Isayeva v. Barry, No. 15-17065 (9th Cir. 2017)
Annotate this CasePlaintiff filed suit under 42 U.S.C. 1983, alleging that defendant used excessive force when he tased and fatally shot her husband. The Ninth Circuit reversed the district court's denial of summary judgment and remanded, holding that defendant was entitled to qualified immunity. The panel held that it had jurisdiction over this interlocutory appeal; viewing the facts in the light most favorable to plaintiff, the husband did not have a clearly established right violated by defendant's use of the taser when the husband was likely under the influence of drugs and was violently resisting arrest; and, in regard to defendant's subsequent use of deadly force against the husband, the husband held no clearly established right not to be shot by defendant. In this case, it was not obvious that defendant's use of deadly force was excessive and there were strong reasons supporting the reasonableness of the shooting.
Court Description: Civil Rights The panel reversed the district court’s order denying qualified immunity and remanded in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that Sacramento Sheriff’s officer Sean Barry used excessive force when he tased and then fatally shot Paul Tereschenko. The panel first held that it had jurisdiction over the interlocutory appeal to determine whether, assuming the facts most favorable to the plaintiff (Tereschenko’s wife), Deputy Barry violated clearly established law when he tased and then fatally shot Tereschenko. The panel held that viewing the facts in the light most favorable to the plaintiff, Tereschenko did not have a clearly established right violated by Deputy Barry’s use of the taser. Deputy Barry was therefore entitled to qualified immunity for the tasing. The panel noted that Tereschenko, at more than six-feet-tall and 250-plus-pounds was a very big man ISAYEVA V. BARRY 3 who also was likely under the influence of drugs and was violently resisting arrest. The panel further noted that the Deputy Barry only tased Tereschenko once in the less- incapacitating drive-stun mode. The panel held that there were no existing precedents suggesting that Deputy Barry’s use of deadly force violated any clearly established right held by Tereschenko, and therefore Deputy Barry was entitled to qualified immunity for the fatal shooting. Construing the facts in plaintiff’s favor, the panel determined that there were strong reasons to believe that Tereschenko posed a risk of death or serious injury to the officers or to the family members in the home. Tereschenko clearly had the upper hand in a hand fight with the officers. After being tased—which failed to immobilize him—Tereschenko had succeeded in freeing both of his arms, in pushing a deputy and, and in pummeling Deputy Barry to the point that he began to pass out. The panel held that even under the view of the facts most favorable to plaintiff, Tereschenko was winning the fight with the deputies, and was doing so quickly, highlighting the risks to Deputy Barry. Under the circumstances, Tereschenko held no clearly established right not to be shot by Deputy Barry. The panel remanded for consideration of state law claims.
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