Unpublished Disposition, 912 F.2d 469 (9th Cir. 1986)

MEMORANDUM^** 

Stefan Negoesco appeals the district court's grant of summary judgment against his section 1983 claim for Theodore Vouderis' allegedly unreasonable use of deadly force in effecting a seizure. We have jurisdiction of Negoesco's timely appeal pursuant to 28 U.S.C. § 1291 (1982) and we affirm.

Theodore Vouderis is a deputy sheriff with the Sacramento County Sheriff's Department. On the night of March 15, 1986, officers from the Sacramento County Sheriff's Department and a Secret Service agent informed Vouderis that a fugitive felon, the plaintiff Stefan Negoesco, might be hiding in his neighborhood. Those officers gave Vouderis a wanted bulletin which described Negoesco as: 1) armed and dangerous, 2) wanted for escape, 3) wanted for assault on a federal officer, 4) wanted for counterfeiting, 5) wanted for burglary, and 6) wanted for parole violations. The officers also informed Vouderis that Negoesco was a martial arts expert and a survivalist capable of bench pressing 400 pounds. They also informed Vouderis that shots had been fired in the search for Negoesco but did not state whether Negoesco fired those shots.

On the following morning, Vouderis received a phone call from his neighbor, Michelle Cribbs. Michelle Cribbs and her father, Harold Cribbs, believed that somebody was hiding in their backyard. Vouderis went to the Cribbs' residence. Harold Cribbs armed himself with a shotgun. Vouderis and Cribbs then proceeded to the backyard. In the course of their investigation, they discovered Negoesco under the spa house.

Vouderis identified himself as a police officer and ordered Negoesco to get down on his hands and knees and place his hands on his head. Negoesco refused to obey. Instead, he backed away from Vouderis and Cribbs while protesting he had done nothing wrong. Vouderis ordered him to halt and pointed his pistol at Negoesco.

Negoesco continued to move away from Vouderis and Cribbs into an alley approximately eight feet wide and twenty-five feet long. The two sides of the alley are formed by a wooden fence approximately six feet tall and by the wall of Cribbs' garage. The end of the alley is closed by a wooden gate. The midpoint of the alley was blocked by a wheelbarrow.

As Negoesco continued to back up, Vouderis again ordered him to halt. Negoesco asked Vouderis: "Why do you want to shoot me?" Negoesco then turned with the intention to flee. At that time, Vouderis shot Negoesco in the back from a distance of eight to twelve feet. The district court granted summary judgment against Negoesco's claims alleging: 1) Vouderis used excessive force in violation of the fourth amendment; and 2) the County of Sacramento had a custom or policy permitting the use of deadly force in violation of the fourth amendment.

We review a grant of summary judgment de novo. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir.) (en banc), cert. denied, 110 S. Ct. 51 (1989).

Apprehension by the use of deadly force constitutes a seizure subject to the reasonableness requirement of the fourth amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). "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. at 11-12.

Negoesco first contends that Vouderis' use of deadly force was not necessary to prevent escape. However, Negoesco was in the alley and already in the act of turning and running before Vouderis shot him. Negoesco concedes that he was backing up in the alley in order to escape and that he turned away from Vouderis to run. Moreover, Negoesco's physical prowess enabled him to jump a six foot fence with ease. Indeed, he had done so the previous night in eluding officers. Thus we need only decide whether Vouderis' use of deadly force could have been avoided by the use of some other less severe method of preventing Negoesco's escape.

In this case, the record indicates that Vouderis had no other reasonable alternative but to stop Negoesco by shooting him. By the time Vouderis shot Negoesco, Negoesco had ignored repeated halt commands. Arguably, Vouderis could have tackled or otherwise physically restrained Negoesco. However, that alternative was not feasible. Vouderis knew that Negoesco possessed martial arts training and formidable physical strength and size. Vouderis had also been told to treat Negoesco as armed and dangerous. Furthermore, Vouderis knew that Negoesco was capable of using his physical attributes in a violent manner--Negoesco was wanted for assault on a federal officer and had been convicted of armed robbery. Vouderis was also aware that shots had been fired in the search for Negoesco the previous night. Although Vouderis did not know whether Negoesco had shot at officers or not, Vouderis was certainly alerted to that possibility. The district court properly concluded that deadly force was necessary in order to prevent Negoesco's escape.

Negoesco received a constitutionally adequate warning prior to being shot. Negoesco concedes that Vouderis ordered him to halt and get down on the ground. Moreover, there was uncontroverted testimony that Cribbs told Negoesco, "Stop or they're going to shoot you. Get down on your knees." Negoesco also concedes that Vouderis gave that order while pointing a gun at him. These facts reveal that Vouderis' conduct was sufficient to constitute a warning within the meaning of Garner. Garner requires that, when feasible, "some warning" be given. Garner, 471 U.S. at 11. Some warning is given so long as the fleeing felon clearly understands that a failure to comply with the halt order will result in the officer firing his gun. Indeed, in this case, no reasonable jury could dispute that Negoesco understood Vouderis' drawn gun and orders to halt to mean that Vouderis would shoot him if he did not stop. When Vouderis drew his gun and commanded Negoesco to stop, Negoesco responded, "You don't even know who I am. Why do you want to shoot me?" Negoesco then simply disregarded Vouderis' warning. When asked why he did not respond to Vouderis' commands to stop even when Vouderis had pointed a gun at him, Negoesco stated, "I didn't believe him." Vouderis gave Negoesco sufficient warning prior to shooting him.

B. THE COUNTY OF SACRAMENTO'S USE OF FIREARMS POLICY

We also reject Negoesco's fourth amendment challenge to Sacramento's "Use of Firearms Policy." However, because we find that Vouderis' shooting of Negoesco was reasonable under the fourth amendment, Negoesco, having suffered no fourth amendment injury, lacks standing to challenge Sacramento's use of firearms policy. See Heller v. Bushey, 759 F.2d 1371, 1373 (9th Cir. 1985).

The judgment of the district court is AFFIRMED.