Re: [Justice4Asa] March 9, 2010 Winning for Asa:Full 35 pages
- Congratulations, Kathleen! I hope that's the last obstacle and you can work on getting ready for trial.
Mary Ratcliff SF Bay View (415) 671-0789 www.sfbayview.com
On 9/5/2011 2:48 PM, kespinosa1 wrote:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN ESPINOSA, individually ü
and as personal representative of
the Estate of decedent Asa
Sullivan; ASA SULLIVAN; A. S., by
and through his Guardian ad
Litem; NICOLE GUERRA,
v. No. 08-16853
C D.C. No. ITY AND COUNTY OF SAN ý F 3:06-cv-04686-JSW RANCISCO; HEATHER FONG, in her
capacity as Chief of Police, OPINION
JOHN KEESOR, Police Officer;
MICHELLE ALVIS, Police Officer;
PAUL MORGADO, Police Officer,
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
October 5, 2009—San Francisco, California
Filed March 9, 2010
Before: Procter Hug, Jr. and Richard A. Paez, Circuit
Judges, and George H. Wu,* District Judge.
Opinion by Judge Hug;
Partial Concurrence and Partial Dissent by Judge Wu
*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
3644 ESPINOSA v. SAN FRANCISCO
Peter J. Keith, Deputy City Attorney, San Francisco, California,
for the appellants.
Benjamin Nisenbaum, Law Offices of John L. Burris, Oakland,
California and Julie M. Houk, Law Offices of James B.
Chanin, Berkeley, California, for the appellees.
HUG, Senior Circuit Judge:
Officers of the San Francisco Police Department and the
City and County of San Francisco ("defendants") brought an
interlocutory appeal from the district court's denial of their
summary judgment motion in this 42 U.S.C. § 1983 action
brought by Kathleen Espinosa and other survivors of Asa Sullivan
("plaintiffs"). Plaintiffs allege that Officers Paulo Morgado,
Michelle Alvis, and John Keesor violated Asa
Sullivan's Fourth Amendment rights by entering and searching
an apartment, using unreasonable force, and intentionally
or recklessly provoking a confrontation. The three officers
entered an apartment in which Asa Sullivan was staying,
searched it, and Officers Alvis and Keesor fatally shot Sullivan.
We review de novo the denial of defendants' summary
judgment motion, Hopkins v. Bonvicino, 573 F.3d 752, 762
(9th Cir. 2009), and we affirm.
The district court properly denied defendants' summary
judgment motion regarding whether Officers Morgado, Alvis,
and Keesor are entitled to qualified immunity for the alleged
3648 ESPINOSA v. SAN FRANCISCO
Fourth Amendment violations. For summary judgment, we
determine whether, viewing the evidence in the light most
favorable to the non-moving party, "there are any genuine
issues of material fact and whether the district court correctly
applied the substantive law." Olsen v. Idaho State Bd. of Medicine,
363 F.3d 916, 922 (9th Cir. 2004). For qualified immunity,
we determine whether the facts show that (1) the
officer's conduct violated a constitutional right; and (2) the
right which was violated was clearly established at the time
of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001);
Hopkins, 573 F.3d at 762. A right is clearly established if a
reasonable officer would know that his conduct was unlawful
in the situation he confronted. Headwaters Forest Defense v.
County of Humbolt, 276 F.3d 1125, 1129 (9th Cir. 2002). If
the officers did not violate a constitutional right, then they are
entitled to immunity. Hopkins, 573 F.3d at 762. If the officers
violated such a right, but it was not clearly established, then
they are entitled to immunity. Id.
In this case, the district court properly denied the summary
judgment motion because there are genuine issues of fact
regarding whether the officers violated Asa Sullivan's Fourth
Amendment rights. Those unresolved issues of fact are also
material to a proper determination of the reasonableness of
the officers' belief in the legality of their actions. See Santos
v. Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002) (finding it
premature to decide the qualified immunity issue "because
whether the officers may be said to have made a `reasonable
mistake' of fact or law may depend on the jury's resolution
of disputed facts and the inferences it draws therefrom")
(internal cite omitted).
On June 6, 2006, Officers Morgado, Alvis, and Keesor
entered an apartment in which Sullivan, the victim, was staying,
and shot and killed him. Evidence indicated that Sullivan
was staying at the apartment ("the apartment") with the permission
of the lease holders and another resident, Jason Martin.
That evening, the police received a call in which a
ESPINOSA v. SAN FRANCISCO 3649
neighbor stated that the front door of the apartment was
swinging open and that the location could be a drug house.
Officer Morgado arrived and saw that the apartment door was
closed. He pushed up against the front door and it opened
slightly. He then looked in the windows and saw several items
inside. He requested police dispatch call security for the apartment
complex and another police unit for a walk-through of
the apartment. Officer Morgado then pushed open the apartment
door and entered the apartment. After entering, he saw
a bloody shirt hanging over the top of an interior door. In a
post-incident interview with investigators, he stated that he
could not tell if the blood was fresh or dry, but later stated it
Officers Alvis and Keesor arrived and entered the apartment.
All three officers searched the first floor and found
nothing except paint cans and painting sheets. Officer Keesor
stated that it looked like the apartment was being renovated
and that he did not have any reason to believe there were
squatters there. He stated that they found nothing to indicate
an emergency, except for the bloody shirt.
The officers continued searching the apartment and on the
second floor, they found a locked bedroom. They announced
that they were the police and kicked down the bedroom door.
Inside the room, they found resident, Jason Martin. They
ordered him to the ground and handcuffed him. He was cooperative
and complied with their requests. They searched him
and found a knife. Then, they heard noises coming from the
attic indicating that someone was in the attic.
Officer Alvis climbed into the attic with her gun drawn.
Officers Morgado and Keesor entered the attic after Officer
Alvis with their guns drawn as well. It was dark, but Officers
Alvis and Morgado had flashlights. Officer Alvis shouted that
she saw Sullivan. An officer responded over the radio "Hey,
why don't we just pull back really quick, set up a perimeter
and just try to get him later." Officer Alvis then shouted
3650 ESPINOSA v. SAN FRANCISCO
"Cover both closets. I have him at gunpoint. He's not going
anywhere. . . ." The officers told Sullivan to put up his hands,
but he failed to follow the instruction. Officers Keesor and
Alvis fired their guns at Sullivan, fatally wounding him. Officer
Keesor stated that he shot because he believed that he saw
something black in Sullivan's hand that looked like a gun.
Officer Alvis stated that she shot because she thought she saw
something in Sullivan's hand and that she saw him move his
right arm. Sullivan was unarmed.
I. Warrantless Entry and Search of Home
 The district court properly denied defendants' summary
judgment motion on whether they were entitled to qualified
immunity for the warrantless entry and search of the apartment
because there are questions of fact regarding the first
prong of the qualified immunity test, i.e., whether the officers
violated Sullivan's Fourth Amendment rights. The Fourth
Amendment prohibits unreasonable searches and seizures.
U.S. Const. amend. IV. For the Fourth Amendment to apply,
one must have a reasonable expectation of privacy in the
place that is invaded. Minnesota v. Carter, 525 U.S. 83, 88
(1998). A search of a home or residence without a warrant is
presumptively unreasonable. Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1016 (9th Cir. 2008). A warrantless entry into
a home violates the Fourth Amendment unless an exception
to the Fourth Amendment warrant requirement applies, such
as emergency, exigency, or consent. Id.
A. Reasonable Expectation of Privacy
 The district court properly found that there are questions
of fact regarding whether Sullivan had a reasonable
expectation of privacy in the apartment under the Fourth
Amendment. An overnight guest in a home staying with the
permission of the host has a reasonable expectation of privacy
under the Fourth Amendment. Minnesota v. Olson, 495 U.S.
91, 98-100 (1990); United States v. Armenta, 69 F.3d 304,
ESPINOSA v. SAN FRANCISCO 3651
308-09 (9th Cir. 1995). Here, there is evidence that Sullivan
was staying in the apartment with the permission of a lease
holder, Bryant Gudor, and another resident, Jason Martin. The
evidence strongly suggests that the lease holders were in possession
of the apartment on the day of the entry and search
because the lease holders were charged June rent for the
apartment, the lease holders had not returned the keys for the
apartment, and management for the apartment testified that
they considered the lease holders at that time to be in possession
of the apartment. Although defendants argue that Sullivan
had no privacy expectation, because the evidence strongly
indicates that Sullivan had permission to stay in the apartment
from a lease holder, Bryant Gudor, and a resident, Jason Martin,
defendants have failed to show as a matter of law that Sullivan
did not have a reasonable expectation of privacy. See
United States v. Davis, 932 F.2d 752, 756-57 (9th Cir. 1991)
(holding that the defendant had a reasonable expectation of
privacy in an apartment where he was free to come and go
and had independent access, stored items, and joint control);
United States v. Young, 573 F.3d 711, 716-20 (9th Cir. 2009)
(holding that the defendant had a reasonable expectation of
privacy in his hotel room where the hotel had not informed
him that he was evicted or taken any action to evict him);
United States v. Bautista, 362 F.3d 584, 589-91 (9th Cir.
2004) (holding that hotel guest who used stolen credit card
had an expectation of privacy in the rented hotel room and
that the officer's entry into room was not supported by probable
B. The Emergency and Exigency Exceptions
 The district court properly found that defendants failed
to show as a matter of law that the emergency and exigency
exceptions to the Fourth Amendment warrant requirement
applied. These two "exceptions are `narrow' and their boundaries
are `rigorously guarded' to prevent any expansion that
would unduly interfere with the sanctity of the home." Hopkins,
573 F.3d at 763 (quoting United States v. Stafford, 416
3652 ESPINOSA v. SAN FRANCISCO
F.3d 1068, 1073 (9th Cir. 2005)). Under the emergency
exception, an officer may enter a home without a warrant to
investigate an emergency that threatens life or limb if the officer
has objectively reasonable grounds to believe that an
emergency exists and that his immediate response is needed.
Id. at 763-64. This exception is derived from police officers'
community caretaking function, allowing them to enter a
home when an emergency which threatens physical harm is
presented. Id. at 763. The exigency exception, in contrast,
stems from police officers' investigatory function: it allows an
officer to enter a residence without a warrant if he has "probable
cause to believe that a crime has been or is being committed
and a reasonable belief that [his] entry" is needed to stop
the destruction of evidence or a suspect's escape or carry out
other crime-prevention or law enforcement efforts. Id. Both
exceptions, however, require that the officer have an objectively
reasonable belief that the circumstances justify entry.
i. Officer Morgado
 Viewing the evidence in the light most favorable to the
plaintiffs, defendants failed to show as a matter of law that the
emergency or exigency exceptions to the Fourth Amendment
warrant requirement applied with regard to Officer Morgado's
entry and search of the apartment. The only evidence that
Officer Morgado had prior to forcing open the front door of
the apartment and entering the unit was: (1) the neighbor's
report that the front door had been swinging open and that it
might be a drug house; (2) a visual inspection through a window
that, according to Officer Morgado, revealed "several
items, unknown items" inside; and (3) the security officer's
statement that the unit was supposed to be vacant and that the
front door lock was not one of the approved locks installed by
the landlord. This evidence does not establish that Officer
Morgado could have had an objectively reasonable belief that
a life-threatening emergency was occurring or a crime was in
progress. Any evidence found after Officer Morgado entered
ESPINOSA v. SAN FRANCISCO 3653
the apartment, such as the bloody shirt or knife on Jason Martin,
is irrelevant. This court has stated that evidence discovered
after an illegal entry cannot be used retroactively to
justify a search. United States v. Licata, 761 F.2d 537, 543
(9th Cir. 1985) (stating that the "exigencies must be viewed
from the totality of circumstances known to the officers at the
time of the warrantless intrusion."). Thus, defendants fail to
show as a matter of law that the emergency or exigency
exceptions applied with regard to Officer Morgado's entry
and search of the apartment. See Hopkins, 573 F.3d at 764-69
(holding that the officers who responded to minor hit-and-run
could not justify their warrantless entry and that there was no
probable cause where the officers entered the home based on
statements by a witness that the resident was in an accident
and smelled of alcohol).
ii. Officers Keesor and Alvis
Viewing the evidence in the light most favorable to plaintiffs,
defendants also failed to show that the emergency or exigency
exceptions applied with regard to Officers Keesor's and
Alvis's entry and search of the apartment. Defendants argue
that the exceptions apply to Officers Keesor's and Alvis's
entry because both officers (1) were aware of the bloody shirt
prior to entry; and (2) reasonably relied on Officer Morgado's
instruction to enter and search the apartment.
 First, defendants fail to show as a matter of law that
Officers Keesor and Alvis were aware of the bloody shirt
prior to entry. Officer Morgado requested an additional unit
for a walk-through of the apartment before he found the
bloody shirt and cannot recall if he told the officers about the
bloody shirt upon their arrival prior to entry. Officer Alvis
stated that Officer Morgado told police headquarters about the
bloody shirt. Officer Keesor, immediately after the shooting,
did not tell investigators that Officer Morgado told him about
the bloody shirt. Later, when he was deposed, Officer Keesor
stated that Officer Morgado did tell him about the bloody shirt
3654 ESPINOSA v. SAN FRANCISCO
prior to entry. Viewing the evidence in the light most favorable
to plaintiffs, defendants have failed to establish as a matter
of law that Officers Keesor and Alvis were aware of the
bloody shirt prior to their entry.
Defendants also failed to show as a matter of law that Officers
Keesor and Alvis reasonably relied on Officer Morgado's
instructions to enter the apartment. An officer is not liable for
acting on information supplied by another officer, even if that
information later turns out to be wrong, if he has an objectively
reasonable, good-faith belief that he is acting pursuant
to proper authority. Motley v. Parks, 432 F.3d 1072, 1081-82
(9th Cir. 2005) (en banc). The officer relying on the information
must make reasonable inquiries to determine if there is a
sufficient basis for the entry and search. Id. at 1081-82. "The
lynchpin is whether the officer's reliance on the information
was objectively reasonable." Id. at 1082.
 Viewing the evidence in the light most favorable to the
plaintiffs, there is a material issue of fact regarding whether
Officer Keesor's and Alvis's reliance on information gathered
by Officer Morgado was objectively reasonable. Officer Morgado
instructed the officers to clear the house. It is unclear if
the officers knew of the bloody shirt prior to entry. Even if
they did, the record does not show whether they inquired
about the nature of the shirt, whether Officer Morgado knew
that it was blood, whether the blood appeared fresh or old, or
whether there was blood on any other area of the apartment.
The record also does not show that Officers Keesor and Alvis
made inquiries about other facts which would allow a warrantless
entry and search of the apartment. Viewing the evidence
in the light most favorable to the plaintiffs, there is a
material question of fact regarding the reasonableness of the
officers' reliance. See Torres v. City of Los Angeles, 548 F.3d
1197, 1212 (9th Cir. 2008) (holding that there was a material
issue of fact regarding whether a reasonable officer would
have relied on information possessed by the detectives without
further verification where the detectives had a general
ESPINOSA v. SAN FRANCISCO 3655
description of the suspect, a witness who identified the suspect
in a suggestive photograph presentation, no evidence of
plaintiff's gang affiliation, and no physical evidence tying
plaintiff to the crime).
 Defendants also failed to prove as a matter of law that
the consent exception to the Fourth Amendment warrant
requirement applied. Defendants argue that the security guard
for the apartment complex had apparent authority to consent
to the entry and search of the apartment and that the guard
implied consent by agreeing to watch the windows of the
apartment while Officer Morgado entered. A third party's
consent to the search of another person's belongings is valid
if the consenting party has actual or apparent authority to consent.
United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005).
To establish apparent authority, it must be shown that (1) the
officer believed an untrue fact which made him believe the
consent-giver had control over the area searched; (2) it was
objectively reasonable for the officer to believe that the fact
was true; and (3) the consent-giver had actual authority. Id. at
880-81. Regarding implied consent, only in narrow circumstances
may consent be implied by actions and in most
implied consent cases it is the suspect himself who takes an
action which implies consent. United States v. Impink, 728
F.2d 1228, 1233 n.3 (9th Cir. 1984); United States v. Rosi, 27
F.3d 409, 411-12 (9th Cir. 1994). It is "a most uncommon situation"
where the court is asked to infer consent from a third
party's actions. Impink, 728 F.2d at 1233 n.3.
 In this case, defendants fail to show that there are no
questions of fact regarding whether the security guard had
apparent authority to consent and implied consent. When
Officer Morgado was interviewed immediately after the
shooting, he stated that (1) he asked the security guard if he
had a key to the apartment; (2) the guard said he did not and
that the lock was not their lock; and (3) he asked the guard to
3656 ESPINOSA v. SAN FRANCISCO
stand outside and scream if he saw anyone climbing out of a
window. When he was deposed, Officer Morgado added that
the security guard told him the apartment was vacant. The two
security guards involved stated that Officer Morgado asked
them for the keys; neither guard stated that Officer Morgado
asked them about the status of the apartment. Viewing the
evidence in the light most favorable to plaintiffs, Officer Morgado
did not ask and was not told by security that the apartment
was vacant and when he looked in the window he saw
several items which could have indicated occupancy. Because
defendants cannot show that Officer Morgado believed an
untrue fact (i.e., that no one lived in the apartment), and cannot
show Officer Morgado had any objectively reasonable
grounds to believe the apartment was vacant, it was proper for
the district court to find that consent was not established as a
matter of law. See United States v. Shaibu, 920 F.2d 1423,
1426-27 (9th Cir. 1990) (declining to imply consent where
officers did not request entry and no steps were taken to imply
consent); Impink, 728 F.2d at 1233 & n.3 (holding implied
consent was not given by third party).
II. Unreasonable Force
 The district court properly denied defendants' summary
judgment motion regarding whether the officers are entitled to
qualified immunity for allegedly violating Sullivan's Fourth
Amendment rights by using excessive force. Fourth Amendment
claims of excessive or deadly force are analyzed under
an objective reasonableness standard. Scott v. Harris, 550
U.S. 372, 381 (2007). To determine if a Fourth Amendment
violation has occurred, we must balance the extent of the
intrusion on the individual's Fourth Amendment rights
against the government's interests to determine whether the
officer's conduct was objectively reasonable based on the
totality of the circumstances. Graham v. Connor, 490 U.S.
386, 396-97 (1989); Price v. Sery, 513 F.3d 962, 968 (9th Cir.
2008); Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.
2003). Our analysis involves three steps. First, we must assess
ESPINOSA v. SAN FRANCISCO 3657
the severity of the intrusion on the individual's Fourth
Amendment rights by evaluating "the type and amount of
force inflicted." Miller, 340 F.3d at 964; Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir.
2003). Next, we must evaluate the government's interests by
assessing (1) the severity of the crime; (2) whether the suspect
posed an immediate threat to the officers' or public's safety;
and (3) whether the suspect was resisting arrest or attempting
to escape. Id.; Graham, 490 U.S. at 396. Third, "we balance
the gravity of the intrusion on the individual against the government's
need for that intrusion." Miller, 340 F.3d at 964.
Ultimately, we must balance the force that was used by the
officers against the need for such force to determine whether
the force used was "greater than is reasonable under the circumstances."
Santos v. Gates, 287 F.3d 846, 854 (9th Cir.
2002). In deadly force cases, "[w]here the suspect poses no
immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify
the use of deadly force to do so." Tennessee v. Garner, 471
U.S. 1, 11-12 (1985). The parties "relative culpability" i.e.,
which party created the dangerous situation and which party
is more innocent, may also be considered. Scott, 550 U.S. at
384. Finally, this court has often held that in police misconduct
cases, summary judgment should only be granted "sparingly"
because such cases often turn on credibility
determinations by a jury. Drummond, 343 F.3d at 1056.
 Here, defendants failed to show that there are no questions
of fact regarding whether Officers Morgado, Keesor and
Alvis used unreasonable force when they entered the attic and
pointed loaded guns at Sullivan. The three officers climbed
into the attic and each pointed a gun at Sullivan. With regard
to the force used, pointing a loaded gun at a suspect, employing
the threat of deadly force, is use of a high level of force.
The officers pointed guns at Sullivan knowing that he had not
been accused of any crime. Sullivan had not caused the officers
to forcibly enter the home; he ran from them. Sullivan
did not present a danger to the public. Sullivan could not
3658 ESPINOSA v. SAN FRANCISCO
escape from the attic because it had only one exit. The bloody
shirt and finding a knife on resident Jason Martin may have
suggested some risk of harm. However, the officers offered
inconsistent testimony regarding whether the blood appeared
fresh or old. Viewing the evidence most favorably for plaintiffs,
the officers did not know if the blood was new or old.
With regard to the knife, according to Officer Keesor, the
officers kicked down Martin's bedroom door, Martin put his
hands up, allowed the officers to handcuff him even though
he had not been accused of any crime, and complied with
their demands. After he was arrested, they found a knife.
However, his behavior did not make future danger more
likely. Viewing the evidence in the light most favorable to
plaintiffs, even considering the shirt and knife, defendants fail
to show that there are not questions of fact regarding whether
the level of force used was reasonable at the point when they
entered the attic given the low level of threat. See Hopkins,
573 F.3d at 776-77 (affirming denial of summary judgment on
excessive force claim where suspect was not a safety threat,
did not have a gun, and the officers outnumbered him); Tekle
v. United States, 511 F.3d 839, 845 (9th Cir. 2007) (stating
that this court has held that "the pointing of a gun at someone
may constitute excessive force, even if it does not cause physical
injury."); Robinson v. Solano County, 278 F.3d 1007,
1013-14 (9th Cir. 2002) (holding that the officers' use of a
drawn gun at close range when they pointed the gun at head
of unarmed misdemeanor suspect is actionable) (en banc).
 In addition, there are questions of fact regarding
whether Officer Keesor's and Alvis's use of deadly force was
reasonable. Both officers fired their entire magazines at Sullivan.
Officer Keesor fired 12 shots at Sullivan. Officer Alvis
fired 13 shots at Sullivan. All shots were fired at close range.
The officers stated that Sullivan refused to show his hands
and made disturbing statements, such as "Kill me or I'll kill
you" and "Are you ready to shoot me?" Officer Alvis stated
that she thought she saw something in Sullivan's hands and
when he moved his right arm that she thought he was going
ESPINOSA v. SAN FRANCISCO 3659
to shoot her. Officer Keesor stated that he saw something that
looked like a gun in Sullivan's hand, heard a pop, and began
shooting at Sullivan. According to the officers, Sullivan was
resisting arrest and posed a high risk to their safety. Still, Sullivan
had not been accused of any crime. He was not a threat
to the public and could not escape. He had not initially caused
this situation. He had not brandished a weapon, spoken of a
weapon, or threatened to use a weapon. Sullivan, in fact, did
not have a weapon. Viewing the evidence in the light most
favorable to the plaintiffs, defendants have failed to show that
there are no questions of fact regarding whether the use of
deadly force was reasonable. See id.; Meredith v. Erath, 342
F.3d 1057, 1061 (9th Cir. 2003) (affirming denial of qualified
immunity on excessive force claim where suspect posed no
III. Provoking a Confrontation
 Finally, the district court properly denied defendants'
summary judgment motion on whether the officers were entitled
to qualified immunity for allegedly violating Sullivan's
Fourth Amendment rights by intentionally or recklessly provoking
a confrontation. Where a police officer "intentionally
or recklessly provokes a violent confrontation, if the provocation
is an independent Fourth Amendment violation, he may
be held liable for his otherwise defensive use of deadly
force." Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.
2002). If an officer intentionally or recklessly violates a suspect's
constitutional rights, then the violation may be a provocation
creating a situation in which force was necessary and
such force would have been legal but for the initial violation.
 In this case, the district court did not err in finding
that there are genuine issues of fact regarding whether the
officers intentionally or recklessly provoked a confrontation
with Sullivan. Evidence strongly suggests that the initial entry
into the apartment by Officer Morgado violated Sullivan's
3660 ESPINOSA v. SAN FRANCISCO
Fourth Amendment rights. Viewing the evidence in the light
most favorable to the plaintiffs, there is evidence that the illegal
entry created a situation which led to the shooting and
required the officers to use force that might have otherwise
been reasonable. See Alexander v. City and County of San
Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994) (holding officers
provoked a confrontation where they entered a man's
house without a warrant and this violation provoked the man
to shoot at the officers). Because there is a genuine issue of
fact regarding whether the defendants intentionally or recklessly
provoked a violent confrontation, the district did not err
in denying defendants' summary judgment motion on this
issue. See id.
Based on the foregoing, the district court properly denied
the summary judgment motion regarding qualified immunity
because defendants failed to show as a matter of law that they
did not violate Sullivan's Fourth Amendment rights.
All parties shall bear their own costs.
WU, District Judge, concurring in part and dissenting in part:
I agree with the majority that the district court properly
denied summary judgment as to the defendant officers' claim
of qualified immunity in regards to their entering and searching
the apartment. However, I disagree with the Opinion's
resolution of the qualified immunity question in the contexts
of the unreasonable force and provoking a confrontation
1Northern District of California Civil Local Rule 56-1(a) states that
"Unless required by the assigned Judge, no separate statement of undis-
ESPINOSA v. SAN FRANCISCO 3661
Initially, further consideration of the facts/evidence is warranted.
2 On June 6, 2006 at approximately 8:28 p.m., a dispatch
call went out over the San Francisco Emergency
Communications Department ("ECD") system for an officer
to conduct a premises check at 2 Garces Drive located in the
Park Merced apartment complex.3 San Francisco Police
Department Officer Paulo Morgado responded at 8:33 p.m.
After he had opened the door to the premises and saw the
bloody T-shirt hanging on an interior door, between 8:40 and
8:43 p.m., he made requests over the ECD system for another
police unit to assist in conducting a walk-through to check out
the premises. In doing so, he specifically referenced "a T-shirt
. . . hanging on the door with blood all over it."
Officers Michelle Alvis and John Keesor heard Morgado's
transmission and responded at about 8:50 p.m. Additional
police units also arrived thereafter. Morgado, Alvis, Keesor
puted facts or joint statement of undisputed facts shall be submitted."
The record herein, does not contain any separate or joint statement of
undisputed facts. Furthermore, aside from Defendants' Second Objection
to and Motion to Strike Evidence Offered by Plaintiffs in Support of their
Opposition to Motion for Summary Judgment (which mostly challenged
the evidentiary basis for plaintiffs' expert's opinions), no evidentiary
objections (or rulings thereon) have been provided.
The following factual summary has been made from a review of the
entire record submitted on this appeal, noting any relevant factual disputes.
2As observed in Blanford v. Sacramento County, 406 F.3d 1110, 1115
(9th Cir. 2005), an analysis of an excessive force claim under the objective
reasonableness standard of the Fourth Amendment requires "consideration
of the totality of the facts and circumstances in the particular case [emphasis
3The specified times cited herein are based upon the transcript of the
audio dispatch recording of the communications over the ECD system that
were made while the events herein were transpiring ("transcript"). The
ECD system automatically records the times at which the calls are generated.
A copy of that transcript was placed into the record, apparently without
objection as to its accuracy.
3662 ESPINOSA v. SAN FRANCISCO
and Officer Yukio Oshita entered the premises, announcing
that they were San Francisco police officers. They did not
encounter anyone on the first floor. Moving up to the second
floor, there were a number of closed doors, one of which was
to a bathroom. The door to the first bedroom was locked, but
there were sounds of movement from within. The officers
again announced that they were police officers and ordered
the occupants to open the door. After a period of time, entry
was obtained and the officers encountered Jason Martin. The
officers ordered Martin to the ground. He complied and was
While dealing with Martin, the bedroom closet door was
open and the officers heard movement above them. Believing
that another person was trying to gain access to the roof, Morgado
announced through the ECD system that "we got one
going on the roof." Keesor went back downstairs and out of
the building to determine if he could locate anyone on the
roof. Eventually, personnel from the apartment complex
informed Keesor that there was no roof-top exit from the attic,
and he called in that information. Keesor then returned to the
second floor of the premises and, with other officers, checked
out a second bedroom. It was unoccupied. Although it had a
closet, there was no access to the attic from that room. Upon
Keesor's return to the first bedroom, Martin was searched for
weapons and a four inch "ninja" knife was located in his back
pocket. It did not appear to have any blood on it.
At about 8:56 p.m., Officer Erik Leung spoke with Keesor
about setting up a perimeter. Morgado spoke with the dispatcher
("Dispatch") about getting a search dog unit. Around
9:02 p.m., Dispatch reported that it was "negative" as to the
The officers elected to investigate the attic. Access to the
attic was solely through an approximate 2-2½ foot hole at the
top of the first bedroom's closet. To enter one had to utilize
the closet's shelving to lift oneself up. Once inside, the attic
ESPINOSA v. SAN FRANCISCO 3663
was extremely dark with no lighting. The attic was triangularshaped
but even at its center there was not enough room for
the taller officers to stand. The floor of the attic was transversed
at regular intervals by wood beams approximately six
inches in height, in between which had been placed copious
amounts of cotton-like white insulation material. Also interspaced
at regular intervals were both vertical wood beams
from floor to ceiling and outstretched diagonal rafters supporting
the roof. There were also heating ducts and other
Alvis was the first officer up into the attic, followed by
Keesor and Morgado. Because of a lack of space, Oshita
remained half-way through the opening. They announced
themselves as police officers. There was no verbal response.
Using their flashlights and with guns drawn, the officers
began searching the attic for any persons. Eventually, Alvis
spotted Asa Sullivan, who was wearing a black T-shirt, jeans,
heavy boots, and eyeglasses.4 Sullivan was sitting/reclining in
between two of the wooden beams and was partially covered
by insulation. Alvis was the nearest officer to Sullivan,
approximately 15 feet away. There were wood beams, rafters
and other obstructions between the officers and Sullivan.
Alvis ordered Sullivan to show the officers his hands, Sullivan
did not comply and verbally indicated that he would not
be taken into custody. Morgado announced through the ECD
system, "Stand by, he's gonna be a 148, stand by." "148" is
code for "resisting arrest."5 At that point, all three officers
(i.e., Alvis, Keesor and Morgado) had their flashlights and
guns trained on Sullivan.
Thereafter, the officers tried to get Sullivan to cooperate.
He did not do so and continued to make statements indicating
4According to the Coroner's Report, Sullivan was 25 years old, five feet
nine inches in height and weighed 208 pounds.
5Included in the transcript was a table as to the meaning of the code
words utilized by the officers during the incident.
3664 ESPINOSA v. SAN FRANCISCO
his intent to resist. Dispatch finally made contact with a dog
unit that responded that it would be there in a few minutes.
Alvis announced to Dispatch, "Be advised, this subject is
refusing to show us his hands. I cannot see what is in his
hands. Be advised." Morgado stated, "He's also said he's not
coming into custody." Around that point, someone asked
whether the officers could use "less than lethal." "Less than
lethal" refers to a shotgun that has been fitted to shoot bean
bags rather than pellets, and is usually not deadly unless fired
at very close range. Morgado responded over the ECD system,
"Hey Sarge, there's no way we can use less lethal. We're
in the attic with rafters."
At about 9:06 p.m., it was reported that Sullivan had begun
to pound the floor with his foot in an apparent attempt to
make a hole through the floor into the bathroom below.
Leung, who was in the bathroom, stated that "there doesn't
appear to be any access." At some point, Martin began yelling
to Sullivan from the bedroom to "just come on down, it's
okay." Morgado asked the officers in the bedroom with Martin
to inquire if he could tell them the name and date of birth
of the person in the attic in order to check on his criminal status.
Leung reported that Martin "doesn't know his name or his
date of birth."
At around 9:07 p.m., Sullivan began getting more agitated
and made statements of a threatening nature to the officers.
Morgado reported via the EDC system that Sullivan was "trying
to 801 by cop. Can't see his hands. He's claiming to have
something." "801" is code for "person attempting suicide."
During this period, Sullivan had continued to kick on the
flooring and had managed to break open a small hole above
the bathroom tub. Certain officers tried to use a pole with a
hook to enlarge the hole in order to be able to pull Sullivan
through it or to secure him. The ceiling material would not
give way. At approximately 9:12 p.m., Officer Tracy McCray
asked Morgado through the EDC system whether the less than
lethal option could be used through the hole. Leung, who was
ESPINOSA v. SAN FRANCISCO 3665
in the bathroom, responded that "we can't identify a target
through a dark hole. So why don't we slow it down, see if we
can get a hostage negotiator or something, because this guy's
not listening to us."
Shortly thereafter, Alvis announced through the EDC system,
"He's bringing his hand around, he's got something, hold
on. **** The suspect's under the insulation, cannot see it,
he's making movement." An officer on the ground reported
that the canine unit had arrived. At about 9:15 p.m., McCray
shouted over the EDC "shots fired, shots fired!"
The evidence as to what happened immediately before the
shooting started varies somewhat among the four officers who
were in the attic. Each officer was in a different location from
In the recorded interview of Alvis taken in the early morning
of June 7, 2006 by inspectors from the San Francisco
Police Department Investigations Unit, Alvis stated that she
repeatedly asked Sullivan to show the officers his hands but
he did not do so. He then began to move his right hand under
the insulation and behind his back and then rapidly moved his
right arm up. She heard a "pop" and saw what she thought
was a "muzzle flash." Believing that she was being fired on,
Alvis shot her own weapon. Alvis's February 22, 2008 deposition
testimony and her June 16, 2008 declaration are consistent
with her interview statements except that in her
deposition and declaration she said that, when she saw Sullivan
suddenly move his right arm, she "moved"/"fell backward,"
then heard the sound she believed was gunfire and saw
the muzzle flash, and made the decision to fire her weapon.
Also, in her deposition, Alvis stated that, just before the
6Alvis was standing and closest to Sullivan (about fifteen feet away).
Morgado was a number of feet behind and to the left of Alvis. Keesor was
even further away from Alvis but in a prone position on the attic floor.
Oshita was still half-way through the opening into the attic.
3666 ESPINOSA v. SAN FRANCISCO
shooting, Sullivan did bring up his left hand and was doing
something with it, but she is certain he did not have a weapon
in that hand.
Keesor in his June 7, 2006 interview stated that just prior
to the shooting he had been talking to Sullivan trying to get
him to cooperate. Sullivan — who had been responding verbally
— stopped and gave Keesor "this weird look; and he
takes a deep breath." Thereafter, he saw Sullivan appear to
raise his hand(s)7 holding a "black oblong thing" which
looked to Keesor to be a barrel of a gun. He then heard a
"pop" and Alvis fell from his peripheral field of vision.
Believing that Sullivan had shot Alvis, Keesor opened fire.
Keesor's February 12, 2008 deposition testimony and his June
18, 2008 declaration are generally consistent with his interview
statements except that in his declaration it is unclear
whether he fired his weapon upon seeing Sullivan raising his
hand(s) with the dark object therein or if it was after also
hearing what he though was gunfire. Keesor in his deposition
stated that he did not see any muzzle flash coming from Sullivan's
In his June 7, 2006 interview, Morgado stated that Sullivan
had been repeating "tell my mom, tell my girlfriend I love
them," followed by Alvis saying something that he couldn't
understand, and then shots were fired. Upon hearing gunfire,
Morgado was about to also fire his weapon but Keesor got in
front of him and he elected not to shoot his gun. In his deposition,
when asked when he first realized that "a gun had gone
off in the attic," Morgado responded that it was when he "saw
sudden movement of Mr. Sullivan . . . . I saw his right shoulder
move in a forward direction over his waist to the left
. . . ." In his June 16, 2008 declaration, Morgado stated that:
While the Suspect was seated, after he made the
statements that caused me to believe he may attempt
7Keesor was unsure if Sullivan raised only one hand or both hands.
ESPINOSA v. SAN FRANCISCO 3667
to force us to shoot him, he made a sudden movement
with the right side of his body that I thought
was consistent with producing a firearm. Believing
he was about to shoot at us, I began to depress the
trigger on my weapon. Before I could fire, however,
I realized that Officer Keesor may be in my way and
I held fire. As a result, I did not discharge my
weapon during this incident. Shortly after I saw the
sudden movement of the right side of the Suspect's
body I heard the sound of gunshots, some of which
I believed were coming from the Suspect.
In his June 10, 2008 declaration, Oshita stated that before
the shooting, Sullivan said: "hey, tell my mom that I love her,
and tell my girl that I love her. You guys, I'm gonna make my
move and you'll be sorry." Shortly thereafter, he heard gunshots
and saw muzzle flashes.
No firearm or other weapon was found on or near Sullivan's
body. A dark eyeglass case was located underneath his
II. UNREASONABLE FORCE
A. Applicable Law
As noted in Billington v. Smith, 292 F.3d 1177 (9th Cir.
In Saucier v. Katz, [533 U.S. 194 (2001),] the
Supreme Court instructed lower courts deciding
summary judgment motions based on qualified
immunity to consider "this threshold question: Taken
in light most favorable to the party asserting the
injury, do the facts alleged show the officer's conduct
violated a constitutional right?" [Id. at 201.] If
not, then "there is no necessity for further inquiries
concerning qualified immunity." [Id.] If so, then "the
3668 ESPINOSA v. SAN FRANCISCO
next, sequential step is to ask whether the right was
clearly established." [Id.] A constitutional right is
clearly established when, "on a favorable view of the
other parties' submissions" "it would be clear to a
reasonable officer that his conduct was unlawful in
the situation he confronted." [Id.] In Saucier, the
Supreme Court overruled Ninth Circuit precedent
holding that "the inquiry as to whether officers are
entitled to qualified immunity for the use of excessive
force is the same as the inquiry on the merits of
the excessive force claim." The Court rejected our
view because an officer might be reasonably mistaken
as to the facts justifying his actions, or as to
the law governing his actions, so that an officer
could use objectively excessive force without clearly
violating the constitution.
* * * * *
A police officer may reasonably use deadly force
where he "has probable cause to believe that the suspect
poses a threat of serious physical harm, either
to the officer or to others. We analyze excessive
force claims in the arrest context under the Fourth
Amendment's reasonableness standard. We balance
"the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the
countervailing governmental interests at stake" and
ask whether, under the circumstances, "inclu
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