Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

MEMORANDUM^** 

In 1985, the district court granted defendant police officers' first motion for summary judgment in this section 1983 action arising out of the officers' killing plaintiff's decedent. We reversed, holding that plaintiff raised material issues of fact concerning whether probable cause existed for the officers to detain plaintiff's decedent, arrest plaintiff's decedent, or pursue plaintiff's decedent into his home, as well as whether the officers killed the decedent in self-defense. Neither this court nor the district court explicitly addressed the officers' claim of qualified immunity.

On remand, the officers filed a second motion for summary judgment virtually identical to their first. The district court denied the motion. The officers now appeal, contending that they are entitled to qualified immunity as a matter of law on the probable cause issue.

We have jurisdiction under 28 U.S.C. § 1291 (1982). See White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir. 1986) (the denial of summary judgment on qualified immunity defense is an appealable order).¹  We review the denial of summary judgment on a claim of qualified immunity de novo. Id.

We reject the officers' claim that they are entitled to qualified immunity as a matter of law based on their allegation that in our previous decision we changed the law concerning the circumstances under which one could detain a person under Cal.Welf. & Inst.Code Sec. 5150. In our previous decision, we followed established California law that " [e]ach case must be decided on the facts and circumstances presented to the officer." People v. Triplett, 144 Cal. App. 3d 283, 288 (1983). Contrary to the officers' characterization of our decision, we did not set out a blanket rule "that a police officer may not arrest under Section 5150 unless the mentally disordered person had brandished a weapon in a threatening manner." We merely held that because it was disputed whether plaintiff's decedent brandished weapons it could not be said as a matter of law that a person of ordinary care and prudence would have believed or entertained a strong suspicion that the decedent was a danger to himself or to others. Memorandum at 3. The mere fact that the decedent shouted threats from his porch was insufficient to remove a triable issue of fact on this question. Similarly, contrary to the officers' characterization of our decision, we did not adopt an "imminent danger standard" for detention under section 5150. Indeed, we expressly declined to decide whether section 5150 required an imminent danger standard. See Memorandum at 3 n. 2.

We also reject the officers' attempt to distinguish our previous decision on the ground that it held only that probable cause did not exist as a matter of law, while the immunity question turns on whether a reasonable officer could have concluded that probable cause existed. In our previous decision, we declined to find that probable cause existed as a matter of law because we found material issues concerning what events the officers witnessed or of which the officers had knowledge. Until these issues are resolved, material issues of fact also exist as to whether a reasonable police officer could have believed that probable cause existed based upon the events that the officers witnessed or of which the officers had knowledge.

The decision of the district court is AFFIRMED. The mandate will issue forthwith so that trial can commence without further delay.

AFFIRMED.