George v. Morris

In cases where objective provocation cannot be shown, police officers may not be entitled to qualified immunity for claims of excessive force.

Sixty-four-year-old Donald George (“Donald”) suffered from terminal brain cancer. Early in the morning on March 6, 2009, he retrieved a pistol and ammunition from his truck. His wife Carol called the police because she was concerned for Donald's welfare. When deputies arrived, Carol answered the door and asked the officers not to scare Donald. The deputies established a perimeter, and Donald appeared on the balcony with his walker and the gun pointed at the ground. Shortly after, three deputies fired nine shots, and Donald died at a hospital from his injuries. Carol brought two Fourth Amendment claims against the three officers, one for a violation of her husband's right to be free from excessive force, and one because police briefly detained her from the crime scene and prevented her from seeing Donald in the hospital. The deputies moved for summary judgment, which was denied on Donald's claim, but granted on Carol's unreasonable seizure claim. The district court denied qualified immunity to the deputies on the unreasonable force claim. The deputies filed an interlocutory appeal of the denial of summary judgment and qualified immunity. Focusing on whether the deputies were entitled to qualified immunity, the Ninth Circuit drew all reasonable inferences in favor of the plaintiff. The panel found no objective facts to support the deputies' concern for officer safety, even though Donald was armed. Additionally, the panel found that even if the incident had been reported as a domestic disturbance, it was clear Carol was not in danger when the deputies arrived. Thus, the panel held that the deputies were not entitled to qualified immunity because they could be found to have violated the Fourth Amendment. The panel also found it did not have jurisdiction over Carol's cross appeal. AFFIRMED IN PART and DISMISSED IN PART.