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Wilkinson v. Torres

July 6, 2010


Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding DC No. CV 08-5281 BHS.

The opinion of the court was delivered by: Tashima, Circuit Judge


Argued and Submitted January 15, 2010 -- Seattle, Washington.

Before: A. Wallace Tashima and Richard C. Tallman, Circuit Judges, and Consuelo B. Marshall, District Judge*fn1

Opinion by Judge Tashima; Dissent by Judge Marshall.


On May 8, 2005, Defendant-Appellant Rick Torres ("Torres") shot and killed Jason Scott Wilkinson ("Wilkinson") as Wilkinson was driving a stolen minivan in a residential yard where the officers were on foot. Plaintiffs-Appellees Scott Wilkinson, Alisha Wilkinson, and the estate of Jason Scott Wilkinson (collectively, "Plaintiffs") brought an action against Torres and others, alleging that their constitutional rights under the Fourth and Fourteenth Amendments were violated by Torres' use of deadly force. Torres moved for summary judgment on the issue of qualified immunity, but the district court denied the motion, citing disputed issues of material fact. Torres appeals, arguing that he is entitled to qualified immunity because his use of force was reasonable as a matter of law. We agree and therefore reverse.


On May 8, 2005, at approximately 11:20 a.m., City of Vancouver Police Officer John Key ("Key") was on patrol when he saw a minivan parked near a known drug house. Key checked the license plate on his mobile data center (i.e., an incar computer) and confirmed over the radio that the vehicle was stolen. Key yelled at the driver to get his attention, but the driver, instead of responding, leaned down out of Key's sight. After half a minute to a minute, the driver sat up, started the car, and started driving away. Key pursued the minivan in his car.

While this was happening, Torres, another Vancouver Police Officer, was on duty nearby. Torres heard Key's request on the radio to check the plate. According to Torres, he "could tell by the tone of [Key's] voice that something was up." Torres joined the pursuit with his siren on and eventually took the lead in order to execute a Pursuit Immobilization Technique ("PIT") maneuver on the minivan.*fn2 The pursuit proceeded at a moderate speed - five to ten miles over the speed limit. After the minivan entered a "T" intersection, Torres executed the PIT maneuver, causing the minivan to spin. The minivan kept going, however, and Torres executed a second PIT maneuver, causing the minivan to enter a yard on the northwest corner of the intersection.

After entering the yard on the eastern side, the minivan regained control and accelerated in a southwest direction back toward the road. At this point, Clark County Deputy Sheriff Scott Schanaker ("Schanaker"), who had arrived at the scene, positioned his car in the minivan's path to block the escape. The minivan swerved and hit a telephone pole next to Schanaker's car.

Key and Torres got out of their patrol cars and approached the minivan on foot. Torres yelled at the driver to show his hands. Key attempted to open the driver-side front door and fell on the ground about the same time as the minivan started moving in reverse.*fn3 The front of the minivan swung toward the driver side, and the rear of the minivan swung toward the passenger side. The wheels on the minivan were spinning and throwing up mud. After one to two seconds, according to Plaintiffs' witness, Key got up and "walked[ ] or jumped out of the way . . . so he wouldn't get ran (sic) over."

Once he saw Key fall down, Torres yelled at the driver to stop. Torres believed that Key had been run over. The minivan continued to back up, and Torres began shooting through the passenger-side window. After a slight pause during which he assessed the situation, Torres continued firing at the driver of the minivan. The minivan continued to arc around Torres, but eventually straightened out and slowed down. Torres called in that shots had been fired. Evidence later showed that Torres had fired eleven rounds of a fifteen-round magazine. According to radio logs, the elapsed time between the final PIT maneuver and the radio call after the shots had been fired was nine seconds.

The driver of the minivan died of multiple gunshot wounds and was later identified as Wilkinson. Plaintiffs brought this 42 U.S.C. § 1983 action against Torres and others. The district court denied Torres' motion for summary judgment based on qualified immunity. Torres timely appeals.


Although an appellate court generally does not have jurisdiction over an interlocutory appeal from the denial of a motion for summary judgment, an order denying qualified immunity is immediately appealable. Scott v. Harris, 550 U.S. 372, 376 n.2 (2007). Our jurisdiction to review an interlocu-tory appeal of a denial of qualified immunity, however, is limited exclusively to questions of law. Sanchez v. Canales, 574 F.3d 1169, 1173 (9th Cir. 2009). Where disputed issues of material fact exist, we must assume the version of facts presented by the plaintiff. Id.

We review a denial of qualified immunity de novo. Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). In doing so, we must "view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the [summary judgment] motion.' " Scott, 550 U.S. at 378 (alteration in original) (citations omitted). However, when the facts, as alleged by the non-moving party, are unsupported by the record such that no reasonable jury could believe them, we need not rely on those facts for purposes of ruling on the summary judgment motion. Id. at 380.


Plaintiffs claim that Torres violated Wilkinson's Fourth Amendment right to be free from excessive force and Scott Wilkinson and Alisha White's Fourteenth Amendment due process right to familial association. We analyze each claim in turn.

I. Fourth Amendment Claim

[1] Apprehension by deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. See Graham v. Connor, 490 U.S. 386, 395 (1989). However, an officer using deadly force is entitled to qualified immunity, unless the law was clearly established that the use of force violated the Fourth Amendment. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The qualified immunity inquiry consists of two parts: (1) "whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right," and (2) "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 129 S.Ct. 808, 815-16 (2009) (citation omitted).

[2] Case law has clearly established that an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). On the other hand, it is not constitutionally unreasonable to prevent escape using deadly force "[w]here the officer has probable cause to believe that ...

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