Loureece Clark v. Thomas McGuire , 693 F. App'x 649 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUREECE CLARK, No. 14-16826
Plaintiff-Appellee, D.C. No.
2:12-cv-02159-JAM-KJN
v.
THOMAS MCGUIRE, Sacramento MEMORANDUM*
County Sheriff’s Deputy, # 266,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted July 7, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Defendant Sheriff’s Deputy Thomas McGuire appeals the district court’s
denial of his motion for summary judgment on qualified immunity in Loureece
Clark’s 42 U.S.C. § 1983 action alleging a Fourth Amendment excessive force
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claim. We have jurisdiction over an interlocutory appeal from the denial of
qualified immunity. Knox v. Sw. Airlines, 124 F.3d 1103, 1106–07 (9th Cir. 1997).
We review de novo, Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.
2006), and we reverse.
The district court properly determined that McGuire had probable cause to
believe that Clark had committed a crime involving the infliction of serious
physical harm, and that Clark posed a serious threat of harm. See Forrett v.
Richardson, 112 F.3d 416, 420 (9th Cir. 1997) (“Whenever there is probable cause
to believe that the suspect has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may be used if
necessary to prevent escape, if some warning has been given, where feasible.”),
superseded by rule on other grounds as stated in Chroma Lighting v. GTE Prods.
Corp., 127 F.3d 1136 (9th Cir. 1997) (order).
The district court also determined the Fourth Amendment prohibited
McGuire from using deadly force because allowing the K-9 officers and their dogs
to apprehend Clark was a reasonable, non-deadly alternative. But the “Fourth
Amendment does not require law enforcement officers to exhaust every alternative
before using justifiable deadly force.” Forrett, 112 F.3d at 420. Rather, the
defendant’s “decision to use deadly force ‘must be judged from the perspective of
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a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”
Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)); see also White v.
Pauly, 137 S. Ct. 548, 551 (2017) (emphasizing that “for a right to be clearly
established, ‘existing precedent must have placed the statutory or constitutional
question beyond debate’”) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
Because McGuire did not violate clearly established law, we reverse the
denial of qualified immunity and remand with instructions to grant summary
judgment to McGuire.
REVERSED and REMANDED.
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