The City of Murrieta and one of its veteran police officers was sued for alleged excessive force in Federal District Court, Central District. The case was Duane Bowen v. City of Murrieta.   Plaintiff brought claims for relief under 42 U.S.C. section 1983 for Fourth Amendment violations (excessive force) against the officer who shot him, and Monell (custom and practice) and City of Canton (training) actions against the police department as well as state law claims for battery and negligence.

Plaintiff was the get-away driver for a December 19, 2014 bank robbery in Murrieta. After the robbery, plaintiff drove away from the bank fairly casually. The robbery and description of plaintiff’s SUV was put out over the police radio and via text messages to Murrieta Police Department (MPD) officers. An undercover detective in an unmarked truck soon realized he was directly behind the SUV. He followed the SUV briefly, letting other officers know he was following, at a comfortable but close distance, with no lights or siren. The occupants of the SUV began to drive with more urgency and soon, upon seeing a marked MPD unit, ran a stop sign and the chase was on. The pursuit, at about 2:00 p.m. on a work day, was high speed, along surface streets, and the plaintiff ran stop signs, traffic signals, cut through an occupied gas station, lost one tire driving through a spike strip, rammed the detectives truck twice on the driver’s side, spun out several times, and ended up in the City of Temecula in a business park. Plaintiff crashed the SUV into a parked car, bailed from the SUV and began running toward occupied office buildings. In immediate pursuit was a marked MPD unit, driven by a 17 year veteran police officer. He did not want the plaintiff to enter the office buildings, creating a potential hostage situation, and did not want to have to follow plaintiff into the buildings. The officer drew his weapon while braking to a stop and, through his own windshield, fired three times, striking plaintiff once in the right buttocks area. Plaintiff stopped and was arrested.

Plaintiff claimed he got out of the car to surrender and should not have been shot. He was unarmed. Two officers testified they could not see his hands as he ran away from the crashed SUV, but his hands went up after he was shot. One bystander witness said his hands did not go up until he was shot. One bystander witness said his hands were initially up as he left the car, but came down and went up again after he was shot. Plaintiff said he put his hands up “immediately” as he exited the crashed SUV, but told an investigator soon after the shooting that he put his hands up because he heard shots. The shooting officer was accused by plaintiff of shooting recklessly from a moving vehicle at a known occupied building at a suspect who was clearly and unequivocally surrendering and therefore violated his right against unlawful seizure under the Fourth Amendment.

Daley and Heft brought a summary judgment/partial summary judgment motion in the Central District Court in Los Angeles. The motion put forth all the known evidence before the court, conflicting or not. We argued that it really did not matter whether plaintiff’s hands were up or not, as it was undisputed that he was continuing to flee until he was shot. The officer who shot him had just seen him violently crash into the detective’s truck, put driver’s and pedestrian’s lives in danger during the dangerous pursuit, and figured the plaintiff was going to try to get away regardless of the danger presented to others. To the officer, the plaintiff was a fleeing felon bent on hurting whoever got in his way. The motion argued that the officer was entitled to protection from the doctrine of qualified immunity, and the remainder of the claims had no merit based on the known evidence. The motion focused, primarily, on one of the “prongs” of qualified immunity – that the law was not “clearly established” to put an officer on notice that in this particular factual situation shooting the plaintiff would violate the constitution. Daley & Heft has been aware that the United States Supreme Court has recently been reversing many of the Circuit Courts on this legal issue and there were some persuasive pursuit cases that, if followed, would protect the officer and the City.

The court agreed. In a 15 page single-spaced Memorandum of Decision, the court granted the motion for summary judgment on all grounds requested and dismissed the case in its entirety and on December 15, 2016 entered judgment for all defendants and against the plaintiff. The entire memorandum will not be discussed here, but only what Daley and Heft believes is a “hot” issue right now, the “clearly established” prong of qualified immunity. Indeed, the court did find that the officer did not violate plaintiff’s Fourth Amendment rights because the officer’s split-second decision to use deadly force was based upon reasonable cause – based on objectively reasonable facts – to believe plaintiff posed a threat of serious harm to others.

But the court found that even if the officer was unreasonable in his use of force, he still would be entitled to qualified immunity because it was not clearly established at the time of the shooting that his conduct was unconstitutional. First, the court agreed that in order to determine whether the right was “clearly established” at the time of the shooting, the inquiry must me made “in the light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)(per curiam). The court noted that Daley and Heft correctly observed that the United States Supreme Court has “never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.” Mullenix v. Luna, 136 S. St. 305, 310 (2015). The court emphasized that Mullenix stressed that it must be clearly established that the Fourth Amendment prohibited the officer’s conduct in the specific situation he confronted, not just on a more general level – a “particularized inquiry.” Importantly,  the court framed the specific situation: “A dangerous car chase on occupied streets involving numerous collisions that ended with a crash in a commercial parking lot and a suspected felon, feared to be armed, still running on foot in the directions of occupied buildings.” Plaintiff failed, as he is required to do, to point the court to authority that clearly established that an officer confronted with these facts is on notice that the suspect has unequivocally surrendered and no longer poses a threat so that lethal force is clearly unjustified, or authority otherwise placing an office on notice that this specific factual scenario does not justify the use of lethal force.” Therefore, the officer was entitled to qualified immunity.

The motion was argued by Mitchell D. Dean. The motion was written by Mitchell D. Dean, Lee Roistacher (Certified Appellate Specialist, State Bar of California Board of Legal Specialization) and Garrett Smee. Heather Paradis assisted on the underlying litigation efforts leading to the motion.