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holding that where plaintiff "accelerated his truck in the general direction of the two officers while both officers were on foot," and "[g]iven the officers' proximity to the moving vehicle, it was objectively reasonable for the officers to shoot [the plaintiff], because the moving vehicle posed an immediate threat to the officers' safety"
Summary of this case from James v. City of SeattleOpinion
No. 10-16892.
Argued and Submitted July 18, 2011 San Francisco, California.
July 25, 2011.
Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. No. 2:09-cv-00378-SRB.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On February 21, 2008, Joseph Levesque was shot with an automatic assault rifle by Officer Kohler of the City of Mesa Police Department. On February 12, 2009, Joseph Levesque and his wife, Sheryl Levesque, filed a lawsuit against defendants, the City of Mesa, Officer Kohler, Officer Glover, Sergeant Ivey, and fictitious defendants, alleging inter alia excessive force in violation of 42 U.S.C. § 1983. On August 2, 2010, the district court (Bolton, J.) heard oral argument on defendants' motions for summary judgment and on August 10, 2010 the district court issued an order granting defendants' motions for summary judgment. Plaintiff-appellants now appeal the district court's grant of defendants' motions for summary judgment. We affirm.
We review the district court's grant of a summary judgment motion de novo. A police officer's use of force is governed by the reasonableness standard set forth inGraham v. Connor, 490 U.S. 386, 395 (1989). "[T]he `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (citations omitted). The test of objective reasonableness is based on the "perspective of a reasonable officer on the scene," and not "with the 20/20 vision of hindsight." Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The use of force must be judged considering the totality of the circumstances, including 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." Id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Viewing the facts in the light most favorable to plaintiffs, the district court did not err in concluding that the defendants' actions were objectively reasonable under the circumstances and thus that defendants were entitled to summary judgment, particularly in light of this Court's decision inWilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010). In the instant case, it is undisputed that Mr. Levesque, after causing a disturbance at a local bar by allegedly pointing a firearm at another patron, thereupon, rather than surrendering to Officers Kohler and Glover, accelerated his truck in the general direction of the two officers while both officers were on foot. Given the officers' close proximity to the moving vehicle, it was objectively reasonable for the officers to shoot Mr. Levesque, because the moving vehicle posed an immediate threat to the officers' safety. The fact that an eyewitness proffered the opinion that she did not believe that the officers were actually in danger is immaterial because the test of objective reasonableness is based on the "perspective of the officer on the scene." See Graham, 490 U.S. at 396; see also Wilkinson, 610 F.3d at 551.
We have considered the appellants' additional arguments and similarly find them to be without merit.
AFFIRMED.