George v. Morris, et al., No. 11-55956 (9th Cir. 2013)
Annotate this CasePlaintiff filed suit under 42 U.S.C. 1983 alleging that deputies used excessive force against her late husband and that a deputy unreasonably seized her when he kept her from the crime scene. At issue was whether a reasonable jury could determine that the deputies violated the Constitution when they fatally shot the husband - an armed homeowner on his patio. In this instance, the court concluded that a reasonable fact-finder could conclude that the deputies' use of excessive force was constitutionally excessive where, among other things, the husband was not in the vicinity when the deputies arrived and plaintiff appeared unscathed and not in jeopardy. Accordingly, the court concluded that the deputies were not entitled to qualified immunity. The court dismissed plaintiff's cross-appeal for lack of jurisdiction.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment denying qualified immunity to sheriff’s deputies and dismissed plaintiff’s cross appeal for lack of jurisdiction in these actions arising from the shooting by the deputies of an armed homeowner on his patio. The panel held that drawing all reasonable inferences in plaintiff’s favor, as it was required to do at this interlocutory stage, the specific circumstances did not indicate that the decedent posed an immediate threat to the safety of the officers or to others. The panel stated that if the deputies indeed shot the sixty-four-year-old decedent without objective provocation while he used his walker, with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment. Defendants therefore were not entitled to qualified immunity. The panel dismissed the cross appeal brought by decedent’s wife after her counsel conceded at oral argument that the cross appeal had not been well taken. Judge Trott concurred in small part and dissented in large part. He disagreed with the majority’s conclusion that decedent did not pose an immediate threat to the safety of the officers called to the scene by decedent’s distraught and terrified wife in a 9-1-1 emergency call, or an immediate threat to the safety of others. Judge Trott agreed with the majority’s disposition of the cross appeal.
The court issued a subsequent related opinion or order on September 16, 2013.
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