Gonzalez Ex Rel. Gonzalez v. City of Anaheim

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL GONZALEZ, individually and No. 11-56360
as successor in interest to Adolph
Anthony Sanchez Gonzalez, D.C. No.
Plaintiff, 2:10-cv-04660-
PA-SH
and
F.E.V., a minor, individually and as OPINION
successor in interest to Adolph
Anthony Sanchez Gonzalez, by and
through her Guardian Ad Litem
David Vasquez; ANTOINETTE
SANCHEZ, individually and as
successor in interest to Adolph
Anthony Sanchez Gonzalez,
Plaintiffs-Appellants,
v.
CITY OF ANAHEIM, DARON WYATT,
and MATTHEW ELLIS,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
2 GONZALEZ V. CITY OF ANAHEIM
Argued and Submitted En Banc
December 11, 2013—San Francisco, California
Filed March 31, 2014
Before: Alex Kozinski, Chief Judge, and Stephen S. Trott,
Barry G. Silverman, Susan P. Graber, M. Margaret
McKeown, Ronald M. Gould, Marsha S. Berzon, Richard
C. Tallman, Richard R. Clifton, Carlos T. Bea, and Morgan
Christen, Circuit Judges.
Opinion by Judge Clifton;
Partial Concurrence and Partial Dissent by Judge Trott;
Dissent by Chief Judge Kozinski
SUMMARY*
Civil Rights
The en banc court reversed the district court’s summary
judgment and remanded on a Fourth Amendment excessive
deadly force claim, and affirmed the district court’s summary
judgment as to a Fourteenth Amendment claim and a non-
deadly force portion of the Fourth Amendment claim, in a
42 U.S.C. § 1983 action brought by successors of Adolph
Gonzalez, who was shot and killed during an encounter with
two Anaheim police officers.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GONZALEZ V. CITY OF ANAHEIM 3
The court held that based on the record, it could not say
that a verdict in favor of the defendants on the claim of
excessive deadly force was the only conclusion that a
reasonable jury could reach. The court noted that there was
significant inconsistency in the officers’ testimony regarding
what happened during the few seconds before Gonzalez was
shot in the head, specifically whether Gonzalez’s vehicle,
which contained Officer Wyatt, was rapidly accelerating and
posed an immediate threat to safety.
The court held that the constitutional standard for using
force less than deadly force was lower and that given the
circumstances, defendants were entitled to summary
judgment on the uses of force leading up to the gunshot.
The court affirmed the district court’s summary judgment
for defendants as to plaintiffs’ claim that they had been
deprived of a familial relationship with Gonzalez in violation
of their Fourteenth Amendment right to substantive due
process. The court held that plaintiffs produced no evidence
that the officers had any ulterior motives for using force
against Gonzalez.
Dissenting in part and concurring in part, Judge Trott,
joined by Chief Judge Kozinski and Judges Tallman, and
Bea, wrote that given that Officer Wyatt was trapped in
Gonzalez’s van, his act of self-defense was objectively
reasonable, and he would therefore affirm the district court.
Dissenting, Chief Judge Kozinski, joined by Judges Trott,
Tallman, and Bea, wrote that how fast the vehicle was
moving and how far it had traveled was beside the point
given that it was undisputed that at the time he fired the fatal
shot, Officer Wyatt was trapped inside a moving vehicle
4 GONZALEZ V. CITY OF ANAHEIM
driven by a man who had resisted the verbal commands,
physical restraints, lethal threats and the bodily force of two
uniformed officers.
COUNSEL
Paul L. Hoffman (argued), Schonbrun, DeSimone, Seplow,
Harris & Hoffman, Venice, California; Dale K. Galipo and
Melanie T. Partow, Woodland Hills, California, for Plaintiffs-
Appellants.
Moses W. Johnson (argued) and Cristina L. Talley, Anaheim,
California, for Defendants-Appellees.
OPINION
CLIFTON, Circuit Judge:
Adolph Anthony Sanchez Gonzalez was shot and killed
during an encounter with two Anaheim police officers. His
successors brought an action seeking damages under
42 U.S.C. § 1983. The district court entered summary
judgment in favor of defendants.
Because Gonzalez is dead, the police officers are the only
witnesses able to testify as to the events that led to
Gonzalez’s death. In such a circumstance, we must carefully
examine the evidence in the record to determine whether the
officers’ testimony is internally consistent and consistent with
other known facts. After conducting such a review, we
conclude that a significant inconsistency in the officers’
testimony was sufficient to present a genuine dispute of
GONZALEZ V. CITY OF ANAHEIM 5
material fact. Based on the current record, summary
judgment on the plaintiffs’ claim for deadly excessive force
was inappropriate. We reverse and remand that claim for
further proceedings.
In addition to the excessive force claim brought on behalf
of Gonzalez, the plaintiffs also brought claims in their own
right for the denial of a familial relationship. The district
court granted summary judgment for defendants as to those
claims as well. As to that portion of the judgment, we affirm.
I. Background
As noted above, the only testimony concerning the events
that led to Gonzalez’s death came from the two police
officers involved in the incident, Anaheim Police Department
Officers Daron Wyatt and Matthew Ellis. They testified that
they first noticed Gonzalez when they were responding in
their patrol car to an unrelated call at about 2 a.m. on
September 25, 2009. A Mazda minivan cut them off as they
were making a turn. The minivan turned into a gas station,
and the officers continued on their way.
A few minutes later, the officers returned to the area
where they had been cut off and noticed that the minivan was
still at the gas station. Gonzalez got in the car and began
driving southbound. The officers followed him. They
observed the minivan weaving within its traffic lane.
Although weaving within a lane was not a traffic violation, as
Ellis later acknowledged, the officers decided to make a
traffic stop and pulled Gonzalez over.
At that time, the officers did not recognize the driver from
any prior contacts. They did not have any information that the
6 GONZALEZ V. CITY OF ANAHEIM
minivan had been stolen or had outstanding warrants or
citations. They had no information that the driver had
previously committed any crime, had any prior contact with
law enforcement, or had any involvement with weapons. At
no point during the entire incident did either officer ever see
a weapon in the minivan.
The officers exited their vehicle and approached the
minivan from both sides. Ellis approached from the driver’s
side, and Wyatt approached from the passenger side. Wyatt
drew his gun. Wyatt thought he saw Gonzalez reach for
something between the driver and passenger seats and warned
Gonzalez that if he reached down again, Wyatt would shoot.
Gonzalez at that point complied and held his fists in his lap.
The officers told Gonzalez to turn off the vehicle and
open his hands, which he held clenched. Ellis tried to open
the driver’s side door, but it was locked. The officers reached
through the minivan’s open windows and opened the driver
and passenger side doors. Ellis saw Gonzalez pull his hand
out of a bag located between the two front seats. Ellis
observed a plastic bag in Gonzalez’s right fist. Ellis told
Gonzalez to turn off the vehicle and give him his hands.
Gonzalez did not respond to that command.
Wyatt reached into the car, struck Gonzalez’s elbow three
times with a flashlight, and told Gonzalez to open his hand.
Gonzalez then raised his hand up to his mouth, as if to
swallow what he was holding. Ellis grabbed Gonzalez. Wyatt
testified that he thought Ellis was trying to apply a carotid
restraint, but Ellis testified that he was only trying to gain
control of Gonzalez’s hands. Wyatt also observed that
Gonzalez had a clenched fist and was reaching downward
with his left hand. Wyatt called for assistance on his police
GONZALEZ V. CITY OF ANAHEIM 7
radio. Wyatt went around to the driver’s side to try to help
Ellis restrain Gonzalez, but was not able to do so.
Wyatt went back to the passenger side, entered the
minivan, and began punching Gonzalez in the head. Ellis
observed Gonzalez reaching for the minivan’s gear shift with
his right hand. Ellis thought Gonzalez was attempting to shift
the car into drive so Ellis used his flashlight to hit Gonzalez
on the back of the head to try to stop him.
Despite the officers’ efforts, Gonzalez managed to shift
the minivan into drive, and the minivan began moving. Ellis
withdrew from the vehicle as it began moving and struck
Gonzalez in the head as he did so. The front passenger door
closed behind Wyatt, who remained in the vehicle.
Ellis stated that Gonzalez “stomp[ed]” on the accelerator.
Wyatt said that Gonzalez “floored the accelerator” and that
the vehicle “violently accelerated.”
Wyatt yelled at Gonzalez to stop the car, but he kept
going. Gonzalez swatted Wyatt’s hand away as he tried to
turn off the ignition or shift the transmission to neutral or
park. Unable to stop or gain control of the car, Wyatt drew his
weapon and shot Gonzalez in the head, killing him. He shot
from a distance of less than six inches. The minivan hit a
parked car and came to a stop.
Wyatt testified that he fired the shot less than ten seconds
after the car started moving, and it could have been less than
five seconds. He estimated that the car moved approximately
50 feet in that time and was going 50 miles per hour at the
time of the shot.
8 GONZALEZ V. CITY OF ANAHEIM
Gonzalez’s father sued the officers and the City of
Anaheim under 42 U.S.C. § 1983. He brought claims as his
son’s successor for excessive force in violation of the Fourth
Amendment and on behalf of himself for denial of a familial
relationship in violation of the Fourteenth Amendment.
Gonzalez’s mother and daughter filed a similar action that
also raised various state law claims. The district court
consolidated the actions.
The defendants moved for summary judgment, and the
district court granted the motion. The district court held that
the force the officers used during their encounter with
Gonzalez was reasonable and that their conduct did not
violate the Fourteenth Amendment. Having disposed of the
federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining state law claims.
Gonzalez’s mother and daughter appeal the district court’s
grant of summary judgment.
II. Discussion
We review a district court’s grant of summary judgment
de novo to determine whether there are any genuine disputes
of material fact and whether the moving party is entitled to
judgment as a matter of law. Johnson v. Poway Unified Sch.
Dist., 658 F.3d 954, 960 (9th Cir. 2011). We view the
evidence in the light most favorable to the nonmoving party.
Id.A. Fourth Amendment Claim
Gonzalez’s representatives argue that genuine disputes of
material fact preclude summary judgment on their claim that
GONZALEZ V. CITY OF ANAHEIM 9
the officers used unreasonable deadly force against Gonzalez.
We agree.
“An officer’s use of deadly force is reasonable only if ‘the
officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th
Cir. 1994) (emphasis omitted) (quoting Tennessee v. Garner,
471 U.S. 1, 3 (1985)). Factors relevant to assessing whether
an officer’s use of force was objectively reasonable include
“the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989). The immediacy of the threat posed by the suspect is
the most important factor. Mattos v. Agarano, 661 F.3d 433,
441 (9th Cir. 2011) (en banc). These factors are not exclusive,
and we consider the totality of the circumstances. Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010).
In general, we have recognized that an officer must give
a warning before using deadly force “whenever practicable.”
Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997)
(citing Garner, 471 U.S. at 11–12). Also relevant to
reasonableness are the “alternative methods of capturing or
subduing a suspect” available to the officers. Smith v. City of
Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc).
We take the perspective of an officer on the scene without
the benefit of 20/20 hindsight and consider that “police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396–97.
10 GONZALEZ V. CITY OF ANAHEIM
The key issue in this case is whether a reasonable jury
would necessarily find that Wyatt perceived an immediate
threat of death or serious physical injury at the time he shot
Gonzalez in the head.1 That requires us to consider exactly
what was happening when the shot was fired.
As described above, Ellis testified that Gonzalez
“stomp[ed]” on the accelerator, and Wyatt said that Gonzalez
“floored” it. Wyatt specifically testified that the minivan
“violently accelerated.” But that is not entirely consistent
with Wyatt’s other testimony. His story was that the minivan
1
The primary dissenting opinion, by Judge Trott, suggests, at 24, that
the question at summary judgment of whether a law enforcement officer’s
actions were objectively reasonable is a question of law, not a question of
fact for the jury, citing Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). But
as that footnote in Scott makes clear, that does not change the standard to
be applied to the question presented by this case. The footnote as a whole
states:
Justice STEVENS incorrectly declares this to be “a
question of fact best reserved for a jury,” and complains
we are “usurp[ing] the jury’s factfinding function.” At
the summary judgment stage, however, once we have
determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent
supportable by the record, the reasonableness of Scott’s
actions—or, in Justice STEVENS’ parlance, “[w]hether
[respondent’s] actions have risen to a level warranting
deadly force” —is a pure question of law.
Id. (citations omitted) (emphasis in original). The dispute in this case
concerns the relevant set of facts, in particular whether the minivan had
violently accelerated and was moving at a high rate of speed. That remains
a question of fact for the jury, as to which we must draw all inferences in
favor of the nonmoving party at the summary judgment stage.
GONZALEZ V. CITY OF ANAHEIM 11
moved 50 feet in five to ten seconds but was going 50 miles
per hour when he shot.
That combination of facts appears to be physically
impossible. There are three pieces to this puzzle: the speed
of the minivan at the time of the shot, the distance it traveled,
and the time that elapsed. These pieces don’t fit together. As
plaintiffs argued to the district court, a vehicle that traveled
50 feet in ten seconds would have an average speed of only
3.4 miles per hour. If the time period is cut to five seconds,
the average speed increases only to 6.8 miles per hour. Even
accepting that the minivan would be gaining speed while
accelerating, an average speed of 3 to 7 miles per hour
appears inconsistent with Wyatt’s testimony as to the speed
of the vehicle and with the testimony of both Wyatt and Ellis
that Gonzalez floored or stomped down on the gas.
“Deadly force cases pose a particularly difficult problem
. . . because the officer defendant is often the only surviving
eyewitness.” Henrich, 39 F.3d at 915. This is one of those
difficult cases. Gonzalez cannot testify because he is dead,
and no other witnesses saw the incident. In such cases, we
“must ensure that the officer is not taking advantage of the
fact that the witness most likely to contradict his story—the
person shot dead—is unable to testify.” Id. Accordingly, we
carefully examine “all the evidence in the record, such as
medical reports, contemporaneous statements by the officer
and the available physical evidence, . . . to determine whether
the officer’s story is internally consistent and consistent with
other known facts.” Id. We must also examine “circumstantial
evidence that, if believed, would tend to discredit the police
officer’s story.” Id. We have held that summary judgment
should be granted sparingly in excessive force cases. Glenn
v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011).
12 GONZALEZ V. CITY OF ANAHEIM
This principle applies with particular force where the only
witness other than the officers was killed during the
encounter.
Based on the record before us, a jury could believe
Wyatt’s testimony that the minivan traveled about 50 feet
before the shot was fired and that less than five or ten seconds
passed between the time the vehicle started moving and the
time Wyatt fired the shot. See Long v. Johnson, 736 F.3d 891,
896 (9th Cir. 2013) (explaining that “we must respect the
exclusive province of the jury to determine the credibility of
witnesses, resolve evidentiary conflicts, and draw reasonable
inferences from proven facts” (internal quotation marks and
brackets omitted)).
Although it was argued that the actual distance traveled
by the minivan by the time the shot was fired was
substantially greater than 50 feet, defendants did not submit
evidence to that effect. There was plenty of time after the
episode took place to check how far the minivan traveled. It
seems likely that there would have been an incident report
that would have included descriptions and precise
measurements taken afterwards, but defendants did not offer
anything like that into evidence. Based on the record, a
rational jury was not required to assume that the distance
traveled was greater than Wyatt’s estimate. Moreover, as it is
our obligation to view the evidence in the light most
favorable to the nonmoving parties at summary judgment, we
cannot simply dismiss the internal contradictions in Wyatt’s
testimony. Johnson, 658 F.3d at 960.
A reasonable jury could accept at face value Wyatt’s
statements that the car moved approximately 50 feet in about
five to ten seconds before he shot Gonzalez. It could thus
GONZALEZ V. CITY OF ANAHEIM 13
find that the minivan was not traveling at a high rate of speed
and Wyatt did not reasonably perceive an immediate threat of
death or serious bodily injury at the time he shot Gonzalez in
the head.
The primary dissenting opinion, by Judge Trott, suggests,
at 47, that because the plaintiffs did not dispute that Gonzalez
“stomp[ed]” down on the gas pedal, summary judgment must
be affirmed. But it was the speed of the minivan, not whether
Gonzalez stomped on the gas pedal, that was the key disputed
material fact.
The premise of the primary dissent is that the officer
acted in response to an immediate threat to his safety or the
safety of others. We do not disagree with most of what the
primary dissent says.2 But the existence of an immediate
threat to safety in this case is based on the sudden
acceleration and speed of the van. Gonzalez’s action could
not have presented a threat sufficient to justify the use of
deadly force unless it caused the car to move in a way that
immediately threatened the safety of the officers or the
public. The defendants did not argue that such a threat was
2
We disagree with the view in the separate dissent by Chief Judge
Kozinski, at 54, that any “sane officer” would have shot Gonzalez in the
head, no matter “[h]ow fast the van was moving.” The defendants have
not tried to make that argument, and we are not compelled by either logic
or existing precedent to accept that proposition. As explained below, if the
jury found, as it could, that Officer Wyatt was in the passenger seat of a
slowly rolling vehicle, it could conclude that he did not face an immediate
threat to safety sufficient to justify the immediate use of deadly force. Our
decision simply identifies a disputed issue of material fact. If, as Chief
Judge Kozinski’s dissent bemoans, that gives plaintiffs “a bludgeon with
which to extort a hefty settlement,” id., it will only be because the
defendants are concerned that a jury might not view the evidence as the
dissent does.
14 GONZALEZ V. CITY OF ANAHEIM
posed if the minivan was actually going only 3 to 7 miles per
hour. They argued that “[t]he undisputed evidence is that
decedent was speeding down the street going approximately
40 to 50 MPH with Officer Wyatt trapped inside the van.” If
that were true, we agree that summary judgment in favor of
defendants would be appropriate, as the primary dissenting
opinion contends. There was a genuine dispute about that
fact, however, based on Wyatt’s own testimony. This case is
about the standard for summary judgment, not whether law
enforcement officers face danger and are permitted to use
deadly force when faced with an immediate threat to safety.
A jury that found that the minivan was moving slowly
could reasonably infer that Gonzalez did not stomp on the
accelerator, or that he let off the accelerator even if he
stomped down at first, or that a mechanical failure prevented
the car from reaching dangerous speeds. Regardless of
whether they disputed the use of the word “stomp,” the
plaintiffs explicitly argued to the district court and to us that
the minivan was not going very fast, based on Wyatt’s own
testimony, and thus that Wyatt did not face an immediate
threat of death or serious bodily injury. On this record, the
“stomping” does not preclude a triable issue on Wyatt’s use
of deadly force.
Our decision in Wilkinson v. Torres, 610 F.3d 546 (9th
Cir. 2010), a case that also involved an accelerating minivan,
does not require the conclusion that the use of deadly force
against Gonzalez was reasonable as a matter of law. In
Wilkinson, we did not hold that the threat of sudden
acceleration always justifies the use of deadly force. Instead,
we emphasized the importance of considering all the facts in
excessive force cases. Id. at 551. The officer in Wilkinson was
standing near a minivan that was trying to accelerate. Id. The
GONZALEZ V. CITY OF ANAHEIM 15
minivan’s wheels were spinning and throwing up mud
because the driver was attempting to accelerate in a slippery
area. Id. The officer thought his partner may have already
been run over by the minivan once and was lying or standing
in the mud nearby, possibly disoriented, at risk of being hit
again. Id. The officer shot the driver. Id. The plaintiffs
argued that the vehicle was moving too slowly to endanger
the officers. Id. We decided that, even so, the car “could have
gained traction at any time, resulting in a sudden acceleration
in speed,” while the officer believed his partner to be
vulnerable. Id. at 552. Given these facts, we concluded that
there was no genuine dispute of material fact as to whether
the officer’s use of deadly force was reasonable.
Here, Wyatt was not on foot next to a vehicle that might
run him over at any moment should it have accelerated, and
he did not express concern that his partner was vulnerable to
being run over. The defendants presented no evidence of
anyone else in danger. Instead, Wyatt was inside a car that
might have been slowly rolling forward. Wilkinson does not
answer the question in this case. Based on the current record,
a jury could find that Wyatt did not act reasonably.
Similarly, a jury could find that Wyatt reasonably
perceived a threat, but not one that justified the immediate
use of deadly force. As noted above, the jury may consider
the availability of other methods to subdue a suspect. Wyatt
had a police baton, pepper spray, and a taser. He could have
used any of them, or he could have shot Gonzalez in a
nonlethal area of the body to try to stop him from driving
further. Instead, he used his gun and intentionally shot
Gonzalez in the head. If the jury found that the car was
moving slowly at the time, it could also find that other
16 GONZALEZ V. CITY OF ANAHEIM
alternatives could have been used and that the use of deadly
force was unreasonable. See Smith, 394 F.3d at 703.
A jury could also find that Wyatt failed to give a warning
before he shot Gonzalez in the head. The absence of a
warning does not necessarily mean that Wyatt’s use of deadly
force was unreasonable. See Scott, 550 U.S. at 383(explaining that there is no “easy-to-apply-legal test” in
excessive force cases). A rational jury may find, however,
that if the car was moving at an average speed of 3 to 7 miles
per hour, a warning was practicable and the failure to give
one might weigh against reasonableness. See Deorle v.
Rutherford, 272 F.3d 1272, 1283–84 (9th Cir. 2001).
We do not hold that a reasonable jury must find in favor
of the plaintiffs on this record, only that it could. The jury
could also reasonably find, to the contrary, that the minivan
was moving dangerously fast and that Wyatt reasonably
perceived an immediate threat to his safety sufficient to
support the use of deadly force. Other factors identified in
Graham would support a verdict in favor of the defendants
here, as well. By the time Wyatt pulled the trigger, the
crimes at issue were relatively severe and Gonzalez was
plainly resisting arrest or attempting to evade arrest by flight.
See Graham, 490 U.S. at 396. But based on the record before
us, we cannot say that a verdict in favor of the defendants on
the claim for excessive force is the only conclusion that a
reasonable jury could reach.3
3
The constitutional standard for using force less than deadly force is
lower. See Gregory v. County of Maui, 523 F.3d 1103, 1106–07 (9th Cir.
2008) (holding that “officers had substantial grounds for believing that
some degree of force was necessary” where suspect was possibly under
the influence of drugs, acting bizarrely, trespassing, and refusing repeated
GONZALEZ V. CITY OF ANAHEIM 17
B. Fourteenth Amendment Claim
The plaintiffs also assert on their own behalf, as
Gonzalez’s relatives, that they have been deprived of a
familial relationship with Gonzalez in violation of their
Fourteenth Amendment right to substantive due process. Such
a claim requires the plaintiffs to prove that the officers’ use
of force “shock[ed] the conscience.” Porter v. Osborn,
546 F.3d 1131, 1137 (9th Cir. 2008). Based on the record, a
reasonable jury could not so find. Where, as here, the officers
did not have time to deliberate, a use of force shocks the
conscience only if the officers had a “purpose to harm” the
decedent for reasons unrelated to legitimate law enforcement
objectives. Id. The plaintiffs produced no evidence that the
officers had any ulterior motives for using force against
Gonzalez, and the district court properly granted summary
judgment on this claim. See Karam v. City of Burbank,
352 F.3d 1188, 1194 (9th Cir. 2003) (explaining that
“speculation as to . . . improper motive does not rise to the
level of evidence sufficient to survive summary judgment”).
III. Conclusion
For the foregoing reasons, the district court’s grant of
summary judgment as to the Fourth Amendment excessive
deadly force claim is reversed and remanded. The district
court’s grant of summary judgment as to the Fourteenth
commands to drop a pen). Because it is undisputed that Gonzalez did not
respond to the officers’ directions before any force was applied, appeared
to be trying to swallow potential evidence, and began driving away, the
defendants were entitled to summary judgment on the uses of force
leading up to the gunshot, such as striking Gonzalez with a flashlight or
hitting him in the head as he shifted the minivan into gear.
18 GONZALEZ V. CITY OF ANAHEIM
Amendment claim and the non-deadly force portion of the
Fourth Amendment claim is affirmed.
Each party shall bear its own costs.
AFFIRMED IN PART AND REVERSED IN PART;
REMANDED.
TROTT, Circuit Judge, with whom KOZINSKI, Chief Judge,
and TALLMAN and BEA, Circuit Judges, join dissenting in
part and concurring in part:
Instead of cooperating with the police, Gonzalez stomped
on his van’s accelerator and fled from a traffic stop, igniting
a dangerous chase. What makes this chase unusual is that
Officer Wyatt was trapped in Gonzalez’s van. After yelling
at Gonzalez to stop and unsuccessfully trying to disable the
vehicle, Officer Wyatt ended Gonzalez’s violent attempt to
escape by shooting him. As much as one might have wished
for a different outcome, I conclude that Officer Wyatt’s act in
self-defense was objectively reasonable. Thus, I would
affirm the district court.
I
The issue here is different from our usual two-part fare in
Fourth Amendment excessive force litigation. Officers Wyatt
and Ellis do not request qualified immunity under prong two
GONZALEZ V. CITY OF ANAHEIM 19
of the Saucier v. Katz,1 Pearson v. Callahan2 test on the
ground that what they did had not been clearly established to
be a violation of the excessive force prohibition of the Fourth
Amendment. When questioned during oral argument why his
clients were not asking for qualified immunity, counsel
pointed out that the summary judgment threshold issue under
either approach — which we call “prong one” in judicial
short form — is the same, i.e., whether “[t]aken in the light
most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Saucier, 533 U.S. at 201. If not, the question of
immunity becomes moot. See Pearson, 555 U.S. at 236 (“In
some cases, a discussion of why the relevant facts do not
violate clearly established law may make it apparent
that . . . the relevant facts do not make out a constitutional
violation at all.”).
Focusing on prong one, these officers maintain that the
law covering their actions was established twenty five years
ago; and pursuant to that established law, what they did
shortly after midnight on September 25, 2009, was
objectively reasonable and therefore constitutional. The
Supreme Court law they relied on as to their encounter with
Gonzalez is this: when faced with a suspect who is resisting
arrest and attempting to evade apprehension by flight from
serious crimes under circumstances that pose an immediate
threat to their safety or the safety of others, police officers
may use deadly force to protect themselves and the public at
large.
1
533 U.S. 194 (2001).
2
555 U.S. 223 (2009).
20 GONZALEZ V. CITY OF ANAHEIM
This case perforce is not just about how officers handle
criminal suspects, but also what the judiciary has consistently
said is constitutionally permissible when those suspects
endanger peace officers’ lives or safety. Accordingly, the
ramifications of our decision radiate far beyond this particular
lawsuit.
II
Every day of the year, law enforcement officers leave
their homes to police, protect, and serve their communities.
Unlike most employees in the workforce, peace officers carry
firearms because their occupation requires them on occasion
to confront people who have no respect either for the officers
or for the law. Chief Judge Kozinski put it well in Mattos v.
Agarano when he said,
By asking police to serve and protect us,
we citizens agree to comply with their
instructions and cooperate with their
investigations. Unfortunately, not all of us
hold up our end of the bargain. As a result,
officers face an ever-present risk that routine
police work will suddenly become dangerous.
661 F.3d 433, 453 (9th Cir. 2011) (en banc) (Kozinski, C.J.,
concurring in part and dissenting in part).
This case inexorably requires us to answer two related
questions involving officer safety on the job. First, to what
extent are those officers entitled to protect themselves during
dangerous situations so they may return home as healthy as
before? Second, can they, or can they not, rely on the
authoritative constitutional guidance the judiciary has
GONZALEZ V. CITY OF ANAHEIM 21
provided for them as to what they may do when confronted
by a suspect who poses an immediate threat to their safety
and the safety of others?
III
The men and women who become officers of the law
have been selected by their agencies according to demanding
criteria of suitability for their profession. Many officers have
degrees from colleges and universities in law enforcement.
Police departments in California — including the Anaheim
Police Department — almost uniformly require that a
candidate graduate from a police academy approved by the
State Commission know as POST, which stands for Peace
Officer Standards and Training.3 Once employed, officers
receive in-service and special training from their departments.
What are they taught in the classroom and in POST
academies? What the law is, and how to enforce it. Peace
officers’ primary sources of information and guidance are not
only the Constitution and the statutes passed by the legislative
branch, but more importantly in connection with the
resolution of this controversy, case law. Because the
principles in our Constitution, such as the Fourth
Amendment’s prohibition against unreasonable seizures,
appear in broad abstract terms, justices and judges use
published opinions — case law — to provide police
departments and individual officers with more specific
guidance, such as the general rule that the use of excessive
force to make an arrest is an unreasonable seizure, and is
therefore actionable in civil court pursuant to 42 U.S.C.
§ 1983. Just as I am certain that no law student graduates
3
See Cal. Penal Code §§ 13500, 13510.
22 GONZALEZ V. CITY OF ANAHEIM
without taking a course in contracts, I am equally certain that
all police officers have been instructed as to the acceptable
use of deadly force.
The core of their curriculum is the Supreme Court’s
constitutional guidance in Tennessee v. Garner, 471 U.S. 1(1985), and Graham v. Connor, 490 U.S. 386 (1989), which
law enforcement regards as orthodox scripture. Those cases
provide fair warning of what police cannot do, but also what
they can. And, just as officers are required to follow the law,
so too are they entitled to be protected by it as they confront
the daily challenges of their work responsibilities. Precisely
what we have said and what we have held about the
vulnerable circumstances Officer Wyatt found himself in are
central to understanding the reasonableness of Officer
Wyatt’s use of deadly force and his exercise of his right of
self-defense. Therefore, I choose not to paraphrase or
summarize our opinions, but to quote from them at length.
IV
What have we, the federal judiciary, said about how
officers may react to facts and circumstances such as those
encountered by Officers Daron Wyatt and Matthew Ellis
when they stopped Adolph Anthony Sanchez Gonzalez on
September 25, 2009?
In Tennessee v. Garner and Graham v. Connor, the
Supreme Court ruled that an officer may use deadly force in
self-defense or in the defense of others if
(1) confronted with a serious crime,
GONZALEZ V. CITY OF ANAHEIM 23
(2) the suspect poses an immediate threat to
the safety of the officer or the safety of others,
and
(3) the suspect is actively resisting arrest or
attempting to evade arrest by flight.
Garner, 471 U.S. at 11–12; Graham, 490 U.S. at 396. Of
these three factors, the most important is number two: the
immediacy of the threat posed by the suspect. Mattos,
661 F.3d at 441.
The operative word in the second factor is “threat.” The
word “threat” denotes an indication of impending danger or
harm. The law does not require an officer who immediately
faces physical harm to wait before defending himself until the
indication of impending harm ripens into the onslaught of
actual physical injury. This distinction becomes crucial
when, without warning, a criminal suspect begins to use force
to resist an officer in the discharge of the officer’s sworn
responsibilities.
In this connection, the Supreme Court has admonished us
in the trial and appellate courts (1) to evaluate the
reasonableness of an officer-in-the-field’s response “from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396,
and (2) to make “allowance for the fact that police officers
are often forced to make split-second judgments — in
circumstances that are tense, uncertain, and rapidly evolving,”
id. at 397. The Court added that the test is not whether “in
the peace of a judge’s chambers” it seems that what officers
did in the field was unnecessary. Id. at 396. And in Ryburn
v. Huff, the Court warned that “judges should be cautious
24 GONZALEZ V. CITY OF ANAHEIM
about second-guessing a police officer’s assessment, made on
the scene, of the danger presented by a particular situation.”
565 U.S. at _____, 132 S. Ct. 987, 991–92 (2012) (per
curiam).
The threshold question at the summary judgment stage of
whether or not an officer’s actions were objectively
reasonable under the Fourth Amendment is “a pure question
of law,” not a question of fact reserved for a jury. Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007). Included in this “pure
question of law” is whether a suspect’s actions have risen to
a level warranting deadly force. Id. In handing down this
ruling, the Scott Court explicitly rejected Justice Stevens’s
dissenting view that the objective reasonableness of an
officer’s actions should always be a question for the jury. Id.The status of this threshold issue as “a pure question of law”
makes it all the more important that what we say about it can
be relied upon by those who must act accordingly in the field.
Fair warning is sine qua non of a rule when it applies to
officers who must react quickly in tense situations.
V
A.
Did Gonzalez Pose “an Immediate Threat”
to the Safety of the Officers and to Others?
Because this case arises from a stop at 2:00 a.m. of a van
being driven erratically, I begin with the Supreme Court’s
longstanding recognition of the perils of the “traffic stop.”
This common event has attendant personal-safety hazards that
peace officers face thousands of times a day throughout our
country and about which they receive basic training. In
GONZALEZ V. CITY OF ANAHEIM 25
summary, an officer must presume that a traffic stop, such as
the one we evaluate here, is dangerous until he is satisfied of
his safety.
The lead case in this area is Terry v. Ohio, 392 U.S. 1(1968), the seminal “stop-and-frisk” decision that presented
the Court with “serious questions concerning the role of the
Fourth Amendment in the confrontation on the street between
the citizen and the policeman investigating suspicious
circumstances.” Id. at 4. In holding that the circumstances of
Terry’s detention justified an officer’s “invasion of Terry’s
personal security by searching him for weapons,” id. at 23,
the Court embraced the stark realities of the street to explain
its holding.
We are now concerned with more than the
governmental interest in investigating crime;
in addition, there is the more immediate
interest of the police officer in taking steps to
assure himself that the person with whom he
is dealing is not armed with a weapon that
could unexpectedly and fatally be used against
him. Certainly it would be unreasonable to
require that police officers take unnecessary
risks in the performance of their duties.
American criminals have a long tradition of
armed violence, and every year in this country
many law enforcement officers are killed in
the line of duty, and thousands more are
wounded. Virtually all of these deaths and a
substantial portion of the injuries are inflicted
with guns and knives.
26 GONZALEZ V. CITY OF ANAHEIM
In view of these facts, we cannot blind
ourselves to the need for law enforcement
officers to protect themselves and other
prospective victims of violence in situations
where they may lack probable cause for an
arrest. When an officer is justified in
believing that the individual whose suspicious
behavior he is investigating at close range is
armed and presently dangerous to the officer
or to others, it would appear to be clearly
unreasonable to deny the officer the power to
take necessary measures to determine whether
the person is in fact carrying a weapon and to
neutralize the threat of physical harm.
Id. at 23–24 (emphasis added).
The Court’s footnote twenty-one is equally enlightening.
Fifty-seven law enforcement officers were
killed in the line of duty in this country in
1966, bringing the total to 335 for the seven-
year period beginning with 1960. Also in
1966, there were 23,851 assaults on police
officers, 9,113 of which resulted in injuries to
the policemen. Fifty-five of the 57 officers
killed in 1966 died from gunshot wounds, 41
of them inflicted by handguns easily secreted
about the person. The remaining two murders
were perpetrated by knives. See Federal
Bureau of Investigation, Uniform Crime
Reports for the United States – 1966, at
45–48, 152 and Table 51. The easy
availability of firearms to potential criminals
GONZALEZ V. CITY OF ANAHEIM 27
in this country is well known and has
provoked much debate. See e.g., President’s
Commission of Law Enforcement and
Administration of Justice, The Challenge of
Crime in a Free Society 239–243 (1967).
Whatever the merits of gun-control proposals,
this fact is relevant to an assessment of the
need for some form of self-protective search
power.
Id. at 24 n.21.
Next, we come to Pennsylvania v. Mimms, 434 U.S. 106(1977) (per curiam).
We think it too plain for argument that the
State’s proffered justification — the safety of
the officer — is both legitimate and weighty.
“Certainly it would be unreasonable to require
that police officers take unnecessary risks in
the performance of their duties.” And we have
specifically recognized the inordinate risk
confronting an officer as he approaches a
person seated in an automobile. “According
to one study, approximately 30% of police
shootings occurred when a police officer
approached a suspect seated in an automobile.
Bristow, Police Officer Shootings—A
Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93
(1963).” We are aware that not all these
assaults occur when issuing traffic summons,
but we have before expressly declined to
accept the argument that traffic violations
necessarily involve less danger to officers
28 GONZALEZ V. CITY OF ANAHEIM
than other types of confrontations. Indeed, it
appears “that a significant percentage of
murders of police officers occurs when the
officers are making traffic stops.”
Id. at 110 (emphasis added) (citations omitted).
Now to 1983, and to Michigan v. Long, 463 U.S. 1032(1983).
In Adams v. Williams, 407 U.S. 143 (1972),
we held that the police, acting on an
informant’s tip, may reach into the passenger
compartment of an automobile to remove a
gun from a driver’s waistband even where the
gun was not apparent to police from outside
the car and the police knew of its existence
only because of the tip. Again, our decision
rested in part on our view of the danger
presented to police officers in “traffic stop”
and automobile situations.
Finally, we have also expressly recognized
that suspects may injure police officers and
others by virtue of their access to weapons,
even though they may not themselves be
armed. . . .
Our past cases indicate then that
protection of police and others can justify
protective searches when police have a
reasonable belief that the suspect poses a
danger, that roadside encounters between
police and suspects are especially hazardous,
GONZALEZ V. CITY OF ANAHEIM 29
and that danger may arise from the possible
presence of weapons in the area surrounding
a suspect.
Id. at 1048–49 (emphasis added) (footnote and citations
omitted).
The Michigan Supreme Court appeared to
believe that it was not reasonable for the
officers to fear that Long could injure them,
because he was effectively under their control
during the investigative stop and could not get
access to any weapons that might have been
located in the automobile. This reasoning is
mistaken in several respects. During any
investigative detention, the suspect is “in the
control” of the officers in the sense that he
“may be briefly detained against his will . . . .”
Just as a Terry suspect on the street may,
despite being under the brief control of a
police officer, reach into his clothing and
retrieve a weapon, so might a Terry suspect in
Long’s position break away from police
control and retrieve a weapon from his
automobile. In addition, if the suspect is not
placed under arrest, he will be permitted to
reenter his automobile, and he will then have
access to any weapons inside. Or as here, the
suspect may be permitted to reenter the
vehicle before the Terry investigation is over,
and again, may have access to weapons. In
any event, we stress that a Terry investigation,
such as the one that occurred here, involves a
police investigation “at close range,” when
30 GONZALEZ V. CITY OF ANAHEIM
the officer remains particularly vulnerable in
part because a full custodial arrest has not
been effected, and the officer must make a
“quick decision as to how to protect himself
and others from possible danger . . . .” In
such circumstances, we have not required that
officers adopt alternate means to ensure their
safety in order to avoid the intrusion involved
in a Terry encounter.
Id. at 1051–52 (emphasis added) (footnote and citations
omitted).
In Maryland v. Wilson, 519 U.S. 408 (1997), Chief Justice
Rehnquist elaborated one of the main reasons the Court has
extended constitutional protection to officers conducting
traffic stops, a reason with pungent applicability to our case.
It would seem that the possibility of a violent
encounter stems not from the ordinary
reaction of a motorist stopped for a speeding
violation, but from the fact that evidence of a
more serious crime might be uncovered
during the stop. And the motivation of a
passenger to employ violence to prevent
apprehension of such a crime is every bit as
great as that of the driver.
Id. at 414 (emphasis added).
As authority for this holding as to not just the driver but
also a passenger, the Court relied on its opinion in Michigan
v. Summers, 452 U.S. 692 (1981), which highlighted the
danger to police searching for narcotics.
GONZALEZ V. CITY OF ANAHEIM 31
Although no special danger to the police is
suggested by the evidence in this record, the
execution of a warrant to search for narcotics
is the kind of transaction that may give rise to
sudden violence or frantic efforts to conceal
or destroy evidence. The risk of harm to both
the police and the occupants is minimized if
the officers routinely exercise unquestioned
command of the situation.
Wilson, 519 U.S. at 414 (quoting Summers, 452 U.S. at702–03) (emphasis added).
To support its observations, the Court updated the grim
statistics about traffic stops taken from the FBI’s Uniform
Crime Reports (1994). “[I]n 1994 alone, there were 5,762
officer assaults and 11 officers killed during traffic pursuits
and stops.” Wilson, 519 U.S. at 416. In 2011, Chief Judge
Kozinski observed that “[i]n the last decade, more than half
a million police were assaulted in the line of duty. More than
160,000 were injured, and 536 were killed — the vast
majority while performing routine law enforcement tasks like
conducting traffic stops and responding to domestic
disturbance calls.” Mattos, 661 F.3d at 453 (Kozinski, C.J.,
concurring in part and dissenting in part).
Writing in 2009 for a unanimous Court, Justice Ginsburg
reaffirmed the Court’s unyielding view that traffic stops are
“especially fraught with danger to police officers.” Arizona
v. Johnson, 555 U.S. 323, 330 (2009) (quoting Long,
463 U.S. at 1047). Yet again, she recognized that: “‘The risk
of harm to both the police and the occupants [of a stopped
vehicle] is minimized, . . . if the officers routinely exercise
unquestioned command of the situation.’” Id. (brackets in
32 GONZALEZ V. CITY OF ANAHEIM
original) (quoting Wilson, 519 U.S. at 414). In Brendlin v.
California, Justice Souter called the principle of unquestioned
police command, a reflection of “a societal expectation.”
551 U.S. 249, 258 (2007). We recognized the need for
unquestioned obedience to lawful commands during a car
stop in Ruvalcaba v. City of Los Angeles, 64 F.3d 1323,
1325–28 (9th Cir. 1995).
Relying on Mimms, the Sixth Circuit has acknowledged
another safety concern arising from of a traffic stop where, as
here, the officers have reason to believe that the driver is
under the influence of a mind-altering substance.
While safety considerations are always
relevant, they have even greater salience here,
as Ford had grounds to suspect that Everett
was intoxicated. See Marvin v. City of Taylor,
509 F.3d 234, 246 (6th Cir. 2007) (noting that
“[d]runk persons are generally unpredictable,”
such that extra police precautions may be
justified in confronting an intoxicated
suspect).
United States v. Everett, 601 F.3d 484, 495 (6th Cir. 2010).4
We made similar observations in Gregory v. County of Maui,
where we held that the possibility that a suspect was under
the influence of drugs justified the use of “some degree of
force” to confront him. 523 F.3d 1103, 1106 (9th Cir. 2008).
4
“Police officers are entitled to rely on existing lower court cases
without facing personal liability for their actions.” Pearson, 555 U.S. at244–45.
GONZALEZ V. CITY OF ANAHEIM 33
Gonzalez’s representatives accept as “undisputed” the
officers’ reason for stopping the decedent: erratic and unsafe
driving. Gonzalez had earlier made an illegal left turn in
front of them, almost causing a collision with their police car.
Later, the officers saw him driving on the wrong side of the
street and then weaving within the van’s lane as they
attempted to make the stop. Added to these observations at
2:00 a.m. was their knowledge learned from the mobile data
terminal in their patrol car that Gonzalez’s van had been
involved in a prior narcotics stop.
The California Supreme Court understood the
ramifications of erratic driving, such as Gonzalez exhibited,
when it published its opinion in People v. Wells, 136 P.3d 810(Cal. 2006). That court held that it was reasonable to stop a
motorist on no more than an anonymous uncorroborated
phoned-in tip that she was “weaving all over the roadway” —
even though the officers who stopped her had not seen
anything to validate the caller’s information. Id. at 811–12.
The court believed the stop was “reasonable” because of the
grave danger to public safety posed by drunken drivers. Id.
at 813. The court likened an impaired driver to a “‘bomb,’
and a mobile one at that.” Id. at 815 (citation omitted). The
court continued: “Police officers undoubtedly would be
severely criticized for failing to stop and investigate a
reported drunk driver if an accident subsequently occurred
. . . . [T]he public rightfully expects a police officer to
inquire into such circumstances.” Id. (internal quotation
marks and citations omitted). The same can be said for
Officers Ellis and Wyatt when they decided to pull Gonzalez
over at a time of night notorious for a ubiquity of drunk
drivers.
34 GONZALEZ V. CITY OF ANAHEIM
B.
The Undisputed Facts Leading
Up to the Use of Deadly Force.
We come to the undisputed material facts. These facts
come almost verbatim from “Plaintiff’s Separate Statement
of Disputed and Additional Undisputed Material Facts in
Opposition of Defendant’s Motion for Summary Judgment”
filed in the district court on June 20, 2011. Gonzalez’s
acceptance of these facts as “undisputed” ensures that they
represent a view of the case understood in the light most
favorable to his interests. Because they are not contested,
these facts are more than just “evidence”: they are the givens
from which we begin our analysis.
The majority correctly points out that when the only
remaining witnesses are the officers, we must look with great
care at their testimony, but I have obviated this concern by
using only those facts that the plaintiffs have accepted as
“undisputed.” These facts establish beyond any doubt that
when Officer Wyatt shot Gonzalez, (1) he and his partner
were confronted with multiple serious crimes, and
(2) Gonzalez was actively fleeing to evade arrest.
I present the material facts in two segments. First, those
immediately leading up to Officer Wyatt’s use of deadly
force; and second, those that in a matter of seconds placed
Officer Wyatt in immediate peril and caused the shooting.
1.
As the officers followed Gonzalez’s van, Ellis observed
it weaving within its traffic lane. At 2:11 a.m., Wyatt advised
GONZALEZ V. CITY OF ANAHEIM 35
headquarters over his police radio of their intended traffic
stop for the van’s previous left-turn violation, and he
activated their patrol car’s emergency lights. The van
continued westbound and subsequently made a wide
northbound turn on Bond Street, driving left of center of the
roadway, northbound in the southbound lane. Gonzalez came
to a stop along the east curb of Bond Street. As Wyatt
approached Gonzalez in the van, and in response to a sudden
movement by the driver on his approach, Wyatt immediately
drew his service weapon, pointed it at Gonzalez, and gave
him a warning: “If you reach down there again, I’m gonna
shoot you.” Ellis heard Wyatt’s warning. Ellis observed
Gonzalez’s right hand clenched into a fist and it appeared he
was holding something.5 Ellis told Gonzalez to turn off the
van and show his hands. Gonzalez did not comply. The
van’s engine remained running. Ellis tried to open the
driver’s door. However, it was locked. The driver’s window
was open approximately six to eight inches. Ellis reached
through the opening with his right hand and tried
unsuccessfully to unlock the door by pulling up the lock. On
the other side of the car, Wyatt holstered his weapon and
unlocked the passenger door by reaching through the partially
opened passenger door window. Both officers then used
physical force in an attempt to control an uncooperative
Gonzalez. During this process, Gonzalez reached downward
with his left hand between the driver’s seat and the door, as
he simultaneously raised his right hand up toward his mouth.
Ellis observed a plastic bag protruding from Gonzalez’s right
fist. Suspecting the bad might contain narcotics, Wyatt
commanded Gonzalez to open his hands. Wyatt also
observed that Gonzalez had a clenched right fist and was
reaching downward with his left hand. Wyatt, who had
5
Detectives later recovered a knife at the scene.
36 GONZALEZ V. CITY OF ANAHEIM
reached into the vehicle from the passenger side, radioed for
backup assistance. Wyatt ran around the rear of the van to
the driver’s side to assist Ellis who was grappling with
Gonzalez through the window. When Wyatt found he was
unable to help from the driver’s side, he returned to the
passenger’s door. Wyatt then entered the van on the
passenger side and punched Gonzalez in the head in an
attempt to subdue him. Ellis then observed Gonzalez reach
toward the van’s gear shift. He believed Gonzalez was trying
to shift the van into drive, so he struck Gonzalez with his
flashlight in an attempt to stop him. Gonzalez did not
comply.
2.
Now, we arrive at the undisputed events that placed
Officer Wyatt in danger and precipitated the shooting. These
events occurred in as little as five and at most in ten seconds,
and they address what the majority concedes is “the most
important” Graham factor: the immediacy of the threat.
Mattos, 661 F.3d at 441.
Wyatt tried to control Gonzalez’s right arm, however,
Gonzalez reached forward toward the gear shift and slapped
it into drive and “stomped down” on the gas pedal. Fearing
he would be pulled forward with the van, Ellis pulled himself
out of the driver’s door window, hitting Gonzalez on the head
as he withdrew. Ellis stepped back as the van moved
forward. He ran to his patrol car to chase after the van. Still
in the van, Wyatt yelled at Gonzalez to stop. Gonzalez did
not comply. Wyatt reached with his left hand and attempted
to turn off the ignition or shift the transmission into neutral or
park. Gonzalez hit his hand away. This sequence occurred
two to three times. With Gonzalez driving and Wyatt in the
GONZALEZ V. CITY OF ANAHEIM 37
van on the passenger side, the van went through the cross-
street intersection of Bond Street and Willow Street. Wyatt
yelled at Gonzalez to stop, but Gonzalez did not comply.
Wyatt unholstered his weapon and shot Gonzalez in the head,
killing him. Wyatt grabbed the steering wheel with both
hands. In an attempt to stop the van, he steered it into a
parked truck. The collision with the truck dislodged Wyatt’s
gun from his right hand. The van continued to roll after the
collision, stopping finally at the intersection of Bond Street
and Elm Street, a block from Willow Street. After the van
stopped, Ellis, who had followed in his patrol car, observed
a bag lying on the street beneath the van’s open passenger
door. A knife was also found later when detectives processed
the scene.
C.
The Legal Consequences
of Gonzalez’s Behavior
Now, let’s translate the undisputed facts into their legal
consequences, a step Garner and Graham require to
determine whether the officers were “confronted with a
serious crime.”
When Officer Ellis and Officer Wyatt walked up to
Gonzalez’s van, they entered a zone of personal danger.6 In
that zone, the Supreme Court has approved of requiring
Gonzalez to turn off his vehicle, of removing him from the
6
See Terry, 392 U.S. at 23–24; Mimms, 434 U.S. at 110–11; Long,
463 U.S. at 1046–47.
38 GONZALEZ V. CITY OF ANAHEIM
van,7 of patting him down for weapons, and of taking
command of the situation.8
Gonzalez’s uncooperative, suspicious, and menacing
behavior when first approached by the uniformed officers
gave them reason to believe he had in his possession either a
weapon or contraband — or both. Officer Wyatt then warned
Gonzalez, as contemplated by Garner, that if he “reached
down there again he would be shot.” Gonzalez did not obey
this warning, and he did not turn off the car’s engine or
unlock its doors.
By now, Gonzalez’s recalcitrant behavior violated
California Penal Code (“CPC”) § 148, resisting, delaying, or
obstructing a peace officer in the discharge or attempt to
discharge his duties. Then, Gonzalez attempted to eat a
plastic baggie, giving Officer Ellis and Officer Wyatt
probable cause to believe he was in possession of an illegal
substance — another crime — and destroying evidence. This
set of facts is precisely what the Court had in mind in
Michigan v. Summers, when it discussed a narcotics suspect’s
willingness to use violence in an attempt to avoid
apprehension. See 452 U.S. at 702–03.
As Gonzalez “stomped” on the van’s accelerator and
attempted to flee, he struck Officer Wyatt’s hands numerous
times with his own, adding to his offenses — in a matter of
seconds — the additional crimes of (1) battery against a peace
officer in violation of CPC §§ 242, 243; (2) felonious false
imprisonment of Officer Wyatt in violation of CPC §§ 236,
7
Mimms, 434 U.S. at 111 & n.6
8
Johnson, 555 U.S. at 330; Brendlin, 551 U.S. at 258.
GONZALEZ V. CITY OF ANAHEIM 39
237; (3) felonious kidnaping of Officer Wyatt in violation of
CPC § 207; and (4) flight from a pursuing officer (Officer
Ellis) in violation of California Vehicle Code § 2800.1. It is
beyond argument that had Officer Wyatt not stopped
Gonzalez, Gonzalez would have accelerated his van and
continued to attempt to escape with Officer Wyatt trapped
inside the van, and with Officer Ellis — and probably others
— in hot pursuit.
D.
Now we come to an aspect of this case the majority does
not discuss: Gonzalez’s choice to flee in his vehicle from the
scene — with Officer Ellis in pursuit. Gonzalez’s dangerous
choice weighs heavily on whether or not Officer Wyatt faced
an immediate indication of impending danger while trapped
in Gonzalez’s van.
In Scott v. Harris the Supreme Court published its take on
the hazards of a motorist engaged in public-endangering
flight. As Justice Scalia expressed the question in that case,
“Can an officer take actions that place a fleeing motorist at
risk of serious injury or death in order to stop the motorist’s
flight from endangering the lives of innocent bystanders?”
550 U.S. at 374. The Court’s answer? Yes. Why? Because
car chases place “police officers and innocent bystanders
alike at great risk of serious injury.” Id. at 380. By
comparison, continued the Court, unlike the flight of the
young, slight, unarmed burglary suspect who was on foot in
Garner, Harris’s “flight itself (by means of a speeding
automobile) . . . posed the threat of ‘serious physical harm . . .
to others.’” Id. at 382 n.9. “It was [Harris], after all, who
intentionally placed himself and the public in danger by
unlawfully engaging in the reckless, high-speed flight that
40 GONZALEZ V. CITY OF ANAHEIM
ultimately produced the choice between two evils that
[Deputy] Scott confronted.” Id. at 384.
The Court deemed it “appropriate in this process to take
into account not only the number of lives at risk, but also
their relative culpability.” Id.; see also Mattos, 661 F.3d at
445 (a defiant suspect “bears some responsibility for the
escalation” of an incident resulting in the use of force). The
culpable person here was Gonzalez.
Sykes v. United States, _____ U.S. _____, 131 S. Ct. 2267(2011), is even more on point than Scott v. Harris regarding
the potential for injury caused by a motorist fleeing to avoid
apprehension. In Sykes, the motorist fled after an officer had
ordered him to stop. The question for the Court was whether
Sykes’s flight was “violent.”
When a perpetrator defies a law
enforcement command by fleeing in a car, the
determination to elude capture makes a lack
of concern for the safety of property and
persons of pedestrians and other drivers an
inherent part of the offense. Even if the
criminal attempting to elude capture drives
without going at full speed or going the wrong
way, he creates the possibility that police will,
in a legitimate and lawful manner, exceed or
almost match his speed or use force to bring
him within their custody. A perpetrator’s
indifference to these collateral consequences
has violent — even lethal — potential for
others. A criminal who takes flight and
creates a risk of this dimension takes action
similar in degree of danger to that involved in
GONZALEZ V. CITY OF ANAHEIM 41
arson, which also entails intentional release of
a destructive force dangerous to others. This
similarity is a beginning point in establishing
that vehicle flight presents a serious potential
risk of physical injury to another.
Another consideration is a comparison to
the crime of burglary. Burglary is dangerous
because it can end in confrontation leading to
violence. The same is true of vehicle flight,
but to an even greater degree. The attempt to
elude capture is a direct challenge to an
officer’s authority. It is a provocative and
dangerous act that dares, and in a typical
case requires, the officer to give chase. The
felon’s conduct gives the officer reason to
believe that the defendant has something more
serious than a traffic violation to hide. In
Sykes’ case, officers pursued a man with two
prior violent felony convictions and marijuana
in his possession. In other cases officers may
discover more about the violent potential of
the fleeing suspect by running a check on the
license plate or by recognizing the fugitive as
a convicted felon.
Because an accepted way to restrain a
driver who poses dangers to others is through
seizure, officers pursuing fleeing drivers may
deem themselves duty bound to escalate their
response to ensure the felon is apprehended.
Scott v. Harris rejected the possibility that
police could eliminate the danger from a
vehicle flight by giving up the chase because
42 GONZALEZ V. CITY OF ANAHEIM
the perpetrator “might have been just as likely
to respond by continuing to drive recklessly as
by slowing down and wiping his brow.” And
once the pursued vehicle is stopped, it is
sometimes necessary for officers to approach
with guns drawn to effect arrest.
Confrontation with police is the expected
result of vehicle flight. It places property and
persons at serious risk of injury.
Risk of violence is inherent to vehicle
flight. Between the confrontations that
initiate and terminate the incident, the
intervening pursuit creates high risks of
crashes. It presents more certain risk as a
categorical matter than burglary. It is well
known that when offenders use motor vehicles
as their means of escape they create serious
potential risks of physical injury to others.
Flight from a law enforcement officer invites,
even demands, pursuit. As that pursuit
continues, the risk of an accident
accumulates. And having chosen to flee, and
thereby commit a crime, the perpetrator has
all the more reason to seek to avoid capture.
Unlike burglaries, vehicle flights from an
officer by definitional necessity occur when
police are present, are flights in defiance of
their instructions, and are effected with a
vehicle that can be used in a way to cause
GONZALEZ V. CITY OF ANAHEIM 43
serious potential risk of physical injury to
another.
Id. at 2273–74 (emphasis added) (citations omitted).
E.
In summary starting with the three Graham factors, I
conclude that the facts in the record compel one conclusion,
and only one conclusion a jury could reach: Officer Wyatt’s
use of deadly force to stop Gonzalez’s behavior was
objectively reasonable. First, Officer Wyatt was “confronted
with a serious crime,” indeed multiple crimes. Second,
Gonzalez posed “an immediate threat” to Officer Wyatt’s
safety and to the safety of others. Third, Gonzalez was
“actively resisting arrest” and attempting to evade arrest by
flight. I cannot envision any scenario wherein this case might
survive a motion for judgment as a matter of law pursuant to
Rule 50(a)(B).
VI
A.
The “factual dispute” my colleagues in the majority see
as “material” is the speed Gonzalez was driving when Officer
Wyatt shot him. Because the only summary judgment
disputes that matter are those that are “material,” I disagree.9
The actual or the estimated speed of the van at the moment of
the shooting is not material. Neither is the “average speed”
9
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986) (only issues of “material fact” can defeat a motion for
summary judgment) (emphasis added).
44 GONZALEZ V. CITY OF ANAHEIM
of an accelerating vehicle in flight from the police. What is
material is that Gonzalez suddenly accelerated his van away
from the traffic stop with Officer Wyatt trapped inside and
traveled for a block before it crashed. Who cares how fast the
van was going? Gonzalez’s representatives admit that
Gonzalez unexpectedly tried to flee without warning, and that
when Officer Wyatt tried to stop him, Gonzalez physically
fought him off. I do not comprehend how this constellation
of facts fails to demonstrate a real threat of impending harm
to Officer Wyatt, as well as to members of the public.
The majority’s discussion of speed cannot be squared
with Justice Kennedy’s declaration in Sykes that “[e]ven if the
criminal attempting to elude capture drives without going at
full speed . . . , he creates the possibility that police will . . .
use force to bring him within their custody. A perpetrator’s
indifference to these collateral consequences has violent —
even lethal — potential for others.” 131 S. Ct. at 2273(emphasis added). Gonzalez certainly posed a direct threat to
Officer Wyatt when he chose to flee.
In an unconvincing attempt to make this dispute over
speed “material,” the majority unwittingly engages in exactly
the type of rear-view-mirror microanalysis the Supreme
Court has told us to eschew. The majority has converted
Officer Wyatt’s precarious ten-second episode in Gonzalez’s
van into an ex post facto exercise in calculus, the world of the
derivative and the integral.10 They impose a new duty on
10
Professor Michael Starbird of the University of Texas at Austin
demonstrates how calculus can be used to determine the velocity of a
moving vehicle. POST might want to include this exercise in its officer
training programs.
GONZALEZ V. CITY OF ANAHEIM 45
police officers: when you are in a zone of immediate danger
involving a moving vehicle in which you are being kidnaped,
you must calculate the speed of the vehicle as you try to turn
off the ignition and to disengage the gearshift. Then, you
must refrain from using deadly force until the vehicle speeds
up to a point where a crash will surely threaten your life (or
have the presence of mind to try something else). At that
point, the use of deadly force too late will not only disable the
driver, but probably you, too. And let us not forget, the
majority thinks it would be nice if you would give one more
warning before you shoot.
Here, I agree with Judge O’Scannlain’s discussion of this
issue, as the author of the three-judge panel majority opinion.
Gonzalez’s representatives . . . argue that
Wyatt’s testimony that the van traveled
approximately fifty feet either contradicts his
If we think of function v(t) as measuring the velocity of
a moving car at each time t, then the integral is a
number that is equal to the distance traveled, because
the integral is obtained by dividing the time from a to
b into small increments and approximating the distance
traveled by assuming that the car went at a steady speed
during each of those small increments of time. By
taking increasingly smaller increments of time,
approximations converge to a single answer, the
integral. This sounds complicated, but the naturality of
it is the topic of Lecture 3. The integral is also equal to
the area under the graph of v(t) and above the t-axis.
The integral is related to the derivative (as an inverse
procedure) via the Fundamental Theorem of Calculus.
Michael Starbird, Change and Motion: Calculus Made Clear 10 (The
Great Courses 2d ed. 2006).
46 GONZALEZ V. CITY OF ANAHEIM
testimony that the events took “less than ten”
and possibly “less than five seconds” or
indicates that the van was traveling so slowly
that it could not have been a threat.
First, even assuming that the van was
traveling relatively slowly, the threat of
acceleration—and the threat to Wyatt’s
life—remained. . . . Thus, the van’s speed is
not a material fact, even if it were actually
disputed. The dissent does not address this
point.
Second, the rough estimates of time taken
and distance traveled stated in Wyatt’s
deposition were just that—rough estimates.
Wyatt’s story is “internally consistent” if we
do not ascribe unfounded precision to his
estimates. It would be surprising if an officer
could recount precise quantitative details
about an incident which took mere seconds
over a year later. A minor inconsistency in
officer testimony does not alone create a
dispute of material fact.
Gonzalez v. City of Anaheim, 715 F.3d 766, 771–72 (9th Cir.
2013) (footnote omitted).
Judge O’Scannlain’s reference to the “threat of
acceleration” came from our decision in Wilkinson v. Torres,
610 F.3d 546 (9th Cir. 2010). In that case, an officer shot and
killed the driver of a slow-moving minivan that the officer
thought might run over his partner. The driver’s
representatives contended that the minivan posed no threat
GONZALEZ V. CITY OF ANAHEIM 47
because it was moving too slowly to endanger the officers.
We flatly rejected that argument, saying that the vehicle
“could have gained traction at any time, resulting in a sudden
acceleration in speed.” Id. at 552.
Why did we acknowledge in Wilkinson that vehicles
driven by fleeing criminals can suddenly accelerate only to
brush aside this indisputable fact here? Moreover, we
rebuked the plaintiff in Wilkinson for giving us a “sanitized
version of the incident” because it omitted the “urgency of the
situation.” Id. at 551–52. When Officer Wyatt shot
Gonzalez, his situation was every bit as urgent as Officer
Torres’s, if not more so. We held in Wilkinson, involving
facts quite similar to this case, that Officer Torres “did not
violate a constitutional right.” Id. at 551. The majority’s
claim of “no evidence of anyone else in danger” is technically
true only because Officer Wyatt ended the chase before news
helicopters had the opportunity to film Gonzalez as he raced
around Southern California freeways. Now, stopping a chase
before it gets completely out of control inures to Officer
Wyatt’s detriment.
B.
The majority also errs in suggesting that the speed-
distance-time information would support a jury conclusion
that “Gonzalez had not stomped down on the accelerator.”
What they overlook is that this issue is before us as a matter
of summary judgment, and that Gonzalez’s representatives do
not dispute the fact that Gonzalez stomped down on the gas
pedal. I quote again from the record. “Gonzalez reached
forward toward the gear shift and ‘slapped’ the gear shift into
a driving gear, and ‘stomps down’ on the gas pedal.”
Gonzalez’s representatives objected only to what Officer Ellis
48 GONZALEZ V. CITY OF ANAHEIM
was doing at this time, saying nothing about Gonzalez or
Officer Wyatt. It is this simple. If Gonzalez’s
representatives accept for the purposes of summary judgment
that Gonzalez stomped on the gas pedal, it is not for us to
claim that he did not. Moreover, both officers said that when
Gonzalez “floored” it, the van’s tires squealed on the
roadway. That sound is exactly what occurs when a vehicle
is violently accelerated.
C.
Back to the question of the van’s speed, Officer Wyatt
wasn’t looking out the van’s window as Gonzalez drove
away, calculating elapsed time, distance covered, and
integrals. Officer Wyatt was yelling at Gonzalez to stop. He
was looking at the ignition and the gearshift as he tried
physically to stop the van and prevent Gonzalez’s attempt to
escape. Moreover, it was dark outside. I defy anyone under
these circumstances to have the presence of mind and the
ability to calculate the speed of a moving vehicle. Without
exterior visual cues, it is next to impossible. The majority
makes the mistake of failing to place themselves in
Gonzalez’s van and in Officer Wyatt’s shoes, engaging
instead in a classroom exercise in determining speed from
time and distance. The majority’s approach violates the rule
that we are (1) to make allowance for the fact that officers are
often forced to make split-second judgments in tense,
uncertain, and rapidly evolving circumstances, and (2) to be
cautious about second-guessing a police officer’s assessment,
made on the scene, of the danger presented by a particular
situation.
GONZALEZ V. CITY OF ANAHEIM 49
D.
Next, we get to the majority’s should-have-shot-the-gun-
out-of-his-hand suggestion, which comes from Hollywood
westerns, certainly not from the streets of our cities. The
Seventh Circuit has a clear-eyed take on the assertion that
alternative methods short of deadly force must be used to
resolve a dangerous situation. In Plakas v. Drinski, 19 F.3d
1143 (7th Cir. 1994), Plakas’s administrator argued that the
defendant officer, instead of shooting Plakas, should have
used a non-lethal cannister of CS Gas he carried on his belt,
or used a canine unit on the scene to take Plakas down, or
tried to isolate him while keeping a safe distance. The
argument was that failing to use these available methods
rendered unreasonable the use of deadly force. In rejecting
this contention, the court said,
There is no precedent in this Circuit (or
any other) which says that the Constitution
requires law enforcement officers to use all
feasible alternatives to avoid a situation where
deadly force can justifiably be used. There
are, however, cases which support the
assertion that, where deadly force is otherwise
justified under the Constitution, there is no
constitutional duty to use non-deadly
alternatives first.
Id. at 1148 (footnote omitted).
It is true we consider the whole of the event as
it appears to the officer involved, but we
recognize that the decision to shoot can only
be made after the briefest reflection, so brief
50 GONZALEZ V. CITY OF ANAHEIM
that “reflection” is the wrong word. As
Plakas moved toward Drinski, was he
supposed to think of an attack dog, of Perras’s
CS gas, of how fast he could run backwards?
Our answer is, and has been no, because there
is too little time for the officer to do so and
too much opportunity to second-guess that
officer.
Id. at 1149.
The majority says Officer Wyatt could have used a baton,
pepper spray, or maybe a Taser. The record does not contain
a shred of evidence that such methods would have been
effective — to the contrary. To speculate that such methods
would have safely ended the chase disregards the officers’
escalating reasonable use of nonlethal force against Gonzalez,
hitting him with their fists, trying to put him in a carotid hold,
and striking him with a flashlight, but nothing worked.11
Officer Wyatt warned him that he would be shot if he
continued to display dangerous behavior, but even a threat of
that magnitude did not register. Officer Wyatt ordered him
to stop the van. Verbal commands and warnings had no
effect. Under these circumstances, giving him another
warning was neither feasible nor required, nor would it have
caused Gonzalez to stop. He was determined, albeit
foolishly, to try to escape. As we said in Forrett v.
Richardson, 112 F.3d 416, 421 (9th Cir. 1997), superseded on
other grounds as stated in Chroma Lighting v. GTE Prods.
Corp., 127 F.3d 1136 (9th Cir. 1997), another excessive force
11
I do agree with the majority that this use of force was reasonable and
that the district court’s grant of summary judgment in favor of the officers
on these theories and Gonzalez’s due process claim was appropriate.
GONZALEZ V. CITY OF ANAHEIM 51
shooting case, “[t]he only objectively reasonable conclusion
to be drawn from this evidence is that if [the officers] had not
shot him, he would have continued taking whatever measures
were necessary to avoid capture.”
The Supreme Court said in Michigan v. Long that a
vulnerable officer — which Officer Wyatt surely was —
“must make a ‘quick decision as to how to protect himself
and others from possible danger . . . .’ In such circumstances,
we have not required that officers adopt alternate means to
ensure their safety . . . .” 463 U.S. at 1052 (emphasis added)
(citation omitted). We said the same thing in Wilkinson: “A
reasonable use of deadly force encompasses a range of
conduct, and the availability of a less-intrusive alternative
will not render conduct unreasonable.” 610 F.3d at 551.
E.
Finally, the majority observes that the officers had no
information that the driver had previously committed any
crime, had any prior contact with law enforcement, had any
involvement with weapons, or that the van might be stolen.
All of this what-the-event-wasn’t information is irrelevant
because it is irreconcilable with what the Supreme Court has
said about the inherent hazards of ordinary traffic stops and
car chases. Read the Court’s discussion in Terry v. Ohio,
Pennsylvania v. Mimms, Michigan v. Long, Maryland v.
Wilson, Michigan v. Summers, Arizona v. Johnson, Scott v.
Harris, and Sykes v. United States. Moreover, when
Gonzalez began to resist, to flee, and to strike Officer Wyatt,
everything the majority finds missing from their sterile
scenario became irrelevant.
52 GONZALEZ V. CITY OF ANAHEIM
VII
Given the undisputed facts in the record, the officers’
actions that led to the unfortunate death of Adolph Gonzalez
fall squarely and objectively within the Supreme Court’s
description of a regrettable situation justifying the use of
deadly force. My colleagues on the other side, “far removed
from the scene and with the opportunity to dissect the
elements of the situation,” have failed to heed the Court’s
warning not to second guess from the peace, safety, and
comfort of our chambers a split-second decision in the field,
a decision Officer Wyatt made under extreme pressure in a
perilous situation. Ryburn, 132 S. Ct. at 991. Their opinion,
rendered “with the benefit of hindsight and calm
deliberation,” will become the subject of confusing law
enforcement training and can only impede and endanger all
law enforcement officers in the discharge of their sworn
duties with respect to patrolling our streets and keeping the
peace in our neighborhoods. Id. at 992
The Sixth Circuit has taken to heart the Supreme Court’s
cautionary instructions about our task in these cases. After
quoting Garner’s admonitory language, the Sixth Circuit
said,
This passage carries great weight in this case,
since all parties agree that the events in
question happened very quickly. Thus, under
Graham, we must avoid substituting our
personal notions of proper police procedure
for the instantaneous decision of the officer at
the scene. We must never allow the
theoretical, sanitized world of our
imagination to replace the dangerous and
GONZALEZ V. CITY OF ANAHEIM 53
complex world that policemen face every day.
What constitutes “reasonable” action may
seem quite different to someone facing a
possible assailant than to someone analyzing
the question at leisure.
Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992).
The unmistakable message that comes from this case will
cause officers inappropriately to hesitate in the face of danger
in a confrontation with a combative suspect who refuses to
obey lawful commands and warnings. The result in turn will
endanger both the police and the public at large as officers
worry that they may (this case) or may not (Wilkinson) end up
in court for years.
I end where I began, with the Supreme Court’s message
to both the police as well as to lawbreakers like Gonzalez.
[W]e are loath to lay down a rule requiring the
police to allow fleeing suspects to get away
whenever they drive so recklessly that they
put other people’s lives in danger. It is
obvious the perverse incentives such a rule
would create: Every fleeing motorist would
know that escape is within his grasp, if only
he accelerates to 90 miles per hour, crosses
the double-yellow line a few times, and runs
a few red lights. The Constitution assuredly
does not impose this invitation to impunity-
earned-by-recklessness. Instead, we lay down
a more sensible rule: A police officer’s
attempt to terminate a dangerous high-speed
car chase that threatens the lives of innocent
54 GONZALEZ V. CITY OF ANAHEIM
bystanders does not violate the Fourth
Amendment, even when it places the fleeing
motorist at risk of serious injury or death.
Scott, 550 U.S. at 385–86 (emphasis in original).
Where the officer has probable cause to
believe that the suspect poses a threat of
serious physical harm, either to the officer or
to others, it is not constitutionally
unreasonable to prevent escape by using
deadly force.
Garner, 471 U.S. at 11 (emphasis added).
Chief Judge KOZINSKI, with whom Circuit Judges TROTT,
TALLMAN and BEA join, dissenting:
It’s undisputed that, at the time he fired the fatal shot,
Officer Wyatt was trapped inside a moving vehicle driven by
a man who had resisted the verbal commands, physical
restraints, lethal threats and bodily force of two uniformed
officers. How fast the van was moving and how far it had
traveled are beside the point. What matters is that Officer
Wyatt was prisoner in a vehicle controlled by someone who
had already committed several dangerous felonies. No sane
officer in Wyatt’s situation would have acted any differently,
and no reasonable jury will hold him liable. The only thing
this remand will accomplish is to give plaintiffs a bludgeon
with which to extort a hefty settlement. The Supreme Court
should foil the plan with a swift summary reversal.