No. 15-58 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- CITY OF LOS ANGELES, JULIO BENAVIDES, AND MARIO FLORES, Petitioners, v. ROBERT CONTRERAS, Respondent. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit --------------------------------- --------------------------------- BRIEF IN OPPOSITION --------------------------------- --------------------------------- JOHN FATTAHI LAW OFFICE OF JOHN FATTAHI 1301 W. Glenoaks Blvd. Glendale, CA 91201 Tel: (818) 839-1983 Fax: (818) 561-3600 E: [email protected]DALE K. GALIPO LAW OFFICES OF DALE K. GALIPO 21800 Burbank Blvd., Suite 310 Woodland Hills, CA 91367 Tel: (818) 347-3333 Fax: (818) 347-4118 E: [email protected]PAUL L. HOFFMAN Counsel of Record SCHONBRUN SEPLOW HARRIS & HOFFMAN, LLP 723 Ocean Front Walk Venice, CA 90291 Tel: (310) 396-0731 Fax: (310) 399-7040 E: [email protected]WILLIAM L. SCHMIDT 377 W. Fallbrook Ave., Suite 207 Fresno, CA 93767 Tel: (559) 261-2222 Fax: (559) 436-8163 E: [email protected]Counsel for Respondent ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
1. Whether Petitioners waived the “fleeingfelon” argument they advance in this Court, as thecourt of appeals determined.
2. Whether Petitioners may challenge theCourt of Appeals’ affirmance of the jury verdict inRespondent’s favor under the Fourth Amendmentwhen there is no challenge to the jury instructions,and the facts, when taken in the light favorable to theverdict, are that Petitioners shot an unarmed,already wounded and disabled man in the back, whenhe posed no threat of serious harm to the officers orthe public in the circumstances found by the jury.
3. Would a reasonable officer know that hecould not use deadly force against an unarmed manwho might have been involved in some unknown wayin a crime and who is not posing any immediatethreat to the officers or the public at the time he isshot in the back while wounded and disabled.
Respondent Robert Contreras (“Respondent” or“Mr. Contreras”) submits this brief in opposition tothe petition for writ of certiorari filed by petitioners City of Los Angeles, Julio Benavides and MarioFlores (“Petitioners”). Petitioners ask this Court toreverse a jury verdict and judgment finding thatPetitioners used excessive force when they shot Mr.Contreras in the back when he was unarmed,disabled and no longer attempting to run away. Theuse of deadly force in the circumstances of this case,viewed in the light most favorable to the verdict, wasprohibited by Tennessee v. Garner, 471 U.S. 1 (1985),and its progeny, as the jury and courts below found. There is no split in the circuit courts over theapplicable law. Indeed, Petitioners make little effortto argue that this case meets the criteria for reviewin this Court. This is a case where Petitioners simplywill not accept the jury’s verdict and continue toassert facts that the jury rejected at trial.
Apart from rehashing their own rejectedversion of the facts, Petitioners provide no reason forthis Court to hear this case. Petitioners raise no novellegal question, and this Court’s intervention is notrequired to settle Fourth Amendment law regardingthe use of deadly force. This law has been settled fordecades. Id. Petitioners identify no conflict in thecircuits concerning any issue relevant to thejudgment in this case. Indeed, there was so littlecontroversy over the application of established law tothese facts that a unanimous Ninth Circuit panel
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issued an unpublished Memorandum Opinion.1 Moreover, Petitioners explicitly waived their “fleeingfelon” argument in the district court.
Petitioners inappropriately continue to basetheir arguments on facts the jury rejected after a fulland fair trial. Even if there were a need for thisCourt to revisit any aspect of the law governing theuse of deadly force, this case would be an unsuitablevehicle for such reconsideration. Police officers,including these police officers, are trained, based onestablished constitutional law, not to use deadly forcein the circumstances faced by these officers. The juryheld Petitioners accountable to their training and tothe Constitution. There is no basis to disturb thejury’s verdict or the decisions of the trial judge and aunanimous court of appeals panel affirming thatverdict.
This case involves no more than a juryapplying undisputed jury instructions based onclearly established law to the record evidence. Thecase raises no novel issue of law or legal issue ofnational importance.
The petition should be denied.
1 Unpublished dispositions do not create bindingprecedents in the Ninth Circuit. Ninth Circuit Rule 36-3.
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A. Factual Background2
At approximately 7:30 p.m. on September 3,2005, Officers Benavides and Flores heard gunshotswhile on patrol. ER 305-06. Unidentified pedestrianstold the officers that someone in a van they identifiedhad fired shots from the van. ER 374. Based on thisinformation Petitioners pursued the van to a Jack-in-the-Box several blocks away. ER 310, 406.
Three people exited the van when it stopped. First, Mr. Contreras got out of the sliding right rearpassenger door. ER 406-09. He was not wearing abandana over his face. ER 406. He had no gun in hispossession. ER 409. According to the officers’testimony, a person (who they claimed was Mr.Contreras) exited the driver’s door with a gun in hishand and a bandana over his face. ER 315-17, 362. At trial, Mr. Contreras played surveillance footageshowing him exit the passenger side of the vanwithout a bandana or gun to impeach Petitioners’testimony. Id.
When they first encountered Mr. Contreras,Petitioners had no information about him or his
2 The facts are presented here, unlike inPetitioners’ account, in the light most favorable to theverdict. See Global-Tech Appliances, Inc. v. SEB S.A., 131S. Ct. 2060, 2071 (2011).
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actions apart from his exit from the passenger side ofthe van. After exiting the passenger side, Mr.Contreras ran down the sidewalk for a few secondsbefore he was struck in his ankle by a bullet fired bypetitioner Benavides. ER 411; SER 172, 177. At trial,the officers claimed that Mr. Contreras was armedand was aiming a gun at them. Mr. Contreras deniedPetitioners’ account and testified that he wasunarmed and never pointed anything at the officers. The jury believed Mr. Contreras.
After being wounded, Mr. Contreras entered adriveway and leaned over with his back to the officersto attend to his wound. ER 411-13. When petitionersreached the driveway seconds later they immediately,without warning, shot Mr. Contreras in the backleaving him paralyzed for life. Petitioners gave Mr.Contreras no opportunity to surrender beforeshooting him in the back. ER 413-14. Mr. Contreraswas trapped and incapacitated when he was shot. ER414. All four shots were to the back of his body. ER169-70. Petitioners testified at trial that Mr.Contreras faced them and pointed a gun at themduring the incident and that this was the only basisof their decision to use deadly force. Mr. Contrerasdenied petitioners’ account and the jury found hisversion of these events more credible.
Petitioners and other officers conducted athorough search for the gun they claimed Mr.Contreras possessed and aimed at them but no gunwas ever found, despite the fact that the chase lastedno more than 15 seconds and Mr. Contreras was in
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their sight for virtually every second of that time. ER401-03; SER 171.
The evidence supported a jury finding that,although it was feasible for the officers to do so underthe circumstances, they did not give Mr. Contreras awarning that deadly force would be used if he did notsurrender. Although Petitioner Benavides claimedhe said, “Stop. Police,” and “Drop the gun,” OfficerSavedra, who was 15-20 feet behind the shootingofficers during the pursuit on the sidewalk, did notrecall hearing any such warnings or commands beinggiven. ER 391-92. Petitioner Flores also did not recallhearing any warnings. ER 389-91. Mr. Contrerasheard no warnings, or commands, throughout theentire foot pursuit. ER 348, 414, 423. The jury wasentitled to find that none were given.
The jury heard substantial evidence regardingthe officers’ training. Petitioners testified that theywere trained it would be inappropriate to use deadlyforce under various scenarios indistinguishable fromMr. Contreras’s account of the incident, and that theyunderstood they could not shoot Mr. Contreras as afleeing felon, even under Petitioners’ own account ofthe facts, if Mr. Contreras had not pointed a gun atthem. SER 136-37, 139-40, 142-43, 147. Petitionerstook the position at trial that the only reason theyshot Mr. Contreras was that he pointed a gun atthem. The jury rejected this testimony.
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B. Proceedings Below
On February 17, 2011, Mr. Contreras filed twoclaims in the United States District Court for theCentral District of California under 42 U.S.C. § 1983:one for excessive force in violation of the Fourth andFourteenth Amendments and one for municipalliability.
Petitioners filed no pre-trial motions to dismissor for summary judgment. In the pre-trial conferenceorder, Petitioners explicitly waived any argumentthat they shot Mr. Contreras because he was a“fleeing felon.” No “fleeing felon” theory was advanced at trial. For this reason, Mr. Contrerasnever addressed or developed the facts relevant toaddress this theory.
The trial was bifurcated into liability anddamages phases. The liability phase of the trialresulted in a jury verdict for Mr. Contreras. Beforethe damages phase of the trial commenced, theparties agreed to a $4.5 million settlement,conditioned on the approval of the Los Angeles CityCouncil. A majority of City Council membersultimately voted not to approve the settlement andthe case returned to district court for the damagesphase.
More than three months after the liabilityverdict, Petitioners filed a motion to dismiss Mr.Contreras’s entire action based on a statute oflimitations, a motion which the District Court denied,
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finding defendants had waived their statute oflimitations defense and that it failed on the merits.
On September 21, 2012, a second jury awardedMr. Contreras $5,725,000 in damages. Petitionersfiled a post-trial motion for judgment as a matter oflaw asserting qualified immunity for the first timeand a new argument, explicitly waived before trial,that the shooting was justified because Mr. Contreraswas a “fleeing felon.” The District Court denied themotions.
Petitioners appealed. In a brief memorandumdecision, the court of appeals found that whenviewing the facts in the light most favorable to theverdict, the evidence was sufficient to support areasonable jury’s finding that Petitioners usedexcessive force. As a result, the court of appealsaffirmed the rejection of petitioners’ motion forjudgment as a matter of law, Pet. App. 2, and foundthat petitioners had waived their “fleeing felon”argument. Pet. App. 3. The court of appeals alsofound that Petitioners were not entitled to qualifiedimmunity because the law was settled that the use ofdeadly force in the circumstances found by the jurywas unconstitutional. Pet. App. 3-4.
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REASONS FOR DENYING THE PETITION
I. THE DECISION BELOW IS FULLYCONSISTENT WITH ESTABLISHED LAWAPPLICABLE TO THE USE OF DEADLYFORCE.
A. Petitioners Waived Their “FleeingFelon” Theory.
This Court should not even reach Petitioners’“fleeing felon” argument because they waived it belowby expressly disclaiming the argument in pre-trialfilings and in their conduct at trial. Pet. App. 3. ThisCourt does not ordinarily hear arguments which havebeen waived in the lower courts. See Nelson v.Adams USA, 529 U.S. 460, 469 (2000); Stewart v.LaGrand, 526 U.S. 115, 116 (1999).
Petitioners expressly denied in pre-trial filingsthat they shot Respondent as a “fleeing felon.” ER257, SER 126 (“Mr. Contreras was not shot becausehe was a ‘fleeing felon.’”). Petitioners repeatedlyargued at trial that they shot Respondent because hepointed a gun at them. ER 255-57. In fact,Petitioners conceded that they had been trained notto use deadly force against fleeing felons under thesecircumstances. SER 136-37, 148.
Petitioners also clearly stated in theirMemorandum of Contentions of Fact and Law, “Mr.Contreras was not shot because he was a ‘fleeingfelon.’” ER 257. Petitioners relied on the argument
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that respondent was shot because he threatenedPetitioners with a gun. ER 255-57. The court ofappeals therefore correctly found that Petitioners’“fleeing felon” argument was affirmatively waived. Pet. App. 3.
Petitioners should not be allowed to presentthis argument for the first time on appeal.
B. The Court of Appeals, DistrictC o u r t a n d J u r y A p p l i e dEstablished Law to the Facts as theJury Found Them.
Petitioners do not argue that this Court mustresolve a conflict in the circuit courts regarding theuse of deadly force under the Fourth Amendment. Tothe contrary, Petitioners acknowledge that the law isclear. Pet. 4. Instead, Petitioners complain that thecourt of appeals mistakenly focused on the fact thatrespondent turned out to be unarmed in its shortopinion unanimously affirming the judgment. Pet.15-16.
Petitioners’ argument misconstrues the courtof appeals’ opinion and the record in this case. Review of a jury verdict in a case like this is highlyfact-specific and requires deference to the jury’sfact-finding. See Reeves v. Sanderson PlumbingProducts, Inc., 530 U.S. 133, 150 (2000) (requiringthe court on a motion for judgment as a matter of lawto “draw all reasonable inferences in favor of thenonmoving party, and . . . not make credibility
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determinations or weigh the evidence”). Petitionersidentify no error in the court of appeals’ review of thetrial record under well-established law.
Nor do Petitioners challenge any of the instructions given to the jury. For the jury, the testfor whether Petitioners used excessive force during aseizure is governed by the Fourth Amendment’s“reasonableness” standard. Graham v. Connor, 490U.S. 386, 395 (1989); Garner, 471 U.S. at 6. Theinquiry into the “reasonableness” of the force usedrequires a careful balancing of “the nature andquality of the intrusion on the individual’s FourthAmendment interests against the countervailinggovernmental interests at stake.” Graham. 490 U.S.at 396. In the “fleeing felon” context, deadly force“may not be used unless it is necessary to prevent theescape and the officer has probable cause to believethat the suspect poses a significant threat of death orserious physical injury to the officer or others.” Garner, 471 U.S. at 3.
As this Court emphasized in Graham,
“the test of reasonableness under theFourth Amendment is not capable ofprecise definition or mechanicalapplication,” [citing Bell v. Wolfish, 441U.S. 520 (1979)], however, its properapplication requires careful attention tothe facts and circumstances of eachparticular case, including the severity ofthe crime at issue, whether the subject
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poses an immediate threat to the safetyof the officers or others, and whether heis actively resisting arrest orattempting to evade arrest by flight.
490 U.S. at 396. In other words, the reasonablenessinquiry must take into account the “totality of thecircumstances.” See Garner, 471 U.S. at 8-9(framing the question as “whether the totality of thecircumstances justifie[s] a particular sort of . . .seizure”). Further, the “‘reasonableness’ inquiry inan excessive force case is an objective one: thequestion is whether the officers’ actions are‘objectively reasonable’ in light of the facts andcircumstances confronting them, without regard totheir underlying intent or motivation.” Graham, 490U.S. at 397.
The court of appeals, viewing the facts in thelight most favorable to the verdict, highlighted atleast two pieces of undisputed evidence thatreasonably supported the jury’s determination ofexcessive force: (1) that respondent was shot fourtimes in his back and (2) that respondent wasunarmed. Pet. App. 3-4. However, this was not theonly evidence that supported the verdict andcontradicted Petitioners’ testimony at trial. Theentire trial record was before the court of appeals.
For example, Petitioners testified that Mr.Contreras turned and pointed a gun at them. ER 365. Mr. Contreras testified that this was not true. ER319-23. Petitioner Benavides testified he gave
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respondent a warning. ER 348. Respondent’stestimony, supported by the testimony of otherofficers, disputed this. ER 389-92, 414, 423. In otherwords, the jury was presented with two completelyinconsistent versions of the events leading up to thisshooting and they found for Mr. Contrerasunanimously and rejected Petitioners’ account.
The court of appeals did not find, or evensuggest, that the fact that Mr. Contreras was foundto be unarmed was dispositive of Petitioners’ liability. Instead, the court correctly noted that this fact actedas one reasonable evidentiary basis for the jury tofind for Mr. Contreras and reject Petitioners’ onlyasserted justification for shooting him.
C. Petitioners Identify No Conflict inthe Circuits on Any Issue DecidedBelow.
Petitioners cite no cases revealing a conflict inthe circuits that requires this Court’s intervention. Instead, Petitioners merely cite to cases in which noexcessive force was found despite the victim beingunarmed. Pet 24-25. These cases merely demonstratethat other triers of fact have found sufficient evidenceof the justification to use deadly force based on the“totality of circumstances” in those cases, not thatthose cases authorized the use of deadly force in thefacts as found by the jury in this case. See Medina v.Cram, 252 F.3d 1124, 1132 (10th Cir. 2001) (holdingthere was no excessive force because “[suspect]communicated that he had a gun . . . [and] emerged
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from the house covering what could reasonably beinterpreted as a weapon”); Wilson v. Meeks, 52 F.3d1547, 1553-54 (10th Cir. 1995) (holding that therewas no excessive force because the decedent hadpointed a gun at the officer); Scott v. Henrich, 39 F.3d912, 915 (9th Cir. 1994) (holding that there was noconstitutional violation because the decedent hadrecently fired shots and was “acting crazy”).
In each case, the court emphasized the“totality of circumstances.” The fact that the suspectturned out to be unarmed at the time deadly forcewas used was just one of the circumstances. None ofthese cases have facts similar to the facts before thejury in this case.
Petitioners rely heavily on Forrett v.Richardson, 112 F.3d 416 (9th Cir. 1997), to arguethat possession of a gun is not a crucial factor indetermining whether the “totality of circumstances”permits officers to use deadly force to capture afleeing felon. But the facts in Forrett are easilydistinguishable from the facts in this case, as boththe district court (Pet. App. 19) and court of appealsfound below. Pet. App. 4.
Forrett involved an hour-long police chasethrough a residential neighborhood after policereceived a firsthand account from victims of a home-invasion robbery in which the plaintiff had shot twoindividuals and was heavily armed. In Forrett, theplaintiff conceded that the police had probable causeto believe he committed a serious crime, and there
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was no genuine issue of fact that they had issued awarning to the plaintiff before they shot him. Incontrast, here Mr. Contreras fled the police for onlyfifteen seconds and the evidence conflicted onwhether a warning was given by Petitioners beforedeadly force was used. Moreover, there was noprobable cause that Mr. Contreras committed aserious crime or wielded a weapon; the only evidenceof such was anonymous witness descriptions of ashooting involving the van in which respondent wasriding with others. Nothing in Forrett would causereasonable police officers to believe that they had theright to use deadly force against Mr. Contreras.
Lamont v. New Jersey, 637 F.3d 177 (3d Cir.2011), is similarly unhelpful for Petitioners. In thatcase, after a chase and warnings that deadly forcewould be used if he did not comply, the officers shotthe plaintiff when they observed him concealing hisright hand in his waistband and appearing to clutchan object (which turned out to be a crack pipe), thensuddenly pulling his hand out as though he weredrawing a pistol. Id. at 179. Here, the jury acceptedMr. Contreras’s testimony that he made no suchmovements when he was shot and paralyzed for life. Instead, Mr. Contreras was hunched over, facingaway from Petitioners, with both hands visible toPetitioners and was immobilized from a shot to theankle.
Similarly, in Dudley v. Eden, 260 F.3d 722 (6thCir. 2001), the officer had a reasonable belief that theplaintiff posed an immediate threat to law
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enforcement and others: he saw the plaintiff in astolen car associated with a reported bank robbery,he saw the plaintiff flee immediately after hearinggun shots, and he saw plaintiff drive towardoncoming traffic and then smash into the driver’sdoor of his own vehicle placing the officer in aprecarious position. Id. at 723-25. In this case,petitioner never observed Mr. Contreras commit anyoffense other than trying to run away, and he was notthreatening or even facing Petitioners or anyone elseat the time they shot him in the back. At best,petitioners were informed that someone in the vanhad fired shots from it and saw that Mr. Contrerashad ceased his brief effort to flee from the van on foot. In Dudley there was substantial evidence of thesuspect’s danger to the officers and the communitynot present here.
Finally, in Ford v. Childers, 855 F.2d 1271 (7thCir. 1987) officers had a proper basis to use deadlyforce to prevent escape when, during a bank robbery,they observed a masked plaintiff’s arms extended(and apparently pointing a gun) towards a group ofcustomers who were facing plaintiff with their handsup, and the officers had warned the plaintiff twicebefore shooting. Id. at 1271. Here, again, the juryweighed the totality of the evidence and found thatthere was no threat to officers or others thatwarranted the use of deadly force where respondentwas tending to his already immobilizing gunshotwound at the time he was shot and rendered aquadriplegic.
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II. Clearly-Established Law Provided theOfficers Fair Warning that their ConductWas Unlawful.
This Court has held that “[s]ince a reasonablycompetent public official should know the lawgoverning his conduct,” qualified immunity does notapply when the relevant law is clearly established. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). “[T]he relevant, dispositive inquiry in determiningwhether a right is clearly established is whether itwould be clear to a reasonable officer that his conductwas lawful in the situation he confronted.” Saucierv. Katz, 533 U.S. 194, 202 (2001); Ashcroft v. al-Kidd,131 S. Ct. 2074, 2083 (2011). State officials are notentitled to qualified immunity simply because no casewith materially similar facts has held their conductunconstitutional. See Hope v. Pelzer, 536 U.S. 730,739-41 (2002). In evaluating qualified immunity, “[adepartment]’s training materials are relevant notonly to whether the force employed in [a] case wasobjectively unreasonable . . . but also [to] whetherreasonable officers would have been on notice thatthe force employed was objectively unreasonable.” Drummond v. City of Anaheim, 343 F. 3d 1052, 1062(9th Cir. 2003); see also Hope, 536 U.S. at 741-42, 744(considering department regulations and a DOJadvisory opinion in concluding the conduct at issueviolated clearly established constitutional rights).
Contrary to Petitioners’ statements that they were not put on fair notice that their actions wouldviolate the Fourth Amendment, the facts show that
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petitioners were indeed aware that their conduct wasunlawful. This is true for two primary reasons: (1)Garner and its progeny provided fair notice that Mr.Contreras could not be shot as a “fleeing felon;” and(2) the LAPD actually trained its officers, includingPetitioners, to refrain from using deadly force in theparticular circumstances found by the jury.
In affirming the district court, the Court ofAppeals held that “Defendants [were] not entitled toqualified immunity because the law was clearlyestablished that shooting an unarmed, physicallytrapped suspect in the back four times is excessiveforce.” Pet. App. 4. Petitioners argue that the panelerred in reaching this conclusion because unlike inGarner, where the officer “had no articulable basis tothink Garner was armed,” 471 U.S. at 21, here, theofficers “undisputedly did have an articulable basis toreasonably believe Mr. Contreras was armed.” Pet.23.
Despite Petitioners’ repeated claims that theofficers had probable cause to believe Mr. Contreraswas armed, the jury rejected this conclusion as amatter of fact based on all the testimony at trial. Petitioners cannot relitigate this issue in this Court. During the chase, the officers never saw a gun oranything that looked like a gun. In fact, the juryreasonably found that the officers lied when theytestified that they saw a weapon and shot Mr.Contreras as a result. No gun was ever found despitean exhaustive search of the path of pursuit and thescene of the shooting, including adjoining properties.
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Moreover, Petitioners testified that they shot Mr.Contreras because he turned to face them with a gunin his hand pointed at them, but physical andmedical evidence revealed that all the shots were tothe back of Mr. Contreras’s body. The jury rejectedtheir story. Given the facts, the jury acted reasonablyin finding that the officers had no probable cause tobelieve that Mr. Contreras was a serious threat orthat he had committed the drive-by shooting.
Petitioners also argue that Forrett v.Richardson, 112 F.3d 416 (9th Cir. 1997) supportsthe officers’ decision to use deadly force in thesecircumstances. As indicated in § IB, supra, Forrettgives officers no license to use deadly force in thecircumstances found by this jury. Moreover, certiorariis not appropriate to resolve an alleged conflict withinthe Ninth Circuit. Petitioners’ petition for en bancreview was denied without a single judge requestinga vote. Pet. App. 32.
Forrett had such extreme facts that the issueof excessive force could be decided as a matter of law. Here, unlike in Forrett, the officers had very limitedinformation about the van and Mr. Contreras, andwhether Mr. Contreras was armed. Respondent ranfor approximately 15 seconds before being shot in theback. Moreover, there were no residents orschoolchildren in the vicinity, and respondent neverjumped a fence or attempted to elude officers otherthan by running. Although the officers had “warnedForrett before using deadly force,” Forrett, 112 F. 3d at 420, here the jury found that no such warning or
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even commands were given to Mr. Contreras. Mr.Contreras heard no warnings, commands, or voicesthroughout the foot pursuit, and the jury was free todiscredit Benavides’s testimony that he gave suchcommands. Finally, unlike the suspect in Forrett,who was shot when he appeared likely to escape overa fence, here, Mr. Contreras was shot when he wasdoubled over and stationary in a driveway. Thus,perhaps the most defining aspect of a “fleeing felon”– that the person is actually fleeing and deadly forceis necessary to prevent escape – was wholly absenthere.
Thus, no case gave Petitioners any indicationthat they could use deadly force in thesecircumstances. Indeed, there was substantialevidence at trial that showed that their LAPDtraining taught them not to use deadly force in thesecircumstances. SER 136-37, 147-49; see, e.g.,Drummond, 343 F. 3d at 1062 (holding thatdepartmental training materials relevant to whethera reasonable officer would have been on notice thatthe force used was objectively unreasonable.); Hope v.Pelzer, 536 U.S. at 741-42 (considering departmentregulations and a Department of Justice advisoryopinion in the qualified immunity analysis).
Further, decisions from the courts of appealsfollowing Garner and Graham provided additionalnotice to Petitioners that deadly force wasinappropriate here. In Harris v. Roderick, 126 F. 3d1189 (9th Cir. 1997), the Ninth Circuit held that itwas unreasonable to shoot an armed suspect who had
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recently been involved in a shoot-out with officersbecause he was not escaping and was not given anopportunity to surrender even though it was feasibleto do so. Id. at 1201 (“The fact that Harris hadcommitted a violent crime in the immediate past isan important factor but it is not, without more, ajustification for killing him on sight.”).
In Ting v. United States, 927 F. 2d 1504, 1513(9th Cir. 1991), the court refused to grant qualifiedimmunity to officers who shot a narcotics suspectwho had previously pointed a gun at them, because itwas not reasonable to believe the use of deadly forceagainst “an unarmed and injured felon lying orkneeling on the floor surrounded by five heavilyarmed agents” was lawful. Id. at 1511.
In Vaughan v. Cox, 343 F. 3d 1323 (11th Cir.2003), the Eleventh Circuit noted that there are threeelements in the Garner rule and the failure to satisfyany one of them violates clearly established law: (1)an officer lacks probable cause to believe that afleeing suspect’s flight poses an immediate threat ofserious harm to officers or others; (2) the use ofdeadly force is not necessary to stop the suspect; and(3) it is feasible to warn of the possible use of deadlyforce but no such warning is given. Id. at 1329-30,1332. The plaintiffs in Vaughan satisfied the firstelement with evidence that they had not menacedofficers and had led the officers on a high speed butnot otherwise reckless vehicle pursuit. Id. at 1330. The second element was supported by evidence thevehicle was easily identifiable and closely followed by
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police units. Id. at 1330-31. Third, the court foundthat it was feasible to give a warning before shotswere fired. Id. at 1331.
Here, Petitioners confronted similarcircumstances and were on notice that the use ofdeadly force was inappropriate for three separatereasons: (1) Mr. Contreras gave no indication that hewas in possession of a weapon and was not observedthreatening anyone, and both of his hands werevisible when he was shot in the back; (2) deadly forcewas not necessary to stop him because he wasstationary and no longer attempting to flee; and (3)no warning was given even though warnings werefeasible. Petitioners were on ample notice that theiractions violated clearly established constitutionalnorms.
CONCLUSION
For the foregoing reasons, the petition shouldbe denied.
Dated: October 13, 2015 Respectfully submitted,
Paul L. HoffmanCounsel of RecordSchonbrun Seplow Harris & Hoffman, LLP723 Ocean Front WalkVenice, California 90291Tel: (310) 396-0731Fax: (310) 399-7040E: [email protected]
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John FattahiLaw Office of JohnFattahi1301 W. Glenoaks Blvd.Glendale, CA 91201Tel: (818) 839-1983Fax: (818) 561-3600E: [email protected]
Dale K. GalipoLaw Offices ofDale K. Galipo21800 Burbank Blvd.,Suite 310Woodland Hills, CA91367Tel: (818) 347-3333Fax: (818) 347-4118E:[email protected]
William L. Schmidt377 W. FallbrookSuite 207Fresno, CA. 93767Tel: (559) 261-2222Fax:(559) 436-8163E:[email protected]
