Estate of Gabriel Strickland v. Nevada County ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF GABRIEL No. 22-15761
STRICKLAND; N.S., a minor
guardian ad litem Leah Jolley; D.C. No.
SHAWNA ALEXANDER, 2:21-cv-00175-
Plaintiffs-Appellants, MCE-AC
v.
OPINION
NEVADA COUNTY; SHANNON
MOON, Sheriff, Nevada County;
TAYLOR KING, Deputy;
BRANDON TRIPP, Deputy; JOSEPH
MCCORMACK, Officer; CITY OF
GRASS VALLEY; ALEX
GAMMELGARD, Chief, Grass
Valley Police Dept.; BRIAN
HOOPER, Officer; DENNIS GRUBE,
Officer; CONRAD BALL, Officer;
WELLPATH MANAGEMENT INC.;
BRENT WELDEMERE; RICHARD
DONOFRIO,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
2 ESTATE OF STRICKLAND V. NEVADA COUNTY
Argued and Submitted February 7, 2023
San Francisco, California
Filed May 31, 2023
Before: Jay S. Bybee and Patrick J. Bumatay, Circuit
Judges, and Richard D. Bennett,* Senior District Judge.
Opinion by Judge Bumatay
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal for
failure to state a claim of an action brought pursuant to 42
U.S.C. § 1983 and state law alleging that police officers used
excessive force when they shot and killed Gabriel
Strickland, who was known to the officers to be homeless
and mentally ill, after he pointed a black toy airsoft rifle in
their direction.
The panel held that, under the totality of the
circumstances, it was objectively reasonable for the officers
to believe that Strickland posed an immediate
threat. Construing the facts in the light most favorable to
Strickland, he was carrying a replica gun, disregarded
*
The Honorable Richard D. Bennett, United States Senior District Judge
for the District of Maryland, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ESTATE OF STRICKLAND V. NEVADA COUNTY 3
multiple warnings to drop it, and pointed it at the
officers. While the misidentification of the replica gun
added to the tragedy of this situation, it did not render the
officers’ use of force objectively unreasonable.
The panel held that the district court did not abuse its
discretion in denying Strickland’s estate leave to amend the
complaint. The complaint established that Strickland pointed
the replica gun’s barrel at the officers and so it was
objectively reasonable for the officers to respond with lethal
force. Under these pleaded facts, it would be futile to allow
leave to amend.
COUNSEL
Patrick H. Dwyer (argued), Patrick H. Dwyer Attorney at
Law, Penn Valley, California, for Plaintiffs-Appellants.
Steven J. Renick (argued), Mildred K. O’Linn, Lynn
Carpenter, and Kayleigh Andersen, Manning & Kass Ellrod
Ramirez Trester LLP, Los Angeles, California, for
Defendants-Appellees Nevada County, Shannon Moon,
Taylor King, Brandon Tripp, and Joseph McCormack.
John A. Whitesides (argued), Derick E. Konz, and Bruce A.
Kilday, Angelo Kilday & Kilduff LLP, Sacramento,
California, for Defendants-Appellees City of Grass Valley,
Alex Gammelgard, Brian Hooper, Dennis Grube, and
Conrad Ball.
Jerome Varanini, Trimble Sherinian & Varanini,
Sacramento, California, for Defendants-Appellees Wellpath
Management Inc., Brent Weldemere, and Richard Donofrio.
4 ESTATE OF STRICKLAND V. NEVADA COUNTY
OPINION
BUMATAY, Circuit Judge:
When someone points a gun at a law enforcement
officer, the Constitution “undoubtedly entitles the officer to
respond with deadly force.” George v. Morris, 736 F.3d
829, 838 (9th Cir. 2013). But what if the person points a
replica gun that the officer believes is real? In this case, we
must examine whether it was objectively reasonable for
officers to believe a black toy airsoft rifle pointed in their
direction presented an immediate threat justifying the use of
deadly force. Based on the facts here, we say yes.
I.
On December 26, 2019, Gabriel Strickland was arrested
by the Nevada County Sheriff’s Office and incarcerated at a
correctional facility in Nevada City, California. The
Sheriff’s Office and Wellpath Management, Inc.—the
contractor providing medical services at the facility—
performed a physical and mental intake assessment. The
evaluation concluded that Strickland needed an urgent
mental health evaluation, and they kept him in custody for
several days. During this time, officers and Wellpath nurses
observed that Strickland had active mental health issues and
was uncooperative and angry, though a mental health
evaluation was not given.
This was not the first time the Sheriff’s Office and
Wellpath had encountered Strickland. They had held him in
custody at that facility several times before, and a Wellpath
doctor had diagnosed Strickland with bipolar disorder,
PTSD, and anxiety disorder in 2016. The Sheriff’s Office
and Wellpath did not refer Strickland to outside providers
ESTATE OF STRICKLAND V. NEVADA COUNTY 5
for further evaluations and did not involuntarily hold him.
And after a pretrial release hearing on December 30, 2019,
the Nevada County Superior Court released Strickland.
Two days later, on January 1, 2020, the Nevada County
Region Dispatch received reports that a man was walking on
a residential road near a neighboring town, Grass Valley,
with “what appeared to be a shotgun” slung over his
shoulder. A Grass Valley Police Department officer, Officer
Conrad Ball, responded to the call and found Strickland on
the road. Strickland was carrying a black, plastic airsoft rifle
marked with an orange tip, which signified that it was a
replica, not a real firearm. Along with Officer Ball, Grass
Valley Police Department Officers Brian Hooper and Denis
Grube and Nevada County Sheriff’s Officers Taylor King
and Brandon Tripp arrived on scene. They recognized
Strickland and knew he was homeless with mental health
issues and had been released from custody days before. As
a result, the officers would have known that Strickland was
likely suffering from a mental health episode and would not
likely respond to their commands in a “normal or expected
manner.”
The officers maneuvered their patrol vehicles around
Strickland and surrounded him with guns drawn. They
immediately began yelling at Strickland to “drop the gun!”
and “drop the fucking gun!” Strickland held the gun away
from his body and said, “It’s a BB gun.” Strickland then
slapped the gun with his hand, making a noise that sounded
more like plastic than metal. One of the officers reported to
dispatch: “He’s saying it’s a BB gun.” The officers
continued to yell commands to “drop the fucking gun, now”
and told Strickland “we don’t know that’s a fake gun.”
Strickland pointed to the orange tip on the barrel. Officer
Tripp responded, “you could have painted that . . . . We
6 ESTATE OF STRICKLAND V. NEVADA COUNTY
don’t want to kill you.” Strickland replied, “I’m not doing
nothing wrong.” Until then, Strickland stood with the barrel
pointing at the ground.
The officers did not contact their supervisors for advice
or request assistance from other officers with crisis training.
They also did not attempt to bring a professional negotiator,
crisis de-escalator, or mental health provider to engage with
Strickland. Instead, Officer Tripp asked the other officers to
cover him and started approaching Strickland with Officers
Hooper and Ball. Officers Tripp and Ball had their firearms
drawn, and Officer Hooper was armed with a taser. Officer
Tripp then told dispatch to “tell Grass Valley [Police
Department] units to get out of [the] cross-fire.” As the
officers approached, Strickland dropped down to his knees.
At this point, Strickland stopped pointing the BB gun at
the ground. Strickland began pointing the BB gun in the
direction of Officers Tripp, Hooper, and Ball. At other
times, he pointed it up toward the sky. In response, Officer
Hooper deployed the taser, but it failed to attach and disarm
Strickland. Seconds later, after Strickland lowered the barrel
toward the officers, Officers Tripp, King, and Hooper
opened fire, striking Strickland several times. Strickland
was taken to a nearby hospital, where he was pronounced
dead.
One year later, Strickland’s mother, child, and estate
(“Estate”) sued on his behalf. The Estate brought excessive
force claims against the five police officers, their respective
departments, Nevada County, and the City of Grass Valley
under 42 U.S.C. § 1983 and state law. It also raised
constitutional, federal statutory, and state-law claims against
Nevada County, Wellpath, and their personnel for deliberate
disregard of Strickland’s mental health needs during his
ESTATE OF STRICKLAND V. NEVADA COUNTY 7
incarceration days before the shooting. The district court
dismissed the case under Federal Rule of Civil Procedure
12(b)(6).
The Estate timely appealed. We review the grant of a
motion to dismiss de novo, “accepting as true all well-
pleaded allegations of material fact and construing them in
the light most favorable to the non-moving party.” Hyde v.
City of Willcox, 23 F.4th 863, 869 (9th Cir. 2022). Dismissal
of a complaint at the 12(b)(6) stage is proper when the
plaintiff has failed to allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
II.
The Fourth Amendment prohibits the unreasonable
seizure of persons. U.S. Const. amend. IV. Even if a seizure
is reasonable in a particular circumstance, how that seizure
is carried out must also be reasonable. Graham v. Connor,
490 U.S. 386, 395 (1989). So the Fourth Amendment also
prohibits the use of excessive force. Id. Our “calculus of
reasonableness” in these circumstances “must embody
allowance for the fact that police officers are often forced to
make split-second judgments” and we do not apply the
“20/20 vision of hindsight.” Id. at 396–97. At this stage, our
question is whether the officers employed an “objectively
unreasonable” amount of force under the “totality of the
circumstances.” See Brooks v. Clark County, 828 F.3d 910,
920, 922 (9th Cir. 2016).
This inquiry requires balancing “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 (simplified). In Graham,
the Supreme Court looked to several factors: (1) “the type
8 ESTATE OF STRICKLAND V. NEVADA COUNTY
and amount of force inflicted,” (2) “the severity of the crime
at issue,” (3) “whether the suspect posed an immediate threat
to the safety of the officers or others,” and (4) “whether the
suspect was actively resisting arrest or attempting to evade
arrest by flight.” O’Doan v. Sanford, 991 F.3d 1027, 1037
(9th Cir. 2021) (citing Miller v. Clark County, 340 F.3d 959,
964 (9th Cir. 2003)). But this list isn’t exhaustive; we may
also consider other relevant factors, such as “the availability
of less intrusive alternatives to the force employed, whether
proper warnings were given[,] and whether it should have
been apparent to officers that the person they used force
against was emotionally disturbed.” S.B. v. County of San
Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).
A.
Many of the Graham factors support Strickland.
Strickland was known to officers as homeless and
mentally ill. At the time of the incident, it was obvious that
he was suffering from a mental health crisis. See Deorle v.
Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (“[W]here
it is or should be apparent to the officers that the individual
involved is emotionally disturbed, that is a factor that must
be considered in determining, under Graham, the
reasonableness of the force employed.”).
Although officers were responding to reports of a man
walking in the neighborhood with a shotgun, Strickland was
not under suspicion for committing a serious or dangerous
crime. At the start of the confrontation with police,
Strickland had not yet brandished the gun at anyone or
threatened the life or property of others.
Furthermore, assuming it’s relevant under Graham, the
officers failed to employ de-escalation techniques. They did
ESTATE OF STRICKLAND V. NEVADA COUNTY 9
not wait for supervisors or call in for backup with crisis or
mental health training. In fact, the officers seemingly
exacerbated the situation by aggressively shouting directions
at Strickland upon their arrival. See Nehad v. Browder, 929
F.3d 1125, 1135 (9th Cir. 2019) (looking at the officer’s role
in creating the danger).
And the officers employed “deadly force”—firing
several rounds at Strickland and killing him. See Seidner v.
de Vries, 39 F.4th 591, 596 (9th Cir. 2022) (concluding that
“shooting a firearm” is “categorically” deadly force).
So the bulk of the Graham factors favor Strickland. The
question is whether the immediacy of the threat that
Strickland posed outweighs those considerations here. We
think it does.
B.
Of all the use-of-force factors, the “most important” is
whether the suspect posed an “immediate threat.” Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); Mattos v.
Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc).
Because our inquiry is about objective reasonableness, there
must be “objective factors” to justify an officer’s “fear[] for
his safety or the safety of others.” Deorle, 272 F.3d at 1281.
In other words, “the objective facts must indicate that the
suspect pose[d] an immediate threat to the officer or a
member of the public.” Bryan, 630 F.3d at 826. “This
analysis is not static, and the reasonableness of force may
change as the circumstances evolve.” Hyde, 23 F.4th at 870.
While necessarily a fact-bound question with no per se
rules, our prior decisions offer some guidance in evaluating
the reasonableness of lethal force in response to a threat. At
one end of the spectrum, when a suspect points a gun in an
10 ESTATE OF STRICKLAND V. NEVADA COUNTY
officer’s direction, “the Constitution undoubtedly entitles
the officer to respond with deadly force.” George, 736 F.3d
at 838; see also Long v. City & Cnty. of Honolulu, 511 F.3d
901, 906 (9th Cir. 2007) (officer’s use of force was justified
when “fellow officers radioed that [the suspect] was yelling
threats at them and then radioed that [she] was shooting at
them”); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994)
(officers’ use of lethal force was not excessive when the
suspect held a “long gun and pointed it at them”). So it’s
well-settled that lethal force is justified if an officer has
“probable cause to believe that [a] suspect poses a significant
threat of death or serious physical injury to the officer or
others.” Long, 511 F.3d at 906 (simplified).
Reasonableness also doesn’t “always require[] officers
to delay their fire until a suspect turns his weapon on them.”
George, 736 F.3d at 838. Officers shouldn’t have to “wait
until a gun is pointed at [them] before [they are] entitled to
take action.” Anderson v. Russell, 247 F.3d 125, 131 (4th
Cir. 2001). “If the person is armed—or reasonably
suspected of being armed—a furtive movement, harrowing
gesture, or serious verbal threat might create an immediate
threat.” George, 736 F.3d at 838.
At the other end of the spectrum, the Constitution does
not tolerate the use of lethal force to “seize an unarmed,
nondangerous suspect by shooting him dead” in the absence
of probable cause of a threat of serious physical harm.
Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir.
2011) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
As we’ve said, it is “clearly established that shooting a
nonthreatening suspect would violate the suspect’s
constitutional rights.” Tan Lam v. City of Los Banos, 976
F.3d 986, 1001 (9th Cir. 2020).
ESTATE OF STRICKLAND V. NEVADA COUNTY 11
These principles apply even when officers are
reasonably mistaken about the nature of the threat. “Officers
can have reasonable, but mistaken, beliefs as to the facts
establishing the existence of” an immediate threat, and “in
those situations courts will not hold that they have violated
the Constitution.” Saucier v. Katz, 533 U.S. 194, 206
(2001). Take the example given by the Court: “If an officer
reasonably, but mistakenly, believed that a suspect was
likely to fight back, . . . the officer would be justified in using
more force than in fact was needed.” Id. at 205. Thus, the
Constitution even allows for officer’s action that resulted
from a reasonable “mistake of fact.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). When an officer’s “use of force
is based on a mistake of fact, we ask whether a reasonable
officer would have or should have accurately perceived that
fact.” Torres, 648 F.3d at 1124.
Here, the tragedy of Strickland’s death was made all the
more tragic because it turns out that he was only carrying a
plastic, airsoft replica gun. So we are tasked with
determining whether the officers reasonably concluded that
Strickland was an immediate threat even though he merely
possessed a replica gun. In the light most favorable to
Strickland, we conclude that the officers’ mistaken belief
that Strickland possessed a dangerous weapon was
reasonable and they were justified in the use of deadly force
when he pointed it at them.
As is often the case with officer-involved shootings,
officers met a “tense, uncertain, and rapidly evolving”
circumstance when they confronted Strickland. Graham,
490 U.S. at 397. They found him on a residential street
carrying what appeared to be a firearm. The officers
remembered Strickland from his prior detentions, and they
knew he suffered from mental health issues. Compounding
12 ESTATE OF STRICKLAND V. NEVADA COUNTY
the situation, as the complaint alleges, his mental challenges
were so severe that he was “not likely to respond to
directions in a normal or expected manner.” After
surrounding him, the officers immediately ordered him to
put down the gun. The officers cautioned Strickland that
they did “not want to kill [him]” and repeatedly yelled at him
to “drop the gun.” Strickland did not comply. Instead, while
pointing the replica gun’s barrel at the ground, he explained,
“I’m not doing nothing wrong.”
After continued warnings, three officers approached
Strickland with their firearms drawn. Strickland dropped to
his knees, continuing to hold the gun. Strickland then began
pointing the replica gun in the direction of the approaching
officers. One officer tried tasing Strickland but failed to
disable him. A few second later, the three officers fired on
Strickland, striking him several times and killing him. The
whole encounter from start to finish lasted a little more than
three minutes.
The pivotal moment occurred when Strickland began
pointing the replica gun in the officers’ direction. At that
point, they had “probable cause to believe that [Strickland]
pose[d] a significant threat of death or serious physical
injury” to themselves and it became objectively reasonable
for them to use lethal force. Garner, 471 U.S. at 3. As we’ve
said, when a suspect points a gun in the direction of officers,
they would be justified to use deadly force. See George, 736
F.3d at 838.
This analysis doesn’t change because the weapon turned
out to be a replica given the officers’ reasonable belief that
Strickland possessed a real firearm. They were called to the
scene based on reports of a man walking down a residential
street with what appeared to be a shotgun. When officers
ESTATE OF STRICKLAND V. NEVADA COUNTY 13
arrived, they saw Strickland armed with the black replica
gun—as with all replicas, it was presumably intended to look
like a real firearm. According to the complaint, from its
appearance, the only indication that the replica was not real
was its orange-painted tip. Although Strickland tried to
convince officers that the object was “a BB gun,” even
slapping it to make a plastic sound, officers disbelieved him.
They responded, “we don’t know that’s a fake gun” and
suggested that Strickland “could have painted” the orange
tip. The officers were reasonably justified in not taking
Strickland’s assurances at face value. Cf. Blanford v.
Sacramento County, 406 F.3d 1110, 1116 (9th Cir. 2005)
(finding it objectively reasonable for officers to attempt to
“secure the weapon first” when confronting a suspect who
might be “mentally disturbed or under the influence of a
controlled substance”). After all, misplaced trust in this
circumstance could be fatal for the officers.
We note that the facts here differ significantly from other
cases when we’ve held it unreasonable for officers to use
lethal force when encountering a replica or toy gun. In
Nicholson v. City of Los Angeles, 935 F.3d 685 (9th Cir.
2019), for example, we denied qualified immunity to an
officer who shot a suspect with a similar plastic, orange-
tipped airsoft gun, but we did so because of the officer’s
failure to deliberate. Id. at 693. In that case, the officer saw
a group of teenagers in an alley with what looked like a gun.
Id. He immediately ran down the alleyway without
consulting his partner and fired his weapon toward the
suspect, ultimately striking an innocent bystander. Id. We
did not find it dispositive that the gun turned out to be a
“toy”; instead, it was conclusive that the officer did not see
the suspect “point it at anyone” and nothing suggested the
14 ESTATE OF STRICKLAND V. NEVADA COUNTY
suspect “was likely to harm anyone.” Id. at 694. So our
decision didn’t hinge on the misidentification of the gun.
Likewise, this case differs from Estate of Lopez v.
Gelhaus, 871 F.3d 998 (9th Cir. 2017). In that case, whether
a suspect with a toy gun posed an “immediate threat” was in
dispute, which precluded qualified immunity at summary
judgment. Id. at 1011, 1023. There, an officer saw a
teenager walking with a toy gun, which looked like an AK-
47. Id. at 1010. The officer yelled at the teenager to “drop
the gun” one time from behind. Id. As the teenager was
turning toward the officer, the officer fired eight shots in
quick succession at him. Id. at 1003. And the parties
disputed key facts: whether “the gun was pointed straight
down at the ground, [whether] the barrel . . . rose at any point
to a position that posed any threat to . . . the officer,” and “if
[the teenager’s] finger was on the trigger.” Id. at 1010–11.
Once again, our decision didn’t turn on the mistaken
identification of the gun. Rather, we determined that a
reasonable jury could conclude that the teenager did not pose
an immediate threat and that the use of deadly force was not
objectively reasonable. Id. at 1011.
Here, under the totality of the circumstances, it was
objectively reasonable for the officers to believe Strickland
posed an immediate threat. In the light most favorable to
Strickland, he was carrying a replica gun, disregarded
multiple warnings to drop it, and pointed it at the officers.
Cf. County of Los Angeles v. Mendez, 581 U.S. 420, 425–26
(2017) (observing that the Ninth Circuit held that a shooting
of a person with a BB gun was reasonable given the officers’
belief that the individual had a gun and was threatening them
while reversing on other grounds). While the
misidentification of the replica gun adds to the tragedy of
ESTATE OF STRICKLAND V. NEVADA COUNTY 15
this situation, it does not render the officers’ use of force
objectively unreasonable.
The Estate argues that the excessive force claim cannot
be adjudicated at the Rule 12(b)(6) stage because of the fact-
intensive nature of this inquiry. We disagree. At the
12(b)(6) stage, we take the Estate’s well-pleaded factual
allegations as true and construe them in Strickland’s favor.
See Hyde, 23 F. 4th at 869. But even under this favorable
standard, the Complaint establishes that it was objectively
reasonable for the officers to perceive an immediate, deadly
threat, permitting them to employ lethal force in their own
defense. The Estate pleads that Strickland was carrying a
toy gun that resembled a real firearm, that he ignored
multiple commands to drop it, and that he pointed it at the
officers during a tense confrontation. When he did so, the
officers were left with only an instant to act. They were not
required to “delay their fire” until they learned whether the
gun was real. George, 736 F.3d at 838. Given the
immediacy of the threat presented by these allegations, the
Estate cannot state a plausible claim for excessive force,
regardless of whatever additional facts Strickland might
allege.
Because we agree with the district court that Strickland’s
Estate failed to state an excessive force claim, we do not
address Appellees-Defendants’ qualified immunity
arguments.
C.
We also hold that the district court did not abuse its
discretion in denying the Estate leave to amend the
complaint. “Although a district court should grant the
plaintiff leave to amend if the complaint can possibly be
cured by additional factual allegations, dismissal without
16 ESTATE OF STRICKLAND V. NEVADA COUNTY
leave to amend is proper if it is clear that the complaint could
not be saved by amendment.” Salameh v. Tarsadia Hotel,
726 F.3d 1124, 1133 (9th Cir. 2013) (simplified). We grant
the district court “particularly broad” discretion to deny
leave to amend when the plaintiff has already had a chance
to amend, as here. Id.The Estate argues that it should be given another chance
to amend the complaint. It contends that the exchange of
discovery could reveal additional evidence about the
circumstances of Strickland’s shooting and the use of lethal
force. But pleading standards must be met before
“unlock[ing] the doors of discovery.” Ashcroft v. Iqbal, 556
U.S. 662, 678–79 (2009). Here, the complaint establishes
that Strickland pointed the replica gun’s barrel at the officers
and so it was objectively reasonable for the officers to
respond with lethal force. See Long, 511 F.3d at 906. Under
these pleaded facts, it would be futile to allow leave to
amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.
1995) (“Futility of amendment can, by itself, justify the
denial of a motion for leave to amend.”).
IV.
We can all agree that the circumstances of Gabriel
Strickland’s death are tragic. But under the facts alleged, the
officers’ use of lethal force was objectively reasonable under
the totality of the circumstances. Thus, the Estate’s
excessive force claim was properly dismissed. See Graham,
490 U.S. at 396–97. While the Estate did not offer specific
arguments challenging the district court’s dismissal of its
other claims, it concedes that those causes of action are tied
to the excessive force claim. As a result, we affirm the
dismissal of all claims against all Appellees-Defendants.
AFFIRMED.