Villanueva v. Cleveland, No. 19-55225 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's denial of qualified immunity to police officers in a 42 U.S.C. 1983 action, alleging that the officers used excessive force in violation of the Fourth Amendment when they shot and killed Pedro Villanueva and wounded Francisco Orozco, a passenger in Villanueva’s vehicle.
The panel concluded, under Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989), Brendlin v. California, 551 U.S. 249, 251 (2007), and Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012), that because Orozco's freedom of movement was terminated when the officers intentionally shot at the Silverado in which he was a passenger to stop its movement, Orozco was seized within the meaning of the Fourth Amendment. The panel noted that it matters not whether the officers intended to shoot Orozco or whether they even knew he was present as a passenger. Taking the facts in the light most favorable to plaintiffs, the panel also concluded that a reasonable jury could conclude that the officers used excessive force, because they "lacked an objectively reasonable basis to fear for [their] own safety, as [they] could simply have stepped back [or to the side] to avoid being injured." The panel concluded that the use of deadly force was clearly established as unreasonable as of 1996 by Acosta v. City & Cnty. of S. F., 83 F.3d 1143, 1146 (9th Cir. 1996).
Court Description: Civil Rights The panel affirmed the district court’s order denying qualified immunity to police officers in an action brought pursuant to 42 U.S.C. § 1983 alleging the officers used excessive force in violation of the Fourth Amendment when they shot and killed Pedro Villanueva and wounded Francisco Orozco, a passenger in Villanueva’s vehicle. The panel first addressed whether Orozco—a passenger who was not intentionally targeted by the Officers—had a cognizable Fourth Amendment interest. The panel concluded that under Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989), Brendlin v. California, 551 U.S. 249, 251 (2007), and Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012), because Orozco’s freedom of movement was terminated when the Officers intentionally shot at the vehicle in which he was a passenger to stop its movement, Orozco ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. VILLANUEVA V. CLEVELAND 3 was seized within the meaning of the Fourth Amendment. It mattered not whether the Officers intended to shoot Orozco or whether they even knew he was present as a passenger. Under clearly established precedent at the time, Orozco was seized. The panel held that taking the facts in the light most favorable to the plaintiffs, after Villanueva stopped his truck following a vehicular pursuit, he cautiously performed a three-point-turn, his truck—which was 15 to 20 feet away from the Officers—was not aimed directly at Sergeant Cleveland and was moving very slowly and was not accelerating when the Officers began shooting. In these circumstances, a reasonable jury could conclude that the Officers used excessive force, because they lacked an objectively reasonable basis to fear for their own safety, as they could simply have stepped back or to the side to avoid being injured. The panel held that because it found at the summary judgment stage that the car was slow-moving and the Officers could have simply moved away to avoid injury, their use of deadly force was clearly established as unreasonable as of 1996 by Acosta v. City & Cnty. of S. F., 83 F.3d 1143, 1146 (9th Cir. 1996). Accordingly, the officers were not entitled to qualified immunity.
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