Ninth Circuit Addresses Police Officer Immunity. Cuevas v City of Tulare et al.
On July 10, 2024 the United States Court of Appeals for the Ninth Circuit tackled the issue of officer immunity in a civil rights action alleging excessive force. The allegations were that the Tulare officers used excessive force by shooting into a vehicle following a high-speed felony chase, seriously injuring a non-threatening passenger, who brought this claim.
The driver led police on a high-speed chase before ultimately getting stuck in mud. A responding officer broke the car window to order the driver to stop and another officer put his dog through the window. The driver shot and killed the K9, Bane, hitting the dog’s handler in the process. The officers returned fire in defense of themselves and the fallen officer, killing the driver. During the gunfight, the officers inadvertently shot the passenger several times, resulting in serious injuries to the passenger. The passenger brought suit under 42 U.S.C. Section 1983, naming as Defendants the City, and the officers involved in the gunfight. The officers raised the defense of immunity, arguing that the force was reasonable under the circumstances and thereby the officers were entitled to qualified immunity.
The three judge panel observed that qualified immunity protects government officials from liability under Section 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” While the court ruled that the passenger was “seized” in the context of the Fourth Amendment, the court found that the force the officers used was not clearly established to be excessive, noting that the officers did not use force until the K9 had been killed and his officer wounded.
The court found that the officers had a compelling interest in ensuring that the driver did not harm themselves or others. In arriving at their decision the panel noted the instruction from the Supreme Court that “the calculus of reasonableness must embody allowance for the fact that police offices are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly moving—-about the amount of force that is necessary in a particular situation.” Citing Graham v Conner, 490 U.S. 386, 396-97 (1989). In adherence to that principle, the court ruled that the force used—returning fire—was not obviously unconstitutional, even though they collaterally shot the passenger. The threat was imminent and the alternative—not to fire when a bystander would be put at risk—-would have left the officers defenseless. Accordingly, the court found that the officers were entitled to qualified immunity.
