NINTH CIRCUIT UPHOLDS QUALIFIED IMMUNITY FOR OFFICERS

PAUL Q. GOYETTE
CEO and Founder
Goyette & Associates, Inc.

In September 2017, the federal Ninth Circuit Court of Appeals ruled in favor of law enforcement officers in the case of Woodward v. City of Tucson (870 F.3d 1154 [9th Cir. 2017]). The victory came from the Ninth Circuit’s reversal of the District Court of Arizona, which ruled that the officers were not entitled to qualified immunity based on their actions.

Incident Background
This case arose from an officer-involved shooting that occurred on May 21, 2014, in Tucson, Arizona. At 8:58 p.m., the Tucson Police Department received a call from an employee of an apartment complex landlord. The complainant stated that some formerly evicted tenants were unlawfully inside of an empty apartment. Because this was originally considered lower in priority, the operator did not dispatch the call until two hours after the call had been made.
Officer Meyer was the officer who responded to the call. Upon arriving at the apartment, he saw that both the security door and the front door were unlocked, and prior to investigating further, he radioed for backup. A second officer, Officer Soeder, responded and arrived at the scene within minutes.

The officers knocked on the front door and announced themselves with weapons drawn out of an abundance of caution. When no one answered, they opened the door and entered the apartment. However, at this point, they did not have a warrant and had not called for radio silence to indicate they did not believe they were facing a dangerous scenario.

Once they were inside of the apartment, they cleared the front living room and determined that no one else was present. They saw that the only bedroom in the home was closed and emitting what sounded to be music coming from a radio. The officers again knocked and announced their presence at what they believed to be a loud enough volume. When they didn’t get a response, they opened the door. They were greeted by a man holding a hockey stick over his head, positioned to strike the officers, and a woman standing behind him. Within seconds of opening the door, the weapon-wielding man charged at the officers. The officers could not reasonably escape because of their close quarters, so they yelled out, “Police, stop!” But the suspect kept coming at them. Both officers, in fear for their safety, fired at the man. The man died from the gun shots. The female standing behind the man also suffered wounds, which the officers tended to immediately after the incident.
The suspect’s mother, Irma Woodward, filed a lawsuit in the federal District Court of Arizona against the officers and the City of Tucson, alleging that the officers violated her son’s Fourth Amendment rights by unlawfully entering the residence without a warrant and using excessive force against the suspect. The officers believed they should be entitled to qualified immunity, which would shield the officers from liability for their split-second decisions.
The District Court denied qualified immunity to the officers on the warrantless entry claim and held that because the entry into the apartment was a violation of the Fourth Amendment, the subsequent use of force was per se excessive. The defendants appealed this decision to the Ninth Circuit Court of Appeals.

Standing
The first issue on appeal was whether the suspect had standing to assert a Fourth Amendment claim for warrantless, non-consensual entry into an apartment in which he was a trespasser. The plaintiff alleged that the female, a former tenant of that apartment who had been recently evicted, had standing to assert the Fourth Amendment, and that the male, as an “overnight guest,” had a reasonable expectation of privacy in the apartment.
The Ninth Circuit found that the male suspect’s status as an overnight guest provided him with no reasonable expectation of privacy in the apartment. Moreover, the female suspect, Amber Watts, had no reasonable expectation of privacy in the apartment because she no longer lived there. Therefore, the court ultimately concluded that the plaintiff had no standing to assert a violation of the male suspect’s Fourth Amendment rights.

Qualified Immunity
The next issue the court discussed was whether the officers should be afforded qualified immunity under these circumstances. The law recognizes that police officers should be protected from liability that arises over them carrying out their duties. The court applied a two-pronged analysis to determine whether the officers were entitled to qualified immunity: whether the facts alleged by the plaintiff showed a constitutional right was violated, and if so, whether the right was “clearly established” at the time of the violation (Pearson v. Callahan, 555 U.S. 223, 232 [2009]). The plaintiff must meet both prongs in order to avoid the application of qualified immunity.
The court bifurcated its qualified immunity discussion into two distinct issues: whether the officers should be afforded qualified immunity regarding the seizure of the apartment, and whether the officers should be afforded qualified immunity over the seizure and alleged excessive force against the male.

With respect to the first issue, the court was able to quickly conclude that the plaintiff never had a reasonable expectation of privacy in the apartment, thereby granting the officers qualified immunity on this point.
Turning to the second issue, the court addressed this “provocation theory” that the district court based its decision on in denying qualified immunity. Provocation theory was established in Alexander v. City and County of San Francisco (29 F.3d 1355 [9th Cir. 1994]), which held that a violation of the Fourth Amendment will then render each subsequent, otherwise reasonable, activity as unreasonable. However, the court noted that this case was abrogated by County of Los Angeles v. Mendez (137 S.Ct. 1539 [2017]), in which the U.S. Supreme Court held that each search and seizure should be analyzed separately.

The Ninth Circuit began its analysis with the second prong of the two-pronged test: whether it was “clearly established” that the officers should not have used deadly force on the plaintiff. The facts that the court highlighted in its discussion were that the officers were faced with impending danger from the male suspect, who was screaming, growling and holding a dangerous weapon over his head. Also, the officers did all that they could under the circumstances, for the small size of the apartment rendered them immobile.

The court even noted that the officers attempted to verbally disarm the male by yelling “Police, stop” at him. Ultimately, the court holds that any reasonable officers in Officers Meyer and Soeder’s position “would not have known that shooting [the plaintiff] violated a clearly established right,” thereby granting them qualified immunity.

Conclusion
This case is a good illustration on the issues an officer must be aware of when faced with a difficult situation. The Ninth Circuit Court of Appeals applied the correct law in determining that the officers acted appropriately under the circumstances. However, it is also important to note that just minor variations in the facts can have a significant outcome on how the courts might decide qualified immunity cases in the future.