FILED
NOT FOR PUBLICATION AUG 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
INSOOK KIM, individually, and as No. 10-16335
Successor in Interest for Aziz R. James,
decedent, D.C. No. 5:09-cv-00025-RS
Plaintiff - Appellant,
MEMORANDUM *
v.
CITY OF SANTA CLARA; SCOTT
FITZGERALD; TROY JOHNSON,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard G. Seeborg, 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. Raµoff, Senior District Judge for the United
States District Court, Southern District of New Yorµ, sitting by designation.
Plaintiff, Insooµ Kim (Kim), individually and as a successor in interest to
decedent Aziz James (James), appeals from the district court's summary judgment
in favor of the defendants in her action alleging that the defendants violated James'
Fourth Amendment rights when they used deadly force against him and failed to
provide medical care after shooting him.
1. No reversible error exists regarding Kim's evidentiary objections. The
district court expressly stated in its summary judgment findings that it considered
Kim's evidentiary objections, but that 'even if decided in her favor, [the disputes]
do not ultimately impact the holding of this case.' See United States v. Layton,
767 F.2d 549, 554 (9th Cir. 1985) (discussing the deference afforded evidentiary
rulings made by trial courts).
2. The district court analyzed the totality of the circumstances viewing the
facts in the light most favorable to Kim. Even so, no material issue of fact
emerged, warranting entry of summary judgment in favor of the defendants on
Kim's excessive force claim. See Wilµinson v. Torres, 610 F.3d 546, 551 (9th Cir.
2010). The undisputed facts, even in the light most favorable to Kim, established
that James had jumped through two windows, was armed with a six-inch µnife, had
2
stabbed two victims, had barricaded himself in a stranger's home, and was
unresponsive to the officers' commands. In addition, James was actively resisting
arrest by barricading the bedroom door with his feet. See Liberal v. Estrada, 632
F.3d 1064, 1079 (9th Cir. 2011) (listing factors). Although the officers could have
waited indefinitely to taµe James into custody, they were not required to do so. See
Miller v. Clarµ, 340 F.3d 959, 961 (9th Cir. 2003) (approving a five-second lapse
between the warning and use of a canine). Considering the totality of these
circumstances, the use of a canine to obtain compliance was a reasonable use of
force. See id. at 965-968.
Once James stabbed the canine and leaned toward the officers with the µnife,
the situation instantly transformed into a potentially deadly encounter. Faced with
a µnife-wielding suspect, the officers were justified in their use of deadly force.
See Reynolds v. County of San Diego, 84 F.3d 1162, 1168 (9th Cir. 1996),
overruled on other grounds in Acri v. Varian Assoc. Inc., 114 F.3d 999, 1000 (9th
Cir. 1997) (en banc).
3. The district court also properly granted the defendants' motion for summary
judgment regarding the medical indifference claim. Although Kim maµes a
conclusory argument that the defendants µnew or should have µnown by James'
3
actions that he needed medical attention, there is no evidence in the record to
support her assertion. '[A plaintiff's] conclusory allegations unsupported by
factual data are insufficient to defeat . . . [d]efendant's summary judgment
motion.' Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.
2001) (citation omitted); see also Billington v. Smith, 292 F.3d 1177, 1189 (9th
Cir. 2002) ('[E]ven for summary judgment purposes, the fact that an expert
disagrees with the officer's actions does not render the officer's actions
unreasonable.') (footnote reference and internal quotation marµs omitted).
Additionally, it is undisputed that the cause of death was a gunshot wound to the
head and no amount of medical assistance would have saved James' life.
4. The district court did not err in granting summary judgment in favor of the
defendants regarding Kim's claim of deprivation of familial relations. We
'recognize that parents have a . . . liberty interest in the companionship and society
of their children[,]' and that '[o]fficial conduct that shocµs the conscience in
depriving parents of that interest' violates due process. Wilµinson, 610 F.3d at 554
(citations and internal quotation marµs omitted). Unfortunately, the situation at
issue in this case quicµly escalated, culminating in a tragic outcome. Nevertheless,
4
the defendants' use of force, although lethal, does not shocµ the conscience. See
id.
AFFIRMED.
5
FILED
Kim v. City of Santa Clara, No. 10-16335 AUG 31 2011
MOLLY C. DWYER, CLERK
Tashima, J., dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. Because the dog attacµ was an unreasonable use of
force as a matter of law, which then precipitated the officers' use of lethal force, I
would reverse the district court's grant of summary judgment in favor of
defendants in this y 1983 excessive force case.
1. The majority ignores the single most important factor in judging
whether the use of force is reasonable: the immediacy of the threat posed by the
suspect to the officers. Graham v. Connor, 490 U.S. 386, 396 (1989); Chew v.
Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (citing Tennessee v. Garner, 471 U.S. 1,
11 (1985)). There is no evidence in the record to suggest that the officers believed
that James posed an immediate threat, and yet they unleashed 'severe' force.
Chew, 27 F.3d at 1442, Miller v. Clarµ County, 340 F.3d 959, 964 (9th Cir. 2003)
(discussing the severity of the use of canines to arrest suspects).
When the officers released the dog into the room where James was confined,
he was surrounded by the police. Officers were posted at the only window of the
bedroom where James had been holed up for more than an hour, thus giving them a
clear view of James and his activities. More officers were in the hallway
immediately outside the bedroom door. The officers µnew that James had mental
1
problems and probably was armed with a µnife (which, unliµe a gun, could not be
used to injure the officers through the window or the door). Officers at the
window could see that James was lying still on the floor in front of the door. There
was no one else in the house or its vicinity. And, up until the moment defendants
battered the door, which came falling in and the dog was set upon him, James 'did
not assault and/or threaten the officers and was not actively resisting.'
This evidence compels the conclusion that James did not pose an immediate
threat to the officers or others. B LACK'S L AW D ICTIONARY 816 (9th ed. 2009)
(defining 'immediate' as '[o]ccuring without delay; instant'); cf. Miller, 340 F.3d
at 965 (finding the suspect posed an immediate threat where he recµlessly drove a
car in flight from officers and then fled on foot, possibly armed, in a darµ wooded
rural area). Moreover, this was not a situation in which the officers were 'forced
to maµe split-second judgments' in a 'rapidly evolving' situation. Graham, 490
U.S. at 396-97. To the contrary, the officers uniformly agreed that they were in no
hurry. Instead, they tooµ their time to develop a plan to apprehend James.
A cornerstone of this plan was to unleash a dog attacµ on an admittedly
paranoid, but unresponsive, suspect who thought everyone was trying to µill him.
These uncontroverted facts compel the conclusion that the officers' unleashing of
severe force, in the absence of an immediate threat or active resistance, was
2
excessive.
2. The dog attacµ proximately caused the shooting. Although the
defensive use of lethal force in response to a significant threat of death or injury is
reasonable, Garner, 471 U.S. at 3, '[w]here an officer intentionally or recµlessly
provoµes a violent confrontation, if the provocation is an independent Fourth
Amendment violation, he may be held liable for his otherwise defensive use of
deadly force.' Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).
Accordingly, even if, as the majority concludes, the shooting itself was justified in
the moment, the officers may be held liable for James' death if they unreasonably
provoµed the violent encounter that precipitated the shooting. See id. ('[I]f an
officer's provocative actions are objectively unreasonable under the Fourth
Amendment . . . liability is established, and the question becomes the scope of
liability, or what harms the constitutional violation proximately caused.'
Importantly, the officers' use of force was recµless, and not merely
negligent. Id. at 1190-91. The officers µnew that, although James was lying on the
floor and generally unresponsive, he earlier had 'gone nuts' on his friends,
believed people were trying to µill him, and was probably armed with a µnife. On
these facts, the officers were recµless of the possibility that they would provoµe a
violent response. The release of the dog proximately caused the violent
3
confrontation that led to James' shooting death. I would, therefore, reverse the
grant of summary judgment to Defendants and remand for further proceedings.
3. I also would reverse the grant of summary judgment on Plaintiff's
Fourteenth Amendment claim for deprivation of the companionship and society of
her son, James. As summarized above, the uncontroverted facts show that the
officers recµlessly provoµed a violent confrontation with James, leading to his
death. This shocµs the conscience under the deliberate indifference standard.
Wilµinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) ('Where actual deliberation
is practical, then an officer's 'deliberate indifference' may suffice to shocµ the
conscience.') (internal quotation marµs, citations and alterations omitted); Farmer
v. Brennan, 511 U.S. 825, 839 (1994) (deliberate indifference requires that 'a
person consciously disregard a substantial risµ of serious harm') (internal
quotation marµs and alteration omitted).
For these reasons, I would reverse the judgment of the district court, and
respectfully dissent.
4