Blanford v. Sacramento County , 406 F.3d 1110 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW AARON BLANFORD, 
Plaintiff-Appellant,
v. No. 03-17146
SACRAMENTO COUNTY; LOU BLANAS, D.C. No.
Sacramento County Sheriff; BRETT  CV-01-02068-
ANDERSON, Sacramento County GEB/GGH
Sheriff’s Deputy; TODD HENGEL,
OPINION
Sacramento County Sheriff’s
Deputy,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
April 15, 2005—San Francisco, California
Filed May 6, 2005
Before: John T. Noonan, David R. Thompson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge Noonan
4965
4968 BLANFORD v. SACRAMENTO COUNTY
COUNSEL
Stewart Katz, John M. Poswall, for plaintiff-appellant Mat-
thew Aaron Blanford.
BLANFORD v. SACRAMENTO COUNTY 4969
Terence J. Cassidy (argued), Jennifer E. Duggan, Carl J. Cal-
nero (on the brief), Porter, Scott, Weiberg & Delehant, for
defendants-appellees County of Sacramento, Lou Blanas,
Brett Anderson, and Todd Hengel.
OPINION
RYMER, Circuit Judge:
Matthew Aaron Blanford appeals the summary judgment in
favor of Brett Anderson, Todd Hengel, Lou Blanas, and Sac-
ramento County1 in his 42 U.S.C. § 1983 action alleging
claims of excessive force and unreasonable seizure in viola-
tion of the Fourth Amendment. Blanford was shot and
severely injured after he ignored warnings and commands to
stop and drop an edged sword that he was carrying and
instead tried to enter a house in a residential area. There is no
doubt that the facts of this case are tragic and that the case is
a difficult one. Nevertheless, because Deputies Anderson and
Hengel did not exceed constitutional limits on the use of
deadly force when they shot Blanford and because, even if
their actions did violate Blanford’s constitutional rights, a rea-
sonable law enforcement officer in their position at the time
would not have known that shooting Blanford was a violation
of clearly established law, the deputies are entitled to quali-
fied immunity. We therefore affirm.
I
On the afternoon of November 13, 2000, the Sacramento
County Sheriff’s Department received several reports that a
1
Brett Anderson and Todd Hengel are Sacramento County Sheriff’s
Deputies and are the principal defendants in Blanford’s suit. We refer to
them collectively as “the deputies” unless context otherwise requires. Lou
Blanas, the Sacramento County Sheriff, is sued in both his official and
individual capacities.
4970 BLANFORD v. SACRAMENTO COUNTY
man (who turned out to be Blanford) wearing a ski mask and
carrying a sword was walking through a suburban residential
neighborhood outside Sacramento and behaving erratically.
Anderson and Hengel were dispatched to investigate these
reports. During the course of their search for Blanford, Ander-
son and Hengel were informed by dispatch that Blanford had
been seen licking the sword and that he was walking in the
middle of the street. After driving down several streets where
Blanford had been seen, the deputies spotted him walking
down Reetey Avenue.
When the deputies arrived, they saw Blanford carrying a
2-1/2-foot-long Civil War-era cavalry saber by the handle.
Blanford was wearing a green ski mask that was not covering
his face, so that it appeared to be a knit cap pulled down over
his ears and close to his eyes. When Anderson and Hengel
came upon Blanford walking away from their position on
Reetey, they got out of their vehicles, drew their guns, and
Hengel called out to Blanford: “Sheriff’s department, stop,
drop the sword.” Blanford did not heed this command but
rather kept walking. As it turned out, Blanford was listening
to a Discman at the highest volume using headphones which
were concealed underneath his knit cap. Blanford did not hear
the deputies yelling at him and did not notice them at that time.2
The deputies did not realize until after Blanford was shot that
he had been wearing headphones.
The deputies followed Blanford at a safe distance of 20 to
2
There appears to be a genuine dispute of material fact regarding
whether Blanford noticed the deputies and heard their command when
they first called out to him on Reetey Avenue. Anderson and Hengel both
testified that, after Hengel called out the first time, Blanford turned his
head and looked back at them over his shoulder. However, Blanford testi-
fied that he did not notice or hear the deputies before he turned from
Reetey onto Gaines Avenue, and he specifically denied looking back
behind himself before he turned onto Gaines. Since these two accounts
conflict on this point, Blanford’s version must be taken as true for sum-
mary judgment purposes.
BLANFORD v. SACRAMENTO COUNTY 4971
25 feet as they were trained to do for persons with edged
weapons. Their guns were drawn and aimed. They were “ex-
tremely concerned that Blanford posed a significant danger to
any individual who might come near him or to [themselves]
if he turned and charged.” Anderson and Hengel continued to
shout commands at Blanford to stop and drop the sword, as
well as to warn him “We’ll shoot.” At the corner of Reetey
and Gaines Avenue, Blanford stopped, raised the sword, and
made a loud growling or roaring sound.3 This increased the
deputies’ concern that Blanford posed a risk of physical harm
to themselves or others, and the deputies considered Blan-
ford’s action to be the felony of drawing or exhibiting a
deadly weapon with the intent to resist or prevent arrest or
detention by a peace officer in violation of California Penal
Code § 417.8 (1982).
Blanford then turned onto Gaines Avenue and began
angling his walk toward 8679 Gaines, which turned out to be
his parents’ home where he lived. The deputies did not know
this. Blanford testified that he first became aware of the depu-
ties’ presence behind him as he was passing his next door
neighbor’s house, but despite his awareness that the deputies
might be there for him, he continued walking at the same pace
toward 8679. The deputies considered whether Blanford
might be mentally disturbed or under the influence of narcot-
ics, but believed they “had to secure the weapon before doing
anything else in order to protect the public.” As it turned out,
Blanford had just taken a dose of antipsychotic medication for
schizophrenia and bipolar disorder for which he was being
treated. Blanford walked up the lawn of 8679 to the front
door, where he searched his pockets for his keys but realized
3
Blanford testified that he did not remember whether or not he stopped
at the corner of Reetey and Gaines, raised the sword, and made a growling
or roaring sound. This is not sufficient to allow a reasonable jury to con-
clude that Blanford did not do these things; Blanford’s and the deputies’
accounts are not mutually exclusive. Thus, the district court properly took
the deputies’ account on this point as true.
4972 BLANFORD v. SACRAMENTO COUNTY
he did not have them. He knocked on the door, but no one
answered. Blanford then started walking down the walkway
that led in front of the house, past the driveway and garage,
and around to the side where there was a gate that led along-
side the garage to the back yard. As he turned onto the walk-
way, Blanford caught a glimpse of the deputies, believed that
they were police officers, and heard them shout “Drop the
sword.” He did not do so. Blanford thought he told the depu-
ties that he was going to go put the sword in the back and
come up and talk to them afterwards. Both deputies testified
that they never heard any such thing, though even if they had,
it would not have alleviated their reasonable concern that
Blanford posed an imminent threat as he did not drop the
sword.
Neither deputy believed that Blanaford should be allowed
to get out of sight into the back of the house due to the danger
he presented to anyone in the yard or the house. Both fired as
Blanford rounded the corner of the house to the gate (“the
first volley”). Blanford was hit by at least one shot. Neverthe-
less, he went through the gate, and it closed behind him.
Anderson kicked the gate open and saw Blanford about ten
feet away trying to open a door into the garage through which
entrance could be gained into the residence. Anderson ordered
him to drop the sword again. When Blanford did not drop the
sword, or stop trying to push the door open, Anderson fired
again, hitting Blanford in the right wrist (“the second volley”).4
He did so out of concern that Blanford would be able to get
into the residence and cause death or injury to people inside.
Blanford then turned away, still holding the sword, and
walked toward the back yard.5 Anderson continued firing
4
Anderson did not realize he had hit Blanford in the right wrist during
the second volley until after the shooting ended and Blanford had fallen
to the ground.
5
Blanford testified that he did not know whether he was holding the
sword or not. Anderson testified that Blanford did not drop the sword
when he was hit by the second volley near the garage door. Hengel testi-
fied that he retrieved the sword from where it had fallen near where Blan-
ford fell after the third volley, and threw it away from that area.
BLANFORD v. SACRAMENTO COUNTY 4973
(“the third volley”). One of the bullets severed Blanford’s
spine, causing him to fall to the ground and rendering him a
paraplegic. The entire encounter lasted about two minutes.
Approximately fourteen seconds passed between the first and
last shots.
Blanford filed this action against Anderson, Hengel, Sacra-
mento County Sheriff Lou Blanas (in both his individual and
official capacities), and Sacramento County and its Sheriff’s
Department, asserting claims under 42 U.S.C. § 1983 for
excessive force and unreasonable seizure and false arrest in
violation of the Fourth Amendment, including a claim of
Monell6 liability against the County. Blanford also asserted
state-law claims for battery and assault against all the defen-
dants, as well as state-law claims for negligence and for negli-
gent hiring, training, and supervision against the County.7
After discovery, cross-motions for summary judgment were
filed on all claims. The district court analyzed each of the
three volleys separately under Graham v. Connor, 490 U.S.
386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). The
court concluded that Anderson and Hengel acted in an objec-
tively reasonable manner in firing each volley, because a rea-
sonable officer in their position at the time would have
believed that Blanford presented an imminent threat of death
or serious bodily injury to persons inside the house or yard of
8679 Gaines, or to themselves. The district court also granted
summary judgment on Blanford’s wrongful arrest claim, find-
ing that the deputies had probable cause to arrest Blanford for
violating California Penal Code § 417.8. It further held that,
even if Anderson’s or Hengel’s actions violated Blanford’s
Fourth Amendment rights, the deputies were entitled to quali-
6
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
7
Blanford also asserted a state-law medical malpractice claim against
Kaiser Permanente and the doctor who had prescribed him the antipsycho-
tic medication the same day he was shot by the deputies. Blanford does
not appeal dismissal of this claim.
4974 BLANFORD v. SACRAMENTO COUNTY
fied immunity because a reasonable officer in their position at
the time would not have known that their actions were unlawful.8
Blanford timely appealed.
II
Our review on appeal from entry of a summary judgment
is de novo. Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th
Cir. 2001) (as amended). Under the approach for evaluating
claims of qualified immunity adopted by the Supreme Court
in Saucier v. Katz, 533 U.S. 194 (2001), we must first ask
whether, “[t]aken in the light most favorable to [Blanford],
. . . the facts alleged show [the deputies’] conduct violated a
constitutional right?” Id. at 201. Only if this question is
answered in the affirmative must the court address “the next,
sequential step” in the inquiry, namely, whether the constitu-
tional right at issue was clearly established at the time the
deputies shot Blanford in November 2000, such that a reason-
able officer in the deputies’ position at the time would have
known that shooting Blanford was a violation of his Fourth
Amendment right to be free from excessive force. Id. at 201-
02. As the Court noted in Saucier and reiterated recently in
Brosseau v. Haugen, 125 S. Ct. 596 (2004), “[i]t is important
to emphasize that this inquiry ‘must be undertaken in light of
8
The district court also granted summary judgment to Blanas in his indi-
vidual capacity, finding no triable issue that Blanas ratified the deputies’
actions knowing them to have used excessive force, and to the County and
Blanas in his official capacity for lack of evidence that the County main-
tained a policy or practice of ratifying deputies’ use of excessive force.
The court granted summary judgment on Blanford’s state-law claims as
well. Blanford makes no arguments on appeal challenging the district
court’s rulings on these claims other than to note that they rise or fall with
the Fourth Amendment excessive force claim. Given that we affirm on
that claim, we also affirm the judgment on the municipal liability and
state-law claims. Blanford does not mention his Fourth Amendment
wrongful arrest claim in his opening brief, which waives appeal on that
issue. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
BLANFORD v. SACRAMENTO COUNTY 4975
the specific context of the case, not as a broad general propo-
sition.’ ” Id. at 599 (quoting Saucier, 533 U.S. at 201).
III
[1] All claims of excessive force, whether deadly or not, are
analyzed under the objective reasonableness standard of the
Fourth Amendment as enunciated in Graham and Garner.
“Determining whether the force used to effect a particular sei-
zure is reasonable under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (internal quotation marks omitted). This balancing
test entails consideration of the totality of the facts and cir-
cumstances in the particular case, including “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.” Id.
[2] Garner articulates a more particularized version of the
Fourth Amendment’s objective reasonableness analysis for
assessing the reasonableness of deadly force.9 The Court
explained that while it is unreasonable to apprehend an
unarmed, nondangerous suspect by killing him, an officer’s
use of deadly force to prevent escape satisfies Fourth Amend-
ment standards “[w]here the officer has probable cause to
believe that the suspect poses a threat of serious physical
harm, either to the officer or to others.” Garner, 471 U.S. at
11.
9
There is no question in this case that the deputies’ firing of their guns
at Blanford constituted deadly force, whether defined as force reasonably
likely to cause death (as it was at the time of the events giving rise to this
case) or as force creating a substantial risk of causing death or serious
bodily injury (as it is today). See Smith v. City of Hemet, 394 F.3d 689,
704-07 (9th Cir. 2005) (en banc), overruling Vera Cruz v. City of Escon-
dido, 139 F.3d 659, 663 (9th Cir. 1998) (as amended).
4976 BLANFORD v. SACRAMENTO COUNTY
Blanford argues that probable cause under Garner exists
only if the suspect is immediately or directly threatening the
officer or others with a weapon, or the suspect recently com-
mitted a crime involving the infliction or threatened infliction
of serious physical harm and deadly force is necessary to pre-
vent escape. He maintains that this standard cannot be met
here, because he had not committed a significant crime or
threatened anyone, and was walking away from the deputies
when they fired the third volley that severely injured him. As
Blanford puts it, officers may not use deadly force “just in
case” a suspect might find someone to harm, yet, he submits,
this is what happened to him.
If Blanford were correct that the threat of harm from his
conduct was purely hypothetical and could not objectively
have been perceived otherwise, then the constitutional limits
on use of deadly force would certainly be implicated. In hind-
sight, from his point of view, it is understandable to think so.
As it turned out, Blanford did not hear all of the deputies’
warnings because he had earphones on. He was on medication
that may have affected his behavior and his judgment. And in
fact there was no threat to others because Blanford lived at
8679 Gaines and no one was home at the time. However,
“[t]he reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Gra-
ham, 490 U.S. at 396. We conclude that from this perspective,
the deputies had cause to believe that Blanford posed a seri-
ous danger to themselves and to anyone in the house or yard
that he was intent upon accessing, because he failed to heed
warnings or commands and was armed with an edged weapon
that he refused to put down.
A
[3] By the time of the first volley, Anderson and Hengel
knew that citizens had called 911 reporting peculiar behavior
by a person with a sword. Blanford was in fact armed with a
BLANFORD v. SACRAMENTO COUNTY 4977
2-1/2-foot sword. The deputies knew that Blanford failed to
communicate or comply with their orders to stop and drop the
sword, and did not respond to their warnings that they would
shoot if he did not comply. Instead, he raised his sword and
growled. This was a crime, and in addition gave the deputies
cause to believe that Blanford posed a threat of harm to
whomever he encountered. They saw Blanford move purpose-
fully toward the house at 8679 Gaines, which they were
unaware was where he lived; try unsuccessfully to gain entry
through the front door; and start around the corner of the
house toward a gate that would have blocked the deputies but
allowed Blanford access to the side of the house and back
yard. They considered the possibility that Blanford might be
mentally disturbed or under the influence of a controlled sub-
stance, but acted, consistent with their training, to secure the
weapon first. The deputies’ decision to fire was based upon
Blanford’s refusal to heed warnings and commands to drop
the sword, as well as his attempt to enter a private residence
and backyard with a lethal weapon. These facts objectively,
and reasonably, led the deputies to conclude that the situation
could not be resolved by talking, and that Blanford posed an
immediate and unacceptable risk of harming whoever was in
the house or yard should he be allowed to escape beyond the
gate.
The cases upon which Blanford relies to show that the use
of deadly force was not justified — Haugen v. Brosseau, 351
F.3d 372 (9th Cir. 2003) (as amended), rev’d, 125 S. Ct. 596
(2004) (reversing on qualified immunity without expressing
opinion on the constitutional question); Harris v. Roderick,
126 F.3d 1189 (9th Cir. 1997); and Deorle v. Rutherford, 272
F.3d 1272 (9th Cir. 2001) — presented quite different situa-
tions to the officers involved. In Haugen, an officer shot a
suspect who was trying to flee in his vehicle because she
believed he posed a danger to other officers (not to herself)
who might be approaching the driveway. However, the evi-
dence showed that she knew where the other officers would
be coming from and would necessarily have known that none
4978 BLANFORD v. SACRAMENTO COUNTY
was in harm’s way. We found this was objectively unreason-
able. Unlike Officer Brosseau in Haugen, the deputies in this
case could not have perceived that there was no one in harm’s
way. While it is true that the deputies did not know if anyone
were at home or in the yard at 8679 Gaines, it was objectively
reasonable for them to be concerned for the safety of whoever
was there, and for themselves.
In Harris, which arose out of the standoff at Ruby Ridge,
an FBI agent shot a suspect who was in an open space return-
ing to a cabin that he had come out of and which agents knew
was occupied by his friends. The agent could see that Harris
posed no threat to anyone at the moment, but he fired without
warning pursuant to the FBI’s special rules of engagement
that authorized agents to shoot to kill any armed adult male
regardless of whether he posed an immediate threat of serious
physical harm to agents or others. It was clear that this
exceeded Fourth Amendment bounds under Garner. Unlike
the FBI agent in Harris, the deputies here knew that Blanford
was armed with an edged sword that he refused to drop
despite orders to do so and despite warnings that he would be
shot if he did not. Their concern that he posed a significant
risk of serious harm to anyone inside the house or yard, and
to themselves, is supported by this evidence and the fact that
he continued to hold the sword while trying to access a pri-
vate residence and yard with which they were unaware he had
any connection.
Finally, in Deorle, officers were called by Deorle’s wife
who was concerned that her husband was out of control. Thir-
teen officers responded, removed the family as well as neigh-
bors, and surrounded the house to ensure that Deorle had no
avenue of escape. Deorle was generally compliant. After a
half-hour or so of observation he started shouting at the offi-
cers while carrying an unloaded plastic crossbow in one hand
and a bottle of lighter fluid in the other. Rutherford told
Deorle to drop the crossbow, which he did. However, when
Deorle passed a virtual line in the grass that Rutherford had
BLANFORD v. SACRAMENTO COUNTY 4979
drawn, Rutherford fired a “beanbag” round without warning,
and without having told Deorle to stop or to drop the lighter
fluid. Unlike Officer Rutherford in Deorle, before firing at
Blanford the deputies repeatedly ordered him to stop and drop
the sword, and specifically warned Blanford that they would
shoot unless he did; unlike Deorle, Blanford was not compli-
ant. In this case, the deputies had only a few minutes to act,
so there was no time to remove residents at 8679 Gaines or
neighbors from the area. Blanford suggests that the deputies
knew help was on the way and, like the officers in Deorle,
should have been patient. The difference, however, is that
Blanford had been warned, was noncompliant, and appeared
intent on accessing a private residence. The fact that help may
have been on the way was immaterial in the circumstances of
imminent access. Blanford also suggests that deadly force was
inappropriate because he, too, appeared emotionally disturbed
and should not have been treated as if he were a violent crimi-
nal who had committed a serious offense. See Deorle, 272
F.3d at 1282-83 (indicating that tactics to be used “against an
unarmed, emotionally distraught individual who is creating a
disturbance or resisting arrest are ordinarily different from
those involved in law enforcement efforts to subdue an armed
and dangerous criminal who has recently committed a serious
offense”). The deputies did factor the possibility of Blanford’s
being mentally disturbed into their thinking, as they should
have, but Blanford was armed with a dangerous weapon and
it was not objectively unreasonable for them to consider that
securing the sword was a priority. Id. at 1283 (recognizing
that there is no per se rule requiring mentally disabled persons
to be treated differently from “serious criminals”).
[4] We conclude that the first volley was objectively rea-
sonable and that the deputies had probable cause to believe
that Blanford posed a threat of serious physical harm to them-
selves, or to others, because he was armed, refused to give up
his weapon, was not surrounded, and was trying to get inside
a private residence or in default of that, into the back yard,
4980 BLANFORD v. SACRAMENTO COUNTY
where his sword could inflict injury that the deputies would
not then be in a position to prevent.
B
[5] Despite being hit during the initial volley, Blanford
went through the side gate, closing it behind him, and when
next seen by Anderson was about ten feet away trying to open
a door into the garage. The second volley was also a reason-
able use of deadly force under the circumstances because
Blanford was still carrying the sword and attempting to gain
access to the residence. He was also quite close to the depu-
ties. Nothing else in the balance of factors already present had
changed when Anderson fired again, and a reasonable officer
in his position would have believed that doing so was neces-
sary to neutralize the threat that Blanford posed to people on
the premises.
C
Although Blanford had been hit again in the second volley,
he turned away from Anderson and headed toward the yard
before the third volley. On this account Blanford contends
that he was clearly in the deputies’ sight and was not escap-
ing, as, for example, was the suspect before he was shot in
Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997), over-
ruled on other grounds by Chroma Lighting v. GTE Prods.
Corp., 127 F.3d 1136 (9th Cir. 1997). Forrett had committed
a violent residential burglary, shot and tied up several victims,
escaped in a truck with firearms and ammunition, and eluded
police on foot by jumping over fences and crossing residential
yards before he was eventually cornered, tried to escape by
climbing over a fence, and was shot. Forrett did indeed pre-
sent a case of extreme escape, but this does not mean that the
deputies in this case could not reasonably believe that Blan-
ford, who was armed with a dangerous weapon that he
refused to drop and whose conduct manifested a continuing
BLANFORD v. SACRAMENTO COUNTY 4981
intent to evade their authority and enter a private residence,
presented a danger to themselves or others.
[6] Blanford makes the further point that, even if still
armed with the sword, he was not holding it in any threaten-
ing manner. He also notes that even so, there was no known
person in the vicinity. These factors, together with the severe
injury inflicted, make the third volley the most difficult. How-
ever, from the deputies’ position at the time, we cannot say
that it was objectively unreasonable for Anderson not to stop
firing when Blanford did not stop moving or holding the
sword. All of the facts and circumstances from the beginning
of the encounter must be considered. When they are, the situa-
tion confronting Anderson is distinguishable from the situa-
tions confronting officers in the cases we have already
discussed, and from Curnow v. Ridgecrest Police, 952 F.2d
321 (9th Cir. 1991), upon which Blanford also relies on the
footing that there, as here, the suspect was shot in the back.
Officers had come to Curnow’s house following up on a
report from the night before that he was physically threaten-
ing a woman. They shot Curnow once when it looked as if he
were slapping a woman, and again fatally as he tried to leave
the house with a gun. We affirmed denial of summary judg-
ment in the officers’ favor on qualified immunity because the
evidence, viewed in the light most favorable to Curnow,
showed that the woman was simply sitting on his lap, Curnow
was doing nothing threatening, and he was unarmed at the
time he was shot in the back the first time; and that Curnow
picked up an unloaded gun by the muzzle as he tried to flee
the house and was shot the second time. Here, the deputies
knew that Blanford had committed a crime, albeit not a vio-
lent one, and was continuing a course of conduct that objec-
tively indicated he was not giving up the sword that made him
a threat to anyone in charging range.
[7] In sum, Blanford was armed with a dangerous weapon,
was told to stop and drop it, was warned that he would be shot
if he didn’t comply, appeared to flaunt the deputies’ com-
4982 BLANFORD v. SACRAMENTO COUNTY
mands by raising the sword and grunting, refused to let go of
the sword, and was intent upon trying to get inside a private
residence or its backyard with the sword in hand. The tragedy
is that he persisted even after he admitted seeing the deputies
and hearing them order him to drop the sword, resulting in a
terrible injury. However, that this happened does not make the
deputies’ actions objectively unreasonable, or unconstitu-
tional.
IV
[8] It follows that the deputies are entitled to qualified
immunity. Even if we have misjudged the constitutional issue,
neither Supreme Court nor circuit precedent in existence as of
November 13, 2000 would have put a reasonable officer in
the deputies’ position on notice that using deadly force in the
particular circumstances would violate his Fourth Amendment
rights. While they certainly would have known from Garner
and Graham that shooting Blanford required probable cause
(supported by objectively reasonable facts) to believe that he
posed a threat of serious physical harm to themselves or to
others, the deputies would not have found fair warning in
Garner, Graham, or any other Supreme Court or circuit pre-
cedent at the time that they could not use deadly force to pre-
vent someone with an edged sword, which they had
repeatedly commanded him to drop and whom they had
repeatedly warned would otherwise be shot, from accessing a
private residence where they or people in the house or yard
might be seriously harmed. In this they may have been mis-
taken, but reasonably so. See Anderson v. Creighton, 483 U.S.
635, 641 (1987).
AFFIRMED.
NOONAN, Circuit Judge, dissenting:
Matthew Blanford, a twenty-year-old college student, was
shot and rendered a paraplegic by the police of Sacramento
BLANFORD v. SACRAMENTO COUNTY 4983
County. The shooting occurred in broad daylight at Matthew
Blanford’s residence where he lived with his parents. His
“crime” had been bizarre behavior — he was on medication
for bipolar disorder. At the time that he was shot, he was not
threatening the police or any other known person, and he was
not attempting to escape. Under these circumstances, the
important governmental interest served by sparing the two
shooters a jury trial is the interest of protecting impatient offi-
cers for conduct for which the County of Sacramento awarded
a citation.
The standards to be applied are well-known. Lethal force
may not be employed unless necessary to prevent escape “and
the officer has probable cause to believe that the suspect poses
a significant threat of death or physical injury to the officer
or others.” Tennessee v. Garner, 473 U.S. 1, 3 (1985). The
reasonableness of the officer’s conduct is to be evaluated with
“careful attention to the facts and circumstances of each par-
ticular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officer and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham v. Connor, 490
U.S. 386, 396 (1989). Let us look at Matthew Blanford’s con-
duct in terms of these factors.
The severity of the crime. The opinion alleges that Matthew
Blanford had committed a violation of California Penal Code
§ 417.8, by raising the sword he carried and uttering some
indistinct sounds not discernible as words. Blanford was not
convicted of, nor charged with, committing this crime. His act
would have been a crime if he had exhibited the sword with
the intent to resist or prevent arrest. No showing of such an
intent has been made. Blanford was walking away from the
officers. He did not turn to confront them. The sword had
been in sight from the beginning. Citizens had telephoned the
police that the person carrying it had been seen licking it.
Blanford’s alleged growl did not transform the ancient
weapon into an instrument that he, while walking away, was
4984 BLANFORD v. SACRAMENTO COUNTY
using to threaten the police. His crime was not severe, it was
nonexistent.
The immediate threat posed to the safety of the officers.
Matthew Blanford posed no immediate threat to the safety of
the officers. As the opinion of the court observes, they kept
a safe distance away from him. They always had their guns.
He had nothing but the sword. He never threatened the police
with it.
Actively resisting arrest. At no point did Matthew Blanford
actively resist arrest.
Attempting to evade arrest. Because he did not stop after he
was shot, Matthew Blanford could be seen as attempting to
evade arrest. The attempt was feeble. He did not accelerate,
he did not hide, he stood in his parents’ yard and was shot.
Having examined the objective circumstances that Graham
directs us to, I find no crime, no immediate threat to the offi-
cers, no resistance to arrest, and a pathetic if possible attempt
to evade arrest. The court says that the case is “difficult.” It
is indeed difficult to say that a reasonable officer would not
have known that he violated Matthew Blanford’s constitu-
tional right to life and constitutional right to be free of police
violence when the officer gunned him down at short range.
Let me add one further circumstance mentioned in Garner
that might justify the use of lethal force: probable cause to
believe that the suspect poses a significant threat of death or
physical injury to the officer or others. As glossed by Gra-
ham, the significant threat must also be immediate. The offi-
cers have not been able to name a single human being who
was significantly or immediately threatened by Matthew
Blanford. What the officers have supplied is speculation:
someone might have been in the house, although no one
answered the door; someone might have been in a neighbor’s
backyard if Blanford could have gotten there; Blanford might
BLANFORD v. SACRAMENTO COUNTY 4985
have entered the house through the garage, although no one
knows whether the garage opened into the house.
Not only is there no evidence that any human person was
in significant or immediate danger. The officers knew that
Blanford had been walking the streets for some time without
harming or endangering anyone. They also knew that a
bizarre sword-carrier had been seen before in the neighbor-
hood and had disappeared into it without harm or threat to
anyone. So why did they need to use deadly force to restrain
Blanford at his parents’ doorstep? If imagined persons and
imagined emergencies constitute reason to shoot, no commu-
nity is safe from officers too quickly frustrated and angered
by being ignored.
The case is one that demands judgment by the citizens of
Sacramento County assembled as a jury, not immunity for the
injury-inflicting police.