Glenn v. Washington County , 661 F.3d 460 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOPE GLENN, as the personal 
representative of the Estate of
No. 10-35636
Lukus Glenn,
Plaintiff-Appellant, D.C. No.
v.  3:08-cv-00950-MO
ORDER AND
WASHINGTON COUNTY; MIKHAIL
AMENDED
GERBA, an individual; TIM
OPINION
MATESKI, an individual,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
June 6, 2011—Portland, Oregon
Opinion Filed November 4, 2011
Amended December 27, 2011
Before: Raymond C. Fisher, Ronald M. Gould and
Richard A. Paez, Circuit Judges.
Opinion by Judge Fisher
21263
GLENN v. WASHINGTON COUNTY 21267
COUNSEL
Michael A. Cox (argued) and Lawrence K. Peterson, Law
Office of Michael Cox, Tualatin, Oregon, for the plaintiff-
appellant.
William G. Blair (argued), William G. Blair, PC, Beaverton,
Oregon, for the defendants-appellees.
ORDER
The panel acknowledges the amended table of contents in
Appellees’ corrected petition for rehearing, filed November
21, 2011. Appellees’ motion for leave to file a corrected peti-
tion for rehearing is DENIED.
The full court has been advised of the petition for rehearing
en banc, and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
21268 GLENN v. WASHINGTON COUNTY
Appellees’ petition for rehearing and petition for rehearing
en banc, filed November 18, 2011, is DENIED.
The changes to the amended opinion filed concurrently
with this order are non-substantive. Therefore, no further peti-
tions for rehearing will be considered.
OPINION
FISHER, Circuit Judge:
Eighteen-year-old Lukus Glenn was shot and killed in his
driveway by Washington County police officers. His mother
had called 911 for help with her distraught and intoxicated
son after Lukus began threatening to kill himself with a pock-
etknife and breaking household property. Within four minutes
of their arrival, officers had shot Lukus with a “less-lethal”
beanbag shotgun, and had fatally shot him eight times with
their service weapons. Lukus’ mother filed suit against the
officers and Washington County alleging a state law wrongful
death claim and a 42 U.S.C. § 1983 claim for excessive force
under the Fourth Amendment. The district court granted sum-
mary judgment to the defendants after concluding there was
no constitutional violation. We reverse and remand for trial.
BACKGROUND1
On September 15, 2006, Lukus Glenn left his home to
attend a Tigard High School football game with his girlfriend.
He had graduated from Tigard High a few months before and
was living with his parents, Hope and Brad Glenn, and his
grandmother. Lukus had no history of violence or criminal
1
Because the plaintiff appeals the entry of summary judgment in the
defendants’ favor, to the extent there are factual disputes, the facts are
presented in the light most favorable to the plaintiff. See Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 255 (1986).
GLENN v. WASHINGTON COUNTY 21269
activity. He returned home at 3:00 a.m., agitated, intoxicated
and intent on driving his motorcycle. His parents told him he
could not take the motorcycle, and to their surprise Lukus
became angry. He began to damage household property,
including windows and the front door, and the windows of
cars parked in the driveway. His parents had never seen
Lukus drunk before, and believed they needed help to calm
him down. They first called his friends, Tony Morales and
David Lucas, who came over to the Glenn home. Lukus’
friends were unable to calm him down, however, and his par-
ents became alarmed when he held a pocketknife to his neck
and threatened to kill himself.2
Frightened that Lukus would harm himself, Hope called
911 believing that “the police would have the expertise and
experience to deal with an emotionally distraught teenager.”
The transcript of the 911 call states that Hope told the dis-
patcher her son was “out of control, busting our windows, and
has a knife and is threatening us.”3 Hope clarified that the
knife was “just a pocket knife” and that Lukus had not hurt
anyone, and said he was “just really, really intoxicated.”
When the dispatcher asked if everyone could move away
from Lukus, Hope said “well, yeah,” but explained that they
were “just trying to talk to him right now.” She said Lukus
was “threatening the knife to his neck and he keeps saying
he’s gonna kill himself if the cops come,” and “he’s not leav-
ing until the cops shoot him and kill him.”
Hope asked if paramedics could be sent to the house,
remarking that Lukus was “so suicidal right now.” She
explained that she thought he had attempted suicide once
before and had been “really depressed,” but that “[h]e’s
2
The pocketknife had a three-inch blade and hooked tip.
3
Hope says that she misspoke, and that Lukus never actually threatened
anyone but himself. She also contends that the 911 transcript in the record
is only a rough transcription, contains inaccuracies and does not fully con-
vey a sense of the scene.
21270 GLENN v. WASHINGTON COUNTY
always been a good athlete and a good kid.” In response to the
dispatcher’s questions, Hope said Lukus was born in 1988,
was about 5’11” and had a thin build. She explained that he
had damaged their windows and front door. She also said the
family owned hunting rifles, but they were locked up and
Lukus could not get to them.
The 911 dispatcher informed the Washington County Sher-
iff’s Department that officers were needed at the Glenn home
for a domestic disturbance involving a “fight with a weapon.”
Dispatch advised that “Caller has a son. Has a knife . . . It’s
a pocket knife. Glenn Lucas [sic] born in ’88 . . . . Caller is
advising he is probably going to kill himself if you show up.”
Officers were informed that there was no “premise history”
and that Lukus was suicidal and “very intoxicated.” Dispatch
relayed that Lukus had broken a window and was out in the
driveway. Officers were also told there were hunting rifles
inside the house, but Lukus could not get to them. An officer
can then be heard asking whether the Glenns could lock the
doors since he “[doesn’t] want [the son] going inside if there
are guns in there,” and dispatch responded that Lukus had
“busted through the front door.” A staging area for responding
officers was established a short distance from the Glenn home.4
Deputy Mikhail Gerba was not on duty with the Washing-
ton County Sheriff’s Department that night, but was working
on a special assignment for the Oregon Department of Trans-
portation performing traffic control for a construction project.
He heard the dispatch, however, and responded. For some
unknown reason, he skipped the staging area and went
directly to the Glenn home, where he was the first officer to
arrive on the scene at 3:11 a.m. Gerba initially encountered
4
Written information on the officers’ mobile data terminals similarly
stated “son has a knife, broke a veh[icle] window, [it] is a pocketknife,
sig[nal] II w[ith] tones, son is Glenn, Lukus, [born] 042288, . . . says he
is not leaving till cops kill him, . . . hunting rifles in the house, he can’t
get to . . . friends are standing w/ him . . . [history] of su[icide] attempts.”
GLENN v. WASHINGTON COUNTY 21271
David Lucas and, pointing his gun at David, ordered him to
“[g]et on the fucking ground.” David did as ordered and told
Gerba that Lukus was “over there by the garage; we have him
calmed down.”
Gerba proceeded up the driveway and positioned himself
eight to twelve feet from Lukus, who was standing by the
garage near his parents and Tony Morales. Gerba had a com-
pletely unobstructed view of Lukus, who could be seen
clearly under the garage light. Lukus was not in a physical
altercation with anyone, nor was he threatening anyone with
the pocketknife or in any other way, and no one was trying
to get away from him. He was, however, holding the pocket-
knife to his own neck.
Gerba held his .40 caliber Glock semiautomatic pistol in
“ready position, aimed at Lukus.” From the moment he
arrived, Gerba “only scream[ed] commands loudly at Lukus”
such as “drop the knife or I’m going to kill you.” As the dis-
trict court recognized, Lukus may not have heard or under-
stood these commands because he was intoxicated and many
people were yelling at once. Gerba “did not attempt to
cajol[e] or otherwise persuade Lukus to drop the knife volun-
tarily.” Numerous witnesses described Gerba’s behavior as
“angry, frenzied, amped and jumpy,” and noted that they were
“shocked by how [he] approached this situation.” Within a
minute of Gerba’s arrival, Hope began “begging the 911 oper-
ator, ‘Don’t let him shoot him. Please don’t let him shoot him
. . . . [T]hey’re gonna shoot him.’ ” The dispatcher tried to
reassure her that the police were “gonna try and talk to him,”
but Hope said “I shouldn’t have called but I was so scared,”
“they’re gonna kill him.”
Washington County Deputy Timothy Mateski was the next
officer to reach the scene, approximately one minute after
Gerba’s arrival. Mateski had initially headed toward the stag-
ing area, but rushed to the Glenn home when he heard from
dispatch that Gerba had gone directly there. En route he asked
21272 GLENN v. WASHINGTON COUNTY
whether Hope and Brad could leave the house, and was
advised that dispatch was checking. He never received a
response, and did not follow up. Upon arrival, Mateski took
a position six to twelve feet from Lukus, where he had a com-
pletely unobstructed view of Lukus. Like Gerba, “Mateski
drew his gun and began screaming commands as soon as he
arrived, including expletives and orders like ‘drop the knife or
you’re going to die’ ” and “drop the fucking knife.” Numer-
ous witnesses described Mateski as “frantic and excited and
only pursu[ing] a course of screaming commands at Luke.”
Tony Morales “implore[d] the officers to ‘calm down’ and
t[old] them that Luke [wa]s only threatening to hurt himself.”
The officers ordered Morales to crawl behind them and
ordered Hope and Brad to go into the house and close the
door, which officers knew was broken and could not be
locked. Everyone complied. Lukus’ grandmother, who lived
in a residence between the main house and garage, opened her
door to come talk to Lukus. The officers ordered her back
inside her home, and she complied. All of the people “in and
around the house could have easily walked away from the
scene to a spot behind the officers or even to the street behind
without having to pass any closer to Luke than [they] already
had been.” Instead, they did as the officers instructed them to
do. Having ordered the Glenns to go into their home, the offi-
cers could have positioned themselves between Lukus and the
front door to the home without having to get any closer to
Lukus, but they chose to stand elsewhere.
At about 3:14 a.m., Corporal Musser advised Mateski and
Gerba that back-up was en route. Sergeant Wilkinson radioed
that the officers on the scene should “remember your tactical
breathing, and if you have leathal [sic] cover a taser may be
an option if you have enough distance. Just tactical breathe,
control the situation.” Neither Mateski nor Gerba was carry-
ing a taser or a beanbag gun. Shortly after these dispatch mes-
sages, however, Officer Andrew Pastore of the City of Tigard
Police Department arrived with a beanbag shotgun and a
GLENN v. WASHINGTON COUNTY 21273
taser. Gerba and Mateski apparently were not aware that
Pastore had a taser, and did not ask.
Mateski immediately ordered Pastore to “beanbag him.”
Pastore yelled “beanbag, beanbag” and opened fire on Lukus.
Pastore shot all six of the shotgun’s beanbag rounds. Gerba
recalled that, “when [Lukus] got hit, I remember . . . he kind
of cowered up against the garage and he kind of looked like,
kind of like, did I just get hit with something?” The officers’
brief acknowledges that Lukus “appeared surprised, confused,
and possibly in pain.” Numerous witnesses observed that,
“[w]hile being struck by beanbag rounds, Luke put his hands
down, grabbed his pants and began to move away from the
beanbag fire toward the alcove between the house and garage
. . . in the most obvious line of retreat from the fire.” Mateski
and Gerba stated in their declarations that they had indepen-
dently determined that if Lukus made a move toward the
house with his parents inside, they would use deadly force.5
After Lukus took one or two steps, Gerba and Mateski
began firing their semiautomatic weapons at him. They fired
eleven shots, eight of which struck Lukus in the back, chest,
stomach, shoulder and legs. The remaining three bullets
struck his grandmother’s residence. All the lethal fire
occurred before the last beanbag round was fired, and less
than four minutes after the first officer arrived on the scene.
Seconds before he was fired upon, Lukus “pled[,] ‘Tell them
to stop screaming at me’ ” and “why are you yelling?” Lukus
bled out and died on his grandmother’s porch shortly after he
was shot.
In April 2007, Washington County Sheriff Rob Gordon
5
The district court determined that “Lukus could not have headed in the
direction of the alcove without also heading in the direction of his parents’
front door.” Glenn argues that it is possible Lukus did not make any voli-
tional movement at all, but rather was “moved by . . . the onslaught of
beanbag fire.”
21274 GLENN v. WASHINGTON COUNTY
released to the public an Administrative Review of the Lukus
Glenn shooting. The review concluded that “[n]o policies
were violated during this critical incident,” and that the
“WCSO deputies involved in this incident performed as
trained, followed established policies, and acted in a profes-
sional manner.”
In August 2008, Hope Glenn filed a complaint against the
defendants in her capacity as personal representative of
Lukus’ estate.6 The complaint included an Oregon state law
wrongful death claim and a 42 U.S.C. § 1983 claim for exces-
sive force. The defendants moved for summary judgment,
which the district court granted in June 2010. The court,
acknowledging the tragedy of Lukus’ death, nonetheless felt
it had to conclude “that the officers’ use of force did not vio-
late Lukus Glenn’s Fourth Amendment rights,” and therefore
that the defendants were entitled to qualified immunity. The
district court issued an amended opinion granting the defen-
dants’ motion for summary judgment on all claims. This
timely appeal followed.
DISCUSSION
I.
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court’s decision to grant summary judgment de
novo, considering all facts in dispute in the light most favor-
able to the nonmoving party. See Mena v. City of Simi Valley,
226 F.3d 1031, 1036 (9th Cir. 2000). “Summary judgment is
appropriate only ‘if the pleadings, the discovery and disclo-
sure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.’ ” Stoot v. City of
6
Pastore and the City of Tigard were voluntarily dismissed as defen-
dants on May 18, 2010. The remaining defendants are Mateski, Gerba and
Washington County.
GLENN v. WASHINGTON COUNTY 21275
Everett, 582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R.
Civ. P. 56(c)). The de novo standard also applies to our
review of the defendant officers’ entitlement to qualified
immunity as a matter of law. See Mena, 226 F.3d at 1036.
II.
In evaluating a grant of qualified immunity, we ask two
questions: (1) whether, taking the facts in the light most
favorable to the nonmoving party, the officers’ conduct vio-
lated a constitutional right, and (2) whether the right was
clearly established at the time of the alleged misconduct. See
Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled in
part by Pearson v. Callahan, 555 U.S. 223 (2009). Either
question may be addressed first, and if the answer to either is
“no,” then the officers cannot be held liable for damages. See
Pearson, 555 U.S. at 236. In this case, the district court
focused on whether the officers’ use of force violated Lukus’
Fourth Amendment rights, and held that it did not. Glenn
argues on appeal that the district court erred in granting sum-
mary judgment on that basis. We agree that genuine issues of
fact remain, and accordingly reverse. We further conclude
that resolution of these issues is critical to a proper determina-
tion of the officers’ entitlement to qualified immunity. We
express no opinion as to the second part of the qualified
immunity analysis and remand that issue to the district court
for resolution after the material factual disputes have been
determined by the jury.7
7
See, e.g., Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir.
2010) (affirming a denial of summary judgment on qualified immunity
grounds because “there are genuine issues of fact regarding whether the
officers violated [the plaintiff’s] Fourth Amendment rights[, which] are
also material to a proper determination of the reasonableness of the offi-
cers’ belief in the legality of their actions”); Santos v. Gates, 287 F.3d
846, 855 n.12 (9th Cir. 2002) (finding it premature to decide the qualified
immunity issue “because whether the officers may be said to have made
a ‘reasonable mistake’ of fact or law may depend on the jury’s resolution
of disputed facts and the inferences it draws therefrom”).
21276 GLENN v. WASHINGTON COUNTY
A.
[1] In evaluating a Fourth Amendment claim of excessive
force, courts ask “whether the officers’ actions are ‘objec-
tively reasonable’ in light of the facts and circumstances con-
fronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).
This inquiry “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.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,
8 (1985)). “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to
make split-second judgments — in circumstances that are
tense, uncertain, and rapidly evolving — about the amount of
force that is necessary in a particular situation.” Id. at 396-97.
Reasonableness therefore must be judged from the perspec-
tive of a reasonable officer on the scene, “rather than with the
20/20 vision of hindsight.” Id. at 396 (citing Terry v. Ohio,
392 U.S. 1, 20-22 (1968)).
“Our analysis involves three steps. First, we must assess the
severity of the intrusion on the individual’s Fourth Amend-
ment rights by evaluating ‘the type and amount of force
inflicted.’ ” Espinosa, 598 F.3d at 537 (quoting Miller v.
Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). “[E]ven
where some force is justified, the amount actually used may
be excessive.” Santos, 287 F.3d at 853. Second, we evaluate
the government’s interest in the use of force. Graham, 490
U.S. at 396. Finally, “we balance the gravity of the intrusion
on the individual against the government’s need for that intru-
sion.” Miller, 340 F.3d at 964.
“Because [the excessive force inquiry] nearly always
requires a jury to sift through disputed factual contentions,
and to draw inferences therefrom, we have held on many
occasions that summary judgment or judgment as a matter of
law in excessive force cases should be granted sparingly.”
Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en
GLENN v. WASHINGTON COUNTY 21277
banc) (alteration in original) (internal quotation marks omit-
ted); see also Espinosa, 598 F.3d at 537 (“[T]his court has
often held that in police misconduct cases, summary judgment
should only be granted ‘sparingly’ because such cases often
turn on credibility determinations by a jury.”). We hold that
there remain questions of fact regarding the reasonableness of
the officers’ actions that preclude summary judgment.
1.
[2] First we consider the quantum of force used when offi-
cers shot Lukus with the beanbag shotgun. A beanbag shotgun
is “a twelve-gauge shotgun loaded with . . . ‘beanbag’ round-
[s],” which consist of “lead shot contained in a cloth sack.”
Deorle v. Rutherford, 272 F.3d 1272, 1277 (9th Cir. 2001). It
is “intended to induce compliance by causing sudden, debili-
tating, localized pain, similar to a hard punch or baton strike.”
“Although bean bag guns are not designed to cause serious
injury or death, a bean bag gun is considered a ‘less-lethal’
weapon, as opposed to a non-lethal weapon, because the bean
bags can cause serious injury or death” “if they hit a relatively
sensitive area of the body, such as [the] eyes, throat, temple
or groin.” In Deorle, we observed that the euphemism “bean-
bag” “grossly underrates the dangerousness of this projectile,”
which “can kill a person if it strikes his head or the left side
of his chest at a range of under fifty feet.” Id. at 1279 & n.13.
Indeed, the plaintiff in Deorle suffered multiple cranial frac-
tures and the loss of an eye as a result of being shot with a
beanbag gun from approximately 30 feet away. See id. at
1277-78 & n.11. In light of this weapon’s dangerous capabili-
ties, “[s]uch force, though less than deadly, . . . is permissible
only when a strong governmental interest compels the
employment of such force.” Id. at 1280.
2.
The strength of the government’s interest in the force used
is evaluated by examining three primary factors: (1) “whether
21278 GLENN v. WASHINGTON COUNTY
the suspect poses an immediate threat to the safety of the offi-
cers or others,” (2) “the severity of the crime at issue,” and (3)
“whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. These factors,
however, are not exclusive. See Bryan v. MacPherson, 630
F.3d 805, 826 (9th Cir. 2010). We “examine the totality of the
circumstances and consider ‘whatever specific factors may be
appropriate in a particular case, whether or not listed in Gra-
ham.’ ” Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 876
(9th Cir. 1994)). Other relevant factors include 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. See, e.g., Bryan, 630 F.3d at 831;
Deorle, 272 F.3d at 1282-83.
[3] The “most important” factor is whether the individual
posed an “immediate threat to the safety of the officers or oth-
ers.” See, e.g., Bryan, 630 F.3d at 826 (internal quotation
marks omitted). The district court held that the officers “were
justified in using less-than-lethal force to prevent [Lukus’]
suicide.” The case the court cited in support of that proposi-
tion, however, does not involve a § 1983 claim, but rather
addresses the constitutionality of a statute prohibiting assisted
suicide. See Compassion in Dying v. Washington, 79 F.3d 790
(9th Cir. 1996) (en banc), rev’d sub nom. Washington v.
Glucksberg, 521 U.S. 702 (1997). Although Graham does not
specifically identify as a relevant factor whether the suspect
poses a threat to himself, we assume that the officers could
have used some reasonable level of force to try to prevent
Lukus from taking a suicidal act. But we are aware of no pub-
lished cases holding it reasonable to use a significant amount
of force to try to stop someone from attempting suicide.
Indeed, it would be odd to permit officers to use force capable
of causing serious injury or death in an effort to prevent the
possibility that an individual might attempt to harm only him-
self. We do not rule out that in some circumstances some
force might be warranted to prevent suicide, but in cases like
GLENN v. WASHINGTON COUNTY 21279
this one the “solution” could be worse than the problem. On
the facts presented here, viewed favorably to the plaintiff, the
officers’ use of force was not undisputably reasonable.
[4] The district court also held that the officers were justi-
fied in shooting Lukus with the beanbag gun because he
posed an immediate threat to officers and bystanders. In com-
ing to this conclusion, the district court relied primarily on
Lukus’ possession of a knife. Although there is no question
this is an important consideration, it too is not dispositive.
Rather, courts must consider “the totality of the facts and cir-
cumstances in the particular case”; otherwise, that a person
was armed would always end the inquiry. Blanford v. Sacra-
mento Cnty., 406 F.3d 1110, 1115 (9th Cir. 2005). The district
court mischaracterized our case law as establishing that
“when a suspect was armed with a deadly weapon, . . . the
officers’ use of force [was reasonable] as a matter of law —
even when the suspect ‘had not committed a significant crime
or threatened anyone’ and no identifiable bystanders were
present.” In each of the cases the district court cited — Blan-
ford, 406 F.3d at 1115-19, Long v. City & County of Hono-
lulu, 511 F.3d 901, 906 (9th Cir. 2007), and Scott v. Henrich,
39 F.3d 912, 914-15 (9th Cir. 1994) — we engaged in a
context-specific analysis rather than resting our holding on the
single fact that the suspect was armed.
Further, in each of those cases, the suspect had a more dan-
gerous weapon than Lukus and wielded it in a more threaten-
ing manner. In Blanford, for example, the suspect was armed
with a 2-1/2 foot sword, and when officers ordered him to put
it down, he instead “raised his sword and growled.” 406 F.3d
at 1116. In Long, the suspect, who officers knew had already
shot two people, carried a .22 caliber rifle and, just before
being fired upon by officers, raised his rifle to chest level and
shouted “I told you fuckers to get the fuck back. Have some
of this.” 511 F.3d at 904-05. And in Scott, the suspect “held
a ‘long gun’ and pointed it at” officers. 39 F.3d at 914. Lukus,
21280 GLENN v. WASHINGTON COUNTY
by contrast, had a pocketknife with a three-inch blade, which
he did not brandish at anyone, but rather held to his own neck.
[5] Here, although Lukus did not respond to officers’
orders to put the knife down during the approximately three
minutes that elapsed before he was shot with the beanbag gun,
a number of other circumstances weigh against deeming him
“an immediate threat to the safety of the officers or others.”
Graham, 490 U.S. at 396. By all accounts Lukus was suicidal
on the night in question and the threats of violence known to
the responding officers focused on harming himself rather
than other people. Although Hope told the 911 operator that
Lukus “was threatening to kill everybody” and might “run at
the cops with a knife,” the district court correctly recognized
it must be assumed on summary judgment that the officers on
the scene did not know of such statements.8 They had, how-
ever, been informed that Lukus was intoxicated and emotion-
ally disturbed, and that he was the teenage son of the
homeowners rather than an intruder or criminal. They also
knew there was no history of 911 calls to the Glenn home,
Lukus was not wanted for any crime and he was not in pos-
session of any guns.
When Officer Gerba arrived on scene, Lukus was standing
outside his home talking with his parents and friends, all of
whom stood near him. He was “not in a physical altercation
with anyone,” “[h]e was not threatening anyone with the
knife,” and “[n]o one [wa]s trying to get away from” him. The
only person with any injury was Lukus himself, whose hand
was bleeding. Both Mateski and Gerba had unobstructed
views of Lukus and stood with their weapons aimed at him.
8
We disagree with the district court’s suggestion that, even though we
must assume the officers did not know of these statements, they provide
“uncontroverted evidence demonstrat[ing] that the officers’ safety con-
cerns were not at odds with information provided to law enforcement.”
We cannot consider evidence of which the officers were unaware — the
prohibition against evaluating officers’ actions “with the 20/20 vision of
hindsight” cuts both ways. Graham, 490 U.S. at 396.
GLENN v. WASHINGTON COUNTY 21281
From the moment they arrived, although Lukus did not heed
orders to put down the pocketknife, he “did not attack the
officers; indeed at no time did he even threaten to attack any
of them,” or anyone else. Smith, 394 F.3d at 703. Tony Mora-
les asked officers to “calm down,” telling them that Lukus
was “only threatening to hurt himself.” Furthermore, at the
officers’ direction, Hope and Brad went inside their home and
Morales and David Lucas moved behind the officers, so a jury
could conclude that no one was close enough to Lukus to be
harmed by him before police could intervene.
[6] Accordingly, a jury could conclude that at the time
Pastore arrived with the beanbag gun approximately three
minutes into the encounter, there was little reason to believe
Lukus could have done any immediate harm to anyone. Lukus
stood in the driveway several feet from the officers (who
could have moved farther away at any time, had they wanted
to), with guns trained on him, while his friends stood behind
the officers and his parents and grandmother were in their
homes. By all accounts, Lukus stayed in the same position
from the moment officers arrived and showed no signs of
attempting to move until after he was fired upon. At the time
the officers elected to shoot Lukus with the beanbag rounds,
only two things about the situation had changed from the time
of their arrival: (1) the four people who previously had been
standing near Lukus had moved away from him to locations
either behind the officers or inside the house, arguably
decreasing the threat Lukus posed, and correspondingly the
need for force; and (2) the beanbag shotgun had arrived. No
new action by Lukus precipitated the use of less-lethal force.
Viewing the evidence in the light most favorable to the plain-
tiff, even though Lukus remained in possession of the pocket-
knife, a jury could conclude that at the moment the officers
shot him with the beanbag gun there was little evidence that
he posed an “immediate threat” to anybody. Graham, 490
U.S. at 396.
21282 GLENN v. WASHINGTON COUNTY
[7] The “character of the offense” committed by the sus-
pect is also “often an important consideration in determining
whether the use of force was justified.” Deorle, 272 F.3d at
1280. Viewing the facts in the light most favorable to the
plaintiff, the “crime at issue” in this case was not “sever[e]”
by any measure. Graham, 490 U.S. at 396. Indeed, Lukus’
family did not call the police to report a crime at all, but rather
to seek help for their emotionally disturbed son. See Deorle,
272 F.3d at 1280-81 (noting that officers were called “not to
arrest him, but to investigate his peculiar behavior [as] Deorle
was clearly a deeply troubled, emotionally disturbed individu-
al”). Neither the district court nor the defendants have identi-
fied any crime that Lukus committed.9
[8] Next, we consider whether Lukus was “actively resist-
ing arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396. No one contends that Lukus tried to flee
before officers shot him with the beanbag gun. Whether
Lukus was “actively resisting arrest” is more complicated.
9
We recognize that the defendants could argue at trial that Lukus threat-
ened his family, or that Lukus obstructed the officers by refusing to follow
their orders, and thereby violated the law. These are disputed facts, how-
ever, which we must resolve in the plaintiff’s favor. There is evidence
from which a jury could conclude that Lukus never threatened anyone but
himself, and that Lukus could not hear or understand the officers’ com-
mands.
We do not diminish the importance of crimes such as those Lukus might
be argued to have committed, but we have previously concluded that simi-
lar offenses were not “severe” within the meaning of the Graham analysis.
See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (not-
ing that trespassing and obstructing a police officer were not severe
crimes); Smith, 394 F.3d at 702 (concluding that a suspect was not “partic-
ularly dangerous” and his crimes were not “especially egregious” where
police were called because he was “ ‘hitting [his wife] and/or was physical
with her’ ”); Deorle, 272 F.3d at 1277, 1281-82 (noting that “the crime
being committed, if any, was minor” where the suspect was charged with
obstructing the police in the performance of their duties after brandishing
a hatchet and crossbow at police officers and threatening to “kick [their]
ass”).
GLENN v. WASHINGTON COUNTY 21283
Significantly, “he did not attack the officers” or anyone else,
nor did he threaten to do so at any point while officers were
on the scene. Smith, 394 F.3d at 703. Rather, he stayed in the
same position from the time officers arrived and took no
threatening actions (other than noncompliance with shouted
orders). However, he remained in possession of the pocket-
knife despite officers’ commands to put it down. As the dis-
trict court recognized, though, it is not clear Lukus heard or
understood those orders.
In Deorle, the plaintiff “brandish[ed] a hatchet” and a
crossbow and was verbally abusive to officers, threatening to
“kick [their] ass.” 272 F.3d at 1276-77. He also continually
roamed about his property despite officers’ orders. Id. None-
theless, we did not consider this sufficient active resistance to
warrant use of the beanbag shotgun. Id. at 1282-85. Rather,
we noted that “the crime being committed, if any, was
minor.” Id. at 1282. Similarly, in Smith, 394 F.3d at 703, we
held that the plaintiff’s refusal to obey officers’ commands to
remove his hands from his pockets to show police whether he
was armed, as well as his entry into his home despite officers’
orders and his brief physical resistance were “not . . . particu-
larly bellicose.” Smith is similar to this case in that the crux
of the resistance was the refusal to follow officers’ com-
mands, rather than actively attacking or threatening officers or
others. Lukus, however, had a pocketknife, whereas police
ultimately determined that Smith was unarmed. We take note
of Washington County’s own guidelines in considering how
this distinction should affect our analysis. See, e.g., id. at 701-
02 (discussing the “Hemet Police Department’s use of force
policy” in analyzing the Graham factors).
[9] Washington County’s use of force continuum identifies
five levels of resistance, ranging from least to most resistant:
verbal, static, active, ominous and lethal. Applying Washing-
ton County’s definitions to the facts viewed in the light most
favorable to Glenn, Lukus falls under the “static” resistance
category, where the suspect “refuses to comply with com-
21284 GLENN v. WASHINGTON COUNTY
mands . . . [and] has a weapon but does not threaten to use it.”
According to Washington County guidelines, officers can
employ various types of force in response to static resistance,
including takedown methods, electrical stun devices and pep-
per spray. Use of less-than-lethal munitions, however, is
unauthorized unless a suspect exhibits “ominous” or “active”
resistance, which entails “pull[ing] away from a deputy’s
grasp, attempt[ing] to escape, resist[ing] or counter[ing] phys-
ical control,” or “demonstrat[ing] the willingness to engage in
combat by verbal challenges, threats, aggressive behavior, or
assault.” Accordingly, when viewing the facts in the light
most favorable to the plaintiff, the defendants’ own guidelines
would characterize Lukus’ conduct as less than active resis-
tance, not warranting use of a beanbag shotgun.
[10] Another circumstance relevant to our analysis is
whether the officers were or should have been aware that
Lukus was emotionally disturbed. See Deorle, 272 F.3d at
1283. Viewing the facts in the required light, it is clear that,
as the district court recognized, Lukus was obviously “emo-
tionally disturbed, a factor to which the officers should have
assigned greater weight.” Dispatch informed officers that
Lukus (1) was suicidal and very intoxicated, (2) had a history
of suicide attempts, and (3) was the son of the caller rather
than a criminal intruder. This information was confirmed
when officers arrived and found Lukus holding a knife to his
own neck and threatening to harm himself, rather than bran-
dishing it at his parents or friends, who were standing nearby.
Indeed, at least one person on the scene explicitly told officers
that Lukus was “only threatening to hurt himself.” “Even
when an emotionally disturbed individual is ‘acting out’ and
inviting officers to use deadly force,” “the governmental
interest in using such force is diminished by the fact that the
officers are confronted, not with a person who has committed
a serious crime against others, but with a mentally ill individ-
ual.” Id. This was the situation officers confronted in this
case.
GLENN v. WASHINGTON COUNTY 21285
[11] We also consider whether officers gave a warning
before employing the force. See Bryan, 630 F.3d at 831;
Deorle, 272 F.3d at 1272. “Appropriate warnings comport
with actual police practice” and “such warnings should be
given, when feasible, if the use of force may result in serious
injury.” Deorle, 272 F.3d at 1284. In this case, more than
once Gerba and Mateski yelled warnings like “drop the fuck-
ing knife or I’m going to kill you,” but, as the district court
noted, “Lukus may not have heard or understood these warn-
ings” because he was intoxicated and there were other people
yelling. Further, these warnings were given before Pastore
arrived with the beanbag shotgun. It appears that the only
warning given immediately before the beanbag shotgun was
fired was when Pastore yelled “beanbag, beanbag.” Possibly,
Lukus did not know what this statement meant, or perhaps
even what a beanbag shotgun was. The officers concede that
after being hit with the beanbag rounds Lukus “appeared sur-
prised, confused, and possibly in pain,” and Lukus may even
have thought he was being shot at with live lethal rounds
given the officers’ previous threats of deadly force. Confusion
regarding whether his life was in immediate danger may have
led Lukus to seek cover rather than surrender.
[12] Finally, we consider whether there were less intrusive
means of force that might have been used before officers
resorted to the beanbag shotgun. Officers “need not avail
themselves of the least intrusive means of responding to an
exigent situation; they need only act within that range of con-
duct we identify as reasonable.” Henrich, 39 F.3d at 915.
However, “police are ‘required to consider [w]hat other tac-
tics if any were available,’ ” and if there were “clear, reason-
able and less intrusive alternatives” to the force employed,
that “militate[s] against finding [the] use of force reasonable.”
Bryan, 630 F.3d at 831 (quoting Headwaters Forest Def. v.
Cnty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)); see
also Smith, 395 F.3d at 703 (considering “alternative tech-
niques available for subduing him that presented a lesser
threat of death or serious injury”).
21286 GLENN v. WASHINGTON COUNTY
Glenn identifies various less intrusive options that she
argues were available to the officers. She suggests that rather
than immediately drawing their weapons and shouting com-
mands and expletives at Lukus, which predictably escalated
the situation instead of bringing it closer to peaceful resolu-
tion, officers could have attempted the tactics of “persuasion”
or “questioning.” These tactics appear on the Washington
County use of force continuum, and the 911 dispatcher
assured Hope that the officers would “try and talk to
[Lukus].” Glenn also argues that the officers also could have
“use[d] time as a tool,” given that they knew backup officers
were en route and that the situation appeared static. Instead,
officers shot Lukus with numerous beanbag rounds approxi-
mately three minutes into the encounter, and had shot him to
death within four minutes of their arrival.
[13] We have made clear that the “desire to resolve
quickly a potentially dangerous situation is not the type of
governmental interest that, standing alone, justifies the use of
force that may cause serious injury.” Deorle, 272 F.3d at
1281. We also recognized in Deorle that when dealing with
an emotionally disturbed individual who is creating a distur-
bance or resisting arrest, as opposed to a dangerous criminal,
officers typically use less forceful tactics. See id. at 1282.
This is because when dealing with a disturbed individual, “in-
creasing the use of force may . . . exacerbate the situation,”
unlike when dealing with a criminal, where increased force is
more likely to “bring[ ] a dangerous situation to a swift end.”
Id. at 1283. The facts of this case, viewed in the light most
favorable to the plaintiff, bear this out: Lukus did not respond
positively to the officers’ forceful tactics, and just before offi-
cers fired the beanbag gun, Lukus “pled: ‘Tell them to stop
screaming at me,’ ” and “why are you yelling?”
In support of her arguments, Glenn offers the statements of
an expert witness, a former Bellevue, Washington Chief of
Police with a law enforcement career spanning more than 50
years. It was his “considered professional opinion that the
GLENN v. WASHINGTON COUNTY 21287
[defendants] escalated a static situation into an unnecessary
and avoidable shooting.” We have held en banc that “[a]
rational jury could rely upon such [expert] evidence in assess-
ing whether the officers’ use of force was unreasonable.”
Smith, 394 F.3d at 703 (reversing district court’s grant of
qualified immunity).
In the expert’s opinion, the “fundamental rules for
approaching” a situation like the one the officers faced are:
“1) Slow it down, 2) Do not increase the subject’s level of
anxiety or excitement, 3) Attempt to develop rapport, 4) Time
is on the side of the police.” The expert pointed out that Ser-
geant Wilkinson had specifically advised the responding offi-
cers to “[r]emember your tactical breathing,” and “control the
situation” — advice Wilkinson explained was meant to “help
[the officers] control themselves if possible while dealing
with a stressful situation.” Instead, “[w]ith no attempt at
establishing any dialogue whatsoever,” “[t]he shooters began
loudly and continuously yelling at the decedent.” “3 minutes
and 49 seconds later, Officer Pastore began firing 6 impact
projectiles at him,” and “[a]fter only 9 more seconds and
before all of the impact projectiles had been fired, the shoot-
ers began rapidly firing a total of 11 shots.” In the expert’s
opinion, “[t]he rapidity of the time sequence is particularly
illustrative of th[e] too hasty and escalating approach to a per-
son in crisis.”
Finally, Glenn argues that the officers should have used a
taser before employing the beanbag shotgun. Washington
County considers electrical stun devices to be lesser force
than less-lethal munitions. Sergeant Wilkinson suggested over
dispatch that “a taser may be an option if you have enough
distance,” and Tony Morales also suggested that the officers
try tasing Lukus. Plaintiff’s expert opined that the taser “was
the ideal less-lethal option to temporarily disable the dece-
dent, at approximately 15 feet away, and take him into custo-
dy.” He came to this conclusion because beanbag shotgun
rounds “are generally inaccurate, rely solely on pain for com-
21288 GLENN v. WASHINGTON COUNTY
pliance that will also motivate the target to escape and do not
have a high degree of reliability,” whereas the taser “actually
immobilizes the target, is accurate out to 21 feet and has a
high degree of reliability.”
[14] Neither Gerba nor Mateski had a taser on the night in
question, but Pastore did. It appears Gerba and Mateski did
not know that, and never asked. The district court cited sev-
eral reasons the defendants offered for their decision to use a
beanbag shotgun rather than a taser, such as that Lukus’ posi-
tion and distance relative to the officers would have made fir-
ing the taser difficult. But there was conflicting evidence on
these points, so on summary judgment we must assume that
a taser would have been a feasible option. Although a jury
could ultimately disagree that the officers were in optimal
taser range or that use of a taser was otherwise feasible or
preferable, these are disputed questions of fact.10
We do not suggest that the officers were required to attempt
any of the various purportedly less intrusive alternatives to the
beanbag shotgun. As we have explained, it is well settled that
officers need not employ the least intrusive means available
so long as they act within a range of reasonable conduct. See
Henrich, 39 F.3d at 915. The available lesser alternatives are,
10
We do not suggest that it would have necessarily been reasonable for
the officers to use a taser here. “[W]hether the force used to effect a partic-
ular seizure 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 is a fact-specific inquiry, and reasonableness is determined
based on the totality of the circumstances. The reasonableness of the use
of a taser here would depend on a balancing of the Graham factors. See
Mattos v. Agarano, ___ F.3d ___, 2011 WL 4908374, at *7-*16 (9th Cir.
Oct. 17, 2011) (en banc) (applying the Graham factors and concluding
that use of a taser was unreasonable under the circumstances). We need
not conduct such an analysis at this stage, because regardless of whether
the force used would have been upheld as reasonable, it was a less intru-
sive alternative to the beanbag shotgun.
GLENN v. WASHINGTON COUNTY 21289
however, relevant to ascertaining that reasonable range of
conduct. See Bryan, 630 F.3d at 831. Accordingly, the avail-
ability of those alternatives is one factor we consider in the
Graham calculus.
3.
[15] Balancing these various considerations, we hold that
the district court erred in granting summary judgment on the
constitutionality of the officers’ use of force. We recognize
that the officers have offered evidence that could support a
verdict in their favor. A jury could view the facts as the dis-
trict court did, and likewise reach the conclusion that the offi-
cers’ use of force was reasonable. But on summary judgment,
the district court is not permitted to act as a factfinder. The
circumstances of this case can be viewed in various ways, and
a jury should have the opportunity to assess the reasonable-
ness of the force used after hearing all the evidence. See
Smith, 394 F.3d at 701 (noting that “ ‘summary judgment . . .
in excessive force cases should be granted sparingly’ ”
because such cases “ ‘nearly always’ ” involve disputed
facts); see also Espinosa, 598 F.3d at 537. Because the dis-
puted facts and inferences could support a verdict for either
party, we are compelled to reverse the district court’s entry of
summary judgment.
B.
[16] As the district court recognized, “the officers’ deci-
sion to employ the beanbag gun is critical to the resolution of”
the reasonableness of the lethal force as well “[b]ecause the
use of less-lethal force precipitated the use of deadly force.”
Before Lukus was shot with the beanbag shotgun, he had not
moved from the position he was in at the time officers arrived,
and showed no signs of attempting to do so. He moved only
after being struck by the beanbag rounds, which have suffi-
cient force to “knock[ ] [someone] off his feet.” Deorle, 272
F.3d at 1279. Lukus’ movement in reaction to the beanbag
21290 GLENN v. WASHINGTON COUNTY
fire — which a jury could conclude was a predictable conse-
quence of using the beanbag shotgun — prompted the offi-
cers’ lethal force.
[17] “[W]here an officer intentionally or recklessly pro-
vokes a violent confrontation, if the provocation is an inde-
pendent Fourth Amendment violation, he may be held liable
for his otherwise defensive use of deadly force.” Billington v.
Smith, 292 F.3d 1177, 1189 (9th Cir. 2002); see also
Espinosa, 598 F.3d at 548 (“[E]ven though the officers rea-
sonably fired back in self-defense, they could still be held lia-
ble for using excessive force because their reckless and
unconstitutional provocation created the need to use force.”).
Because there is a triable issue of whether shooting Lukus
with the beanbag shotgun was itself excessive force, under
Billington there is also a question regarding the subsequent
use of deadly force. Even assuming, as the district court con-
cluded, that deadly force was a reasonable response to Lukus’
movement toward the house, a jury could find that the bean-
bag shots provoked Lukus’ movement and thereby precipi-
tated the use of lethal force. If jurors conclude that the
provocation — the use of the beanbag shotgun — was an
independent Fourth Amendment violation, the officers “may
be held liable for [their] otherwise defensive use of deadly
force.” Billington, 292 F.3d at 1189.
Even if the jury determines that the use of “less-lethal”
force was justifiable, however, the question still remains
whether escalating so quickly to deadly force was warranted.
The critical issue is whether Lukus posed an immediate safety
risk to others. “In deadly force cases, ‘[w]here the suspect
poses no immediate threat to the officer and no threat to oth-
ers, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so.’ ” Espinosa, 598 F.3d
at 537 (quoting Garner, 471 U.S. at 11-12).
Even before the final beanbag round was fired, the officers
began firing a total of 11 shots at Lukus, eight of which struck
GLENN v. WASHINGTON COUNTY 21291
him, causing him to bleed to death on his grandmother’s
porch within minutes. The officers argue they were justified
in resorting to deadly force because Lukus had begun to move
toward the house where his parents were located, and the offi-
cers knew the front door had a broken lock. Thus, they rea-
sonably feared that he could have attacked his parents with
the knife so they shot Lukus to protect his family.
Glenn counters that Lukus was not running toward the front
door to attack his family, but instead took one or two steps
seeking cover from the beanbag rounds by moving in the most
obvious line of retreat, and was shot without warning. Glenn
contends that Lukus may not even have taken an intentional
step but instead was “moved by . . . the onslaught of beanbag
fire.” Glenn further argues that the officers’ professed concern
for Hope and Brad’s safety was unreasonable given that
Lukus had up to that point not attempted to attack anyone, and
had been threatening suicide rather than exhibiting any incli-
nation to harm his family. Moreover, had the officers been so
concerned with the Glenns’ safety, Glenn argues, they could
easily have positioned Hope and Brad behind the officers, as
they did with Tony Morales and David Lucas, rather than
ordering them into the house with its broken door. Alterna-
tively, the officers could have positioned themselves between
Lukus and the front door.
[18] As with the use of beanbags, there are material ques-
tions of fact about Lukus’ and the officers’ actions that pre-
clude a conclusion that the officers’ rapid resort to deadly
force was reasonable as a matter of law. Again, the disputed
facts and inferences could support a verdict for either party,
and the jury must resolve these factual disputes. Accordingly,
we reverse the district court’s summary judgment on the use
of lethal force.
III.
[19] Glenn also appeals the dismissal of her claim against
Washington County under Monell v. Department of Social
21292 GLENN v. WASHINGTON COUNTY
Services, 436 U.S. 658 (1978). “Pursuant to 42 U.S.C. § 1983,
a local government may be liable for constitutional torts com-
mitted by its officials according to municipal policy, practice,
or custom.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028
(9th Cir. 2000) (citing Monell, 436 U.S. at 690-91). Alterna-
tively, “the plaintiff may prove that an official with final
policy-making authority ratified a subordinate’s unconstitu-
tional decision or action and the basis for it.” Gillette v. Del-
more, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citing City of
St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). The dis-
trict court’s dismissal of Glenn’s Monell claim was based
entirely on the erroneous entry of summary judgment in the
defendants’ favor on the excessive force question. Accord-
ingly, we remand to the district court for consideration of
whether Glenn’s Monell claim can properly be resolved on
summary judgment even if the constitutional violation ques-
tion cannot.
[20] We also reverse and remand for reconsideration of
whether Glenn’s state law wrongful death claim could prop-
erly be resolved on summary judgment. The district court
appears to have assumed that Oregon law and § 1983 are
coextensive, and rejected Glenn’s state law claims “[i]n light
of [its] decision that the officers’ two acts of force were con-
stitutionally reasonable.” The defendants likewise argue on
appeal that once the district court determined the officers’
conduct was objectively reasonable under federal law, Ore-
gon’s justification statutes provided an affirmative defense
permitting summary judgment on the state law claims as well.
Glenn counters that the justification statutes are not applicable
and liability under Oregon law is broader than under federal
law. Cf. Billington, 292 F.3d at 1190 (“The Fourth Amend-
ment’s ‘reasonableness’ standard is not the same as the stan-
dard of ‘reasonable care’ under tort law . . . . An officer may
fail to exercise ‘reasonable care’ as a matter of tort law yet
still be a constitutionally ‘reasonable’ officer.”). We need not
resolve this question of Oregon law because, in either event,
our reversal of the summary judgment on the § 1983 claim
GLENN v. WASHINGTON COUNTY 21293
also requires reversal of the summary judgment on the wrong-
ful death claim.
CONCLUSION
We reverse the entry of summary judgment on all claims
and remand for further proceedings consistent with this opin-
ion.
REVERSED and REMANDED.