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Re: [Justice4Asa] March 9, 2010 Winning for Asa:Full 35 pages

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  • SF Bay View
    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
    Message 1 of 2 , Sep 5, 2011
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      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:
       

      FOR PUBLICATION
      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,
      Plaintiffs-Appellees,
      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
      Defendants,
      and
      JOHN KEESOR, Police Officer;
      MICHELLE ALVIS, Police Officer;
      PAUL MORGADO, Police Officer,
      Defendants-Appellants. þ
      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
      3643
      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
      COUNSEL
      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.
      OPINION
      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
      appeared fresh.
      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
      [1] 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
      [2] 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
      cause).
      B. The Emergency and Exigency Exceptions
      [3] 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.
      Id.
      i. Officer Morgado
      [4] 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.
      [5] 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.
      [6] 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).
      D. Consent
      [7] 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.
      [8] 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
      [9] 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.
      [10] 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).
      [11] 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
      safety risk).
      III. Provoking a Confrontation
      [12] 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.
      Id.
      [13] 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.
      AFFIRMED.
      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
      issues.
      I. FACTS/EVIDENCE1
      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
      added]."
      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
      handcuffed.
      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
      dog unit.
      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
      obstructions present.
      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
      the others.6
      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
      direction.
      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
      right forearm.
      II. UNREASONABLE FORCE
      A. Applicable Law
      As noted in Billington v. Smith, 292 F.3d 1177 (9th Cir.
      2002):
      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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