Masa Warden v. Bryan Cowan ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASA NATHANIEL WARDEN, No. 20-17405
Plaintiff-Appellee, D.C. No.
2:19-cv-00431-TLN-AC
v.
BRYAN COWAN; NICK WEAVER, MEMORANDUM*
Defendants-Appellants,
and
WILL WILLIAMS; ROGER MOORE, Chief
of Police,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted February 16, 2022
San Francisco, California
Before: SILER,** S.R. THOMAS, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Officers Bryan Cowan and Nick Weaver appeal from the district court's
denial of their motion for summary judgment on the basis of qualified immunity.
Applying de novo review, and given the limited inquiry presented at this stage of
the proceeding, we affirm the district court’s denial of qualified immunity on
summary judgment.
1. Masa Warden argues that we lack jurisdiction to consider this
interlocutory appeal because it challenges the merits of the district court’s findings
of disputed facts. Although denials of summary judgment are typically not
appealable, Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir.
2017), we may review orders denying qualified immunity on summary judgment
under the collateral order exception to finality, Plumhoff v. Rickard, 572 U.S. 765,
771–73 (2014); Foster v. City of Indio, 908 F.3d 1204, 1209 (9th Cir. 2018) (per
curiam).
The scope of our review, however, is “circumscribed.” Foster, 908 F.3d at
1210 (quoting George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013)). We may only
consider whether the defendant would be entitled to qualified immunity as a matter
of law, assuming all factual disputes are resolved and all reasonable inferences are
drawn in plaintiff’s favor. See Estate of Anderson v. Marsh, 985 F.3d 726, 731
(9th Cir. 2021). Accordingly, we only have jurisdiction to consider the officers’
arguments that (1) as a matter of law, the officers’ use of force was objectively
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reasonable such that it did not violate Warden’s constitutional rights; and (2) as a
matter of law, clearly established law at the time of the violation would not have
put the officers on notice that their conduct was unlawful.1
2. We review a denial of qualified immunity on a motion for summary
judgment de novo. Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). The
qualified immunity inquiry consists of two parts: (1) “whether the facts that a
plaintiff has alleged . . . or shown . . . make out a violation of a constitutional
right,” and (2) “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Id. (quoting Pearson v. Callahan, 555 U.S. 223,
232 (2009).) On review of this denial of summary judgment, we resolve all factual
disputes and draw all inferences in Warden’s favor in order to answer the very
narrow question before us: whether as a matter of law Officers Cowan’s and
Weaver’s conduct (1) violated a constitutional right that (2) was clearly established
at the time of the violation. Id.Taking Warden’s facts as true, he was shot 16–17 times as he lay on his
stomach in a prone position, with his feet closer to the officers, while repeatedly
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Officers Cowan and Weaver also argue that the district court made several
reversible errors in denying summary judgment by failing to consider the correct
facts. We lack jurisdiction to consider these arguments because they effectively
ask this court to evaluate on this interlocutory appeal whether the district court
properly determined that there was a genuine issue of material fact. See Foster,
908 F.3d at 1212–13.
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yelling that he did not have a weapon. According to Warden, Officers Cowan and
Weaver began shooting immediately after he moved his previously outstretched
arms towards his shoulder area and pressed down on the concrete to “do a pushup.”
Warden testified that he made this movement so that he could lift his upper body
off the ground, turn his head, and again tell the officers that he did not have a
weapon.
“In evaluating a Fourth Amendment claim of excessive force, we ask
‘whether the officers’ actions [wer]e “objectively reasonable” in light of the facts
and circumstances confronting them.’” Rice v. Morehouse, 989 F.3d, 1112, 1121
(9th Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) (alteration
added). In doing so, we judge the reasonableness of a particular use of force “from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. (internal quotation marks and citation omitted). To assess
reasonableness, we consider the Graham factors, 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.” Wilkinson, 610 F.3d at 550 (quoting Graham, 490 U.S. at 396).
Officers Cowan and Weaver were aware at the time of the shooting that
Warden was suspected of committing a number of crimes earlier that morning. See
S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019) (explaining that the
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government’s interest in apprehending criminals, and particularly felons, factors
“strongly” in favor of the use of force). Additionally, Warden had resisted arrest in
his interactions with Corporal Williams but was lying on his stomach by the time
Officers Cowan and Weaver arrived on the scene. See Rice, 989 F.3d at 1123
(discussing the distinction between active and passive resistance).
However, the second, and “most important,” factor, which assesses whether
Warden posed an immediate threat to the safety of the officers and others, id. at
1121, involves genuine issues of disputed facts. In assessing this factor, we focus
on the movement which, by Officers Cowan’s and Weaver’s own admission,
precipitated their use of deadly force—Warden’s self-described “pushup”
movement. We consider whether, as a matter of law, this movement would cause a
reasonable officer on the scene to believe that Warden posed an immediate threat
to the safety of the officers or others.
Officers Cowan and Weaver were informed by their fellow officer, Corporal
Williams, that Warden had a gun in his waistband. Officers Cowan and Weaver
were entitled to rely on this information as if they had personal knowledge of it
themselves. See United States v. Bernard, 623 F.2d 551, 560–61 (9th Cir. 1979),
as revised (Apr. 28, 1980); see also United States v. Del Vizo, 918 F.2d 821, 826
(9th Cir.1990) (“When there has been communication among agents, probable
cause can rest upon the investigating agents’ collective knowledge.” (internal
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quotation marks omitted)); United States v. Hensley, 469 U.S. 221, 232 (1985);
Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027–28 (9th Cir. 2002) (line
officers acted reasonably by accepting their superiors’ representations that they had
a valid warrant; even if the superiors might be liable, the line officers were not).
However, the fact that a person is armed does not end the reasonableness
inquiry. See Hayes v. County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013).
Under the second Graham factor, we must consider whether a reasonable officer
on the scene would have perceived Warden, even if armed, to pose an immediate
threat to the safety of the officers and others given the totality of the circumstances
at the time he made his “pushup” movement, taking the facts as Warden describes
them. See Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010).
On this interlocutory appeal, given that the facts and all reasonable
inferences must be drawn in Warden’s favor, we cannot accept as true the disputed
testimony of Officers Cowan and Weaver that Warden’s pushup movement gave
him access to his waistband in a way that would allow him to shoot the officers or
others, or otherwise create an immediate threat to their safety. Therefore, given
Warden’s version of events, we cannot conclude that as a matter of law Officers
Cowan and Weaver acted objectively reasonably when they shot Warden.
Therefore, the district court did not err in finding that the question of whether a
constitutional violation occurred was a matter for the jury to determine. See
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George, 736 F.3d at 838; Jones v. Las Vegas Metro. Police Dep’t., 873 F.3d 1123,
1131 (9th Cir. 2017); Longoria v. Pinal County, 873 F.3d 699, 706–07 (9th Cir.
2017).
3. Because Officers Cowan and Weaver may have committed
constitutional violations, we consider the second element of qualified immunity:
whether the right allegedly violated was clearly established at the time. See Jones,
873 F.3d at 1131. Conduct violates a “clearly established” right if “the
unlawfulness of the action in question [is] apparent in light of some pre-existing
law.” Benavidez v. County of San Diego, 993 F.3d 1134, 1152 (9th Cir. 2021)
(quoting Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)). There need
not be a Supreme Court or circuit case directly on point, but existing precedent
must place the lawfulness of the conduct “beyond debate.” Rivas-Villegas v.
Cortesluna, 142 S. Ct. 4, 7–8 (2021) (per curiam).
It is clearly established that firing on someone who makes no “furtive
movement, harrowing gesture, or serious verbal threat” is unreasonable, even
where the suspect is still armed with a deadly weapon. See George, 736 F.3d at
838–39 (holding that summary judgment for the officers was inappropriate given
evidence that the suspect was pointing a gun away from the officers when they
shot him). More specifically, Cruz v. City of Anaheim defines the bounds of
clearly established law on a furtive movement like the one asserted by Officers
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Cowan and Weaver:
It would be unquestionably reasonable for police to shoot a suspect in
Cruz’s position if he reaches for a gun in his waistband, or even if he
reaches there for some other reason….Conversely, if the suspect
doesn’t reach for his waistband or make some similar threatening
gesture, it would clearly be unreasonable for the officers to shoot him
after he stopped his vehicle and opened the door.
765 F.3d 1076, 1078–79 (9th Cir. 2014).
Because the facts surrounding Warden’s alleged “furtive movement” and
whether it objectively posed an immediate threat to a reasonable officer under the
circumstances are in dispute, we cannot conclude on the present record that
Officers Cowan and Weaver are entitled to qualified immunity as a matter of law.
AFFIRMED.
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