Than Orn v. City of Tacoma ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THAN ORN, individually; THALISA No. 18-35379
ORN, individually; CLARISSE ORN,
Guardian on behalf of J. O. and D.C. No.
C. O., 3:13-cv-05974-
Plaintiffs-Appellees, RBL
v.
OPINION
CITY OF TACOMA, a municipal
corporation; KRISTOPHER CLARK, in
his individual capacity,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 11, 2019
Seattle, Washington
Filed February 3, 2020
Before: Danny J. Boggs, * Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 ORN V. CITY OF TACOMA
SUMMARY **
Civil Rights
The panel affirmed the district court’s order, on
summary judgment, denying qualified immunity to a police
officer in an action brought pursuant to 42 U.S.C. § 1983
alleging that the officer used excessive force when he shot
and severely wounded plaintiff after a slow-speed car
pursuit.
The panel first held that, viewing the facts in the light
most favorable to plaintiff, a reasonable jury could conclude
that the police officer violated plaintiff’s Fourth Amendment
right to be free from the use of excessive force. Thus, the
panel determined that defendant did not have an objectively
reasonable basis for believing that plaintiff posed a threat of
serious physical harm, either to the officer himself or to
others. The panel noted that construing the facts in
plaintiff’s favor, he never targeted officers with his vehicle
or forced other vehicles off the road. In addition, he traveled
at normal speeds and stopped at traffic lights and stop signs
throughout the pursuit.
Turning to the second step of the qualified immunity
analysis, the panel held that plaintiff’s right to be free from
the use of excessive force was clearly established at the time
of the shooting. The panel noted that in October 2011, at
least seven circuits had held that an officer lacks an
objectively reasonable basis for believing that his own safety
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ORN V. CITY OF TACOMA 3
is at risk when firing into the side or rear of a vehicle moving
away from him. The panel stated that, taking the facts in the
light most favorable to plaintiff, a reasonable jury could
conclude both that the officer was never in the path of
plaintiff’s vehicle and that he fired through the passenger-
side windows and rear windshield as the vehicle was moving
away from him. The panel further held that under plaintiff’s
version of events, he never engaged in any conduct that
suggested his vehicle posed a threat of serious physical harm
to another officer on the scene, or to anyone else in the
vicinity.
COUNSEL
Jean P. Homan (argued), Tacoma City’s Attorney’s Office,
Tacoma, Washington, for Defendants-Appellants.
Loren A. Cochran (argued) and Darrell L. Cochran, Pfau
Cochran Amala Vertetis PLLC, Tacoma, Washington;
Thomas A. Balerud, Law Office of Thomas A. Balerud,
Tacoma, Washington; for Plaintiffs-Appellees.
OPINION
WATFORD, Circuit Judge:
Officer Kristopher Clark of the Tacoma Police
Department shot and severely wounded Than Orn on the
night of October 12, 2011. Orn sued Clark and the City of
Tacoma under 42 U.S.C. § 1983, alleging a violation of his
Fourth Amendment right to be free from the use of excessive
force. Clark moved for summary judgment on the basis of
qualified immunity. The district court denied the motion,
4 ORN V. CITY OF TACOMA
and Clark has taken an interlocutory appeal from that order.
We have jurisdiction under the collateral-order doctrine, see
Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014), and now
affirm.
I
In an interlocutory appeal challenging the denial of
qualified immunity, we must construe the facts in the light
most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372,
378 (2007). Notwithstanding this clear rule, Clark asks us at
several key junctures to credit his version of the facts and to
assume that a jury would resolve factual disputes in his
favor. This we are not permitted to do. See Tolan v. Cotton,
572 U.S. 650, 656–57 (2014) (per curiam); Brosseau v.
Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam). Unless
Orn’s version of events is “blatantly contradicted by the
record, so that no reasonable jury could believe it,” we must
assume that a jury could find Orn’s account of what
happened credible, even if it conflicts with Clark’s account.
Scott, 550 U.S. at 380. Here, nothing in the record blatantly
contradicts Orn’s account of the events in question. The
narrative that follows therefore resolves all disputed factual
issues in his favor.
At about 8:30 p.m., Orn was driving his wife’s
Mitsubishi Montero on city streets when he noticed a police
car with its lights activated attempting to pull him over. The
officer sought to stop Orn because he was driving without
his headlights on. Excerpts of Record (ER) 128, 133. Orn
was driving with a suspended license at the time and had just
smoked crack cocaine. Rather than pull over, he decided to
return home to the apartment complex where he lived with
his wife, as he knew she needed the car for work. As he
made his way home, Orn traveled at 25–35 miles per hour
ORN V. CITY OF TACOMA 5
and stopped at traffic lights and stop signs. ER 133, 305,
308, 351.
It took Orn roughly 15 minutes to drive home. Along the
way, additional officers joined the slow-speed pursuit,
including Clark and his partner Donald Rose, who were
driving in a Tacoma Police Department sport utility vehicle.
At one point, in an effort to get Orn to stop, several police
units attempted unsuccessfully to box him in. ER 163–65.
At another point, officers drove in front of Orn’s vehicle to
block his path, but Orn drove onto a curb and down a portion
of a closed roadway to avoid them. ER 269, 475, 478. Later
in the pursuit, officers put down spike strips, which Orn
managed to circumvent by swerving away from the officers
and into the oncoming lane of traffic. No oncoming vehicles
were traveling toward Orn at the time. ER 104–05, 351, 358.
As the pursuit progressed, officers correctly predicted
that Orn might be returning home, since by then they had
determined the address to which his vehicle was registered.
Clark knew that Orn’s apartment complex had a long
outdoor parking lot with only two entrances, one at the north
end and the other at the south end. When Clark saw Orn
head toward the south entrance, he drove to the north end of
the complex and entered there. Clark positioned his SUV
across a narrow point of the single access lane that ran the
length of the parking lot, in an effort to prevent Orn from
exiting the complex on the north end.
Orn pulled into the south entrance with a caravan of
police vehicles following behind him. He proceeded slowly
down the access lane toward the north end of the complex.
When he approached Clark’s SUV and saw that it was
blocking his path, he paused and came to a brief stop.
ER 180, 353.
6 ORN V. CITY OF TACOMA
The diagram below depicts the scene of the events that
transpired next. ER 535. Clark was standing on the grassy
area to the left of his SUV as Orn approached. ER 523. He
had his gun drawn with the barrel pointed toward the ground
and repeatedly yelled at Orn to stop. ER 341–42, 523. Clark
had no reason to believe that Orn had a firearm, and in fact
he did not. ER 165, 444. Orn saw Clark and heard his
commands but ignored them. ER 342.
After briefly stopping in front of Clark’s SUV, Orn drove
away from where Clark was standing and attempted to
navigate through a narrow opening between the passenger
side of Clark’s SUV and a nearby parked car. To do so, Orn
had to drive up a curb onto a small patch of grass between
the two vehicles and then turn his vehicle to the right.
ER 342. Given the tightness of the space, Orn was driving
very slowly as he attempted this maneuver. ER 179–80. He
ORN V. CITY OF TACOMA 7
estimated his speed at five miles per hour, as did officers at
the scene. ER 193, 352.
When Orn began maneuvering around Clark’s SUV,
another officer, Steven Butts, backed his patrol vehicle into
Orn’s line of travel to cut off any path of escape through the
complex’s north entrance. ER 416. That move caused Orn
to turn his vehicle more sharply to the right to avoid hitting
Officer Butts’s vehicle. ER 355.
As Orn moved past Clark’s SUV, the panel near the
passenger-side rear wheel of Orn’s vehicle clipped the
passenger-side rear quarter panel of Clark’s SUV. (Officer
Rose, who remained inside the SUV and felt the impact,
described it as a “glancing blow.” ER 109.) The left front
corner of Orn’s vehicle also struck the right front corner of
Officer Butts’s vehicle. Just after Orn’s vehicle moved past
Clark’s SUV, Orn saw Clark run toward his vehicle on the
passenger side and begin firing at him. ER 270, 354, 356.
The first round entered through the front passenger-side
window of Orn’s vehicle; the second and third rounds
entered through the rear passenger-side window. ER 435,
440–41, 513–15, 517–18. One of those rounds struck Orn in
the spine, which caused Orn’s body to go numb. ER 357,
362, 515. He slumped into the passenger seat and the engine
of his vehicle revved loudly as his foot floored the
accelerator. Clark ran behind Orn’s vehicle as it sped away,
firing seven more rounds through the rear windshield.
ER 212, 440.
Clark disputes this account of the shooting. His account
differs from Orn’s in two key respects: the manner in which
Orn maneuvered his vehicle around Clark’s SUV, and where
Clark was standing when that occurred. According to Clark,
as soon as he saw Orn drive up the curb onto the patch of
grass, he ran from where he had been standing and took up a
8 ORN V. CITY OF TACOMA
position behind the rear bumper near the passenger side of
his SUV, as depicted by the faint blue figure in the diagram
above. ER 299, 524. Clark contends that, as Orn
maneuvered between Clark’s SUV and the parked car, Orn
turned his wheels sharply to the right, which placed Clark in
the path of Orn’s vehicle. ER 299, 525. At the same time,
Clark says, Orn stepped on the gas and propelled the vehicle
toward him under “hard acceleration,” causing him to fear
that he would be run over by Orn’s vehicle or pinned
between his vehicle and Orn’s. ER 299, 524–25. According
to Clark, he placed his left hand on the side of Orn’s vehicle
to brace for the impact while simultaneously raising his right
arm above his shoulder. He then fired one or two rounds
downward into Orn’s vehicle as it passed by. ER 525. Clark
asserts that he chased after Orn’s vehicle and continued to
fire at it from behind because he feared for the safety of
Officer Rose, who he thought might be standing in the area
where Orn’s vehicle was headed. ER 523, 525.
After Clark stopped firing, Orn’s vehicle continued
forward and hit several parked cars before crashing into a
chain-link fence, which stopped the vehicle’s forward
progress. Officers took Orn into custody and summoned
medical help. In all, three of the ten rounds fired by Clark
struck Orn. The bullet that lodged in his spine has left him
paralyzed from the waist down.
County prosecutors charged Orn with using his vehicle
to assault Clark and with attempting to elude a pursuing
police vehicle. The jury acquitted Orn of the assault charge.
ER 253. It also acquitted him of the eluding charge,
convicting him instead of the lesser-included offense of
failure to obey a law-enforcement officer. ER 254. Orn was
ordered to pay a fine of $250.
ORN V. CITY OF TACOMA 9
II
When an officer asserts qualified immunity as a defense,
our analysis proceeds in two steps. We first ask whether the
facts taken in the light most favorable to the plaintiff show
that the officer’s conduct violated a constitutional right.
Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, we then ask
whether the right in question was clearly established at the
time of the officer’s actions, such that any reasonably well-
trained officer would have known that his conduct was
unlawful. District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018); Malley v. Briggs, 475 U.S. 335, 344–45 (1986).
We have the discretion to skip the first step in certain
circumstances, as when the officer is plainly entitled to
prevail at the second step. See Pearson v. Callahan,
555 U.S. 223, 236 (2009). Here, however, we think both
steps of the analysis must be resolved against Clark.
A
At the first step, a reasonable jury could conclude that
Clark violated Orn’s Fourth Amendment right to be free
from the use of excessive force.
Determining whether an officer’s use of force violates
the Fourth Amendment requires balancing “the nature and
quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.”
Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal
quotation marks omitted). That inquiry generally involves
an assessment of factors such as “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). In the context
10 ORN V. CITY OF TACOMA
involved here, the Supreme Court has crafted a more
definitive rule: An officer may use deadly force to
apprehend a fleeing suspect only if “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. A suspect may pose such a threat if “there is
probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious
physical harm,” or if the suspect threatens the officer or
others with a weapon capable of inflicting such harm. Id.
The key question, then, is whether Clark had an
objectively reasonable basis for believing that Orn posed a
threat of serious physical harm, either to Clark himself or to
others. See Ryburn v. Huff, 565 U.S. 469, 474 (2012) (per
curiam). Taking the facts in the light most favorable to Orn,
and giving due deference to Clark’s assessment of the danger
presented by the situation he confronted, see id. at 477, we
conclude the answer is no.
1. We’ll begin with the threat to Clark himself. A
moving vehicle can of course pose a threat of serious
physical harm, but only if someone is at risk of being struck
by it. According to Orn’s version of events, Clark was never
at risk of being struck by Orn’s vehicle because he was never
in the vehicle’s path of travel. As Orn’s vehicle moved past
Clark’s SUV, Clark ran toward the passenger side of Orn’s
vehicle and opened fire through the passenger-side windows.
At that point, Clark could not reasonably have feared for his
own safety because he was on the side of Orn’s vehicle as it
was traveling away from him. See, e.g., Godawa v. Byrd,
798 F.3d 457, 466 (6th Cir. 2015); Smith v. Cupp, 430 F.3d
766, 774 (6th Cir. 2005); Cowan ex rel. Estate of Cooper v.
Breen, 352 F.3d 756, 763 (2d Cir. 2003); Abraham v. Raso,
183 F.3d 279, 293–94 (3d Cir. 1999). And Clark was
ORN V. CITY OF TACOMA 11
obviously not in harm’s way as he chased after Orn’s vehicle
and fired additional rounds at Orn through the rear
windshield.
Clark does not dispute that an officer who fires into the
side or rear of a vehicle moving away from him lacks an
objectively reasonable basis for claiming that he did so out
of fear for his own safety. He instead urges us to analyze the
lawfulness of his actions under his version of events, in
which he stood in the path of Orn’s vehicle as it accelerated
toward him, causing him to fear for his life. As noted at the
outset, we cannot analyze the case through that lens because
Clark’s version of events conflicts with the facts construed
in the light most favorable to Orn. Most fundamentally,
Orn’s testimony provides an account of the shooting in
which Clark was never at risk of being struck by Orn’s
vehicle. Although Orn’s testimony alone would be
sufficient to create a material factual dispute on this point,
Officer Butts’s testimony provides additional support for
Orn’s version of events. Officer Butts testified that he saw
Clark standing behind the rear bumper of the SUV only after
Clark fired the first round of shots, and that he did not see
Clark make any physical contact with Orn’s vehicle.
ER 194–96, 198–99. Officer Butts also testified that he
heard Orn’s engine rev and saw the vehicle accelerate after
the first shots were fired, not before as Clark maintains.
ER 196–97, 201. A reasonable jury could find Officer
Butts’s testimony significant because his vehicle was parked
facing the rear passenger side of Clark’s SUV, giving him an
up-close vantage point from which to see and hear what
transpired just before the shooting.
In an effort to bolster his version of events and discredit
Orn’s, Clark relies on two pieces of evidence that he views
as critical. First, he points to a tire track left at the scene,
12 ORN V. CITY OF TACOMA
which he contends shows that Orn must have accelerated
before being shot. ER 207, 462–63, 538, 562. Second, Clark
notes that detectives found an unidentified palm print on the
passenger side of Orn’s vehicle, in the area where Clark said
he placed his hand to brace for the impact. ER 448–49.
While these two pieces of evidence provide some support for
Clark’s version of events, they are nowhere near conclusive
enough to meet Scott’s “blatantly contradicts” standard,
where the Court relied on a videotape clearly depicting the
events in question. 550 U.S. at 379–80.
Even if a jury found that Clark was standing behind the
rear bumper of his SUV, as he claims, it could still conclude
that Clark lacked an objectively reasonable basis to fear for
his own safety. As Orn’s vehicle approached, Clark
concedes that he was not initially in the vehicle’s path of
travel. ER 524. He contends that his safety was imperiled
when Orn turned his wheels more sharply to the right to
squeeze between Clark’s SUV and Officer Butts’s patrol car.
At that point, Orn’s vehicle was moving at just five miles per
hour. Clark could therefore have avoided any risk of being
struck by simply taking a step back, a common-sense
conclusion confirmed by Clark’s own admission that he
“was able to step backwards and get out of the path of
Mr. Orn’s vehicle.” ER 525. In similar circumstances, we
held that a reasonable jury could find that an officer standing
near a slow-moving vehicle “would not have perceived
himself to be in danger of serious bodily harm,” because he
could have avoided any risk of injury “by simply stepping to
the side.” Acosta v. City & County of San Francisco, 83 F.3d
ORN V. CITY OF TACOMA 13
1143, 1146–47 (9th Cir. 1996); see also Abraham, 183 F.3d
at 294. 1
2. The remaining question is whether Clark had an
objectively reasonable basis for believing that Orn posed a
threat of serious physical harm to others. On this point, in
both the district court and before our court, Clark has argued
only that Orn posed a threat to his partner, Officer Rose. As
noted earlier, Clark mistakenly (but reasonably) believed
that Officer Rose had exited the SUV and may have been
standing in the area where Orn’s vehicle was headed. In fact,
Officer Rose remained inside the SUV until after the
shooting.
Clark claims that he feared for the safety of Officer Rose
because Orn had just attempted to run Clark over and thus
might have been inclined to assault Officer Rose as well.
ER 299–300, 525. But if a jury rejects Clark’s account of
the shooting and concludes that Clark was never at risk of
being struck by Orn’s vehicle, nothing else Orn had done
suggested that he posed a threat to the safety of Officer Rose.
1
We need not decide whether a jury could find Clark’s use of deadly
force unreasonable based in part on his decision to move from the grassy
area where he had been standing (a position of relative safety) to take up
a more dangerous position behind the rear bumper of his SUV as Orn’s
vehicle approached. The reasonableness of an officer’s use of force must
be judged by considering “the totality of the circumstances,” Garner,
471 U.S. at 8–9, and several circuits have held that “[w]here a police
officer unreasonably places himself in harm’s way, his use of deadly
force may be deemed excessive.” Kirby v. Duva, 530 F.3d 475, 482 (6th
Cir. 2008); accord Thomas v. Durastanti, 607 F.3d 655, 667 (10th Cir.
2010); Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009); Estate
of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993). In County of Los
Angeles v. Mendez, 137 S. Ct. 1539 (2017), the Supreme Court did not
foreclose this theory of liability, even as it rejected our circuit’s former
“provocation rule.” See id. at 1547 n.*
14 ORN V. CITY OF TACOMA
Orn was driving at a slow speed in a non-reckless manner as
he maneuvered around Clark’s SUV, and although his
vehicle clipped Clark’s SUV and Officer Butts’s patrol car
as he maneuvered between them, the contact was slight and
clearly accidental. See Latits v. Phillips, 878 F.3d 541, 549–
50 (6th Cir. 2017) (accidental collision with police vehicle
causing minor damage did not provide a basis for believing
that suspect would harm officers); Vaughan v. Cox, 343 F.3d
1323, 1330 (11th Cir. 2003) (same). In addition, at every
juncture earlier in the evening, Orn had deliberately driven
his vehicle away from nearby officers. Taking this view of
the facts, a reasonable jury could conclude that Clark had no
basis for believing that Orn’s vehicle posed a threat to
Officer Rose. See Abraham, 183 F.3d at 294–95; cf. Scott v.
Edinburg, 346 F.3d 752, 758 (7th Cir. 2003) (suspect’s
attempt to run over officer was relevant to the officer’s
“perception that the bystanders were in danger”).
Clark has not argued that his use of deadly force was
justified on the theory that permitting Orn to escape could
have posed a threat to the safety of the general public. Nor
is there any basis in the record for making such an argument.
A fleeing suspect’s escape can pose a threat to the public
when police have probable cause to believe that the suspect
has committed a violent crime, see Garner, 471 U.S. at 11,
but neither of the offenses for which Orn was wanted
involved any sort of violence. Such a threat can also exist
when the suspect has driven in a manner that puts the lives
of pedestrians or other motorists at risk, as by leading
officers on a high-speed chase. See Mullenix v. Luna, 136 S.
Ct. 305, 306, 309 (2015) (per curiam) (suspect drove at over
100 miles per hour and threatened to shoot police officers
unless they abandoned the pursuit); Plumhoff, 572 U.S. at
776 (suspect swerved between congested traffic lanes at
speeds exceeding 100 miles per hour); Scott, 550 U.S. at 380
 ORN V. CITY OF TACOMA 15
(suspect engaged in “a Hollywood-style car chase of the
most frightening sort”). In such cases, officers have an
interest in terminating the suspect’s flight because the flight
itself poses a threat of serious physical harm to others. But
to warrant the use of deadly force, a motorist’s prior
interactions with police must have demonstrated that “he
either was willing to injure an officer that got in the way of
escape or was willing to persist in extremely reckless
behavior that threatened the lives of all those around.”
Latits, 878 F.3d at 548 (internal quotation marks omitted).
A reasonable jury could conclude that Orn did not
engage in any such conduct here, and that Clark therefore
had no basis for believing that Orn would pose a threat of
serious physical harm to the general public if permitted to
escape. Construing the facts in the light most favorable to
Orn, he never targeted officers with his vehicle or forced
other vehicles off the road. In addition, he traveled at normal
speeds and stopped at traffic lights and stop signs throughout
the pursuit. ER 305, 308, 351. Indeed, the Tacoma Police
Department’s Pursuit Review Committee conducted a
review of the pursuit and classified it as involving only a
“Failure to Yield,” which occurs when a driver “fails or
refuses to immediately bring his or her vehicle to a stop, and
drives in a manner that is not reckless and does not pose an
immediate threat to community safety.” ER 219.
In his brief before our court, Clark hints at a different
view of the facts, but in doing so he simply highlights the
factual disputes that a jury must ultimately resolve. For
example, Clark asserts that when officers attempted to box
Orn in, he deliberately swerved toward one of them, forcing
the officer to veer into the next lane of traffic to avoid a
collision. ER 161, 166. That incident, if it did occur, is
irrelevant to the Fourth Amendment analysis because Clark
16 ORN V. CITY OF TACOMA
did not witness it and a reasonable jury could conclude that
he did not learn about it until after the shooting. See Deorle
v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). The
officer involved in the alleged incident did not report it over
the radio, ER 162, and Officer Rose, who was riding in the
same vehicle as Clark, testified that he did not recall hearing
any radio transmissions during the pursuit indicating that
Orn’s driving had endangered other officers or the public,
ER 105. Clark further asserts that Orn drove onto a
pedestrian path during the pursuit, but Clark did not witness
this incident either, and the officer who reported it over the
radio stated only that Orn had “cut over the curb.” ER 306.
Clark also points to Orn’s actions in evading the spike
strips—something Clark did witness—but it is undisputed
that Orn swerved away from the officers who deployed the
strips and that he did not endanger any motorists in the
oncoming lane of traffic because there were no motorists
coming toward Orn.
In short, if Clark decides to pursue this line of argument
at trial, a jury will have to determine whether Orn engaged
in conduct that demonstrated a willingness either to injure
officers or to “persist in extremely reckless behavior that
threatened the lives of all those around.” Latits, 878 F.3d at
548.
B
We turn next to the second step of the qualified immunity
analysis, which asks whether Orn’s right to be free from the
use of excessive force was clearly established at the time of
the shooting. In making that determination, we are mindful
of the Supreme Court’s repeated admonition not to define
the right at issue at a high level of generality. See, e.g.,
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam);
City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,
ORN V. CITY OF TACOMA 17
1775–76 (2015); Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011). Qualified immunity is designed to ensure that
officers receive fair notice of the illegality of their conduct,
and general standards often fail to provide such notice in
excessive force cases, where “the result depends very much
on the facts of each case.” Kisela, 138 S. Ct. at 1153
(internal quotation marks omitted).
In an “obvious case,” the general standards established
in Garner and Graham can suffice to put an officer on notice
that his conduct is unlawful. Brosseau, 543 U.S. at 199. But
usually uncertainty will remain as to whether the particular
set of facts confronting an officer satisfies those standards.
See Sheehan, 135 S. Ct. at 1777. When that is the case, an
officer will be “entitled to qualified immunity unless existing
precedent squarely governs the specific facts at issue.”
Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted).
Stated differently, precedent in existence at the time of the
officer’s actions must render the unlawfulness of his conduct
“beyond debate.” al-Kidd, 563 U.S. at 741. That does not
mean a plaintiff must identify prior cases that are “directly
on point.” Id. The plaintiff must instead identify precedent
that holds “certain conduct is a constitutional violation under
facts not distinguishable in a fair way from the facts
presented in the case at hand.” Saucier, 533 U.S. at 202.
1. To the extent Clark seeks to justify his use of deadly
force based on a threat to his own safety, existing precedent
declared his conduct unconstitutional in circumstances
indistinguishable from those present here. By the time of the
shooting in October 2011, at least seven circuits had held
that an officer lacks an objectively reasonable basis for
believing that his own safety is at risk when firing into the
side or rear of a vehicle moving away from him. See
Cordova v. Aragon, 569 F.3d 1183, 1187, 1191 (10th Cir.
18 ORN V. CITY OF TACOMA
2009); Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir.
2009); Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008);
Waterman v. Batton, 393 F.3d 471, 482 (4th Cir. 2005);
Cowan, 352 F.3d at 763; Vaughan, 343 F.3d at 1327, 1330–
31; Abraham, 183 F.3d at 293–94; see also Scott, 346 F.3d
at 757–58. To the same effect is our circuit’s decision in
Adams v. Speers, 473 F.3d 989 (9th Cir. 2007), where we
held that an officer violated the Fourth Amendment by firing
through the front windshield of a vehicle moving backward
away from him. Id. at 992–93. As discussed above, taking
the facts in the light most favorable to Orn, a reasonable jury
could conclude both that Clark was never in the path of Orn’s
vehicle and that he fired through the passenger-side windows
and rear windshield as the vehicle was moving away from
him. On that score, “existing precedent squarely governs the
specific facts at issue.” Kisela, 138 S. Ct. at 1153.
Clark contests this conclusion only by urging us to credit
his version of events, just as he did for purposes of the Fourth
Amendment analysis at step one. He insists that “the
specific facts at issue” are those in which he was standing in
the path of a vehicle speeding toward him under “hard
acceleration.” The cases on which he relies for support all
involve officers who were in the path of vehicles moving
toward them. See Thomas v. Durastanti, 607 F.3d 655, 665
(10th Cir. 2010); Hathaway v. Bazany, 507 F.3d 312, 322
(5th Cir. 2007); Troupe v. Sarasota County, 419 F.3d 1160,
1168 (11th Cir. 2005); Robinson v. Arrugueta, 415 F.3d
1252, 1256 (11th Cir. 2005). These cases are inapposite here
because we are not permitted to analyze Clark’s entitlement
to qualified immunity under his version of the facts.
Even if the jury were to conclude that Clark was standing
behind the rear bumper of his SUV as Orn’s vehicle
approached, he would not be entitled to qualified immunity.
ORN V. CITY OF TACOMA 19
We held in Acosta that an officer’s use of deadly force
violated the Fourth Amendment in circumstances similar to
those present here. There, the defendant officer was
standing in front of the suspect’s car “closer to the side than
the dead-center,” 83 F.3d at 1146, and the vehicle was
“moving or rolling very slowly from a standstill” as it
approached him. Id. at 1147. We stated that the car was
moving slowly enough that the officer could have avoided
any risk of injury “by simply stepping to the side,” rendering
his use of deadly force unreasonable. Id. at 1146. The facts
of this case, taken in the light most favorable to Orn, are not
fairly distinguishable from those in Acosta. If Orn was
traveling at only five miles per hour as he maneuvered past
Clark’s SUV, and if he did not accelerate until after being
shot, a reasonable jury could conclude that Clark lacked an
objectively reasonable basis to fear for his own safety, as he
could simply have stepped back to avoid being injured.
2. Clark is not entitled to qualified immunity based on
his claimed fear for the safety of others—in this case, Officer
Rose. The objective reasonableness of Clark’s fear for
Officer Rose’s safety is again dependent upon the jury’s
acceptance of his account of the shooting. According to
Clark, Orn nearly ran him over after turning the vehicle
toward him and accelerating rapidly. But a reasonable jury
could conclude, contrary to Clark’s version of events, that he
was never at risk of being struck by Orn’s vehicle. And if
the jury disbelieved Clark’s account of having been
assaulted by Orn, it could also conclude that nothing else
about Orn’s behavior that night, either during the course of
the pursuit or in the parking lot, gave rise to a basis for
believing that he posed a significant threat to Officer Rose.
See, e.g., Lytle, 560 F.3d at 416–17; Abraham, 183 F.3d
at 293.
20 ORN V. CITY OF TACOMA
The cases Clark cites on this point are distinguishable
when the facts are viewed in the light most favorable to Orn.
In Brosseau, the suspect had a felony no-bail warrant out for
his arrest and was attempting to elude capture by hiding near
his mother’s house. 543 U.S. at 195. When officers found
him, he ran to the driveway and jumped into his car, which
was facing the street. Two vehicles directly blocked his
path: a small car parked in the driveway facing the suspect’s
car; and a pickup truck parked in the street blocking the
driveway. Id. at 195–96. Both vehicles were occupied. The
defendant officer believed that the suspect had sprinted to
his car in order to retrieve a weapon, and she ordered him at
gunpoint to get out of the car. When he refused to comply,
the officer shattered the driver’s side window with her gun,
reached in to try to grab the keys, and struck the suspect in
the head with her gun. The suspect nonetheless started the
car and began to move forward when the officer fired one
round through the rear driver’s side window. She did so to
protect the occupants of the two vehicles directly blocking
the suspect’s path, as well as fellow officers who were on
foot in the immediate area. Id. at 196–97. Given the
suspect’s apparent determination to escape at all costs,
notwithstanding the officer’s violent attempts to restrain
him, the Supreme Court held that the officer had reasonable
grounds to believe that the suspect would race out of the
driveway—and recklessly endanger the lives of those in his
path—if allowed to drive off.
In Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010), the
suspect had engaged the police in a short pursuit before
crashing into a telephone pole. Two officers, Key and
Torres, approached the vehicle on foot. Key attempted to
open the driver’s door but slipped and fell to the ground as
the suspect’s vehicle began to move in reverse. Id. at 548–
49. The engine revved and the wheels were spinning and
ORN V. CITY OF TACOMA 21
throwing up mud due to the slippery conditions. As the
vehicle accelerated backward, it arced toward the driver’s
side, leading Torres to fear that Key had been run over and
was in danger of being struck again. Torres fired through
the passenger-side window to protect both Key and himself.
Id. at 549. We held that the undisputed facts provided Torres
with an objectively reasonable basis to fear for both Key’s
safety and his own. Id. at 551–52.
The facts of this case bear no resemblance to those in
Brosseau and Wilkinson. There were no officers or other
individuals in Orn’s path. The only person Clark thought
might be in the immediate area was Officer Rose. Yet under
Orn’s version of events, he never engaged in any conduct
that suggested his vehicle posed a threat of serious physical
harm to Officer Rose, or to anyone else in the vicinity.
Finally, although Clark has not argued that Orn posed a
threat to the safety of the general public, we do not think
Clark could claim qualified immunity on that basis either.
Officers may use deadly force to halt the flight (or continued
flight) of a motorist who they reasonably believe will pose a
deadly threat to the lives of pedestrians or other motorists.
Plumhoff, 572 U.S. at 777. But existing precedent made
clear that Orn’s conduct prior to the shooting did not give
rise to an objectively reasonable basis for believing that Orn
posed such a threat.
The cases upholding the use of deadly force to protect
the public from a fleeing motorist have typically involved
suspects who drove at extremely high speeds, endangered
other motorists on the road, or intentionally targeted police
officers with their vehicles. See, e.g., Scott, 550 U.S. at 379–
80; Pace v. Capobianco, 283 F.3d 1275, 1277–78, 1282–83
(11th Cir. 2002); Cole v. Bone, 993 F.2d 1328, 1330–31,
1333–34 (8th Cir. 1993); Smith v. Freland, 954 F.2d 343,
22 ORN V. CITY OF TACOMA
344, 347 (6th Cir. 1992). In these cases, the suspect’s
conduct before the shooting demonstrated that he “was likely
to continue to threaten the lives of those around him in his
attempt to escape.” Cupp, 430 F.3d at 775. As discussed
above, Orn engaged in no such conduct here. In fact, his
driving prior to the shooting was less hazardous than that of
the suspects in Cordova and Lytle, two cases in which the
courts held, after construing the facts in the light most
favorable to the plaintiffs, that an officer’s use of deadly
force violated the Fourth Amendment. See Cordova,
569 F.3d at 1186, 1190 (suspect ran two red lights, crossed
onto the wrong side of a highway, and attempted to ram
police vehicles on two occasions); Lytle, 560 F.3d at 407,
413 (suspect speeding through a residential area collided
with a car in an oncoming lane of traffic). 2
* * *
In the end, this is not a case in which the legality of the
officer’s conduct falls within the “hazy border between
excessive and acceptable force.” Saucier, 533 U.S. at 206
(internal quotation marks omitted). When the facts are
viewed in the light most favorable to Orn, as they must be at
this point in the litigation, Clark had “fair and clear warning
2
In denying the officer qualified immunity, the Lytle court explained
that the suspect had a clearly established right to be free from the use of
deadly force because he did not “pose a sufficient threat of harm to the
officer or others.” 560 F.3d at 417. The court in Cordova reaffirmed
this principle, but ultimately granted qualified immunity to the officer in
that case based on the specific facts at issue. 569 F.3d at 1193. In doing
so, the court acknowledged that the outcome likely would have been
different had the suspect posed a less substantial risk of harm to others,
or at least the same degree of risk as the suspect in Lytle. Id. Because
Orn presented even less of a risk of harm to third parties than the driver
in Lytle, Cordova’s qualified immunity holding, if anything, supports our
conclusion.
ORN V. CITY OF TACOMA 23
of what the Constitution requires.” Sheehan, 135 S. Ct.
at 1778 (internal quotation marks omitted). What Clark
most forcefully contests is whether his alternative account of
the shooting should be accepted as true. Factual disputes of
that order must be resolved by a jury, not by a court
adjudicating a motion for summary judgment. Tolan,
572 U.S. at 656; see Saucier, 533 U.S. at 216 (Ginsburg, J.,
concurring in the judgment).
AFFIRMED.