Hart v. City of Redwood City

99 F.4th 543

Kristin HART, individually and as co-successor-in-interest to Decedent Kyle Hart;E.H., individually and as co-successor-in-interest to Decedent Kyle Hart;W.H., individually and as co-successor-in-interest to Decedent Kyle Hart, Plaintiffs-Appellees, v. CITY OF REDWOOD CITY, a municipal corporation; Daniel Mulholland,individually and in his capacity as Chief of Police for the City of Redwood City;Roman Gomez, individually and in his official capacity asa Police Officer for the City of Redwood City;Leila Velez, individually and in her official capacity asa Police Officer for the City of Redwood City, Defendants-Appellants.

No. 22-17008

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 12, 2024 San Francisco, California

Filed April 19, 2024

Appeal from the United States District Court for the Northern District of California, Yvonne Gonzalez Rogers, District Judge, Presiding, D.C. No. 4:21-cv-02653-YGR

Benjamin Nisenbaum (argued), John L. Burris, and Ayana C. Curry, Burris Nisenbaum Curry & Lacy LLP, Oakland, California, for Plaintiffs-Appellees.

Kevin E. Gilbert (argued) and Carolyn M. Aguilar, Orbach Huff & Henderson LLP, Pleasanton, California; Mark G. Bonino and Donald L. Hall, III, Hayes Scott Bonino Ellingson Guslani Simonson & Clause LLP, San Carlos, California; Stephen P. Ellingson, Hayes Scott Bonino Ellingson & McLay LLP, Redwood City, California; for Defendants-Appellants.

Before: Eric D. Miller, Bridget S. Bade, and Lawrence VanDyke, Circuit Judges.

OPINION

VANDYKE, Circuit Judge:

Officers Gomez and Velez responded to a tragic call involving a man attempting suicide with a knife in his backyard. When they arrived, they found the man's wife covered in blood and frantically pleading for help. At her urging, the officers went to the backyard, where they found Hart holding a knife. They told him to drop the knife, but instead of doing so he began moving towards them while raising the knife. As Hart neared the officers, Officer Velez deployed her taser, but it was ineffective. With Hart approaching closely and wielding a knife, Officer Gomez took action to protect himself and his partner, shooting Hart. Medical assistance was called for Hart, but he ultimately passed away in the emergency room. Hart's family brought suit alleging that Gomez, Velez, and the City of Redwood City violated their and Hart's constitutional and state law rights. The parties filed cross-motions for summary judgment, and as relevant here, the district court found that Officer Gomez was not entitled to qualified immunity.

We conclude that the district court erred in denying qualified immunity. As an initial matter, we have jurisdiction over the case because both whether disputed facts are material and whether qualified immunity applies are questions of law subject to our jurisdiction. And Officer Gomez is entitled to qualified immunity because Plaintiffs have failed to show either that his conduct was objectively unreasonable, and therefore a violation of Hart's Fourth Amendment rights, or that such rights were clearly established by precedent existing at the time of the conduct.

I.

On December 10, 2018, plaintiff Kristin Hart (Plaintiff, and together with her children, Plaintiffs) heard one of her two children crying and called out to her husband Kyle Hart (Hart) to help comfort the child. When she did not hear a response, Plaintiff went into the kitchen to check on Hart and found him using a "serrated utility knife" to cut at his own throat while their son watched. Plaintiff told Hart "many times" to stop cutting himself; Hart lowered the knife several times, but each time resumed cutting himself.

Eventually, Plaintiff managed to take the knife from Hart. She began searching for her cell phone to call 911, but when she could not find it, Hart gave her his phone. She called 911, but as she did Hart retrieved a different knife and again began cutting at his throat. Plaintiff told the 911 dispatcher that her husband was committing suicide by cutting his throat and his wrists. While she was on the phone, her husband went into the backyard, and continued to cut himself on the throat, arms, and chest.

Officers Roman Gomez and Leila Velez were the first to arrive on the scene. Plaintiff met them in the front yard, uninjured, but covered in blood and frantically pleading for them to help Hart. Because Gomez was senior, he took the lead and instructed Velez "to go less lethal with the taser" while he "would go lethal with [his] firearm."¹ The officers asked Plaintiff where Hart was and immediately ran in the direction she pointed.

The officers took a narrow, muddy path on the left side of the house to reach the backyard. Gomez took the lead, holding his firearm "low ready" while Velez came behind him with her taser. Plaintiff followed behind them. While the parties agree on the broad strokes of what happened next, their testimonies vary regarding certain details.

Gomez stated that he approached the backyard from the "middle left" side of the pathway to give himself a better view of the yard as he rounded the corner. Although he did not look to see Velez's position behind him, he assumed that because he was to the left, she was behind him and to his right. Velez, on the other hand, stated that she was on Gomez's left side, rather than his right. They found Hart standing in the backyard holding a knife. Plaintiff stated that Hart was standing in the back corner of the backyard, holding the knife to his throat. Gomez said that the first time he saw Hart, the man was standing on the other side of some patio furniture and a small child's play structure, facing away from them and holding the knife down from his side. Velez indicated that Hart was facing them and holding the knife out at shoulder height.

Gomez yelled "drop the knife" twice. Instead of dropping the knife, Hart began moving towards the officers while still holding the knife. Plaintiff remembered seeing Hart move toward the officers, but at that point she realized her children were unattended, so she left to check on them. Plaintiff did not see the shooting. Gomez said that Hart came towards them at a slow run, holding the knife out towards the officers, going from thirty feet away to eight or ten feet away in "approximately five seconds." Velez characterized Hart's pace as a "brisk walk." What is not disputed—and was recognized by Plaintiffs' own expert—is that Hart went from his starting position across the yard to where he eventually ended up only a few feet from the officers in less than 5.9 seconds.

The officers did not warn Hart that they would shoot, but with him approaching and wielding a knife, they took action to protect themselves. Velez testified that she fired her taser at Hart before any shots were fired. She said that Hart was still upright and holding the knife up at them when she fired the taser. One taser probe struck Hart on the left side of his head, and the other missed, passing Hart and landing 17 feet away from the officers. Because contact with both probes is required for the taser to function, the taser had no effect on Hart.

Velez testified that Gomez only fired after the taser failed to make contact with Hart. Gomez, however, stated that he fired his "firearm simultaneously to when Officer Velez fired her taser." Regardless of the timing, the taser was ineffectual, and Gomez fired five shots, striking Hart three times in the upper torso. Velez stated that, after Hart was shot, he fell to the ground five feet to her left; Gomez stated that Hart fell at his feet. Paramedics were already enroute when Gomez requested medical assistance. The paramedics transported Hart to an emergency room, but he was ultimately pronounced dead.

While there are some discrepancies regarding the details of the incident, the material facts are not in dispute. When Officers Gomez and Velez arrived at Hart's residence, Plaintiff was covered in blood and frantic. At her urging, the officers went along the side of the house to the backyard, where they found Hart holding a knife. Gomez told Hart to "drop the knife." Instead of complying, Hart began moving towards the officers while still holding the knife. As corroborated by the officers' testimony, Plaintiffs' expert, and the 911 call recording, Hart crossed the backyard to within a few feet of the officers in less than 5.9 seconds. Viewing Hart—who advanced on them with a knife—as an imminent threat,² Velez fired her taser, but this was ineffective because only one probe made contact with Hart. Gomez fired five shots, striking Hart three times in the upper torso. Hart fell to the ground near the officers, was provided emergency medical assistance, but was pronounced deceased upon arrival at an emergency room.

In April 2021, Plaintiffs filed their complaint alleging that Gomez, Velez, their chief of police, and the City of Redwood City (collectively, Defendants) violated their and Hart's constitutional and state law rights. The parties filed cross-motions for summary judgment, which the district court denied except as to certain claims asserted against Velez under 42 U.S.C. § 1983. Relevant to this appeal, the district court found that the officers were not entitled to qualified immunity.

In making this determination, the district court relied on this court's previous statement that "[e]very police officer should know that it is objectively unreasonable to shoot . . . [1] an unarmed man who: [2] has committed no serious offense, [3] is mentally or emotionally disturbed, [4] has been given no warning of the imminent use of such a significant degree of force, [5] poses no risk of flight, and [6] presents no objectively reasonable threat to the safety of the officer or other individuals." Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). The district court found, viewing the facts in the light most favorable to Plaintiffs, that these factors were met because "Hart had committed no offense, was...