UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED
MAY 01 2014
CYNTHIA BOWLES and ANTONIO No. 12-16467
MOLLY C. DWYER, CLERK
SOUSA, U.S. COURT OF APPEALS
D.C. No. 1:10-cv-00937-LJO-GSA
Plaintiffs - Appellants, Eastern District of California,
Fresno
v.
CITY OF PORTERVILLE; et al., ORDER
Defendants - Appellees.
Before: CALLAHAN and M. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.*
The dissent filed on April 24, 2014, is hereby amended.
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
FILED
NOT FOR PUBLICATION APR 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA BOWLES and ANTONIO No. 12-16467
SOUSA,
D.C. No. 1:10-cv-00937-LJO-GSA
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF PORTERVILLE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 14, 2014
San Francisco, California
Before: CALLAHAN and M. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**
This case arises out of a tragic mistake. Joseph Bowles (“Bowles”) was shot
and killed by California Highway Patrol Officer Chris McGuire (“McGuire”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
when, while being pursued on foot, Bowles pivoted and allegedly pointed a
metallic object at McGuire. The officer fired a single shot that killed Bowles.
Bowles’ parents, Cynthia Bowles and Antonio Sousa (“Plaintiffs”), filed this
action pursuant to 42 U.S.C. § 1983 alleging an unreasonable search and seizure,
excessive force, and other claims. The district court granted summary judgment to
Officer McGuire and the other defendants on the basis of qualified immunity,
finding that McGuire’s use of deadly force was objectively reasonable under the
circumstances. Plaintiffs appeal. We affirm because the totality of the
circumstances confirms that McGuire reasonably feared that Bowles was about to
shoot him.1
We review “de novo a grant of summary judgment on the basis of qualified
immunity,” and in “determining whether summary judgment is appropriate, [view]
the evidence in the light most favorable to the non-moving party.” Garcia v. Cnty.
of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); see also Elder v. Holloway, 510
U.S. 510, 516 (1994).
In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), we explained
that qualified immunity shields an officer from liability even if his or her action
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact,” and that the “purpose of qualified immunity is to strike
a balance between the competing need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Id. (internal
quotation marks and citations omitted). See also Messerschmidt v. Millender, 132
S. Ct. 1235, 1244 (2012) (“[q]ualified immunity gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.”) (internal
quotation marks and citations omitted).
In determining whether an officer is entitled to qualified immunity, we
consider: (1) whether there has been a violation of a constitutional right; and (2)
whether that right was clearly established at the time of the officer’s alleged
misconduct. Pearson v. Callahan, 555 U.S. 223, 231 (2009). “[T]he courts of
appeals [are] permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Id. at 236. In Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011), the Supreme Court further defined when a
right is clearly established.
3
A Government official’s conduct violates clearly established law
when, at the time of the challenged conduct, “[t]he contours of [a]
right [are] sufficiently clear” that every “reasonable official would
have understood that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 640 (1987).
See also Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).
The Supreme Court has noted that because “qualified immunity is ‘an
immunity from suit rather than a mere defense to liability . . . it is effectively lost if
a case is erroneously permitted to go to trial.’” Pearson, 555 U.S. at 231. As we
recognized in Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), there is some tension
between an early determination of qualified immunity and the rule that summary
judgment is improper where there are disputed issues of material fact. In Scott, we
held that:
The judge must carefully examine all the evidence in the record, such
as medical reports, contemporaneous statements by the officer and the
available physical evidence, as well as any expert testimony proffered
by the plaintiff, to determine whether the officer’s story is internally
consistent and consistent with other known facts.
Id. at 915. We further noted “[a]ll determinations of unreasonable force ‘must
embody allowance for the fact 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.’”
Id. at 914 (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)).
4
It is well established that an officer may not shoot a fleeing suspect unless he
poses a serious threat to the officer. Tennessee v. Garner, 471 U.S. 1, 11-12
(1985). Thus, the pivotal issue is whether McGuire, or an officer in McGuire’s
position, would reasonably fear that Bowles was going to shoot him. Reviewing
the totality of the circumstances, we agree with the district court that Bowles’ fear
was reasonable.
Plaintiffs do not question McGuire’s subjective fear. Nor do they appear to
question that Bowles stopped a second time and pivoted to face the officer. In
addition, Plaintiffs do not deny that a cologne bottle found at the scene had a
metallic and cylindrical top. Instead, they argue that a jury could conclude that
Bowles did not have a cologne bottle in his hand. But the evidence shows that
Bowles was responsible for the presence of the cologne bottle. When Bowles was
running the officers had seen bulges in his pockets, and a search of Bowles after he
was shot revealed at least one more cologne bottle. Plaintiffs’ allegations that
McGuire improperly moved the cologne bottle do not create a material issue of fact
because they do refute that Bowles had been carrying the cologne bottles.
Similarly, Plaintiffs’ argument that Bowles may have been crouching when
he was shot does not raise a material issue of fact. It is pure speculation to suggest
that Bowles was attempting to lie down as previously ordered by the officers.
5
Bowles had previously ignored the officers’ commands and more importantly,
there is no suggestion that crouching was inconsistent with preparing to fire a gun.
Furthermore, McGuire fired a single shot. This distinguishes the situation
from instances in which the officers continued firing after avoiding the immediate
threat. See Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991); Perrin
v. Gentner, 177 F. Supp. 2d 1115, 1120-21 (D. Nev. 2001).
Given Bowles’ fleeing, the darkness, the officers’ prior restraint, and the
presence of a cologne bottle with a metallic cylindrical top, there is no other
possible reason for McGuire’s fear that Bowles was about to shoot him. While one
might speculate as to other causes for McGuire’s real but mistaken fear, Plaintiffs
have not pointed to any evidence that might support such speculation.2 McGuire
was required to make a “split second judgment” in a situation that was “tense,
uncertain, and rapidly evolving.” See Graham, 490 U.S. at 397. His testimony is
“internally consistent and consistent with other known facts.” See Scott, 39 F.3d at
915. Accordingly, the district court properly concluded that McGuire’s
2
At oral argument, counsel asserted that the officers had not seen
Bowles reach into his pocket. However, at his deposition McGuire stated that
“based on the movement of his arms and elbows, it appeared that he was getting
something either from his pocket or waistband.”
6
apprehension was reasonable. The district court’s grant of summary judgment is
AFFIRMED.
7
FILED
(Bowels et al v City of Porterville et al ) Amended 12-16467 MAY 01 2014
MOLLY C. DWYER, CLERK
KORMAN, District Judge, dissenting: U.S. COURT OF APPEALS
Joseph Bowles (“Bowles”) was shot and killed by California Highway Patrol
Officer Chris McGuire (“Officer McGuire”) in the early morning hours of October 20,
2009. The shooting came at the culmination of a chase that began after Officer
McGuire observed Bowles “looking into vehicles, placing his hands kind of over his
eyes to, to allow him to look inside of the vehicles[.]” ER 426. Although Officer
McGuire did not see Bowles make any contact with any of those vehicles with his
hands, Officer McGuire testified that he “just had reasonable suspicion that he was
attempting to commit a crime based on the several minutes of surveillance we had
with him up to that point[.]” ER 426-27. After Officer McGuire’s colleague, Officer
McCord, approached Bowles and identified himself as a police officer, Bowles ran
and the chase began with Officers McGuire and McCord in pursuit. ER 369-60.
Officer McCord eventually dropped back and did not witness Office McGuire fire the
shot that killed Bowles.
These events were ultimately followed by a complaint filed by Bowles’s
parents, pursuant to 42 U.S.C. § 1983, alleging, inter alia, that the use of deadly force
against their son constituted an unreasonable search and seizure. The complaint was
based on the holding of the Supreme Court in Tennessee v. Garner that a “police
officer may not seize an unarmed, nondangerous suspect by shooting him dead.” 471
1
U.S. 1, 11 (1985). Nevertheless, “[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, it is not constitutionally unreasonable to prevent escape by using deadly force.
Thus, if the suspect threatens the officer with a weapon or there is probable cause to
believe that he has committed a crime involving the infliction or threatened infliction
of serious physical harm, deadly force may be used if necessary to prevent escape, and
if, where feasible, some warning has been given.” Id. 11-12.
Under the holding in Tennessee v. Garner, it was a violation of the Fourth
Amendment for Officer McGuire to use deadly force to apprehend Bowles. Officer
McGuire, however, has asserted the affirmative defense of qualified immunity based
on his claim that he feared that Bowles was going to shoot him. The district court
granted McGuire’s motion for summary judgment. On this appeal, after holding that
“the pivotal issue is whether McGuire, or an officer in McGuire’s position, would
reasonably fear that Bowles was going to shoot him,” See Majority at 5, the majority
concludes that Officer McGuire’s fear that he was in danger of being shot was
reasonable and that the evidence is insufficient as a matter of law for a jury to
conclude otherwise.
I am unable to agree that this case is appropriate for summary judgment. In my
view, the majority unjustifiably fails to apply the applicable legal standards for a
motion for summary judgment in a case in which the victim of a shooting by a police
2
officer is dead and the entire case rests largely on the deposition testimony of the
defendant. Moreover, while the majority bases its holding on its review of “the
totality of the circumstances,” my view of those circumstances leads me to conclude
that this case is one that must be resolved by a jury. I turn first to the applicable legal
standards, and then to a careful analysis of the underlying facts.
(I)
Because the majority resolves the pivotal issue in this case solely by crediting
the testimony of Officer McGuire, it is useful to begin with the admonition that where
a motion for summary judgment is based on such testimony, a district judge “must
ensure that the officer is not taking advantage of the fact that the witness most likely
to contradict his story—the person shot dead—is unable to testify.” Scott v. Henrich,
39 F.3d 912, 915 (9th Cir. 1994) (internal citations omitted). The district judge “may
not simply accept what may be a self-serving account by the police officer. It must
also look at the circumstantial evidence that, if believed, would tend to discredit the
police officer's story, and consider whether this evidence could convince a rational
factfinder that the officer acted unreasonably.” Id. This is a corollary of two well
settled principles. First, “[i]t is clear that qualified immunity is an affirmative defense,
and we think it equally clear that the burden of proving the defense lies with the
official asserting it.” Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1988).
Second, this consideration aside, “the ordinary rule, based on considerations of
3
fairness, does not place the burden upon a litigant of establishing facts peculiarly
within the knowledge of his adversary.” Campbell v. U.S., 365 U.S. 85, 96 (1961);
see also U.S. v. Fior D'Italia, Inc., 536 U.S. 238, 257 n.4 (2002); Nealey v.
Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1280-81 (9th Cir. 1980);
Nader v. Allegheny Airlines, Inc., 512 F.2d 527, 538 (D.C.Cir. 1975).
As a separate, related principle, Professors Wright, Miller, and Kane observe,
“[t]he party opposing summary judgment does not have a duty to present evidence in
opposition to a motion under Rule 56 in . . . circumstances . . . when there is an issue
as to the credibility of the movant’s evidentiary material.” 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727, at 480,
485 (3d ed.1998).
Thus if the proof in support of the motion is largely
documentary and has a high degree of credibility the
opponent must produce convincing proof attacking the
documents in order to sustain his burden. . . . If the moving
party's proof is less convincing, as in cases where he relies
on his own testimony or has exclusive knowledge of the
transaction, the burden of providing evidence may never
shift to the opponent.
John A. Bauman, A Rationale of Summary Judgment, 33 Ind. L.J. 467, 483–84 (1958)
(alteration in original) (quoted in Wright, Miller & Kane, supra, at 486). As Judge
Frank observed in one of the leading cases on this issue, where “the facts asserted by
movant are peculiarly within the knowledge of the movant, then the opponent must
4
be given the opportunity to disprove that fact by cross-examination and by the
demeanor of the movant while testifying.” Subin v. Goldsmith, 224 F.2d 753, 760 (2d
Cir. 1955); see also Ala. Great S. R.R. Co. v. Louisville & Nashville R.R. Co., 224
F.2d 1, 5 (5th Cir. 1955) (describing Subin as “a thorough going exposition of why a
summary judgment should, and should not, be granted”); Fed. R. Civ. P. 56 advisory
committee’s note to 1963 amendment (“Where an issue as to a material fact cannot
be resolved without observation of the demeanor of witnesses in order to evaluate
their credibility, summary judgment is not appropriate.”).
These principles reflect the long-recognized prerogative of the jury to disbelieve
the testimony of a party and conclude that the opposite of his testimony is true. “[A]
trier of fact is not compelled to accept and believe the self serving stories of vitally
interested defendants. Their evidence may not only be disbelieved, but from the
totality of the circumstances, including the manner in which they testify, a contrary
conclusion may be properly drawn.” United States v. Cisneros, 448 F.2d 298, 306
(9th Cir. 1971). Indeed, the Supreme Court has recognized the “general principle of
evidence law that the factfinder is entitled to consider a party’s dishonesty about a
material fact as ‘affirmative evidence of guilt.’” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 146 (2000) (quoting Wright v. West, 505 U.S. 277, 296
(1992)); see also United States v. Selby, 557 F.3d 968, 976 (9th Cir. 2009)
(“[D]isbelief of a defendant's own testimony may provide at least a partial basis for
5
a jury's conclusion that the opposite of the testimony is the truth.”) (internal quotations
omitted); United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974) (“where, for
example, a witness’ story is implausible- disbelief of testimony on a certain point can
support the truth of what the witness denies.”); id. (Wallace, J., concurring)
(“Whether the testimony of a defendant or any other witness has a ring of genuineness
or not often becomes most significant in finding where the truth lies.”)
(II)
Against this legal backdrop, the holding of the majority that summary judgment
is appropriate in this case is impossible to justify. Office McGuire bore the burden of
proof. The facts relating to the shooting were peculiarly within his knowledge and the
jury was not compelled to accept and believe his self-serving testimony that is
implausible on its face. Officer McGuire testified that, during the course of the chase,
Bowles stopped twice. When he stopped the first time and faced Officer McGuire, the
latter ordered him to get on the ground. ER 421. At that moment, when they were
approximately five feet apart, Officer McGuire “could just tell that [Bowles] had items
in both of his front pockets, but [he] did not know what these items were.” ER 421.
Officer McGuire then drew his weapon and again ordered Bowles to get to the ground.
ER 415. The chase resumed when “shortly after that Mr. Bowles started running
away again.” ER 412.
According to Officer McGuire, it was at this point when Bowles stopped and
6
turned that he saw “a metallic cylinder object in his hands,” which led Officer
McGuire to believe that Bowles had a weapon. ER 413. When asked how the object
was positioned in Bowles’s hands, Officer McGuire answered that “[h]e had his, both
his left and right hand coupled together extended out in front of him, with his elbow
slightly bent, and the metallic object was protruding from within his hands as he had
them cupped together.” ER 414. The object which Officer McGuire testified he saw
in Bowles’s hands, and which led to the shot that killed him, was a cologne bottle. In
order to credit Officer McGuire’s testimony, a jury would have to believe that after
stopping, Bowles removed a cologne bottle from one of his front pockets and pointed
it at a police officer who had his gun drawn and was no more than ten feet away.
While the majority has apparently seen fit to credit this improbable tale, a jury could
decide otherwise.
I recognize that there is a phenomenon known as “suicide by cop,” a term which
has been defined in different ways and which could explain such otherwise
inexplicable behavior by the victim. The American College of Emergency Physicians
defines it as “an incident where a suicidal individual intentionally engages in life-
threatening and criminal behavior with a lethal weapon [or what appears to be such
a weapon] toward law enforcement officers or civilians specifically to provoke
officers to shoot the suicidal individual in self-defense or to protect civilians.” H.
Range Huston, M.D., et al., Suicide by Cop, 32 Annals of Emergency Med. 6 (1998)
7
(quoted in Anthony J. Pinizzotto et al., Suicide by Cop: Defining a Devastating
Dilemma, 74 FBI L. Enforcement Bull. 2, 9 (2005)). In Boyd v. City and County of
San Francisco, 576 F.3d 938 (9th Cir. 2009), we upheld the admissibility of expert
testimony regarding “suicide by cop” in the context of that particular case. No
evidence of this kind was offered in support of the defendants’ motion for summary
judgment. Nor was any evidence offered of the kind necessary to show that Bowles
was a “suicidal individual.” See Pinizzotto et al., supra, at 12-14.
More significantly, there is other compelling circumstantial evidence that calls
into question Officer McGuire’s version of the events, and from which a jury could
reasonably conclude that Bowles was shot when he was already moving down towards
the ground. Bowles was taller than Officer McGuire, ER 110, and Officer McGuire
testified that Bowles was standing on a sidewalk that was elevated above Officer
McGuire’s position on the parking lot at the time of the shooting. ER 450.
Nevertheless, Jesse Worbock, Ph.D, a forensic biomechanics expert, offered the
opinion, in the form of an affidavit, that the bullet that entered Bowles’s body did so
at a downward trajectory. This indicated to Dr. Worbock that “Bowles was not
standing erect at the time he was shot. Instead, Mr. Bowles’s body was already down,
or moving down toward the ground when he was shot.” ER 110; see also ER 111 (“it
is my expert opinion that the incident did not occur in the manner described by Officer
McGuire to the extent that Bowles was not standing at the moment he was shot, based
8
on the downward trajectory of the bullet, and was likely falling down or kneeling.”).
This expert opinion contradicts Officer McGuire’s uncorroborated testimony that
Bowles had stopped and had just begun to spin to his left with his arms extended when
he was shot. ER 413-14. Cf. Ting v. U.S., 927 F.2d 1504, 1510 (9th Cir. 1991)
(genuine issues of material fact existed regarding circumstances of the shooting based
on testimony of ballistics expert).
Nevertheless and quite remarkably, the only answer the majority offers for this
competent and otherwise uncontroverted expert opinion is that “[i]t is pure speculation
to suggest that Bowles was attempting to lie down as previously ordered by the
officers.” See Majority at 5. And, even if Bowles was in a crouching position when
he was shot, “there is no suggestion that crouching was inconsistent with preparing
to fire a gun.” Id. But, as I have observed above, if Bowles was crouching when he
was shot, then it totally undermines Officer McGuire’s narrative of how the shooting
occurred.
This is not the only circumstantial evidence that a jury could conclude
undermines Officer McGuire’s testimony. Office McGuire testified that, “[a]fter the
first shot was fired, [Bowles] immediately, as he was spinning, threw his hands up in
the air, and the [cologne] bottle flew from his hands, it went up into the air, and then
landed in the dirt next to him.” ER 430-31. The dirt was in a flowerbed alongside the
place where Bowles had been standing. ER 431. Officer McGuire admitted that he
9
picked up the cologne bottle without wearing gloves and placed it near Bowles’s left
hand. ER 295, 431-32, 435, 447. In doing so, he acted contrary to the policy of the
Police Department of the City of Porterville by not leaving physical evidence in place
and using gloves to avoid contaminating evidence with fingerprints. ER 235-36, 260,
380. While Office McGuire testified that he moved the cologne bottle because he
“didn’t want the item to be lost or misplaced, or somebody not to know what it was,”
ER 431-32, plaintiffs suggest that he threw the cologne bottle into the flowerbed,
retrieved it, and placed it next to Bowles to explain the fingerprints he left on the
bottle while removing it from Bowles’s pockets. Indeed, at one point in his testimony,
Officer McGuire admitted that after he initially picked up the cologne bottle he threw
it further into the flowerbed and then picked it up again after he finished searching
Bowles. ER 435. The majority observes that “the evidence shows that Bowles was
responsible for the presence of the cologne bottle.” See Majority at 5. Plaintiffs,
however, do not argue that Bowles had not been carrying two cologne bottles. Rather,
they argue that the cologne bottles were in Bowles’s pockets at the time of the
shooting. This is the basic issue that the jury should be free to resolve on this record.
The only legal reason the majority suggests for arguing otherwise is that
“[t]here is some tension between an early determination of qualified immunity and the
rule that summary judgment is improper where there are disputed issues of material
fact.” See Majority at 4. Nevertheless, even if true, the majority cites no case that
10
justifies altering the rules that ordinarily govern the determination of motions for
summary judgment. These rules, which are discussed at length earlier, are based on
the premise that summary judgment should not be granted in a case such as this
because “a trier of fact is not compelled to accept and believe the self serving stories
of vitally interested defendants.” United States v. Cisneros, 448 F.2d 298, 306 (9th
Cir. 1971). Particularly where, as here, Officer McGuire’s story is “implausible,”
United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974), not to speak of the other
evidence that established that the shooting could not have happened as he testified, the
jury can conclude that “the opposite of the testimony is the truth.” United States v.
Selby, 557 F.3d 968, 976 (9th Cir. 2009). Under these circumstances, summary
judgment is inappropriate even in a case that involves the affirmative defense of
qualified immunity.
The only concession the Supreme Court has made to the normal rules that apply
in such cases is that it permits an appeal solely from an order denying qualified
immunity on purely legal grounds. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
An appeal would not lie from a denial of summary judgment based on a determination
by a trial judge that there is an issue of fact for the jury to resolve on the issue of
qualified immunity even though that would force a law enforcement officer to go to
trial. Johnson v. Jones, 515 U.S. 304, 317 (1995); Ram v. Rubin, 118 F.3d 1306 (9th
Cir. 1997). Indeed, in the present case, concern about “an early determination of
11
qualified immunity,” see Majority at 4, did not prevent full pretrial discovery that
included taking the deposition of Office McGuire. Moreover, as I have demonstrated,
this case is hardly an appropriate one for creating an unsupported and unjustified
exception to the normal rules that govern the consideration of a motion for summary
judgment. If Officer McGuire should prevail on a defense of qualified immunity, then
that judgment must be made by a jury.
I conclude with where I began, with the words from Scott v. Henrich, 39 F.3d
912 (9th Cir. 1994). In a case such as this, “the court may not simply accept what may
be a self-serving account by the police officer. It must also look at the circumstantial
evidence that, if believed, would tend to discredit the police officer's story, and
consider whether this evidence could convince a rational factfinder that the officer
acted unreasonably.” Id. at 915 (internal citations omitted). I dissent because, unlike
the majority, I believe that the evidence in this case could convince a rational
factfinder that the officer acted unreasonably.
12