Shelly Lal v. State of California ( 2014 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SHELLY LAL, individually and in her        No. 12-15266
    representative capacity on behalf of
    the Estate of Kamal L. Lal, decedent,        D.C. No.
    and in her representative capacity as     4:06-cv-05158-
    guardian ad litem for Sagar Lal;               PJH
    ESTATE OF KAMAL L. LAL; SAGAR
    LAL, a minor,
    Plaintiffs-Appellants,       OPINION
    v.
    STATE OF CALIFORNIA; CALIFORNIA
    HIGHWAY PATROL; FRANK
    NEWMAN, C.H.P. Officer;
    MATTHEW OTTERBY, C.H.P. Officer,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of California
    Phyllis J. Hamilton, District Judge, Presiding
    Argued and Submitted
    February 13, 2014—San Francisco, California
    Filed March 31, 2014
    2                         LAL V. CALIFORNIA
    Before: Consuelo M. Callahan and Milan D. Smith, Jr.,
    Circuit Judges, and Alvin K. Hellerstein, Senior District
    Judge.*
    Opinion by Judge Callahan
    SUMMARY**
    Civil Rights
    The panel affirmed the district court’s summary judgment
    which found that police officers were entitled to qualified
    immunity in a 
    42 U.S.C. § 1983
     action alleging that the
    officers used excessive force when they shot and killed
    Kamal Lal following a high speed chase.
    The panel held that under the totality of the
    circumstances, the district court’s determinations that the
    officers objectively feared immediate serious physical harm
    and that a reasonable officer could have believed that Lal
    threatened him with immediate serious danger were sound.
    The panel noted that Lal led the police on a high speed chase
    for 45 minutes before the officers were able to disable his
    pickup truck. In the four minutes that elapsed after Lal exited
    the truck, he first tried to seriously injure himself, tried to
    *
    The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
    District Court for the Southern District of New York, sitting by
    designation.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    LAL V. CALIFORNIA                       3
    provoke the officers into shooting him by pantomiming
    shooting at them with his cell phone, threw rocks at the
    officers, and then, ignoring directions to stop, advanced upon
    two officers threatening them with a large rock he held over
    his head. The panel held that although Lal may have been
    intent on committing “suicide by cop,” it did not negate the
    fact that he threatened the officers with such immediate
    serious harm that shooting him was a reasonable response.
    COUNSEL
    Charles Stephen Ralston (argued), Mi Wuk Village,
    California, and A. Catherine LaGarde, Kentfield, California,
    for Plaintiffs-Appellants.
    Kamala D. Harris, Attorney General of California, Jon Wolff,
    Steven M. Gevercer, and John P. Devine (argued), San
    Francisco, California, for Defendants-Appellees.
    OPINION
    CALLAHAN, Circuit Judge:
    This case arises out of a tragic incident. Kamal Lal
    (“Lal”), upset over a domestic disturbance with his wife, led
    police on a 45-minute high-speed chase on and off freeways
    before the officers were able to disable his vehicle. When Lal
    exited his truck he first tried to seriously hurt himself, then
    tried to provoke the officers into shooting him, and finally
    advanced on two officers holding a large rock over his head.
    When Lal refused to stop and continued to advance to within
    a few feet of the officers, the officers shot him. Lal’s widow,
    4                    LAL V. CALIFORNIA
    daughter, and estate (“Plaintiffs”) filed this action, asserting
    claims under 
    42 U.S.C. § 1983
     and California law. The
    district court granted summary judgment for the defendants,
    finding that the officers were entitled to qualified immunity.
    We affirm the district court’s determinations that the officers
    thought that Lal posed an immediate threat of serious
    physical harm and that the officers’ beliefs were reasonable.
    I
    On March 6, 2005, the South San Francisco Police
    Department received a 911 telephone call from Lal’s wife
    reporting a domestic disturbance involving her husband, Lal.
    Lal interrupted the call, the police called back, and after
    another disconnect, the police dispatcher managed to speak
    to Lal’s wife and overheard someone hitting her. While the
    dispatcher was still on the phone, Lal drove away in his grey
    Toyota pickup truck, and his wife gave the dispatcher the
    truck’s license plate number as well as Lal’s cell phone
    number.
    Lal proceeded to the freeway where he entered
    southbound Highway 101. The California Highway Patrol
    (“CHP”) was notified and a high-speed chase ensued. For
    approximately 45 minutes, Lal traveled south and north on
    Highway 101, exiting the freeway to travel over city streets,
    and reentering the freeway. He did this at speeds ranging
    from 50 to over 100 miles an hour. At one point while on the
    freeway, Lal may have attempted to cause a motorcycle
    officer who was pursuing him to crash.
    A police sergeant contacted Lal on his cell phone and told
    him to slow down because he would otherwise injure other
    people. Lal responded that he wanted to kill himself, and on
    LAL V. CALIFORNIA                        5
    a subsequent call, twice stated that he wanted to kill himself
    or have the police shoot him.
    Meanwhile CHP Officer Frank Newman saw the pursuit
    heading toward his position and entered traffic to become the
    lead police vehicle. During the pursuit, Newman learned that
    Lal wanted officers to shoot him. The dispatcher also learned
    that Lal did not have any record of gun ownership and did not
    have any outstanding warrants.
    Eventually Lal took an exit from the freeway onto a
    collector road where the CHP officers deployed a spike strip.
    Lal drove over the strip, partially disabling his vehicle, and
    managed to reenter the freeway and reach another off-ramp,
    where he lost control of his truck and veered off the ramp.
    The truck came to a stop in a ditch alongside the freeway.
    When Lal got out of his vehicle, numerous officers, including
    CHP Officer Otterby, yelled commands at him. Officer
    Newman addressed Lal through his patrol car loudspeaker
    and told him to put his hands in the air. Lal briefly complied,
    and then, putting his hands in his pockets, responded to
    Newman by saying “just shoot me, just shoot me.”
    Lal then reached down to the ground and picked up a big
    rock that he smashed against his forehead three or four times,
    causing considerable bleeding. He next attempted to pull a
    four-foot long metal pole out of the ground and impale
    himself on it.
    Lal started walking toward Officer Newman and CHP
    Officer Otterby, carrying a rock in his hand. When the
    officers told him to drop it, he pretended that his cell phone
    (which was also in his hand) was a pistol and pantomined
    pointing it at the officers. Officer Otterby recognized that the
    6                    LAL V. CALIFORNIA
    cell phone was not a gun and yelled to the officers not to
    shoot. Lal then threw several soft-ball sized rocks at Officers
    Newman and Otterby. The rocks missed the officers, but one
    shattered the spotlight on the patrol car.
    During these events, Officer Newman requested
    assistance from any agency that could respond to the situation
    with less than lethal assistance, and was told that a K-9 unit
    was on its way.
    Lal began walking toward the patrol cars while continuing
    to throw rocks. As he neared Officers Newman and Otterby,
    who were standing shoulder to shoulder, he held a large rock
    about the size of a football above his head. Lal failed to drop
    the rock when ordered by Officer Otterby to do so. Lal kept
    advancing at an irregular pace, forcing the officers to back up.
    Officer Otterby told Lal, “we are going to have to shoot you
    if you don’t drop that rock.” Lal continued to advance, and
    when he was within a few feet of the officers, they
    simultaneously shot him. The eight shots killed Lal despite
    efforts to resuscitate him. Just over four minutes elapsed
    between the time Lal’s truck stopped moving and his
    shooting.
    II
    Plaintiffs filed this action in state court in December 2005
    against California, the CHP, and Officers Newman and
    Otterby, asserting that Plaintiffs’ rights were violated when
    Lal was shot and killed. Plaintiffs asserted claims under
    
    42 U.S.C. § 1983
     for violations of the Fourth and Fourteenth
    Amendments and under California law for negligence,
    wrongful death, and assault and battery. In August 2006, the
    case was removed to the district court for the Northern
    LAL V. CALIFORNIA                        7
    District of California on the ground of federal question
    jurisdiction over the central claim that the officers had used
    excessive force in violation of the Fourteenth Amendment.
    After removal, Plaintiffs’ attorney failed to prosecute the case
    and the district court dismissed the case. New counsel filed
    a motion for relief from judgment pursuant to Federal Rule of
    Civil. Procedure 60(b). The motion was denied, Plaintiffs
    appealed to the Ninth Circuit, and the Ninth Circuit reversed
    and remanded. Lal v. State of California, 
    610 F.3d 518
     (9th
    Cir. 2010).
    On remand, certain issues were dismissed, a second
    amended complaint relating to the state court claims was
    filed, the parties conducted discovery, and the defendants
    moved for summary judgment. On January 10, 2012, the
    district court granted the motion and dismissed the case.
    Plaintiffs filed a timely notice of appeal.
    The district court offered the following explanation for its
    ruling:
    [T]aking the totality of circumstances into
    account, and viewing the undisputed evidence
    in the light most favorable to plaintiffs, the
    court finds that the officers acted reasonably.
    The evidence demonstrates: the officers were
    aware that officers were originally called to
    Lal’s home for a domestic violence report by
    Lal’s wife about him; Lal led police officers
    on a long and high speed chase over city
    streets as well as the freeway, during which
    Lal drove recklessly and in apparent disregard
    of others’ safety; Lal indicated he wanted to
    kill himself or have the officers shoot him;
    8                   LAL V. CALIFORNIA
    when Lal got out of his car near the ditch at
    the off ramp, he did not comply with the
    officers’ instructions to put his hands up; Lal
    hit his own head with a rock until he bled and
    attempted to impale himself on a metal pole;
    Lal mimed using his cell phone as a gun that
    he pointed at the officers, which initially
    prompted Otterby, who recognized the phone
    was not a gun, to instruct all officers on the
    scene not to shoot; Lal picked up rocks and
    threw them at the officers’ car, breaking the
    light on the car; Lal came toward the officers
    with a football sized rock over his head, and
    ignored the officers’ instructions to put the
    rock down. Lal advanced with this rock to
    within a few feet of the officers; and both
    officers simultaneously shot Lal. . . . Based
    on these facts, the court concludes that
    defendants had probable cause to believe that
    they faced a threat of serious physical harm
    from Lal. As such their conduct in using
    deadly force was objectively reasonable.
    III
    We review “de novo a grant of summary judgment on the
    basis of qualified immunity,” and in “determining whether
    summary judgment is appropriate, [view] the evidence in the
    light most favorable to the non-moving party.” Garcia v.
    County of Merced, 
    639 F.3d 1206
    , 1208 (9th Cir. 2011); see
    also Elder v. Holloway, 
    510 U.S. 510
    , 516 (1994). In Smith
    v. City of Hemet, 
    394 F.3d 689
    , 701 (9th Cir. 2005) (en banc),
    we reiterated:
    LAL V. CALIFORNIA                       9
    The Supreme Court has said that “the
    ‘reasonableness’ inquiry in an excessive force
    case is an objective one: The question is
    whether the officers’ actions are ‘objectively
    reasonable’ in light of the facts and
    circumstances confronting them[.]” [Graham
    v. Connor, 
    490 U.S. 386
    , 397 (1989)] . . . .
    The question is not simply whether the force
    was necessary to accomplish a legitimate
    police objective; it is whether the force used
    was reasonable in light of all the relevant
    circumstances.
    (Internal quotation marks and citations omitted).
    In Mattos v. Agarano, 
    661 F.3d 433
     (9th Cir. 2011) (en
    banc), we quoted the Supreme Court’s explanation that “[t]he
    doctrine of qualified immunity protects government officials
    ‘from liability for civil damages insofar as their conduct does
    not violate clearly established statutory or constitutional
    rights of which a reasonable person would have known.’” 
    Id. at 440
     (quoting Pearson v. Callahan, 
    555 U.S. 223
    , 231
    (2009)). We further explained that qualified immunity
    shields an officer from liability even if his or her action
    resulted from “a mistake of law, a mistake of fact, or a
    mistake based on mixed questions of law and fact,” and that
    the “purpose of qualified immunity is to strike a balance
    between the competing need to hold public officials
    accountable when they exercise power irresponsibly and the
    need to shield officials from harassment, distraction, and
    liability when they perform their duties reasonably.” 
    Id.
    (internal quotation marks and citations omitted). In
    Messerschmidt v. Millender, 
    132 S. Ct. 1235
    , 1244 (2012),
    the Supreme Court reiterated that “[q]ualified immunity gives
    10                   LAL V. CALIFORNIA
    government officials breathing room to make reasonable but
    mistaken judgments, and protects all but the plainly
    incompetent or those who knowingly violate the law.”
    (Internal quotation marks and citations omitted).
    Furthermore, because “qualified immunity is ‘an immunity
    from suit rather than a mere defense to liability . . . it is
    effectively lost if a case is erroneously permitted to go to
    trial.’” Pearson, 
    555 U.S. at 231
     (quoting Mitchell v.
    Forsyth, 
    472 U.S. 511
    , 526 (1985)).
    In determining whether an officer is entitled to qualified
    immunity, we consider (1) whether there has been a violation
    of a constitutional right; and (2) whether that right was
    clearly established at the time of the officer’s alleged
    misconduct. Pearson, 
    555 U.S. at 232
    . Courts are “permitted
    to exercise their sound discretion in deciding which of the
    two prongs of the qualified immunity analysis should be
    addressed first in light of the circumstances in the particular
    case at hand.” 
    Id. at 236
    .
    The measuring rod for determining whether an official’s
    conduct violates a plaintiff’s constitutional right was set forth
    by the Supreme Court in Ashcroft v. al-Kidd, 
    131 S. Ct. 2074
    ,
    2083 (2011):
    A Government official’s conduct violates
    clearly established law when, at the time of
    the challenged conduct, “[t]he contours of [a]
    right [are] sufficiently clear” that every
    “reasonable official would have understood
    that what he is doing violates that right.”
    Anderson v. Creighton, 
    483 U.S. 635
    , 640
    (1987).
    LAL V. CALIFORNIA                      11
    The Supreme Court provided further guidance in Graham v.
    Connor, 
    490 U.S. 386
     (1989). We have held that Graham
    directs courts to first consider the nature and quality of the
    alleged intrusion and to then “consider the governmental
    interests at stake by looking at (1) how severe the crime at
    issue is, (2) whether the suspect posed an immediate threat to
    the safety of the officers or others, and (3) whether the
    suspect was actively resisting arrest or attempting to evade
    arrest by flight.” Mattos, 
    661 F.3d at 441
    . Of these, the most
    important is whether the suspect posed an immediate threat
    to the safety of the officers or others. 
    Id.
     (citing City of
    Hemet, 
    394 F.3d at 702
    ).
    This is the crux of the appeal. The district court found
    both that Lal posed an immediate threat to the safety of the
    officers, and that, even if he did not, a reasonable officer
    could have thought he did. Both conclusions are sound.
    Plaintiffs admit that Lal was holding a football-sized rock
    over his head when he continued to advance toward Officers
    Newman and Otterby, who shot him when he was about a
    yard away. In light of Lal’s prior actions – the high speed
    chase, hitting himself with a stone, throwing rocks at the
    officers – the officers reasonably believed that Lal would
    heave the rock at them. Indeed, Plaintiffs do not really argue
    otherwise.
    Instead, they argue that the officers should have retreated
    or that they somehow should have defused the situation
    before Lal started advancing. These contentions are not
    factually or legally persuasive. The confrontation was in a
    ditch alongside a freeway, and the officers could hardly allow
    Lal to proceed on foot onto the freeway. Nor could they have
    allowed Lal to remain in his truck and reenter the freeway, for
    12                  LAL V. CALIFORNIA
    Lal’s wish to commit suicide would have endangered the
    lives of others, as well as his own. Indeed, the officers were
    exploring alternate methods of dealing with Lal, attempting
    to continue the engagement with Lal until the K-9 unit
    arrived. But Lal forced the issue by advancing on the
    officers. By the time that Lal, contrary to the officer’s
    commands, advanced to within seven or eight feet of the
    officers, thereby creating a reasonable fear of imminent
    serious physical harm, spraying Lal with pepper spray would
    not have stopped Lal from hurling the rock at the officers.
    The fact that Lal was intent on “suicide by cop” did not mean
    that the officers had to endanger their own lives by allowing
    Lal to continue in his dangerous course of conduct.
    Plaintiffs’ experts, however, argue that the situation
    should not have come to this point. They contend that the
    officers should have seized Lal earlier, should have used
    pepper spray, and should have waited for less than lethal
    devices to arrive. They criticize the officers for containing
    Lal in a small area, not waiting, and not retreating. Clearly,
    when Lal advanced on the officers with a large rock held over
    his head, the officers sincerely and reasonably believed that
    Lal intended to seriously harm them if they did not shoot him.
    The cases cited by Plaintiffs are not to the contrary. In
    A.D. v. California Highway Patrol, 
    712 F.3d 446
     (9th Cir.
    2013), the court affirmed the denial of qualified immunity to
    an officer who had emptied his gun shooting a person who
    had rammed her car into the police patrol cars after she was
    cornered following a high speed chase. The court found that
    a reasonable jury could find that the officer had “used deadly
    force with a purpose to harm [the deceased] unrelated to a
    legitimate law enforcement objective.” 
    Id. at 451
    . In Glenn
    v. Washington County, 
    673 F.3d 864
     (9th Cir. 2011), the
    LAL V. CALIFORNIA                       13
    Ninth Circuit vacated a grant of summary judgment where the
    police officers used a beanbag shotgun on a person armed
    with a knife, who was not threatening the police or others
    when he was shot. 
    Id.
     at 873–74. Unlike those cases, here,
    Lal was threatening the officers with immediate serious harm.
    Plaintiffs, however, argue that under the totality of the
    circumstances, the jury should be allowed to determine
    whether the officers were unreasonable in not de-escalating
    the situation before Lal advanced on the officers with a rock
    over his head. Citing Billington v. Smith, 
    292 F.3d 1177
     (9th
    Cir. 2002), Plaintiffs argue that where an officer intentionally
    or recklessly provokes a violent confrontation, he may be
    held liable for his otherwise defensive use of deadly force. A
    careful reading of Billington weighs against Plaintiffs’
    perspective in this case. We explained:
    In Scott v. Henrich [
    39 F.3d 912
     (9th Cir.
    1994)], we held that even though the officers
    might have had “less intrusive alternatives
    available to them,” and perhaps under
    departmental guidelines should have
    “developed a tactical plan” instead of
    attempting an immediate seizure, police
    officers “need not avail themselves of the
    least intrusive means of responding” and need
    only act “within that range of conduct we
    identify as reasonable.” We reinforced this
    point in Reynolds v. County of San Diego,
    [
    84 F.3d 1162
     (9th Cir. 1996)] which
    distinguished Alexander because “the court
    must allow for the fact that officers are forced
    to make split second decisions.” We affirmed
    summary judgment for the defendant police
    14                   LAL V. CALIFORNIA
    officers despite experts’ reports stating—like
    the expert report in the case at bar—that the
    officers should have called and waited for
    backup, rather than taking immediate action
    that led to deadly combat. We held that, even
    for summary judgment purposes, “the fact that
    an expert disagrees with the officer’s actions
    does not render the officer’s actions
    unreasonable.” Together, Scott and Reynolds
    prevent a plaintiff from avoiding summary
    judgment by simply producing an expert’s
    report that an officer’s conduct leading up to
    a deadly confrontation was imprudent,
    inappropriate, or even reckless. Rather, the
    court must decide as a matter of law “whether
    a reasonable officer could have believed that
    his conduct was justified.”
    Billington, 
    292 F.3d at
    1188–89 (footnotes omitted).
    In the case at bar, there is no suggestion that the officers
    intentionally provoked Lal. Rather, the totality of the
    circumstances shows that they were patient. They allowed
    Lal to lead them on a 45-minute high-speed chase, during
    which they tried to talk him into surrendering, and when he
    got out of the truck, they were willing to give him time to
    cool off. Instead, it was Lal who forced the confrontation.
    Thus, even assuming that it might have been possible for the
    officers to have given Lal a wider berth, under our opinion in
    Billington, there is no requirement that such an alternative be
    explored. A police officer’s immunity does not become less
    if his assailant is motivated to commit “suicide by cop.”
    LAL V. CALIFORNIA                      15
    IV
    This lawsuit arose out of a tragic event. Lal was so upset
    after an argument with his wife that he led the police on a
    high speed chase for 45 minutes before the officers were able
    to disable his pickup truck. In the four minutes that elapsed
    after Lal exited the truck, he first tried to seriously injure
    himself, tried to provoke the officers into shooting him by
    pantomining shooting at them with his cell phone, threw
    rocks at the officers, and then, ignoring directions to stop,
    advanced upon two officers threatening them with a large
    rock he held over his head. At that moment, the only
    alternative force then available to the officers, pepper spray,
    would not have alleviated the danger of Lal hurling the rock
    at the officers. Moreover, there was no reason for the officers
    to believe that Lal would act rationally. Under the totality of
    the circumstances, the district court’s determinations that the
    officers objectively feared immediate serious physical harm
    and that a reasonable officer could have believed that Lal
    threatened him with immediate serious danger are sound.
    That Lal may have been intent on committing “suicide by
    cop” does not negate the fact that he threatened the officers
    with such immediate serious harm that shooting him was a
    reasonable response. The district court’s grant of summary
    judgment is AFFIRMED.