Orn v. City of Tacoma, No. 18-35379 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's order denying qualified immunity to a police officer in a 42 U.S.C. 1983 action brought by plaintiff, alleging that the officer used excessive force when he shot and severely wounded plaintiff after a slow-speed car pursuit.
The panel held that a reasonable jury could conclude that the officer violated plaintiff's Fourth Amendment right to be free from the use of excessive force. In this case, taking the facts in the light most favorable to plaintiff, and giving due deference to the officer's assessment of the danger presented by the situation he confronted, the officer did not have an objectively reasonable basis for believing that plaintiff posed a threat of serious physical harm to any of the officers. The panel also held that plaintiff’s right to be free from the use of excessive force was clearly established at the time of the shooting.
Court Description: Civil Rights. The panel affirmed the district court’s order, on summary judgment, denying qualified immunity to a police officer in an action brought pursuant to 42 U.S.C. § 1983 alleging that the officer used excessive force when he shot and severely wounded plaintiff after a slow-speed car pursuit. The panel first held that, viewing the facts in the light most favorable to plaintiff, a reasonable jury could conclude that the police officer violated plaintiff’s Fourth Amendment right to be free from the use of excessive force. Thus, the panel determined that defendant did not have an objectively reasonable basis for believing that plaintiff posed a threat of serious physical harm, either to the officer himself or to others. The panel noted that construing the facts in plaintiff’s favor, he never targeted officers with his vehicle or forced other vehicles off the road. In addition, he traveled at normal speeds and stopped at traffic lights and stop signs throughout the pursuit. Turning to the second step of the qualified immunity analysis, the panel held that plaintiff’s right to be free from the use of excessive force was clearly established at the time of the shooting. The panel noted that in October 2011, at least seven circuits had held that an officer lacks an objectively reasonable basis for believing that his own safety ORN V. CITY OF TACOMA 3 is at risk when firing into the side or rear of a vehicle moving away from him. The panel stated that, taking the facts in the light most favorable to plaintiff, a reasonable jury could conclude both that the officer was never in the path of plaintiff’s vehicle and that he fired through the passenger- side windows and rear windshield as the vehicle was moving away from him. The panel further held that under plaintiff’s version of events, he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to another officer on the scene, or to anyone else in the vicinity.
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