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Immunity Upheld for Shooting of Compliant Passenger
Ninth Circuit Says, in Opinion by Judge Ryan Nelson, That Returning Fire Into Vehicle After Driver Had Killed Police Dog, Shot at Officer, Did Not Violate Clearly Established Law; No Excessive Force
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that qualified immunity protects officers who shot 34 rounds into a vehicle following a high-speed chase after the driver fired a gun, killing a police dog and injuring a policeman, although the plaintiff, who was seriously injured, was a passenger who was uninvolved in any wrongdoing and held her hands in the air during the interaction.
The court determined that immunity attaches because Fourth Amendment jurisprudence does not clearly establish that the shooting was excessive, despite the danger of hitting an innocent and compliant passenger.
Circuit Judge Ryan D. Nelson wrote the opinion affirming a summary judgment in favor of the police officers and related parties by District Court Judge Jennifer L. Thurston of the Eastern District of California. Circuit Judge Ronald M. Gould and Senior Circuit Judge Richard C. Tallman joined in the opinion.
Appealing the judgment was Rosa Cuevas, who incurred three gunshot wounds to her shoulder, chest, and head and continues to suffer from facial paralysis, hearing loss, vision impairment, and limited mobility following multiple surgeries to repair the damage.
2018 Shooting
The shooting occurred on Dec. 9, 2018. Cuevas had just met the driver, Quinntin Castro, two weeks prior and agreed to give a ride to his friend, Cameron Wade, if Castro agreed to drive. She sat in the front passenger seat and Wade sat in the back of her Mercury sedan.
Tulare Police Officer Daniel Bradley observed Castro roll through two stop signs and take a sharp left turn without using a blinker. When Castro pulled into a driveway, Bradley initiated a traffic stop.
A high-speed chase ensued until Castro drove into an embankment next to an open field and the sedan got stuck in the mud. K-9 Officer Ryan Garcia, Officer Edward Puente and Sergeant Andy Garcia joined in the pursuit and surrounded the car as Castro continued to rev the engine.
Andy Garcia broke the driver’s side window and Ryan Garcia threw his police dog, Bane, through the window with a command to bite.
Castro fired three shots at the dog, killing him, and fired two shots at Ryan Garcia, striking him. Without warning, the officers returned fire and, despite aiming for Castro, hit Cuevas.
Castro died at the scene.
Civil Action
Cuevas, Ware, and Letitia Tuggle, a representative of Castro’s estate, filed suit against the four responding officers, the city of Tulare, and Police Chief Matt Machado asserting excessive force claims under 42 U.S.C. §1983 and California law.
Thurston granted the defendants’ motion for summary judgment as to all federal claims, saying:
“The events of this case are tragic. In this civil rights action, the shootout that ensued after a high-speed chase, resulted in the death of the driver, the death of a police K9, the permanent disability of one passenger and a career-ending injury of a police officer.”
However, she concluded that “the Court has not found, and Cuevas has not cited any authority that clearly establishes the unlawfulness of the officers’ use of deadly force responsive to Castro’s shooting Officer Garcia and the police K9, by firing thirty-four rounds into the still-running vehicle, which had just been involved in a high-speed chase, even if the officers knew innocent passengers were in the car.”
Thurston declined to exercise supplemental jurisdiction over Cuevas’ state law claims. Only Cuevas appealed the judgment.
Qualified Immunity
Nelson pointed out that qualified immunity protects government officials from liability under §1983 unless they violated a statutory or constitutional right and the unlawfulness of their conduct was clearly established such that a reasonable official would have known that the conduct violates that right.
Excessive force claims under the Fourth Amendment require a seizure of a person and excessive force. Thurston found that neither a seizure nor excessive force occurred, but Nelson disagreed as to the seizure.
The jurist noted that an officer can seize a person using force or through a show of authority, and said:
“[W]hen a person is pulled over by the police, that person is seized because she complied with a show of authority. Passengers in the car are seized together with the driver.”
Turning to the present case, he opined:
“Castro was seized, at the very least, when K-9 Officer Garcia put Bane through the broken window instructing him to bite Castro. This was a use of force. So too were the shots that the officers fired at Castro after he shot Bane and his handler….Since Cuevas was Castro’s passenger, she too was seized.”
Excessive Force
Cuevas points to several cases finding no immunity for indiscriminate use of force on crowds to show that the officers violated her clearly established rights when they shot at her, an innocent bystander. Unpersuaded, Nelson said that none of the cases “have facts similar enough to ‘clearly establish’ that the officers used excessive force.”
Unlike the cases cited by Cuevas, Nelson pointed out that Castro fired shots before any force was used by the officers. He reasoned:
“While some bullets hit Cuevas, the officers were not firing indiscriminately into the car but were instead aiming—as best they could—at Castro as he moved from the front driver’s seat to the right passenger side during the gunfight. This is apparent because Ware left the encounter unharmed despite being in the car with Castro and Cuevas.”
He drew the conclusion that “none of Cuevas’s cases clearly establish that officers violated her rights when they shot her while defensively returning fire during an active shooting. Cuevas has not carried her burden.”
Obvious Violation
Cuevas argues that the violation of her rights was so obvious that qualified immunity does not apply. Nelson acknowledged that the U.S. Supreme Court has recognized that “some constitutional violations are so obvious that qualified immunity is inappropriate” but said “it has only done so in Eighth Amendment cases.”
Turning to Ninth Circuit precedent, he said “while our court has found an obvious constitutional violation in an excessive-force case, it did so only where officers killed a man who posed ‘no immediate threat.’ ”
He wrote:
“[T]he fact that officers cannot kill a man who is not a threat says little about what they can do in the myriad cases where a suspect does pose a threat….[I]n excessive-force cases where police officers face a threat, the obviousness principle will rarely—if ever—be available as an end-run to the requirement that law must be clearly established.”
The judge continued:
“With this understanding in mind, the officers’ returning fire was not obviously unconstitutional—even though they collaterally hit Cuevas. The alternative would be untenable. Officers would have to either not defend themselves or risk liability if they accidentally hit a bystander when they return fire. The officers are therefore entitled to qualified immunity.”
The case is Cuevas v. City of Tulare, 23-15953.
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