasonableness standard “nearly
always requires a jury to sift through disputed factual conten-
tions, and to draw inferences therefrom, we have held on
many occasions that summary judgment or judgment as a
matter of law in excessive force cases should be granted spar-
ingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)
(citing Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10
(9th Cir. 1997)).
[7] Here, a reasonable jury could weigh the significance of
Officer Noriega’s risk awareness and daily practice differ-
ently from the way in which the district court weighed those
factors. First, to the extent the district court found it relevant
that Officer Noriega’s formal training contained no discussion
of the risks of weapon confusion, a reasonable jury could find
that Officer Noriega’s two experiences confusing the Glock
and the Taser should have alerted her to the risks involved,
even absent formal discussion. Second, while it did not
“give[ ] much weight” to the first weapon confusion incident,
even the district court acknowledged that “this incident does
show a general confusion by [Officer] Noriega in having both
weapons holstered on the dominant side.” Third, the district
11332 TORRES v. CITY OF MADERA
court minimized the importance of Officer Noriega’s “infor-
mal” daily practice by distinguishing it from “formal train-
ing,” without explaining the relevance of such an arbitrary
distinction—one which we did not intend to invite in Torres
I.
Officer Noriega’s daily practice drawing the two weapons
was conducted pursuant to Sergeant Lawson’s instructions,
and, as the Torres Family argues, the definition of “training”
does not necessarily require supervision and can include “the
skill, knowledge, or experience acquired by . . . instruction,
discipline, or drill.” Merriam Webster’s Collegiate Dictionary
1326 (11th ed. 2004). Accordingly, a reasonable jury could
conclude from the totality of this evidence that Officer
Noriega had trained for nine months specifically to prevent
incidents of weapon confusion like this from happening, that
she did not act in accordance with what she had practiced on
the evening of Everardo’s shooting, and that had she done so,
Everardo’s death could have been avoided.
[8] A reasonable jury could also differ from the district
court in weighing the contributory role of Everardo’s conduct.
The district court reasoned that Officer Noriega’s daily prac-
tice did not prepare her to avoid weapon confusion in the
“tense, uncertain, and rapidly evolving” circumstances that
she encountered in the field that October night, finding that
Everardo’s conduct in kicking the door into Officer Noriega
as she opened it escalated her sense of danger. See Graham,
490 U.S. at 396-97. But a genuine issue of material fact exists
as to whether this was the type of “rapidly evolving” situation
to which Graham referred. Officer Noriega testified that Eve-
rardo’s conduct did not cause her to fear for her own safety
or that of others. Her only stated concern was for Everardo’s
own well-being, but a jury might question the reasonableness
of choosing to send 1,200 volts of electricity10 through a per-
son when the alleged concern is for that person’s safety.
10
See Bryan, 630 F.3d at 824 n.4 (describing the amount of voltage
delivered by a Taser).
TORRES v. CITY OF MADERA 11333
[9] In addition, instead of finding that the circumstances
“forced [Officer Noriega] to make a split-second judgment”
about firing a weapon, a reasonable jury could conclude that
her own poor judgment and lack of preparedness caused her
to act with undue haste. See, e.g., Deorle v. Rutherford, 272
F.3d 1272, 1283 (9th Cir. 2001) (distinguishing Graham
where officer had opportunity to observe the suspect “for a
considerable period of time prior to firing at him,” “opportu-
nity to consult” with fellow officers concerning the tactics to
be employed, and a clear line of escape). Far from being a
fleeing suspect whose risk of danger to others may be hard to
ascertain, Everardo was handcuffed and sitting in the back
seat of a patrol car, and Officer Noriega both knew that he
was kicking the door and intended to tase him when she first
started to approach the car. Thus, it is unclear whether Everar-
do’s conduct changed in a way that created “rapidly evolving”
conditions such as would require Officer Noriega to change
her course of conduct mid-stream. Had Officer Noriega drawn
her weapon before opening the car door, a jury could infer
that the conditions would have been much more akin to her
practice conditions. There remains a genuine dispute, there-
fore, as to whether a reasonable officer in her position would
have waited to draw her weapon until after beginning to open
the door, perhaps unnecessarily creating her own sense of
urgency.
[10] Finally, the district court seemed swayed by the lack
of evidence that Officer Noriega’s mistake when she shot
Everardo “was anything other than an honest one.” As noted
earlier, however, under Graham, whether the mistake was an
honest one is not the concern, only whether it was a reason-
able one. See Graham, 490 U.S. at 397. Taking into account
all the facts and circumstances facing Officer Noriega at the
time of the mistaken shooting, a reasonable jury could find
that her mistake was unreasonable because her own prior inci-
dents of weapon confusion put her on notice of the risk of rep-
etition, her daily practice drawing weapons at her sergeant’s
instruction equipped her with the training to avoid such inci-
11334 TORRES v. CITY OF MADERA
dents, and the non-exigent circumstances surrounding Everar-
do’s deadly shooting did not warrant such hasty conduct
heightening the risk of weapon error. Cf. Wilkins, 350 F.3d at
955; Jensen, 145 F.3d at 1086.
[11] Here, there is no dispute that Everardo had committed
no serious offense, though acting out, posed no immediate
threat to Officer Noriega’s safety or that of anyone else, and,
far from “attempting to evade arrest by flight,” was sitting
handcuffed in the back seat of a patrol car. The amount of
force ultimately applied was a lethal shot from a semiauto-
matic handgun. Thus, if a jury were to find Officer Noriega’s
mistaken belief that she was holding her Taser rather than her
Glock unreasonable, her use of force in this situation was
excessive and violated Everardo’s Fourth Amendment rights.
Because there remain material factual issues in dispute on
which a jury could make such a finding, the Torres Family
has properly alleged the violation of a constitutional right, and
summary judgment based on failure to do so was improper.
II. Qualified Immunity
[12] We must next consider whether Officer Noriega is
nonetheless entitled to qualified immunity because the alleged
unlawfulness of her conduct was not clearly established as of
October 27, 2002, for the “inquiries for qualified immunity
and excessive force remain distinct.” Saucier, 533 U.S. at
204. While the constitutional violation prong concerns the
reasonableness of the officer’s mistake of fact, the clearly
established prong concerns the reasonableness of the officer’s
mistake of law:
The concern of the immunity inquiry is to acknowl-
edge that reasonable mistakes can be made as to the
legal constraints on particular police conduct. It is
sometimes difficult for an officer to determine how
the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts.
TORRES v. CITY OF MADERA 11335
An officer might correctly perceive all of the rele-
vant facts but have a mistaken understanding as to
whether a particular amount of force is legal in
those circumstances. If the officer’s mistake as to
what the law requires is reasonable, however, the
officer is entitled to the immunity defense.
Saucier, 533 U.S. at 205 (emphasis added); see also Wilkins,
350 F.3d at 955 (at the second step, the court must inquire
“whether the officer was reasonable in his belief that his con-
duct did not violate the Constitution”); Curley v. Klem, 499
F.3d 199, 214 (3d Cir. 2007). Thus, for purposes of determin-
ing whether Officer Noriega is entitled to qualified immunity
under Saucier’s second prong, we assume she “correctly per-
ceived all of the relevant facts” and ask whether an officer
could have reasonably believed at the time that the force actu-
ally used was lawful under the circumstances.
[13] The facts of this case do not fall in the “ ‘hazy border
between excessive and acceptable force’ ” as a legal matter.
See Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per
curiam) (quoting Saucier, 533 U.S. at 206). This is not a case
where a fleeing suspect’s actions may or may not have estab-
lished probable cause to believe he posed a danger to others.
See, e.g., id. at 200-01 (not clearly established that shooting
a disturbed felon in the course of a high-speed car chase jeop-
ardizing safety of others violated the Fourth Amendment);
Blanford, 406 F.3d at 1119 (not clearly established that using
deadly force against man carrying a sword, who did not heed
officers’ instructions, who appeared to be breaking into a resi-
dence, and whom officers feared was a threat to others’ safety
violated the Fourth Amendment); cf. A.D. v. Markgraf, 636
F.3d 555, 561 (9th Cir. 2011) (not clearly established that
split-second decision to use deadly force in the course of a
high-speed chase, where suspect was using her car as a
weapon, shocked the conscience in violation of substantive
due process).
11336 TORRES v. CITY OF MADERA
[14] Rather, this is a case where the suspect was already
arrested, handcuffed, and in the back seat of a patrol car.
There is no suggestion that Everardo was armed, that he was
fleeing, or that he posed a threat to any officers or anyone
else. While locating the outer contours of the Fourth Amend-
ment may at times be a murky business, few things in our
case law are as clearly established as the principle that an offi-
cer may not “seize an unarmed, nondangerous suspect by
shooting him dead” in the absence of “probable cause to
believe that the [fleeing] suspect poses a threat of serious
physical harm, either to the officer or to others.” Garner, 471
U.S. at 11; accord Brosseau, 543 U.S. at 197-99 (reaffirming
the rule of Garner and explaining that it provides sufficient
“fair warning” of a constitutional violation in “obvious”
cases); Adams v. Speers, 473 F.3d 989, 994 (9th Cir. 2007)
(denying qualified immunity where suspect’s nondangerous-
ness and officer’s failure to warn before shooting placed the
case squarely “within the obvious”). Officer Noriega applied
deadly force to an unarmed, nondangerous suspect, and there
could be no reasonable mistake that this use of force was pro-
scribed by law. See Wilkins, 350 F.3d at 955.
The district court nonetheless determined Officer Noriega
was entitled to qualified immunity because the law in 2002
did not clearly establish that an unreasonable mistaken use of
force violated the Fourth Amendment. But in 2001, we
decided a case holding it clearly established that an allegedly
unreasonable mistake of identity resulting in the use of deadly
force against a fellow police officer violated that officer’s
Fourth Amendment right. See Jensen, 145 F.3d at 1086-87; cf.
Garrison, 480 U.S. at 85-86 (lawfulness of search of wrong
apartment turns on reasonableness of officers’ factual mis-
take); Hill v. California, 401 U.S. 797, 803-04 (1971) (same
for arrest of wrong individual). We later reaffirmed this prin-
ciple in another case of mistaken identity, holding it clearly
established as of January 11, 2001. See Wilkins, 350 F.3d at
952, 955. In both cases, we focused our qualified immunity
TORRES v. CITY OF MADERA 11337
inquiry not on what the officer intended to do, but instead on
the level of force actually used.
Jensen and Wilkins are materially indistinguishable from
this case for purposes of qualified immunity. Although those
two cases involved mistakes of identity, whereas here we deal
with a mistake of weapon, we have never required a prior case
“on all fours prohibiting that particular manifestation of
unconstitutional conduct” to find a right “clearly established.”
Deorle, 272 F.3d at 1286; see also Anderson v. Creighton,
483 U.S. 635, 640 (1987); Mitchell, 472 U.S. at 535 n.12;
Bryan, 630 F.3d at 833; Moreno v. Baca, 431 F.3d 633, 641
(9th Cir. 2005). To the contrary, we have repeatedly stressed
that officials can still have “fair warning” that their conduct
violates established law “even in novel factual circum-
stances,” Hope v. Pelzer, 536 U.S. 739, 741 (2002), and even
when “a novel method is used to inflict injury,” Mendoza v.
Block, 27 F.3d 1357, 1362 (9th Cir. 1994). See, e.g., Deorle,
272 F.3d at 1285-86 (officer violated a clearly established
right when, without warning, he shot a lead-filled beanbag
round in the face of a mentally or emotionally disturbed,
unarmed man who had committed no serious offense, and
who posed no risk of flight or danger to the officers or oth-
ers); Oliver v. Fiorino, 586 F.3d 898, 907-08 (11th Cir. 2009)
(same for officer who repeatedly tased a compliant, unarmed
man not suspected of any crime, even in absence of case law
factually on point).
[15] In Jensen and Wilkins, we held that, had the defendant
officers realized that the targets they were about to shoot were
fellow police officers rather than armed civilians, they “could
not have reasonably believed the use of deadly force was law-
ful.” Jensen, 145 F.3d at 1087; see Wilkins, 350 F.3d at 955.
Likewise here, had Officer Noriega realized that she was
pointing a Glock at Everardo’s chest, she “could not have
been reasonably mistaken as to the legality of [her] actions.”
Wilkins, 350 F.3d at 955. Jensen and Wilkins adequately put
Officer Noriega on notice that an unreasonable mistake in the
11338 TORRES v. CITY OF MADERA
use of deadly force against an unarmed, nondangerous suspect
violates the Fourth Amendment.
The district court nonetheless reasoned that “[e]ven if the
law was clear that an unreasonable mistaken use of force vio-
lated the Fourth Amendment in 2002,” Officer Noriega is still
entitled to qualified immunity because “the law remained
unclear on how to determine if a mistaken use of force was
reasonable or unreasonable.” But this is not the proper “level
of generality at which the relevant ‘legal rule’ is to be
[defined],” Anderson, 483 U.S. at 639, for if it were, then
qualified immunity would foreclose a trial in any case where
the objective reasonableness of the officer’s conduct turned
on material disputes of fact. The standard for judging the
objective reasonableness of an officer’s actions has long been
and remains today the “totality of the circumstances.” The
totality of the circumstances, however, will inevitably vary
from case to case, and the five factors we identified in Torres
I are merely some of the circumstances we found relevant
here.
Were we to require such granular specificity under the sec-
ond Saucier prong, we would effectively wrench of all mean-
ing the Supreme Court’s admonition that “officials can still be
on notice that their conduct violates established law even in
novel factual circumstances.” Hope, 536 U.S. at 741. While
the test of whether a right is “clearly established” must not be
so broad that the important shield of qualified immunity is
rendered meaningless, Anderson, 483 U.S. at 639, nor can it
be so narrow that the immunity is transformed from one
“qualified” in nature to one absolute.
CONCLUSION
[16] While a jury might ultimately find Officer Noriega’s
mistake of weapon to have been reasonable, it was inappropri-
ate for the district court to reach this conclusion in the face of
material disputes of fact. At this stage of the proceeding, Offi-
TORRES v. CITY OF MADERA 11339
cer Noriega has not shown an entitlement to qualified immu-
nity, and summary judgment was therefore improperly
granted.
REVERSED and REMANDED.
SILER, Circuit Judge, concurring:
I concur in the majority opinion herein. However, because
I was on the original panel in the Fourth Circuit in Henry v.
Purnell, 619 F.3d 323 (4th Cir. 2010), vacated and super-
ceded by Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816
(4th Cir. July 14, 2011) (en banc), I should explain why I
agreed in Henry that the officer was entitled to qualified
immunity, but the officer in this case does not have that pro-
tection.
As the majority correctly states, a police officer is entitled
to qualified immunity in a § 1983 action unless the officer’s
conduct violated a constitutional right, and the right at issue
was clearly established at the time of the incident so that a
reasonable officer would have understood her conduct to be
unlawful in that situation. See Saucier v. Katz, 533 U.S. 194,
201-02 (2001).
In my opinion, unlike the case law in the Fourth Circuit at
the time of the conduct in Henry, the law in effect in the Ninth
Circuit in this case was clearly established by Wilkins v. City
of Oakland, 350 F.3d 949, 955 (9th Cir. 2003), and Jensen v.
City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998). In both
Wilkins and Jensen, it was a situation in which one officer
shot another thinking the officer who was shot was someone
else. Thus, both were situations in which the officer had a
mistake of fact, thinking the victim was a criminal offender.
Moreover, in the case at bar, the person who was killed,
Torres, was already secured and in the police cruiser. In con-
11340 TORRES v. CITY OF MADERA
trast, the circumstances were that Henry was not in custody
but was being pursued on foot by Officer Purnell, who had an
arrest warrant for Henry.
The majority in Henry (en banc) found clearly established
law from Tennessee v. Garner, 471 U.S. 1, 3 (1985), that an
officer who shoots a fleeing suspect violates the suspect’s
Fourth Amendment rights if there was no probable cause to
believe that the suspect posed a significant threat of death or
physical injury to the officer or others. Id. Moreover, the
majority in this case at bar suggests that Garner was the
clearly established law at the time of the conduct in our case.
I am not prepared to go that far, and I think we need not do
so, because the precedent from Wilkins and Jensen clearly
established the federal law for the Ninth Circuit to be fol-
lowed in this case.