On July 22, 2020, the Ninth Circuit Court of Appeals decided Monzon v. City of Murrieta[i], in which the court examined whether officers used excessive force when they shot a driver after a vehicle pursuit when the driver drove in the direction of officers who were on foot in the area. The relevant facts of Monzon, taken directly from the case, are as follows:
On October 22, 2016, at about 1:45 a.m., Officer Chris Zeltner ran the license plate of a Kia van and discovered the van was reported stolen. Monzon was driving the van, and, unknown to Zeltner, Jerrico Reyes sat in the back of the van. Zeltner informed dispatch that he planned to make a felony stop, and dispatch sent additional officers to assist him. Zeltner attempted to pull Monzon over, but Monzon kept driving, leading Zeltner on a car chase. Officers Scott Montez, Kyle Mikowski, Zack Bradley, and Blake Williams joined Zeltner in the pursuit. Williams and Montez shared a cruiser, while Bradley and Mikowski drove separately. The officers testified that Monzon swerved back and forth on the freeway, drove at varied speeds up to 100 miles per hour (“mph”), exited and reentered the freeway, and ran stop signs and stoplights.
At about 1:57 a.m., Monzon turned onto a dead-end street with no lights. The five officers in four vehicles turned in behind him. They were alerted over the radio that the street came to a dead-end and to use precautions. The following chain of events occurred over an approximately two-minute period after the officers pulled onto the dead-end street behind Monzon.
Monzon stopped the van at the end of the street, and Zeltner stopped his cruiser behind Monzon near the van’s rear bumper. Bradley staggered his vehicle behind Zeltner on the right side of the road. Mikowski stopped on the left side of the street behind Bradley. Williams and Montez staggered their vehicle behind and to the right of Mikowski’s vehicle. Zeltner and Mikowski had activated the red and blue lights on their vehicles in addition to their headlights.
Shortly after the officers parked, Monzon engaged in a multi-point turn so that his vehicle was pointing back up the street he had just driven down, and generally in the direction of the five officers and their four parked vehicles. He ran into a fence post while turning, but it didn’t stop him. While Monzon was turning, Zeltner exited his vehicle, presented his firearm, and shouted for Monzon to stop and put his hands in the air. Reyes, the passenger in the van, testified that Monzon put his hands in the air at this point, but Reyes agreed that the van continued to turn and move forward. When the van was about 10 to 15 feet away from Zeltner, arcing near and around him in a counterclockwise motion, Zeltner fired his first shot at Monzon. As the van continued to move past Zeltner and toward the officers behind him, Zeltner fired five more shots at Monzon, aiming through the driver’s side window. The van passed to the left of Zeltner and his cruiser, headed in the general direction of the other officers and their vehicles.
Bradley had also exited his vehicle and moved toward the rear of Zeltner’s cruiser as Monzon was turning his van around. About a second after Zeltner stopped shooting and the van accelerated past Zeltner and Bradley, the van continued turning toward Mikowski and Williams, who were now on foot on the driver’s side of the third cruiser. Bradley fired multiple shots at Monzon when he saw the van driving toward Mikowski and Williams. The van turned so that, at least at one point, it was headed directly toward Mikowski and Williams, and then was headed for the gap between the second (Bradley’s) and third (Mikowski’s) cruisers. Missing the gap, the van struck Mikowski’s cruiser, pushing it into Williams, who was standing near the rear driver’s side window of the cruiser. The crash occurred with such force that Williams’s arm went through the cruiser’s window, injuring him. Williams fired 10 shots at Monzon. Mikowski also fired seven shots at Monzon aiming through the passenger side window and front windshield. Stopped, the van’s engine revved and its tires spun. Believing the van could drive over Mikowski or Williams, Bradley fired one more shot. Montez also fired.
The entire time from when Monzon started moving toward the officers to when the van crashed into the cruiser was 4.5 seconds. During that brief period, the van accelerated repeatedly, with the accelerator pedal pushed from 84 to 99 percent, and reached a maximum speed of 17.4 mph. Although no officer gave a deadly force warning, it is undisputed that at least Officer Zeltner yelled “Stop!” before firing.
Once the van’s engine stopped revving, it slowly rolled backwards until Zeltner stopped it by jamming a skateboard under its tire. The officers again commanded Monzon to show his hands. When Monzon did not respond, Mikowski deployed a canine. The dog jumped into the van and bit Monzon on the head and right arm before being disengaged by Mikowski. About 20 seconds elapsed between the time that the canine was deployed and disengaged. The officers then discovered Reyes in the back of the van. They called for medical assistance and performed chest compressions on Monzon until the paramedics arrived. Monzon, who had been shot eight times, was pronounced dead at the scene.[ii]
Monzon’s parent’s filed suit on behalf of his estate and alleged that the officers violated the Fourth Amendment by using excessive force when they shot Monzon and allowed the canine to bite Monzon. They also alleged that the officers denied medical treatment for Monzon. The district court held the officer’s use of force and medical treatment did not violate the constitution and dismissed the claims. Monzon’s parents appealed the grant of qualified immunity to the Ninth Circuit Court of Appeals.
When officers act in their discretionary capacity, for example, deciding what type of force to use on a resisting or fleeing suspect, officers can file a motion for qualified immunity if they are sued. In order for a plaintiff to defeat an officer’s motion for qualified immunity, the plaintiff must show (1) that the officer(s) violated a federally protected right, and (2) that the law was clearly established such that any reasonable officer in the same situation would have known that the conduct at issue was unlawful. If the plaintiff fails to satisfy both prongs above, the officer is entitled to qualified immunity and the suit is dismissed.
The court of appeals explained “clearly established law” and stated
An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would [*10] have understood that he was violating it.” City of Escondido v. Emmons, 139 S. Ct. 500, 503, 202 L. Ed. 2d 455 (2019) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153, 200 L. Ed. 2d 449 (2018)). While a case does not need to be squarely “on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551, 196 L. Ed. 2d 463 (2017) (internal quotation marks omitted)).[iii]
DID THE OFFICERS VIOLATE THE FOURTH AMENDMENT WHEN THEY SHOT MONZON?
The court first noted that at this stage of the litigation, the court must view the facts in a light most favorable to the plaintiff. That means that that they must consider the facts as the plaintiff states unless there is clear evidence to the contrary, such as video. The court also noted that uses of force are seizures of a person and seizures are governed by the Fourth Amendment requirement of objective reasonableness.
The court then discussed the law related to the use of deadly force and stated
When “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). To assess reasonableness, we consider the “ severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight.” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396).[iv]
The court then noted facts from the case that are relevant when analyzing the facts in light of the rules stated above. The relevant facts were as follows: (1) Monzon resisted Officer Zeltner’s initial attempt to perform a traffic stop and fled at speeds of up to 100 mph; (2) Monzon endangered the pursuing officers and the general public, by his flight and the fact that he recklessly exited and reentered the freeway, and drove through stop signs and red lights; (3) Monzon steered the van near and toward officers, who were on foot, on a dark, dead-end street; (4) Monzon drove near Officer Zeltner, drove toward Officer Mikowski and Officer Williams, and then turned such that the van struck Officer Mikowski’s vehicle, pushing it into Officer Williams, injuring him; (5) this portion of the pursuit lasted 4.5 seconds; and (6) the officers fired at various times between when the van neared Officer Zeltner and shortly after the van struck Officer Mikowski’s car. The court also credited Monzon’s allegation that his hands were up when the officer told him to “stop” but acknowledged the car continued to drive and turn and that Officer Zeltner was approximately 15 feet from the van and not in its direct path at the times he fired.
In light of these facts, and for the reasons that will be discussed below, the court of appeals held that the officers’ use of deadly force was reasonable under Garner and Graham. First, the court noted that the severity of the crime weighs in favor of the use of force because “Monzon led officers on a dangerous high-speed chase at night, and he refused to stop the van at the behest of officers, even after coming to the end of a street.”[v] Second, the court noted that “Monzon posed an immediate threat to the safety of the officers when he ignored commands to stop the van and drove near, toward, and amongst the officers on foot.”[vi] Third, the court stated that Monzon’s conduct demonstrated that he was actively resisting arrest and attempting to evade arrest by flight. Fourth, “Monzon’s driving endangered the officers and left them with only seconds to consider less severe alternatives.”[vii] This required a “split-second” decision that should not be viewed with “20/20 hindsight.” Regarding 20/20 hindsight, the Ninth Circuit did an excellent job at explaining why such hindsight is inappropriate in a case such as this. The court stated
Judges and lawyers viewing an event like this in hindsight from the comfort of their armchairs are often tempted to dissect, evaluate, and second-guess the officers’ actions piecemeal. That would be a serious mistake. Cherry-picking specific facts in hindsight is not at all reflective of how this event transpired in real life. It all happened in less time than it took to type this sentence, before daylight, in a very dynamic and chaotic environment, where officers were forced to make split-second decisions about a driver who deliberately turned his car around and drove it toward and between them. The officers were faced with a reckless driver who had already endangered their lives and the lives of the public with a high-speed chase, had broken traffic laws, ignored commands to stop his vehicle, and steered and accelerated his van toward them in close quarters on an unlit street. Although we must read the record in the light most favorable to the plaintiffs, we do not—indeed, we cannot—dissect the record in a way that ignores the totality of the dynamic and quickly changing circumstances Monzon created by deliberately turning his car around and driving it toward and between five officers.[viii]
Fifth, the court noted that the officers did not provide a warning regarding their use of deadly force. However, the court also noted that the incident went from a standstill to crashing into a police vehicle at 17mph in 4.5 seconds while driving towards and in the vicinity of several officers who were on foot. The court then held
A reasonable officer in the position of Zeltner, Mikowski, Williams, Montez, or Bradley would have probable cause to believe that Monzon posed an immediate threat to the safety of one or more of the other officers or himself as Monzon drove his car toward and among the five officers.[ix]
The court of appeals separately analyzed the shots fired at Monzon after he crashed into the police vehicle. The court held that these shots were also reasonable under the Fourth Amendment and explained
Even though it was no longer moving, just as in Wilkinson these officers “could hear the engine revving” and they were now situated on all sides of a van containing “a driver desperate to escape,” 610 F.3d at 552—so desperate, from their perspective, that he crashed his van, first into a fencepost, and then into one of their cars. It was not unreasonable for the officers in that situation to believe that Monzon, who had just seconds before crashed the van into a fence post yet continued on, had to be stopped after this second impact before he drove the van into one of them. When “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Garner, 471 U.S. at 11. The officers did not violate a constitutional right when they fired on Monzon.[x]
The court of appeals noted that Monzon argued that the officers were not in his direct path when they shot him. The court then examined the Supreme Court case Plumhoff v. Rickard[xi], in which Rickard led police on a dangerous, high-speed chase at over 100mph. He crashed into a police car and stopped for approximately three seconds, at which time he began to accelerate. The officers on foot shot Rickard. The Supreme Court stated
[I]t is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and . . . the police acted reasonably in using deadly force to end that risk.[xii]
The Ninth Circuit noted that the Supreme Court did not require that the officers be in the direct path of the vehicle for deadly force to be reasonable when a dangerous, high-speed vehicle pursuit is involved. Thus, regarding Monzon, the court of appeals stated
Plaintiffs argue that “[t]he dispositive disputed fact . . . is whether any officer was in the van’s path when [the officers] fired.” Even if this is a disputed fact, this fact is not material and therefore not “dispositive.” We have never held that an officer must be in the direct path of a moving vehicle before his use of force is deemed reasonable. Nor could we, given the Supreme Court’s opinion in Plumhoff v. Rickard.[xiii]
The Ninth Circuit then held that the use of deadly force against Monzon was reasonable under the Fourth Amendment.
DID THE USE OF THE CANINE VIOLATE THE FOURTH AMENDMENT?
The court considered the totality of the circumstances in Monzon’s case, particularly that he had led police on a dangerous, high-speed chase at speeds over 100mph, driven his van toward and between five police officers on foot, crashed into a police vehicle injuring an officer, revved the engine after the crash, and then failed to show his hands or follow commands. The court stated
Under those circumstances, it was reasonable for the officers to be concerned that, even though the van was now stopped, Monzon might resist arrest or attempt to drive the van away again. If an officer had personally reached through the van door to apprehend Monzon—instead of using a canine—and Monzon reacted by trying to drive away, the officer would be in danger of getting caught in the doorway of the van just as in Wilkinson. 610 F.3d at 549 (describing the suspect reversing the vehicle as the officer attempted to open the driver’s side door).[xiv]
The court of appeals also noted that the officer called the canine off of Monzon quickly (after approximately 20 seconds) after he realized that Monzon was not resisting.
Thus, the court of appeals held that the use of the canine was reasonable under the Fourth Amendment.
Therefore, regarding the Fourth Amendment claim for excessive force, the court of appeals held that the use of deadly force and the use of the canine were reasonable under the Fourth Amendment, and the officers are entitled to qualified immunity. Since the plaintiff was unable to overcome the first prong of the qualified immunity analysis and the court was not required to examine the second prong, although the court did examine case law provided by the plaintiff, noting that even if the officers violated the Fourth Amendment, the law still was not clearly established regarding deadly force in Monzon’s incident. Thus, the officers would still be entitled to qualified immunity.
DID THE OFFICERS VIOLATE THE FOURTEENTH AMENDMENT BY FAILING TO PROVIDE MEDICAL AID TO MONZON?
The court of appeals stated that Monzon did not properly argue this claim so the plaintiff waived the claim and it was dismissed. However, the court still noted that the claim would fail because the officers promptly called an ambulance for Monzon. Specifically, the court stated
The officers promptly called for medical assistance once they secured Monzon and Reyes, and the ambulance arrived within five minutes of the van finally coming to rest. See id. at 1099 (“[W]e hold that a police officer who promptly summons the necessary medical assistance has acted reasonably for purposes of the Fourth Amendment, even if the officer did not administer CPR.”)[xv]
It is also worth noting that here the officers did do chest compressions. However, as the court noted, even if no CPR was performed, an officer acts reasonably if he promptly calls medical assistance.
Therefore, the court of appeals affirmed the grant of qualified immunity to the officers.
[i] No. 19-55161 (9th Cir. Decided July 22, 2020)
[ii] Id. at 4-8
[iii] Id. at 9-10 (emphasis added)
[iv] Id. at 11 (emphasis added)
[v] Id. at 13
[viii] Id. at 13-14
[ix] Id. at 15 (emphasis added)
[x] Id. at 15-16 (emphasis added)
[xi] 572 U.S. 765 (2014)
[xiii] Monzon at 16 (emphasis added)
[xiv] Id. at 23
[xv] Id. at 30-31 (emphasis added)