F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C A R O L A N N G E O R G E , Plaintiff-Appellee

,

v

.

D E P U T Y J A R

R E T T M O R

R I S ; D E P U T Y J O S E P H S C H M I D T ; D E P U T Y J E R E M Y R O G E R S , Defendants-Appellants.

T H E C O U

N T Y O F S A

N T A B A R

B A R A ; D E P U T Y H A R

R Y H U D L E Y ; D E P U T Y L A R R Y H E S S , Defendants

. N o. 11-55956

D.C. No. 2:09-cv-02258- CB M-AGR

C A R O L A N N G E O R G E , Plaintiff-Appellant

,

v

.

J A R R E T T M O R

R I S ; J O S E P H S C H M I D T ; J E R E M Y R O G E R S , Defendants-Appellees

,

and N o. 11-56020

D.C. No. 2:09-cv-02258- CB M-AGR

ORDER AND AMENDED OPI NI ONG E O R G E V

. M O R

R I S 2

T H E C O U

N T Y O F S A

N T A B A R

B A R A ; H A R R Y H U D L E Y ; L A R

R Y H E S S , Defendants

.

A ppeal from the United States District Court for the Central District of California Consuelo B . Marshall, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 7, 2013—Pasadena, California

F iled J uly 30, 2013 Amended September 16, 2013

B efore: Diarmuid F . O’Scannlain, Stephen S. Trott,

a nd Richard R. Clifton, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Concurrence and Dissent by J udg e TrottG E O R G E V

. M O R

R I S 3

SUMMARY *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment deny ing qualified immunity to sheriff’s de p u ties a nd dismissed plaintiff’s cross appeal for lack o f j u r i sdiction in these actions arising from the shooting by the deputies of an armed homeowner on his patio.

The p anel held that drawi n g all r easonable inferences in plaintiff’s favor, as it was required to do at this interlocutory stag e , the specific circumstances did not indicate that the decedent p osed an immediate t h r e a t to the safety of the officers or to others. The panel stated that if the deputies indeed shot the six ty -four-y ear-old decedent wit hout objective provocation while he used his walker, with his g un trained on the g round, then a reasonable jury could determine that they violated the F ourth A m e n dment. Defendants therefore were not entitled to qualified immunity

.

The panel dismissed the cross appeal broug ht b y decedent’s wife after her counsel conceded at o ral arg ument that the cross appeal had not been well taken.

J udg e Trott concurred in small part and dissented in larg e part. He disag reed with the majority ’s conclusion that decedent did n ot pose an immediate threat to the safety of the

o f ficers called to the scene by decedent’s distraug ht a n d
t e rrified wife in a 9-1-1 emerg ency call, or a n immediate

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G E O R G E V

. M O R

R I S 4

threat to the saf

e t y of others. J udg e Trott ag reed with the majority ’s disposition of the cross appeal.

COUNSEL

Michae l M a

ury Young dahl, County of Santa B arbara, CA,
arg ued the caus e for the d efendants-appellants/crossappellees. Kelly Duncan Scott, Deputy County Counsel, filed the briefs. W ith h e r on the briefs was Dennis A. Marshall, County Counsel.

Stephen K. Dunkle, Sang e r Swy sen & Dunkle, Santa B arbara, CA, arg ued the caus e a nd filed the briefs for the plaintiffappellee/cross-appellant. W ith him on the briefs were Robert M

. Sang e r and Catherine J

. Swy sen, Sang er Swy sen & Dunkle, Santa B arbara, CA.

ORDER

The o p inion and dissent filed in this case on J uly 30, 2013, and reported a t — F .3d —, 2013 W L 3889157, a re hereby amended. An amended opinion and an amended dissent are filed concurrently with this order.

W ith these amendments, J u dg es O’Scannlain and Clifton have voted to deny the petition for r ehearing

. J udg e Trott has voted to g rant the petition for rehearing

. J udg es O’Scannlain and Clifton have voted to deny the petition for rehearing en banc. J udg e Trott h as recommended g ranting the petition for rehearing en banc. The full court h as be e n advised of the petition for rehe aring en banc, and no active judg e hasG E O R G E V

. M O R

R I S 5

requested a vote o n whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition for r ehear i n g and the petition f or rehearing

en banc are DENIED

. No subsequent petitions for rehearing and rehearing

en banc may

be filed.

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decid e whether a reasonable jury could determine that three sheriff’s d ep u t ies violated the Constitution when they fatally shot an armed homeowner on his patio.

I

A

At h a lf past five, on the morning of March 6, 2009, Carol Georg e awoke. Her h usband Donald needed food. 1 D onald had a terminal case of brain c a ncer and

, a s a r e s ult of his chemotherapy

, ate frequently to manag e headaches. His wife broug ht him a snack and then, not having slept well, r eturned
to bed. Shortly a fter, Georg e took the key s to the couple’s truck from the nig ht stand and went downstai rs. Concerned

1 W e ad o p t C aro l’ s “ v ersio n o f th e fa c t s, ” as sh e is th e n o n m o v an t. S co tt v. Ha rris
, 5 5 0 U.S. 37 2
, 3 78 (2 0 0 7 ). Part II o f o u r o p in io n ex p lain s

w h y w e can n o t ag ree w ith

o u r d issen tin g co lleag u e th at w e are at lib erty to p ref er th e d ep u ties’ v ersio n

in th is in terlo cu to ry

ap p eal.G E O R G E V

. M O R

R I S 6

f o r h is well-being

, Carol followed him. She witnessed hi m retrieve his pistol from the truck a nd load it with ammunition.

Carol called 911. B e ca u s e she used her c ell p hone, the call w ent to the Ventura C al i f ornia H ig hway Patrol. O n the

a u d i o recording in evidence, she can b e heard e x claiming

“ N o ! ” a n d “My husband has a g un!” The hig hway patro l dispatcher could only determine that she lived somewhere in Santa B arbara. Her h usband wa n t ed her to hang up, so she did. The dispatcher then contacted a Santa B arb ar a County 911 operator who call e d Carol back and obtained her complete address.

Deputies were dispatched to the residence for a domestic disturbance involving a firearm. S anta B arbara Sheriff’s Deputies J arrett Morris and J eremy Rog ers r e s p onded f irst. Carol met them at the front door. She asked them to be quiet and not to scare her h u sband, while a lso advising that h e was on the patio with his g un.

The deputies decided to establish a perimeter around the house. They crossed the driveway toward a g a te on the east side of the property

. Morris w a s in the lead, with Schmidt and Rog ers following

. They carried two AR-15 rifles in addition to their service revolvers. Unable to spot Donald, and concerned that he mig ht use a door on the west side o f the house to ex it, Rog ers turned back to c over that side. Morris tried to assume a position out of sig ht and Schmidt lay down in ice plants at the bot t o m o f a s teep slope near the southeast corner o f the house. F rom his position on the
g round, Schmidt could see the back of the house, which had an outdoor balcony

on the second floor with a patio.G E O R G E V

. M O R

R I S 7

The district court concluded t h ere was a dispute as to

w h i c h officer made contact with Donald first. Morris sa i d that Schmidt h ad—announcing “I see the susp e c t” on the radio—while S c h m idt claimed that it was Morris w ho initially saw Donald. According to an u ncontroverted policedispatch log

, at 8:08 a.m ., Donald opened the door to the balcony

. Once he a

ppeared in view of the deputies, Schmidt identified himself as law enforcement and instructed D onald
to show him h is hands. Hearing y e lling

, Rog ers left h is post out front and headed into the backy ard.

Dispatc h was told that Donald h ad a firearm in his left hand. Morris testified to seeing D o n ald “carry ing [ a] silver colored pistol in h i s left h and, while holding ” what he described “as a walker or a bug g y .” 2 Rog ers stated that when Georg e came into view, he was holding a g un with the barrel pointing d own. Carol does not dispu t e that Donald ex ited
onto the balcony with his walker and h o l ding his firearm. However, the district court concluded that Carol’s evidence, which included an ex pert witness’s repo r t , 3 called into question whether Donald ever mani p u lated the g un, o r pointed it directly at deputies. 4 Twelve seconds a fter the

2 A silv er W alth er p i sto l w as reco v ered f ro m Do n ald af

ter th e in cid en t.

3 A lth ou g h v ario u s m ed i cal o p in io n s o f h is w ere strick en b y th e d istrict

co u rt, T h om as R. P ark er (a f o rm er FB I ag en t an d Calif o rn ia p o lice o f

f icer)
p ro v id ed an ex p ert rep o rt. It g av e p ersp ectiv e o n h o w th e d e p u t ies’

acco u n ts co m

p ared w i t h ty

p ical p olice b eh av io r an d co n tain ed o p in io n s ab o u t h o w th e p h y sical lay o u t o f t h e p ro p erty m a y h a v e in f lu en ced th e d ep u ties’ an d Do n ald ’ s o n

- t h e- scen e p ercep tio n s.

4 M o r ris o f

f ers a v iv id acco u n t o f Do n ald ’ s f in al m o m en ts th a t w e

ca n n o t cred it b ecau se th e d istrict co u rt f o u n d it to b e g en u in ely d i sp u ted

. S ee in fra P art II. A cco rd in g to h im

, alth o u g h Do n ald in itially h ad th eG E O R G E V

. M O R

R I S 8

deputies broadcast that Donald had a firearm, the dispatch log records “shots fired.” D onald fell to the g round, and Rog ers continued to shoot. Tog e ther the three dep u t i es fired
approx imately nine sho t s

. They then ran to assist him, applied first aid, and called an ambulance. Donald died two hours later at the hospital following surg ery and admission to the intensive care unit.

B

Carol sued a y ear later under 42 U.S.C. § 1983 asserting
two c o n s t itutional claims. 5 Ag ainst Morris, Schmidt, a nd Rog ers she claimed a violation of her late husband’s rig ht to be free from ex cessive f

orce under the F ourth Amendment, a s

p isto l braced ag ain st h i s w alk er, so o n af ter, Do n ald reach ed f

or w h at Mo rris th o u g h t w as its saf ety an d g rasp ed th e g u n w ith b o th h an d s

. T h en in Mo rris’ s w o rd s:

[Do n ald ] m ad e th e f

in al m o tio n at th e rear o f th e p isto l

an d I s aid to m

y self

. . . if h e raises th at g u n an y h ig h er h e’ s g o in g to b e aim in g at [Sch m i d t ] a n d

. . . I g o t ta [sic] t ak e th at sh o t an d

. . . at th at m o m en t as h e’ s raisin g , h e d o es n ’ t g et h ig h er th [a]n th e w all h e im m ed iately tu rn s straig h t east an d raises it an d is n o w p o in t in g it d irectly at m e an d I h ad n o w h ere to g o

. I’ m , I’ m cro u ch ed do w

n an d I’ m , I rem em

b er seein g th e, th e b lack h o le actu all y l o o k in g d o w n th e b arrel as it’ s p o in t ed rig h t at m e a n d t h a t w as w h en , th at w as w

h en I f ired m y f irst sh o t.

5 Sh e a l s o r aised a v ariety o f state- law cau ses o f actio n

. B ecau se it is

u n d isp u ted “ th at reso lu tio n o f th e f ed eral co n stitu

tio n al clai m s w o uld

n ecessarily dicta t e t h e reso lu tio n o f th e s tate law claim s,” w e d o n o t ad d ress th em

sep arately

.G E O R G E V

. M O R

R I S 9

i n corporated. 6 I n a claim c h iefly implicating Deputy Ha r r y Hudley

, Carol asserted that her own F ourth Amendment rig ht
ag ainst u nreasonable seiz ure was v iolated when Hudley k ept h er from the c rime scene in the shooting ’s afterma t h a n d when she was briefly stopped from v isiting D onald in the hospital. T he deputies and their supervisors moved for
summary judg ment invoking qualified immunity

, mainly
arg uing that neither Donald’s nor Carol’s constitutional rig hts had been violated.

After an evidentiary h earing

, the district court concluded that based on the admissible evidence, “whether Mr. Georg e presented a threat to the safety of the deputies is a m a t e r i al fact that is g enuinely in dispute.” 7 This meant a constitutional violation could be proven a n d t h e court denied qualified immunity o n that basis. Concluding that the deputies had not arg ued for its application, the court did not address the second
prong of qualified immunity

— the clearly established inquiry

. That asks whether “it w ould be clear to a reaso n a b le officer that his conduct was unlawful in the situation he confronted.” Lacey v

. Maricopa Cnty.
, 6 93 F .3d 896, 915 (9th Cir. 2 012) (en banc). As to Carol’s seiz u re cl a i m , the district court

6 “ A claim u

n der 4 2 U.S.C. § 1 9 8 3 su rv iv es th e d eced en t if t

h e claim

accru ed b ef

o re th e d eced en t’ s d eath

, an d i f state law au th o rizes a su rv iv al actio n .” T

a t u m v. City & C

n ty. o f Sa n Fra n cisco
, 4 4 1 F.3 d 1 0 90
, 1 0 9 3 n .2 ( 9 t h Cir. 2 0 0 6 ) (citin g 4 2 U.S.C. § 1 9 88 (a)). Caro l’ s co m plain t a l l e g e s th at sh e i s th e p erso n al rep resen tativ e o f h er h u sb an d ’ s estate in f u l l

co m plian ce w ith Calif

o rn i a l a w

. Sh e th eref

ore m ay litig ate h is Fo u rth A m en d m en t claim

. S

ee id

. ; Cal. Civ . P ro c. Co d e § § 3 7 7 .3 0 , 3 7 7 .3 2.

7 L ik e th e d issen t, in th e co n tex t o f t h e d istrict co u rt’ s p reced in g

an aly sis, w e u n d erstan d th is statem en t f o r w h at i t is: a d eterm in atio n th at th e f acts ab o u t h ow Do n ald an d th e dep u t ies h ad b eh av ed prio r t o th e sh o o tin g w ere co n tested

. S ee Dissen t at 3 3

.G E O R G E V

. M O R

R I S 10

decided there was no c o n s titutional v iolation and, in the alterna t i ve, that “the rig h t at issue w as not clearly established.” I t t h erefore g ranted summary judg ment to Hudley and the other deputies.

Morris, Rog ers, and Schmidt timely appeal the denial o f
summary judg ment. C a r ol timely c ross appeals, seeking review of the di s t r i c t court’s g rant o f summary judg ment to the deputies on her unreasonable seiz u re claim.

I I

Be c ause Morris, Rog ers, and Schmidt challeng e the denial of q

ualified immunity we have jurisdiction over the denial of summary judg ment, an int e r locutory d e cision not normally appealable. See Mitchell v. Forsyth

, 472 U.S. 511, 530 (1985). H owever, the scope o f o ur review over the appeal is circumscribed. See Kennedy v. City of Rid g e field

, 439 F

. 3d 1 055, 1059–60 (9th Cir. 2006). Any decision b y the district court “that the p arties’ evide n c e presents g enuine issues of material f

act is c a teg orically unre v iewable on interlocutory appeal.” Eng v

. Coole y , 552 F .3d 1062, 1067 (9th Cir. 2009). Stated differentl y , “ w e may not consider questions o f e viden[ tiary ] sufficiency

, i.e., which facts a party may , or may not, b e able t o p r ove at trial.” CarePartners, LLC v. Lashway

, 545 F .3d 867, 875 (9th Cir. 2008) (internal quotation marks omitted).

Noting that we do h av e authority to consider the materiali ty of a fact, Behrens v. Pelletier

, 5 16 U.S. 299, 312–13 ( 1996),—the issue of whether disputed facts “mig ht affect the outcome of the suit under the g overning law”—the deputies arg u e that Carol’s disputed facts are ancillary

, a nd therefore immaterial. Anderson v. Liberty Lobby, Inc.
, 477G E O R G E V

. M O R

R I S 11

U.S. 242, 248 (1986)

. I n t h a t respect, they claim that a review of the district court’s “ reasoning establishes that rather than de l i n eating actual material disputed facts, [ the court]

co m ming led a g roup o f insig nificant discrepancies in statements” in order to conclude that a dispute ex isted about what had transpired during D onald’s final minutes. Althoug h couched in the lang uag e o f materiality

, their arg ument actually g oes to the sufficiency of G eorg e’s evide n c e

. At bottom, their c ontention is that Carol could not “ p rove at trial” that D onald d i d not turn and point his g un at deputies. Johnson v. Jones , 515 U.S. 304, 313 (1995).

I n c a s es where the best (and usually only ) witness w ho could o f fer direct testimony for t h e p laintiff about what happened before a shooting has died, our pr e cedent permits the decedent’s version of events to be constructed circumstantially from competent ex pert and phy sical evidence, as well as from inconsistencies in the testimony o f law enforcement. See Scott v. Henrich

, 3 9 F .3d 912, 915 (9th Cir. 1994); Santos v

. Gates
, 287 F .3d 846, 852 (9th Cir. 2 002) (“Nowhere in our cases have we held that police misconduct
may be proved only throug h direct evidence.”). 8 The district
court applied this principle. I t parsed the deputies’ testimony for inconsistencies, found that medical evidence (and Carol’s declaration) called into question whether Donald was phy sically capable o f wielding the g un as deputies d escribed, and found parts o f Carol’s ex p ert’s testimony probative. There were g enuine disputes of fact such that a reasonable

8 Oth er circu i ts em

u late th is ap pro ach

. S

ee, e.g

. , La mo nt v. New Jersey
, 6 3 7 F.3 d 1 7 7
, 1 8 1 –8 2 (3 d Cir. 20 1 1 ); Ab d u lla h i v

. Ci t

y o f Ma d iso n , 4 2 3 F.3 d 7 6 3
, 7 7 2 & n .8 (7 th Cir. 2 0 0 5 ) (d escrib in g th e ro le o f a p o l i ce p ractices ex p ert a n d ex p lain in g th e cen trality o f in f eren ces “ w

h en th e p lain tif f ’ s so l e ey ew itn ess is d ead ”).G E O R G E V

. M O R

R I S 12

jury could “disbelieve the officers’ testimony ” and rely on record evide n ce t o conclude that D onald h ad not ig nored commands to drop the g un, or taken other th r eatening measures such as pointing the weapon at deputies.

B e cause this inquiry

, un der S cott v. Henrich and its
prog e ny , concerns g enuineness—namely “ the question whether there is enoug h evidence in the re c o r d fo r a jury to conclude that certain facts are true”—we may not d e c i d e at t h is interlocutory stag e if the district court prope r l y performed it. Kinney v. W eaver , 367 F .3d 337, 347 (5th Cir. 2004) (en banc); see Abdullahi v. City of Madison , 423 F .3d 763, 772 n.8 (7th Cir. 2005) (discussing the Ninth Circuit’s approach). The dissent, however, would have us effectively
cast off the interlocutory

- re v i e w framework. Dissent at 41–46. I t tells us we may do so under the banner of S cott v

. Harris
, a case in which not a sing le J ustice of t h e S u p r eme Court “ discussed the limits of the c o llateral order doctrine in qualified immunity cases” or even cite d the Court’s prior authorities on the subject. Blaylock v. City of Philadelphia

, 504 F .3d 405, 413–14 (3d Cir. 2007) ( “[ n] either the majority nor the dissent in Scott

cited Johnson or Behrens ”).

I n Johnson

, a unanimous Supreme Court t o l d us these interlocutory a

ppeals involving qualified immunity (1) would be suited to our comp arative ex pertise as appellate judg es, centering on “abstract issues of law,” as oppo s e d to “the

ex istence, or nonex istence, of a triable issue of fact” and (2) would spare us from pouring o v e r “affidavits, depositions, and other discovery materials.” J ohnson

, 515 U .S. at 316–17. I f we could e x ercise the same plenary review as t h e district judg e below, or if w e were jurors called upon to weig h the evidence, the arg uments o f o u r able colleag ue in dissent mig ht persuade us. Yet, h is scrutiniz ing of the record cannotG E O R G E V

. M O R

R I S 13

be squared with the J

ohnson paradig m. 9 Even accepting for the sake of arg ument, thoug h, that S cott v. Harris is meant to establish an ex ception to the rules for interlocutory review, the dissent d oes not fit w ithin that case’s terms e ither. I t points to no videotape, audio reco r d ing

, or similarly dispositive evidence that “blatantly contradict[ s] ” or “utterly discredit[ s] ” Carol’s side of the story

. Scott
, 5 5 0 U .S. at 380. 1 0

9 Ou r co n clu s io n th at th e Jo hn so n p rin cip le still ap p lies to d ay is b y n o

m ean s i d io sy

n cratic. In th e y ears s in ce S co tt v. Ha rris (a 2 0 0 7 d ecisio n ),

w e h av e co n sisten tly h eld th at o u r co u rt l ack s th e p o w er to reassess f acts

o n in terlo cu to ry rev iew

. T h e 2 0 0 9 En g d e c i s i o n co u ld n o t be clearer ab o u t w h at o u r circu it’ s law p rescrib es, see Dissen t at 4 3
, an d th ere are

m an y oth er p reced en ts to th e sam e ef f ect. S ee, e.g

. , Ka r l v. City o

f Mo u n t la ke Terra ce , 6 7 8 F .3 d 1 0 6 2
, 1 0 67

– 68 (9 th Cir. 2 0 1 2 ) (ex plain in g th at “ [u ]n d er th e co llateral ord er d o ctrin e[,]

. . . . [w ]h ere th ere are d isp u ted issu es o f m a t e r ial f

act, o u r rev iew is lim i ted to w h eth er th e d e fe n dan t w ou ld b e en titled to q u alif ied im m u n ity as a m atter o f law ” ) ; Co n ner v. Heima n , 6 7 2 F.3 d 1 1 2 6
, 1 1 3 0 n .1 (9 th Cir. 2 0 1 2 ) (ex plain in g th at u n d er Jo h n s o n i t is o n ly w h en th e “ d isp u tes in v o lv e w

h at in f eren ces p r o p e r l y m ay be d raw

n f ro m

. . . h isto rical f

acts th at are n o t in d i sp u t e ” th at an in terlo cu to ry ap p eal w ill lie (alteratio n in o rig in al) (in tern al
q u o tatio n m ark s o m itted )); Alsto n v. Rea d

, 6 6 3 F .3 d 1 0 9 4
, 1 0 9 8 (9 t h Cir. 2 0 1 1 ) (j u risd ictio n ex isted b ecau se ap p ellan t s w ere “ n o t co n testin g th e d istrict co u rt’ s co n clu sio n th at g en u in e issu es of f act ex ist f or trial” b u t in stead w ere “ ap p ealin g th e pu rely l eg al issu e o f w h e t he r th ey v io l ated A lsto n ’ s clearly

estab lish ed f

ed eral rig h ts”).

10 A f ter recitin g th e su

m m ary j u d g m en t stan d ard

, th e S co t t v

. Ha rris Co u rt ex plain ed “ [t]h ere is, h o w ev er, an ad d ed w rin k le in th is case:

ex isten ce in th e reco rd o f a v i d eo tap e cap tu ri n g t h e ev en ts in q u estio n

. T h ere are n o alleg atio n s or in dicatio n s th at t h is v id eo tap e w as d octo red or altered in an y w ay , n o r an y co n ten tio n th at w

h at it d ep icts d if

f ers f ro m

w h at actu ally h ap p en ed

. T h e v id eo ta p e q u ite clearly co n trad icts th e

v e r s i o n o f th e sto ry to l d by resp o n d en t an d ad o p ted b y th e Co u rt of A p peals.” 5 5 0 U.S. at 3 7 8

. W h i l e th e dissen t f ram es a b y stan d er’ s

reco llectio n as th at so rt o f sm ok in g g u n , all it m i g h t estab lish is th at aG E O R G E V

. M O R

R I S 14

O u r decision not to assume Scott v. Harris implicit l y abrog ated a line of precedent also accords with the Supreme Court’s l a t e r g uidance. I n a more recent section 1983 c ase, the Court reaffirmed that “immediate appeal from the denial of summary judg ment on a qualified immunity p l e a is available when the app e a l presents a ‘purely leg al issue.’” Ortiz v. Jordan

, 131 S. Ct. 884, 891 (2011); se e a l s o id. at 893 (ex p laining that “[ c] ases fitting that bill ty pically involve
contests not about what occurred, o r why an action was taken

or omitted

, b ut disputes about the substance and c larity o f
pre-ex isting law” (citing Behrens and Johnson )). 1 1

w arn in g w as u ttered

. Disse n t a t 5 2

. Still cru cial (an d u n k n o w n ) is h o w Do n ald resp o n ded

.

Ou r co l l eag u e in d issen t also co n t en d s th at n on e o f th e o p in io n s o f th e p o lice p ractices ex p ert are ad m issib le. S ee Dissen t at 58

– 5 9

. W e w ill n o t j o in issu e on th is p o in t b ecau se t h e dep u t ies ex p ressly d isclaim an

ev id en tiary ch allen g e to P ark er’ s o pin io n s u n d er Da u b ert v. Merrell Do w Ph a rma ceu tica ls

, In c. , 5 09 U.S. 5 7 9 (1 9 9 3 ).

11 Un lik e th e d issen t w e are n o t co n v in ced th at W ilkin so n v. To rres , 6 1 0 F.3 d 5 4 6
, 5 50 (9 th Cir. 2 0 1 0) i s n ecessarily to th e co n trary , f o r th ere

w e co n f irm ed th at “ [o ]u r j u risd ictio n to rev i ew an in terlo cu to ry ap p eal of

a den ial o f q u al i fi e d im

m u n ity

. . . is l im ited ex clu siv ely to q u estio n s of law .” T h e p an el ch ief

ly “ lo o k ed p ast th e d istrict co u rt’ s co n clu s io n ,” Dissen t at 4 3
, w ith resp ect to th e leg al sig n if ican ce to b e assig n ed
p lain tif f ’ s f acts. S ee, e.g

. , W

ilkin so n , 6 1 0 F.3 d at 5 5 2 (“ W h ile p erh ap s tru e as f ar as it g o es, [ p l a i n t i f

f ’ s] v ersio n o m its th e u rg en cy of th e situ atio n .”). A d m itted ly

, th o u g h

, o th er p arts o f th e o p in io n d o read as th o u g h th e ap p eal aro se f

ro m th e g ra n t o f su

m m ary j u d g m en t. S

ee id

. at 5 5 3

.

A lth o u g h W

ilkin so n cited S

co tt v. Ha rris in serv ice o f th at ap p ro ach

, its au th o r (J u d g e T ash im a) h as tak en th e p o s i t i o n th at W ilkin s o n d id n o t

“ ad d ress[] th e j u risd ictio n al d ef ect th at

. . . [f

act- related ] issu es p oten tially raise u n d er Jo h nso n .” Co n a tser v. N

. La s Veg a s Po lice Dep ’t
, 4 4 5 F. A p p’ x 9 3 2
, 93 3 (9 th Cir. 2 0 11 ) (p er cu riam ) (a p an e l i n c l ud in g J u dg eG E O R G E V

. M O R

R I S 15

Thus, in this appeal, we are confined to t h e q u e s tion o f “whether the defendant[ s] would be e ntitled to qualified immunity as a matter of law, assuming all factual disputes a re resolved, and all r easona b le inferences are d

rawn, in plaintiff’s favor.” Karl v

. C i ty o f Mountlake Terrace
, 678 F .3d 1062, 1068 (9th Cir. 2012).

I I I

T he deputies’ appeal touches on two question s o f qualified immunity

. F irst, the d eputies claim the shooting did not violate the Constitution. Second, they assert that even if Donald’s F ourth Amendment rig hts were violated, they did not violate law clearly

established at the time they acted.

A

Usually we can start with the second p r o n g o f qualified i m m u n i t y if we think it advantag eous. See Pearson v

. Callahan

, 555 U.S. 223, 236 ( 2009). H e re, thoug h, we a re not satisfied that the deputies have a d equately pursued that
arg ument. As Carol observes, the di s t r i ct court concluded that the deputies had not “argu e [ d] that the constitutional

r i g ht was clearly established a t the time of the allege d misconduct.” Our review of the record revea l s t h a t while they made passing references to t h i s d efense, they did not develop it in their briefing below. At an oral heari n g on the

T ash im a d ism issed f

o r lack o f ap pellate j u risd i c tio n o f f icer- d ef en d an ts’ claim th at “ th e ev id en ce can n o t su p p o rt t h e in f eren ce th at [th e d eced en t]

n ev er att ack ed th em ”). W e ag ree th at th is is th e f airest read in g of W ilkin s o n

. A

n d

, b ecau se “ u n stated a s s um p tio n s o n n o n

- litig ated issu es

are n o t p reced en tial h o ld i n g s b in d i n g f u tu re d ecisio n s,” th at case d oes n o t d ictate h o w th is ap p eal o u g h t to b e reso lv ed

. Pro cto r v. Vish a y In tertech

., In c ., 5 8 4 F.3 d 1 2 0 8 , 1 2 2 6 (9 th Cir. 2 0 0 9 ).G E O R G E V

. M O R

R I S 16

motion f or summary judg ment, they made absolutely no reference to prong two either. “Althoug h no brig ht line rule

ex ists to determine whether a matter [ has] been p r o p erly raised below, an issue w i l l g enerally b e deemed waived on appeal if the arg ument w as not raised sufficiently for the trial
court to rule on it.” I

n r e Mercury Interactive Corp. Sec. Litig.
, 618 F .3d 9 8 8
, 9 92 (9th Cir. 2010) (internal quotation marks omitted).

W e need not defi n i t e l y decide, however, whether they waived the arg ument at the district court. On a p peal, the deputies have not a dvanced an arg ument as to why the law is
not clearly established that takes the f acts in the ligh t m o s t favorable to Carol. See Adams v. Speers , 473 F .3d 989, 991 (9th Cir. 2007) (“The ex ception to the n ormal rule p rohibiting an appeal before a trial works only if the appellant concedes the facts and seeks judg ment on the law.”). W e will not “ do

a n appellant’s work for it, either by manufacturing its leg a l
arg uments, or by combing the record on its behalf for f actual support.” W

. Radio Servs. Co. v. Qwest Corp.
, 678 F .3d 970, 979 (9th Cir. 2012).

Althoug h the deputies’ “ b r iefs lapse into disputing [ Carol’s] version of the facts” as to t h e threshold

c o n stitutional violation as well, we discern enoug h of a distinct lega l claim to entertain that first-prong qualified immunity contention. Adams , 473 F .3d at 990. 1 2

12 Ou r d ecisio n o n th e clearly estab lish ed issu e d o es n o t p rev en t th e d ep u ties f

ro m ap p ro pr i a t ely raisin g th e seco n d pro n g o f qu alif ied im m u n ity at a su

b seq u en t stag e i n t

h e l i t i ga t i o n , su ch as in a R u le 5 0

m o tio n f o r j u dg m en t as a m atter o f law

. S ee To rtu v. La s Veg a s Metro

. Po lice Dep ’t , 5 5 6 F.3 d 1 0 7 5 , 1 0 8 0– 8 1 (9 th Cir. 2 0 0 9 ); Ortiz , 1 3 1 S. Ct. at 8 8 9

.G E O R G E V

. M O R

R I S 17

B

As to whether the dep uties violated the F ourth Amendment, two Supreme Court d ecisions chart the g eneral terrain. Graham v. Connor
, 490 U.S. 3 86 (1989), defines the

ex c e ssi v e force inquiry

, w hile Tennessee v. Garner
, 471 U.S. 1 (1985), offers some g uidan ce tailored to the application of deadly f

orce.

“ Graham sets out a non-ex h a u stive list of factors for evaluating [ on-the-scene] reasonability : (1) the severity of the crime a t issue, (2) whether the suspect posed a n immediate threat to the s a f

e t y o f the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” Maxwell v. Cnty. of San D iego
, 697 F .3d 941
, 9 5 1 ( 9 t h Cir. 2012). I n Garner
, the Supr e m e C o urt considered (1) the immediacy of the threat, (2) whether force was n ecessary to safeg uard officers or the public, and (3 ) whether officers administered a w arning

, assuming it wa s p r acticable. See Scott v. Harris
, 550 U.S. 372, 381–82 (2007). Yet, “there a re

n o p er se rules in the F ourth A mendment ex cessive fo r c e contex t.” Mattos v. Agarano
, 661 F .3d 43 3
, 4 4 1 (9th Cir. 2011) (en banc). 1 3

The district cour t a p p l ied the Graham factors and f ound that the first and third unmistakably weig hed in Carol’s favor. “I t is undisputed that Mr. Georg e had not committed a crime,

1 3 S ee Brya n v. Ma cPh erso n , 6 3 0 F.3 d 80 5, 8 26 (9 th Cir. 2 0 1 0 ) (co u rts

m u st “ ex am in e th e to t ality o f th e circu m stan ces an d c o n s id er w h atev er sp ecif ic f acto rs m ay b e a p p ro p riate in a p articu lar case, w h eth er o r n o t listed i n Gra h a m ”) (in tern al q u o t atio n m ark s o m itted ), an d Ha rris
, 5 5 0 U.S. at 3 82 (“ Ga rn er did n o t estab lish a m ag ical o n /o f f sw it c h th at trig g ers rig id p rec o n d itio n s w h en ev er an of

f icer’ s actio n s co n stitu

te

‘ d ead ly f o rce.’ ”).G E O R G E V

. M O R

R I S 18

and that he was not actively r esisting a r r e s t o r attempting to evade arrest by flig ht.” The deputies do not chall en g e these conclusions o n appeal. They correctly observe, however, that the “‘most important’ factor under Graham is wheth e r the suspect posed an ‘immediate t h re a t to the safety of the officers o r others.’” Br

y a n v

. MacPherson

, 630 F .3d 805, 826 (9th Cir. 2010). As to this third key fact o r , while the deputies certain l y a v er feeling threatened before they shot Georg e, such a statement “is no t enoug h ; there must be objective fa c t o rs to justify such a concern.” Id

. W hen an individ u a l p oints his g un “in the officers’ direction,” the Constitution undoubtedly e ntitles the officer to respond with deadly force. Long v. City & Cn t y

. of Honolulu

, 511 F .3d 901, 906 (9th Cir. 2007). I n Scott
, we likewise recog niz ed that officers firing

their weapons at a defendant w ho “held a ‘long g un’ and pointed it at t hem” had n ot been constitutionally

ex cessive. 39 F

. 3d at 914.

Taking the facts as w e must reg ard them, that s p ecific

c i r c u m s tance is not present in this case. I n Glenn v

. W ashington County
, we found that in a 911 scenario without flig ht or an alleg ed crime, the offi c e r s ’ decision to shoot an individual holding a pocket knife, “which he did not brandish
at any one,” v iolated the Constitution. 673 F

. 3d 864, 873–78 (9th Cir. 2011). Reviewing Long and Scott
, we ex plained that the fact that the “suspect was a r m e d with a d eadly weapon” does not render the officers’ response per se reasonable under the F ourth A m e ndment. Id. at 872–73; see also Harris v

. R o d e rick

, 126 F .3d 1189, 1204 (9th Cir. 1997) (“L aw enforcement officials may not kill suspects who do not pose

an immediate thre at t o t h eir safety or to the safety of others simply because they

are armed.”).G E O R G E V

. M O R

R I S 19

This is not to say that the F ourth Amendment a lway s requires o f

f icers to delay their fire u ntil a suspect turns his
weapon on them. I f t h e person is armed—or reasonably suspected o f being armed—a furtive movement, harro wing
g esture, or serious verba l t hreat mig ht c reate an immediate threat. On this interl o c u t o r y appeal, thoug h, we can neither credit the deputies’ testimony that Donald turned and pointed his g un at them, n o r a s s ume that he took other actions that would have been objectively threatening

. Given that v ersion of events, a r easonable fact-finder could conclude that the deputies’ use of force was constitutionally e x c es sive. Contrary to the dissent’s charg e, we are clear-ey ed about the
p o t e n tially volatile and dang e rous situation these deputies confronted. Yet, we cannot say they assuredly stay ed within constitutional bounds without knowing “[ w] hat happened at the rear of the Georg e residence during the time Mr. Georg e walked out into the open on his patio and t h e f a t a l shot.” Dissent at 40. That i s, indeed, “the core issue in this case.” Id.

The d eputies arg ue that the r easonableness of their actions is enhanced b ecause they were told to ex pect a domestic disturbance. Sitting en banc, this court recently identified this circumstance as a “ ‘specific factor[ ]’ relevant to the totality of the[ ] circumstances.” Mattos
, 661 F .3d at 450. D omestic viol e n ce situations are “particularly dang e rous” because “more officers are killed o r injured on d omestic violence calls than on a ny oth er ty

p e of call.” Id. At the same time, we

ex p lained in Mattos that the leg itimate escalation of an officer’s “ concern[ ] about his or her s a f e t y ” is less salient “when the domestic dispute is seeming ly over by the time the officers beg in their investig ation.” Id . Years before that we had held—in another e n b a n c decision—that a husband’s criminal abuse of his spouse “ provide[ d] little, if a n y , basisG E O R G E V

. M O R

R I S 20

for the officers’ us e o f phy sical force” because when law enforcement “ a

r r ived [ the husband] was standing on h is porch alone and separated from his wife.” Smith v. City of Hemet

, 394 F .3d 689
, 703 (9th Cir. 2005) (en b anc). That disting uishing feature from Smith and Mattos is present h ere. Carol was unscathed and not in jeopardy whe n deputies arrived. Donald w a s not in the vicinity ; instead he was said to be on the couple’s rear patio.

Today ’s hold ing should b e unsurprising

. I f the deputies indeed shot the six ty -four- y ear-old decedent without objective provocation while he used his walker, with his g un trained on the g round, then a reasonable jury could determine that they violated the Fo u r t h Amendment. See S aucier v

. Katz
, 533 U .S. 194, 201 (2001), overruled on other grounds by Pearson , 555 U.S. at 227. 1 4

1 4 Caro l ad v an ces an o th er arg u m en t ab o u t th e u n co n stitu tio n ality o f th e sh o o tin g w

h ich n ecessarily f

ails an d sh o u ld b e ex c l u d ed at trial. Sp ecif ically

, sh e f

au lts th e d ep u t ies f

o r (1 ) n o t g ath erin g in tellig en ce f ro m h er b ef o re h ead in g to t

h e b a c k y a r d

, (2 ) b rin g in g assau lt rif l es, an d (3 ) f ailin g to “ set u

p a n o n

- co n f

ro n tatio n al, ‘ so f

t’ p erim eter aro u n d th e h o u se.” A lth o u g h at o n e tim e Nin t h Circu it law

d id p erm it th ese k i n d o f

co n sid eratio n s to in f

o rm th e su

b seq u en t ex cessiv e f

o rce in q u i r y , “ [w ]e h av e sin ce p laced im

po rtan t l im itatio n s” o n t h a t lin e o f arg u m en t. Billin g to n v. S

mith

, 2 9 2 F.3 d 11 7 7 ,1 1 8 8 (9 th Cir. 2 0 0 2 ); see also Esp in o sa

v. City & Cn t

y. o f S a n . Fra n cisco
, 5 98 F.3 d 5 2 8
, 5 4 7

– 4 9 (9 th Cir. 20 1 0) (W u , J ., d issen tin g ) (d etailin g h o w o u r law h as reced ed ).

In Billin g to n , w e ex p lain ed th at in terv en in g caselaw

, sin ce Alexa n der

v. City & Cn ty. o

f S a n Fra n cisco
, 2 9 F.3 d 1 3 5 5
, 1 3 6 6

– 6 7 (9 th Cir. 1 9 9 4 ),

“ prev en t[s] a p lain tif

f f ro m av oid in g s u m

m ary j u d g m en t b y sim

p ly
p ro d u cin g a n ex p ert’ s rep o rt th at an o f f icer’ s co n d u ct lead i n g u

p to a d ead ly co n f

ro n tatio n w as im

p ru d en t , i n ap p ro p riate, o r ev en reck l ess.” 2 9 2 F.3 d at 1 1 89

. T h en , h ar m o n i z i n g Alexa nd er “ w ith th e S u

p rem e Co u rt’ s ad m o n itio n in Gra h a m , ” w e ex p lain ed th at a p lain tif f can n o t

“ estab lish a F ou rth A m en d m en t v io latio n b ased m erely o n b ad tactics th atG E O R G E V

. M O R

R I S 21

I V

Owing to the oblig ation to be satisfied of our jurisdiction,

w e asked the parties to address at oral arg ument w h e t h e r Car ol’s cross appeal had been well taken. Her counsel conceded it had not. I n contrast to the situation in wh ich an officer denied immunity finds h imself, Carol will not lose any rig ht by having appellate review of her unreasonable seiz ure claim deferre d u n t il final judg ment. See LaTrieste Rest. & Cabaret, Inc. v

. Vill. of Port C h e s t er , 96 F

. 3d 598, 5 99 (2d Cir. 1996) (per curiam). 1 5

We t h e r e f o r e lack appellate jurisdiction over Carol’s cross appeal in its entirety

.

resu lt in a dead ly co n fr o n t atio n t h at co u ld h av e b een av oid ed .” Id

. at 1 1 9 0

. A t m o s t, Caro l’ s cited f ailin g s am o u n t to n eg lig en ce. On ly w h en

“ an o f f icer in ten tio n a l ly o r reck lessly p ro v o k es a v io len t resp o n s e, an d [w h en ] th e p ro v o catio n is a n in d ep en d en t co n stitu tio n al v i o latio n ” w i l l th at co n d u ct co lo r th e su

b s eq u en t ex cessiv e f

o rce in q u iry

. Id

. Mo reo v er, h er p ro p o sed altern ativ e m easu res are p lag u ed w ith th e so rt o f h in d sig h t b ias th e Su

p rem e Co u rt h as f

o rb id d en

. S

ee id

. at 1 1 9 1

.

15 “ A ll circu its th at h av e co n sid ered w h eth er t h e co llateral o rd er d o ctrin e

co n f ers ap p ellate j u risd ictio n o v er ap p eals arisin g f ro m a g ran t o f

p artial

su m m ary j u d g m en t b ased o n q u a l if ied im m u n ity h av e u n iv ersally h eld
t h at su ch a j u d g m en t is n o t i m m ed iately ap p ealab le.” Id

. (co llecti ng cases). P en d en t ap p el l a te j u risd ictio n m i g h t b e ex ercised o v er n o n

rev iew ab le in terlo cu to ry d ecisio n s th at raise issu e s “ in ex tricab ly in tertw in ed ” w i t h m a tters pro perly ap p ealed

. Cu n n in g h a m v. Ga tes , 2 2 9 F.3 d 12 7 1
, 1 2 8 4 (9 t h Cir. 2 0 00 ). B u t a s C aro l’ s co u n sel rig h tly

a p p reciated

, th e claim t h at d ep u ties u n co n stitu

tio n ally seized C a r o l in v o lv es d if

f eren t f acts an d l eg al stan d ard s f

ro m th o se g erm an e to w

h eth er d ep u ties u s ed ex cessiv e f o rce w h en

th ey sh o t Do n ald

. S

ee id

. at 1 2 8 5.G E O R G E V

. M O R

R I S 22

V

F or the foreg oing rea s o n s, the cross appeal is DISMISSED for lack of jurisdiction. W e also conclude that the facts, as we must rega r d t h e m , show that Santa B arbara Sheriff’s Deputies Morris, Rog ers and Schmidt could be found to have violated the F o urth Amendment’s p rohibition

on ex cessive force. They a re therefore no t e n titled to qualified immunity

on that basis.

AF F IRMED IN P ART, DISMISSED IN P A R T. The parties shall bear their own costs on appeal.

TROTT, Circuit J udg e, Concurring in small part a nd Disag reeing

in larg e part:

Mrs. G eorg e has b e e n throug h a painful set o f circumstances, and she deserves not to be subjected to these fact s a ga i n and ag ain. Nevertheless, with the advice o f counsel, she has chosen to sue the deputies who r esponded to her emerg e ncy call, and they

, too, are entitl e d t o f a ir a nd
proper treatment under the law. To render these deputies subject to this misg uided lawsuit misapprehends the haz a rdous situation in which they found themsel ves, and it devalues case law on the dang ers of domestic d i s p u t es such

as the failed p hy sical attempt b y M rs. Georg e to disarm her
ang ry and dang erous husband.

Moreover, the majority opinion mispe r ceives an important aspect of the doctrine of qualified immunity a s

ex p lained by the Supreme Court in S cott v. Harris
, 550 U.S. 372 (2007), an aspect since embraced by t h e Third, F ourth,G E O R G E V

. M O R

R I S 23

Six th, Eig hth, Tenth, and Eleventh Circuits—not to mention

our own. T he Court’s holding in Scott v. Ha rris and the principle upon w h i ch it rests e nsures that g overnment officials will not be required to defend themselves in court if it appears to an appellat e c o urt from the record taken a s a whole that the plaintiff has no case, and therefore as a matter

“ of law

, ” id. at 381 n.8 (emphasis a d ded), the lawsuit cannot survive s u mmary judg ment. T hus, the majority opinion inadvertently

dilutes an essential p ublic interest the doctrine protects: the abilit y o f g overnment officials to perform their responsibilities without p aral y z ing fear of inappropriate personal lawsuits and potential civil liability

.

L et’s make one thing clear. The outcome of the rapidly evolving events on March 6, 2008, was not a success. W hy ? B ecause Mr. Georg e died, and the b est result of interventions like this is to resolve them with no loss of life or other injury

. No reasonable law enforcement ag ency or deputy c ould disag ree with this assessment. On the o ther hand, fortunately neither the first responders nor any one else was harmed.

I

W i t h a ll respect to my c olleag ues, I disag ree with the i r and the d istrict court’s c o n clusion that Mr. Georg e did not pose an immediate threat “to the safety of the o f ficers” called
to the scene by h is distraug ht and terrified wife in a 9-1-1
emerg ency c a l l

, or an immediate threat to the safety “of others.” Bryan v. Mac Pherson

, 630 F .3d 805, 826 (9th Cir. 2010). T h i s fa c t or is central to this case because, in the calculus of whether o r not the force used by police to respond
to a haz a

rdous tactical situat i on was unreasonable a ndG E O R G E V

. M O R

R I S 24

e x c e ssive, it is the “most important.” Id. W e must g et t h i s rig ht before we g o any

further. 1

II

I beg in with undisputed facts.

This trag ic series of events b eg a n at 7:44 a.m. on Thursday

, March 6, 2008, when Mrs. Georg e, the decedent’s wife, placed a 9-1-1 emerg enc y c a l l which was received b y the Ventura B ranch of t h e California Hig hway Patrol (“CHP”). A recording of the c all indicates that Mrs. Georg e

was hy sterically screaming

, indeed shrieking al m ost incompreh e n s i vely a s loud as any human being c ould. Repeatedly she is heard amidst the backg round din of the c all
y elling , not “ ex claiming ” b ut y elling

, at the top of her lung s. She say s, “No, No, No” and “My h u sband h as a g un!” The 911 operator attempts unsuccessfully t o c a lm her down. A male voice—most certainly her husband’s—ca n b e heard in the backg round say ing

, “nothing

, ” to which she say s “okay

. ” A m o ment of calm during which she said she was in Sa n t a B arbara is interrupted by more sudden blood c urdling

s creaming and shrieking

, “No, No, No, Stop it.”, an d t h e phone on Mrs. Georg e’s e n d went d ead. This is indisputable evidence that a serious d o m e s t ic dispute was in prog ress, a heated quarrel between a desperate wife and a defiant husband over a firearm.

The V entura CHP dispatch operator the n i m mediately called Santa B arbara Sheriff’s emerg ency and advised that dispat c h o p e r ator of Mrs. G eorg e’s call. Santa B arbara was

1 I d o ag ree w i th m

y co lleag u es’ d isp o sitio n o f Mrs. Geo rg e’ s cro ss ap p eal.G E O R G E V

. M O R

R I S 25

told that Ventura CH P had received a call from a woman in Santa Ba r

b a r a “screaming that her husband has a g un.” Ventura CHP also advised that the operator was unable to g et

a complete a ddress. Santa B arbara said, “ Okay we’ll g ive her a call.”

The following conversation then occ urred between the CHP 9-1-1 d ispatcher and the Santa B arbara 9-1-1 dispatcher:

Sheriff’ Dispatcher (“S.D.”): 9

- 1

- 1
emerg ency

. CHP Dispatcher (“CHP”): I h a d a c a l l e r th at w a s a female caller. T he only thing I have is the number [ number omitted]

.

S.D.: 805-[ number omitted]

CHP: [ number omitted]

. And I g ot three

– the fi r s t three o f her address is [ address omitted]

, and she say s she’s in Santa B arbara. She’s screaming

that her husband has a g

un.

S.D.: Okay , but y ou don’t have an address?

CHP: No.

S.D.: And where are y

ou calling from?

CHP: F rom Ventura CHP.

S.D.: Ventura CHP, okay

. I don’t kn o w , okay

, I g uess, was she actually in Santa B a rbara City ?G E O R G E V

. M O R

R I S 26

CHP: I t’s showing off of Cathedral Oaks.

S.D.: Okay , all rig ht, we’ll g ive her a call.

The Santa B arbara dispatcher operator then called Mrs. Georg e. Throug hout this call, Mrs. Georg e is breathing very heavily and periodically talking to a man in the backg round, presumably her husband. She is any thing but calm a

nd collected. The dispatcher described h er a s sounding “scared.”

S.D.: Hi, this is the Sheriff’s Department

. W h ere are y

ou?

Male voice: I t’s fine, every thing is fine.

S.D.: Ma’am, where are y ou?

Mrs. Georg e: I ’ m a t h o m e

. H e s a i d
every thing is fine.

S.D.: W hat is y our address?

Mrs. Georg e: I g ave it to y ou earlier.

S.D.: W hat’s y our address ma’am, what’s
y our address?

Mrs. Georg e: He said every thing is fine.

S.D.: Okay , well, tell me y our address.

Male voice: (unintellig ible)G E O R G E V

. M O R

R I S 27

Mrs. Georg e: ( A p p a r e n t l y a d d r e s s i n g h e r husband) I ’m not talking . (Responding to the dispatcher’s question) [ s treet address a nd name omitted] is my

address.

S.D.: [ a ddress omitted] ?

Mrs. Georg e: Yes. He wants to talk.

At this point, the dispatcher i n d i cated in her deposition th a t s h e t h oug ht Mr. Georg e had hung up the phone. The dispatcher called back:

Mrs. Georg e: Hello.

S.D.: Hi m a’am, it’s the Sheriff’s Department.

Mrs. Georg e: Yeah?

S.D.: W e have h e lp on the way , can y o u talk?

Mrs. Georg e: Y e s , h e ’ s o u t s i d e rig ht no w

. He say s he won’t do a

ny thing

. He has cancer and he just pulled a gu n out. I thoug ht all o f them were hidden. He h as one, and he say s he won’t d o any

thing but h e j u st wants to have the

– I don’t know

. I f somebody comes, please don’t have fire eng ines.

S.D.: No, we are sending She riff’s Department out.G E O R G E V

. M O R

R I S 28

Mrs. Georg e: A ll rig h t. I ’ ll talk to someone at the front door.

S.D.: Ma’am, what is y our name?

Mrs. Georg e: Carol Georg e

S.D.: Carol Georg e?

Mrs. Georg e: Yes I ’ve g ot to g o back inside.

S.D.: I f y ou n e e d any thing else, let me know, okay ?

Mrs. Georg e: Thank y ou.

At 7:51 a .m., Sheriff’s deputies were sent to the location, arriving at 7:56 a.m., just 12 minutes after Mrs. Georg e’s first 9-1-1 call. They had been a dvised by disp a t c h ( 1 ) o f a domestic violence incident in prog ress ( “4 15 D”), (2) that a firearm was involved, (3) that Mr. George h a d hung up the phone during the 9-1-1 calls, (4) that Mr. Georg e had c ancer, (5) that Mr. Georg e was the person with the firearm, and (6) that he had reg istered firearms in his residence. This constellation of facts an d c i rcumstances amounted to “probable cause to believe that [Mr. George ] p ose[ d] a

s i gn ificant threat of d eath or serious phy sical injury to t h e officers o r o t h e r s

. ” Tennessee v

. Garner
, 471 U.S. 1, 3 (1985). F or all the deputies knew, Mrs. Georg e herself was in harms way

.
Here, I elaborate on what went on i n t h e Georg e household immediately b efore the first 9-1-1 call. T h e se facts co m e f

r o m Mrs. G eorg e’s own words recorded by theG E O R G E V

. M O R

R I S 29

Sheriff’s D epartment roug hly only four hours after the incident, i.e., “Carol’s version.” Maj. Op. at 5, n.1. After his brain surg e ry , Mr. Georg e became an ang ry man.

[ H] e kept on s ay ing I don’t want to live like this, I don’t want to live like this, I ’m g oing to be a v eg e table. He was an gry to the point where we locked the g uns t h a t were in the house.

. . . So there’s a closet that has a lock

on it

. . . , there was one handgu n i n the b ed stand, which I took o u t , b ecause for a few weeks he c o u ld not g o up stairs so, I made

sure that was locked in the closet as well a nd I had the key

, but w e told him J amie had the k e y

. . . . And so last nig ht, w hen he went t o bed he was furious because he c ouldn’t g o to the bathroom.

. . . Very
, v e ry a ng ry , a nd he
g oes I ’m not g oing to live like this. And then this morning I sa w t h at h e had g otten this drawer, in the bed sta n d h a d a nail throug h it and so nobody e lse, that’s also where we kept the jewelry a n d stuff, y o u know, because nobody could g et to it. I noticed it was open. So I g ot scared and h e w a s very ang ry a nd wanted me to leave, he w anted me to leave the house.

. . . So finally he went downstairs a nd I followed him, and he said he wanted me to le av e , he wanted me to leave in my car and I knew someplace in the trunk there was a g un hidden, but I had looked for it a co u p le o f day s ag o and I

could not find it, I don’t know where it was, and somehow he got the keys to the c ar this morning, opened the trunk, pulled
out the gun and I am y a n k i n g at him and amG E O R G E V

. M O R

R I S 30

screaming at the top o f my lungs and I started panicking and I called 9-1-1. An d he got furious that I called 9-1-1 and h e said “if y ou d on’t stop it, I will use this gun. ” I said “no, just put it down.” So finally he say s, well lets
g o in the house. So I w a l k in the h ouse a nd he’s carry ing this loaded g un now.

. . . Yeah, I know it was loaded. . . .

(Emphasis added).

W h en questioned about her knowledg e that the g un was loaded, Mrs. Geor ge s aid, “Yeah, he had stuck a p in in it, I

saw him do that

. ” ( Emphasis a d d ed). W hen asked what she
meant by “ pin,” she s a i d, “That clip, something

. . . y eah, I

saw h im do that because it wasn’t loaded i n t h e c ar , and I

saw him pull it out f

r o m a d i f f erent place and he stuck it in, and I said ‘just g ive it to me, no.’ And I started trying to pull him, pretty strong, I couldn’t do it .” ( E m phasis added). W h en Mr. Georg e’s g u n was recovered, it was loa d e d with hollow-point bullets.

Parenth e t i cally

, Mrs. Georg e’s a ttorney now claims that Mr. Georg e was so impaired by his condition that he was not phy sically able to point h is g un a t De p u ty Rog ers. During oral arg ument, counsel said, “I n p articular, Deputy Rog ers say s that [Mr. Geo r ge ] l i fted it up standing with two h ands standing and pointing it at him. Mrs. Georg e’s statement was that h e was phy sically incapable of doing that at that time.

. . . The manner in w h i ch he was pointing at the officer being directly c ontradi c t ed b y what his wife

. . . .” These f actual assertions and claims by counsel are irreconcilable with Mrs. Ge o r ge ’ s detailed d escription just four hours after the shooting of h e r husband’s be h avior that morning

. He wasG E O R G E V

. M O R

R I S 31

a m bulatory

, obdurate, “pretty strong ” enoug h to r e sist hi s wife’s “y a

nking ” a ttempt to stop him, threatening to use his
g un, and dex terous enoug h to load a clip into an automa t ic pi s tol—an a ction that takes two hands to accomplish. M o r e over, she was not a witness to the shooting

. Mon t h s later, n ow in litig ation, and even thoug h she saw her husband load a clip into his firearm on the morning of t h e shooting

, she declares “un d e r p enalty of perjury ” that he “was unable
to stand on his o wn without h o l d ing his walker and hold a gu n w i th both h ands in front of h im.” I t will be qu i t e interesting on cross-ex amination wh en s h e is asked to demonstrate for the jury how her husband loaded the clip into his g un. Th i s situation is a close cousin to our “sham affidavit” rule that a “party cannot create an issue o f fact b y

an affidavit contradi c t i n g

. . . prior deposition testimony

. ” Kennedy v. Allied Mut. Ins. Co. , 952 F .2d 262, 266 (9th Cir. 1991). As we said in Kennedy

, “ i f a party w ho h as been

ex a mined a t leng th on d eposition c ould r aise an issue of fact simply by submitting an a f fidavit contradicting his own prior testimony

, this would g reatly diminish the utility of summary judg ment a s a procedure for screening out sha m i s s u es o f fact.” I d. (alteration & internal quotation marks omitted). After Scott v

. H

arris
, this common sense rule takes on added sig nificance.

I n addition, we have the testimony of Mr. G eo rg e’s friend, L awrence Kaehn. Mr. Kaehn, a cancer survivor, and Mr. Georg e frequently discussed Mr. Kaehn’s cancer treatment. On one occasion b e f o re Mr. Georg e fell ill, he said, “W ell, I know what I would do if I came down with

cancer. I would g e t a g un, c al l the sheriff and have them shoot me.” Mr. Kaehn, having considered becoming a sheriff
at one time, was “appalled.” He said, “I t wouldn’t be very fair to the sheriff.” Mr. Georg e then “g az ed off,” “stared forG E O R G E V

. M O R

R I S 32

a while,” and chang ed the subject. Unfortunately

, “suicide b y cop” is a w ell-documented, terrible phenomenon alway s present when law enforcement responds to a “ m a n with a g un” call.

On top of all of this, Mrs. Georg e’s cry fo r h e l p was accurately

convey ed by

the dispatcher to the deputies as one involving armed domestic violence. That is what the deputies

were told, and, according to Mrs. Georg e’s own w o r d s , that is what it was. I repeat, h e had threatened to use the g un a nd strug g led phy sically with his wife over its possession. These 9-1-1 calls are a tex tbook case of what local law enforcement

c o nfronts when receiving such a 9-1-1 request for help. I n this r espect, “we must view the facts [ from t h e d eputies’] perspective at the time [ they ] decide d t o fire.” W ilkinson v

. Torres , 610 F .3d 546, 551 (9th Cir. 2010).

I n Mattos v. Agarano
, 661 F .3d 433 (9th C i r. 2011) (en b a nc), in connection with our discussion o f t h e appropriateness of force in that case, w e had much to say about what law enforcement faces when it responds to a 9-1-1 domestic dispute call. W e did so in consideration of “the additional ‘specific f

actors’ relevant to the totality of [ the relevant] circumstances.” Id. at 450 (quoting Bryan
, 6 30 F .3d at 826). W e said,

W e have o b s e rved that “[ t] he volatility o f situations involving domestic v iolence” makes them particularly dang erous

. United States v. Ma rtinez
, 406 F .3d 1160, 1164 (9th Cir. 2005). “W hen officers respond to a domestic abuse call, they understand th at violence may be lurking and ex plode w i th little warning

. Ind

eed, more officers areG E O R G E V

. M O R

R I S 33

killed or injured on d

omestic violence calls than on any other type of c all

. ” Id. (internal quotation marks and citat i o n omitted). W e have also “rec o g niz e d that the e x ig encies o f domestic abuse cases present dang ers that, in

a n a p p r o p r i a t e c a s e , m a y o v e r r i d e

co n s iderations of p rivacy .” United States v

. Black

, 482 F.3d 1035, 1040 (9th Cir. 2007) (internal quotation marks omitted).

Mattos , 661 F .3d at 450 (emphasis added).

III

Ag ainst this g rim backdrop, the majority say s, as did the district court, that when h e w a s o n the b alcony (1) Mr. Georg e had not committed a crime, (2 ) h e was not actually resisting arrest or try ing to flee, (3) the domestic disturbance

was over, and (4) thus, Mr. Georg e did not pose an immediate threat to the safety of the officers or to o thers that would have justified the use of force. W ith all respect , t o portray this incident in this f

ashion is to e x p o s e t h e irrelevance of the “missing factors” to these eve n t s and a misunderstanding o f domestic disputes, especially those involving firearms. 2 I f the

2 T h e Elev en th C ircu it in H a rris v. Co weta Co u n ty , 4 3 3 F.3 d 8 0 7 (1 1 th Cir. 2 0 0 5), m ad e th e sam e an aly tical m istak e in its ru n

- u

p t o th e S u

p rem e Co u rt, f o cu sin g n o t o n th e f

acts a n d circu m stan ces o f th e case b ef o re it, b u t o n p h an to m f

acts an d circu m stan ce s t h a t w e r e n ot relev an t. I q u o te f ro m its o pin io n

. “ [T ]ak in g th e f acts f ro m th e n o n

- m o v an t’ s v i e w p o in t, Harris rem ain ed in co n tro l of h i s v eh ic l e , slo w ed f o r tu rn s an d i n t e r sectio n s, an d ty

p ically u sed h is in d icato rs f o r tu rn s. He d id n o t r un

an y m o t o rists of

f th e ro ad

. . . . No r w as h e a th reat t o ped estrian s in th e sh o p p in g cen ter p ark in g lo t, w h i ch w as f ree f ro m p ed estrian an d v eh icu lar traf f i c as th e cen ter w as clo sed

. Sig n if ican tly

, b y th e tim e th e parties w ereG E O R G E V

. M O R

R I S 34

majority opinion’s i n e rt view of the events at the Georg e residence is correct, should t h e o f f icers have simply left the scene? After a ll, Mr. Georg e h ad not committed a crime, his wife w as supposedly safe, he was n ot resisting arr e s t o r attempting to flee, and h e was e nt i tled by the Second Amendment to have a loaded g un on his own property

. This reasoning is illog ical, as is G eorg e’s purported ex p ert’s, Thomas Parker, statement in his d eclaration that the deputies “apparently did not take int o a c count the fact that under California law, it is n o crime t o keep or carry a firearm in one’s own home or on one’s property as long a s it is not fired and no one is threatened.” I n elaboration on this irrelevancy

, Parker, instead of discussing the actual incident, said,

I n this inc i d ent, there was no evidence that Mr. Georg e had b r o k e n any laws prior to the arrival of the deputies arrival [ sic] on scene,

nor that he had threatened a ny one.

. . . To my knowledg e, and fr o m my y ears of law enforc e ment ex perience, I know that there is

no sta t e o r F e deral law in California prohibiting an i n d ividual from possessing o r carry ing a non-fully automatic firearm in their [ sic] own house or on their [sic] own property , absent any illeg al discharg e of same or threat

b ack on th e h ig h w ay an d Sco tt ram m ed Harris, th e m o to rw ay h ad b een cleared o f m o t o rists an d p ed estrian s alleg ed ly b ecau se of p olice b lo ck ad es

o f th e n earb y in tersectio n s .” Id

. at 81 5 –1 6

. T h e co u rt co n tin u ed to h ig h li g h t sim ilar irrelev an cies in a f o o tn o te, say in g , “ accep tin g Harris’

v ersio n o f ev en ts, Harris d id n o t attem p t to ram , ru n o v er, sid e- sw ip e, o r

s w e r v e i n t o an y of th e o f f icers.

. . .” Id

. at 8 1 6 n .1 1

. No t on e o f t h e se i rrelev an t o b s erv atio n s d eterred th e Su p rem e Co u rt f

ro m i ts h o ld in g g ran tin g im

m u n ity t o t he o f

f icers w h o ram m ed Harris’ s car in o rd er to sto p h im

.G E O R G E V

. M O R

R I S 35

to h arm an individual. Neither ex isted in this

case.

Mr. Parker a

ppears in his sanitiz ed v ersion of these events not to be f a miliar with Califor n i a Penal Code Section 246.3 which makes it a crime for any person willfully

to discharg e

a firearm in a g rossly neg lig e nt manner which could r esult in injury o r death to a person. People v. Leslie

, 54 Cal. Rptr. 2d 545 (Cal. Ct. A p p

. 1 9 96) d escribes this crime as a “serious felony .” S e c t i o n 4 17 of the Penal Code makes it a c rime to draw or to ex h ibit a firearm in a threatening manner. F inally

, the City of Santa B arbara Municipal Code (S.B .M.C.) makes it unlawful to discharg e any firearm of any description in that city . S.B .M.C. Ch. 9.34.020. To the ex tent that the abstract leg al landscape of th i s i n c ident is minimally material, these

are the laws that applied to Mr. Georg e’s actual and intended behavior that morning

.

More about Parker and his declarations later.

Mr. Georg e had terminal brain can c e r a n d was clearly suicidal. H e had armed himself with a loaded g un, he was not thinking clearly

, he was t h r e a t e n i ng to use it; and his wife, who had tried unsuccessfully to di s a rm him, was terrified. She did not call Mr. Georg e’s doctor, his pastor, her neig hbor,

or h i s f r iend Mr. Kaehn—she called law enforcement. She knew what a d ang erous situation she had on her hands, a s we pl a i n l y d i d in Mattos
, but we w aive it o f f as not dang erous? Minutes later, a residential n e ig hborhood was the scene o f
g unfire and a dead body

. This situation could not be “safe” for anyone until Mr. George no longer had a loa de d g u n

. Mrs. Georg e certainly understood this, even thoug h Mr. Parker d oes not. So do the friends a n d f amilies of officers killed or i n

j u r e d responding to this categ ory o f 9-1-1 calls.G E O R G E V

. M O R

R I S 36

Contrary to my colleag ues’ view, this dispute was not “seeming ly o v e r” w hen the deputies arrived; and she was clearly still in jeopardy

with an armed, suicidal, defiant, a nd
ang ry husband in the house.

L ike the Eleventh Circuit in Harris v. Coweta County
, my

c o l leag ues place undue emphasis on the absence o f th e circumstances specifically identified in Graham

, even thoug h

we have clearly labeled them non-ex haustive: “These factors, however, are not ex clusive. Rather, we ex amine the totality of the circumstances and consider ‘whatever specific factors
may be appropriate in a particular case, whether or n ot listed in Graham

. ’” Bryan
, 630 F .3d at 8 2 6 ( q u oting Franklin v

. Foxworth

, 31 F

. 3d 8 73, 876 (9th Cir. 1994)). W e must understand this situation for what it was, not for what it was not

. A plaint i f

f ’ s “ sanitiz ed version of the incident cannot control on summary judg ment when t he record as a whole does not support that version.” W ilkinson

, 610 F .3d a t 5 51. I suppose pursuant to the irrelevant and immaterial idea in the abstract that Mr. Georg e’s possession o f the g un was lawful and that he h ad not committed a crime, we could say the same about J ohn Hinkley before h e shot President Reag an, J ared L oug hner before he g unned down United S t a tes District J udg e J ohn Roll and United States R e presentative Gabrielle Giffords, Adam L anz a before the Sandy Hook massacre, a nd J ames Holmes before th e A u rora Colorado slaug hter. Mr. Georg e certainly w as n ’t in their categ o ry , but armed people

w h o a r e c o m b at i v e , f urious, ang ry , and mental l y unstable—whatever the reason—are dang erous, period. W h en we send law e nforcement o u t to cope with the m , it is
wrong to p roclaim that the personnel doing so are n ot in dang er. And, as the U nited States Supreme Court said in Graham

, we must consider that these deputies w e re

r e sponding and reacting to “tense, uncertain, and r ap i d l yG E O R G E V

. M O R

R I S 37

evolvin g” situation requiring them to make split second decisions involving —in this case—life and de a t h

. Graham

v. Connor
, 4 90 U.S. 386, 397 (1989); Bryan
, 630 F .3d at 818 (Tallman d issenting from denial of reh’g en banc). M r s. Georg e tried unsuccessfully to disarm h er husband. W hat mig ht h ave happened had she tried ag ain? Moreover, once Mr. Georg e started firing h i s weapon outside his home, no telling where the bullets mig ht have g one. I note with some irony that we continue to search nati o n al l y f or w a y s to keep firearms out of the hands of mentally unstable persons.

Reg rettably

, our federal courts h a v e had ex tensive

e x perience with d omestic disputes involving ang ry a nd quarreling spouses, a

nd w e have written many opinions on this subject—including Mattos v. Agarano

— on which law enforcement p ersonnel are e n t i t l e d to rely

. Here is an

ex a mple of what we have said

.

1. United S

tates v. Martinez
, 406 F .3d 1160, 1 1 6 4 (9th Cir 2005) (emphasis supplied).

The volatility of situ a tions involving domestic violence make them particularly well-suited for a

n application of the
emerg ency doctrine. W hen officers respond
to a d omestic abuse call, they understand that “violence may be lurking and ex plode with little warning

. ” Fletcher v. Clinton

, 196 F .3d 41, 50 ( 1st Cir. 1999). I

ndeed, “more officers

are killed or injured o n domestic v iolence calls than o n any other typ e o f call.” Hearings before Senate Judiciary Committee
, 1994 W L 530624 (F

. D.C.H.) (Sept. 13, 1994)G E O R G E V

. M O R

R I S 38

(statement o n behalf of National Task F orce on Domestic Violence).

2. U n ited States v. Brooks

, 367 F .3d 1128, 1137 (9th C i r. 2004).

B r ooks contends that e ven if there were p r o bable cause and ex ig e nt circumstances to justify Perez ’ s warrantless entry , once Perez heard from B eng is that she was unharmed, the

ex ig ency dissipated a

n d Perez
, b y stay ing to question long er, v iolated B rooks’s Fourth Amendment rig hts. . . .

W e disag ree. I n Perez ’ s ex perience, as he
te s t i f ied in the d istrict court, it was “very common” f

or victims of dome s t i c abuse initially to deny that they

had been assaulted. This view could be credited by the district
court. W e , too, ag ree that a victim o f domestic violence may deny an assault, especially when an abuser is present. Perez ’s decision to stay and ask more questions w a s a reasonable police procedure. A potential victim in B eng is’s situation with justification
may f ear that by complaining to police, he o r she migh t ex pose himself or herself to likely future h arm at the hands o f a hostile ag g ressor who may remain unrestrained by

the law.G E O R G E V

. M O R

R I S 39

3. Tierney v

. Davidson

, 133 F .3d 189, 198 (2nd Cir. 1 998) (emphasis added).

I nde e d

, it may have been a dereliction of duty for Davidson to have left the premise s without ensuring that any dang er had passed. See Barone
, 3 30 F .2d at 5 45. And Davidson could not tell that the da n ge r had passed unless he found t h e other participant in the dispute. See S tate v. Raines
, 55 W ash.App. 459, 7 78 P.2d 538, 542–43 ( 1989) (“[ T] he fact tha t t h e occupants a p p eared to be unharmed w hen the officers entered did not g uarantee that the d i sturbance had cooled to the point where the i r continued safety was assured. U n t il they had an opportunity to observe [ the boy friend] and t a lk to him, they had no knowledg e of h is conditio n and state of mind.”).

4. Fletcher v. Town of Clinton

, 196 F

. 3 d 41, 5 0–51 (1st Cir. 1999).

The balanced choice the officers must make is protected by qualified immunity

. . . . Such immunity is g iven n o t o n ly for the protection of the officers, but also to protect victims of crime. I n the domestic violence
contex t , i mmunity is g iven so that officers will not have strong incentives to do nothing when they

believe a domestic a

buse victim is in dang er. Permitting s u it ag ainst officers who have a cted reasonably when there is

reason to fear would create ex a ctly the wrongG E O R G E V

. M O R

R I S 40

incentives. I ndeed, if the offi c e r s had d o ne noth i n g, and F letcher had been injured, they would ha v e faced the threat of suit. I n either event, their c h o i ce would be protected if it

w as objectively reasonable in lig ht of c learl y settled law.

5. Fletcher v

. Town of Clin t o n , 1 9 6 F .3d 41, 52 (1st Cir. 1999).

I n domestic violence situat i o ns, officers may reasonably consider whether the vic t im is acting out of f

ea r o r intimidation, or out o f

some desi r e to p rotect the a buser, both

common sy

ndromes. See U

nited States v

. Bartelho

, 7 1 F .3d 436, 438 ( 1st Cir. 1995) ( n o ting that officers are often trained not t o take the statements of abuse victims at f a ce value, but instea d to consider whether the victims are acting out of fear). I ndeed, o ne commentator has estimated that dom e stic violence victims are uncooperative in eig hty
to ninety percent o f attempted criminal prosecutions ag ainst their batterers.

IV

I turn to what is the c o r e issue in th i s case: W hat happened at the rear o f the Georg e residence d u ring the time Mr. G eorg e walke d o u t into the open on his patio and the fatal shot fired by Deputy Rog ers? Did they g un down a sick

man who did not even k n o w t h ey w ere there? Or, did they fire only when he pointed a g un at one of them? Sco t t v

. Harris requires that we ex amine w hat the evidence shows, notG E O R G E V

. M O R

R I S 41

r a w speculation and g u esswork, but the evidence

. Has Mrs

. Georg e tendered a case sufficien t t o survive summary judg men t o r to support a verdict in her favor? O r, does her

case f ail before trial as a matter of law for want of evidence?

A.

B e fore I tackle this question, however, let’s put in proper analy tical fo c u s t h e “facts” we must view in the lig ht most favorable to the nonmoving party

. Here, notwithstanding my colleag ues b elief to the contrary , the Supreme Court has told

us that we are not automatically bound on interlocutory appeal by a district c ourt’s statement that a g enuine dispute o f material facts ex ists such as to require a tri a l

. I n Scott v

. Harris , the Court said,

W h en the moving p arty has carried its burden under Rule 56(c), its opponent must do more than simply show t h a t there is some metaph y s ical doubt as to the material facts.

. . . W here the record taken as a whole could
not lead a r a tional trier of fact to find for the

n o n-moving party , there is no ‘g enuine issu e for trial.’

550 U .S. at 380 (quoti n g Matsushita Elec. Indus. Co. v

. Zenith Radio Corp.
, 4 75 U.S. 574, 586–87 (1986)) (footnote & alteration omitted) (emphasis added).

The Court continued:

[ T] he mere ex istence of some a l l e g ed f actual dispute between the parties w ill not defeat an otherwis e properly supported motion forG E O R G E V

. M O R

R I S 42

summary judg ment; the requirement is that there be no g enuine issue o f material fac t. W h en opposing p arties tell t w o different stories, one of which is blatantly contradicted by the r ecord so that no reasonable jury could b e lieve it, a court should n ot adopt that

v e r s ion of the f

acts for purposes of ruling o n

a motion for summary judg ment [ on a question of qualified immunity ]

.

Id. (internal quotation marks & citations omitted) (emphasis in orig inal). I n its opinion, the Court o n c e a ga i n noted the importance of resolving qualified immunity issues as soon a s possible, b ecause “it is e f

fectively lost if a case is erroneously permitted to g o to trial.” Id. at 37 6 n

. 2 ( i nternal quotation

m a rk omitted). I n Scott v. H arris
, the Court looke d a t t h e “record taken as a whole,” id. at 380, an d it overrode the district court’s and the Eleventh Ci r c u it’s ex plicit conclusions that a g e nuine dispute of material facts precluded the denial of summary judg ment for the defendant o fficers. I d

. at 380–81. The Elev en t h C ircuit said, “W e reject the defendant’s a

rg ument that Harris’ driving must, as a matter o f law, be considered sufficiently reckless to g ive Scott probable

cause to believe that he posed a substantial threat of imminent phy sical harm to motorists and p edestrians. This is a disputed issue to be resolved by a jury .” Harris v. Coweta County
, 433 F .3d at 815. The Court dismissed J ustice Stevens’s di ssenting view that the issue of unreasonable and therefore

ex c e ssive f

o rce was “best reserved for a jury ,” and that t h e Court was “usurping the jury ’s factfinding f unction.” I n answer to his concerns, the Court said,

At the summary judg ment stag e, . . . once we ha v e d e termined the relevant set of facts a ndG E O R G E V

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d rawn all inferences in favor of the nonmoving party to the extent supportable by the record

, the reasonableness of [ the of f i c er’s] actions . . . is a pure question of law.

Id. at 381 n.8 (citation omitted) (emphasis in orig inal).

Three y ears after Scott v. Harris
, w e followed this jurisdictional and leg a l g u idance in W ilkinson wh e r e we looked p ast t he district c ourt’s conclusion that summary judg ment w as inapprop r i ate because of the p erceived

ex istence o f “disputed issues of material facts.” W ilkinson

, 610 F .3d at 548.

B.

Some observations about my colleag ues c oncerns a rising from their understanding of J o hnson v. Jones
, 5 1 5 U.S. 304 (1995). I n this respect, J udg e O ’Scann l ain writes, “Any decision by the district court ‘that t h e p a r ties’ evidence presents g enuine issues of material fact is categorically unreviewable on interlocutory appeal.’” Maj. Op. at p .10 (quoting Eng v. Cooley

, 5 52 F .3d 1062, 1067 (9th Cir. 2009)) (emphasis a dded). Thi s c a t e g orical understanding mig ht have been correct before Scott v. Harris , but it is no long er.

F irst, the Court decided Johnson in 1995, Scott v

. Harris in 2007. I n deciding Scott v. Harris
, the Court no d oubt was

aware of Joh n s o n , b ut my colleag ues are correct, it was not mentioned. Thus, I read the two cases n o t a s in conflict, a s the Supreme Court surely understood, b ut plainly compatible. Noting clearly that J one s did offer sufficient information to support a verdict in his favor, 505 U.S. at 307–08, Johnson held that we will not on interlocutory appeal revisit that issue,G E O R G E V

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id. at 3 13. Scott v. Harris
, on the other hand simply say s, but if after ex amining the “record as a whole” it becomes clear to

a n appellate court that the plaintiff has no case sufficient t o

su r v i v e Rule 50(c), the unique p reemptive purpose o f qualified immunity

prevails, and the case shall be dismissed
now, not later. 550 U .S. at 380. I repeat what the Court said in Scott v. H

arris about the plaintiff’s alleg ed facts: they must b e “ supportable b y the record.” 550 U.S. at 3 8 1 n

. 8 (emphasis omitted). I n our case, the complaint’s alleg ations find no f actual support in the record. According ly

, as defined by Scott v. Harris
, the record taken as a whole issue is a quintessential issue of law , not just of disputed facts.

I do not s t and alone in my u nderstanding of Scott v

. Harris. To beg in with, we have the W ilkinson opinion in our own circuit. F urthermore, other circuits have weig h ed in on this issue. The Third Circuit described Scott as marking “the
outer limit of the principle of Johnson v

. J o n es

— where the trial court’s determination that a fact is subject to reasonable dispute is blatantly a

n d demonstrably false, a court of appeals
may say so, even on interlocutory rev iew.” Blaylock v. City of Philadelphia

, 504 F .3d 405, 414 (3rd Cir. 2 0 0 7 )

. The Six th a nd Tenth Circu i t s view Scott as an ex ception to Johnson ’s jurisdiction a l l imitation. I n Moldowan v

. City of W arren , 5 78 F .3d 3 51 ( 6th Cir. 2009), the Six th Circuit described Scott v. Harris as recog niz ing “an apparent

ex c e ption to [ John s o n ’s] jurisdictional limitation when its

co n s i d e red and r ejected a district court’s denial of summary judg ment even thoug h the district c ourt had foun d ge nuine issues ex isted as to material facts.” Id. at 370. The court then said, “I n try

ing to reconcile Scott with the Su p r e me Court’s edict in Johnson

, this [ c] ourt has concluded that where ‘the trial court’s determination that a fact is subject to reasonable dispute is blatantly and demonstrably f a lse, a court of appealsG E O R G E V

. M O R

R I S 45

may say so, even on interlocutory a p p eal. ’ ” Id. (quoting Blaylock, supra ); Lewis v. Tripp
, 604 F .3d 1 221, 1225–26 (10th Cir. 2010) (“[ W ] h en the ‘version of events’ the district
court holds a r easonable jury could credit ‘is bla t a n t l y contradicted b y the record,’ we may assess the case based on

our own de novo view o f which facts a reasonable jury could accept a s true.” (quoting Scott
, 550 U.S. at 380)). B oth circuits have relied on their understanding of Scott v. Harris in thorou g h, unpublished opinions. Rodriguez v. City of Cleveland

, 439 F. App’x 433, 456–57 (6th Cir. 2 011); Blackwell v. Strain
, 496 F

. App’x 836, 845–47 (10th Cir. 2012). I n each case, the circuits g r anted qualified immunity
to the d efendants on a

ppeal n otwithstanding the district courts’ statements reg arding the ex istence of g e n u ine disputes of material fact.

The F ourth, Eig hth, and Eleventh C i rcuits view Scott a s simply “reinforc[ ing ] the unremarkable principle tha t a t the
summary judg ment stag e, facts must be view e d in a lig ht
most favorable the nonmoving p a r ty w hen there is a genuine dispute as to those facts.” W itt v. W

. V a

. S t a t e Police, Troop 2
, 633 F .3d 2 7 2, 277 (4th Cir. 2011) (internal quotation marks omitted); W

a llingford v. Olson

, 592 F .3d 888, 892 (8th Cir. 2010) (“Althoug h we view the facts and any reasonable inferences in the lig ht most favorable to [ the plaintiff]

, we cannot ig n ore evidence which clearly contradicts [ the plaintiff’s] alleg ations.” (citation omitted)) ; M o rton v

. Kirkwood

, 7 07 F .3d 1276, 1284–85 (11th Cir. 2 013) (recogniz ing that a circuit co u r t may “discard[ ] a party ’s
account when the account is inherently incredible and could
not support reasonable inferences sufficient to c reate an issue of fact,” b ut holding that the defendants evidence d id not completely discredit the p laintiff’s version of events (internal quotation marks omitted)).G E O R G E V

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F urthermore, Scott v. Harris ’s rule does not apply only to situations w here a videotape d emol i s h e s a plaintiff’s c ase. Althoug h some of the c ases I refer to did benef i t f r o m a videotape, Scott v. Harris clearlydid not create a videotapespecific rule. I nstead, it established a principle to b e a pplied where it is applicable. The whole record there made that principle applic a b l e as a matter of law

, as I believe it does here—as a matter of law. The Court referred to the videotape

as “an added wrinkle,” not as a prerequisite to the a pplication of the a rticulated p r i n c i p le. 550 U.S. at 378. W ilkinson did
not rely on a videotape e ither, but we followed Scott v. Harris nevertheless. 610 F .3d at 549–51.

I n summary , Johnson remains viable, but only where the

c a se involves a g enuine issue of material fact, not wh e n i t does not.

C.

I return to the case a t h and. Noting that not a sing le percipient witness contradicts this e vidence, I start with Deputy Rog e rs’s description of this event:

W e d e c ided to set up a perimeter around the h ouse to contain the threat of the man with the g un. I took the “1-2” corner of the house which covers the fr o n t d oor and east side o f the house, Deputy Schmidt took position in the “2-3” corner of th e h ouse, and Deputy Morris covered the “3-4” corner of the house.

W h ile holding my position I asked Deputy Hudley to determine if t h ere are any ex its on the west side of the property

. Deputy HudleyG E O R G E V

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advised that there is a door on the west side, and h e ag reed to cover that p ortion o f the house.

At approx imately 8:11:17 a .m. I heard Deputy Schmidt try to c o n tact me over the radio a n d t hen I heard him b roadcast that he

saw a d oor o pening

. At this time I decided to leave my position at the “ 1-2” corner to assist Deputies Schmidt a

nd Morris. I walked down the n ortheast c o rner of the house towards the backy ard, a n d t here I saw the suspect with a g un in his h a n d and pushing a walker o r bug g y walk out of a d o o r onto a p atio. I immedia tely crouched down behind a tree with no foliag e.

At approx imately 8:11:51 a .m. I heard Deputy Schmidt b roadcast over the radio that the subject (Donald Georg e) was on the back patio with a firearm in his left hand.

I heard Deputy Schmidt shou ting commands to the suspect, such as, “ D r op the
g un,” “Show me y our hands,” and “Sh eriff’s Department.”

I observed the suspect manipulat i n g the

rear portion of the g un as if to r ack a round o r

remove the safety while Deputy Schmidt was still shout i n g commands. The suspect held
t h e g un down towards the y a rd and beg an to

scan t h e backy ard. I also heard the suspect talking

, and w hat appeared to be i n r esponseG E O R G E V

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to Deputy

Schmidt’s orders. He said, “No” a few times and something that sounded like, “No y ou won’t.”

T h e suspect then turned east toward me, raised his g u n a

nd pointed it directly at me. I

saw the barrel of his g un p ointed at me, a nd fearing for m y s a f

ety I fired my weapon at him.

The suspect d id not fall down after my first shot and the b ar r el of his g un was still pointed at me. S till fearing for my safety I fired my weapon five t i mes until I no long er perceived the threat of serious b odily harm o r death.

Deputy Rog ers’s first-person descrip tion of his use of a firearm is corroborated by Deputy Schmidt:

Deputie s Morris and Rog ers told me that Mrs. Georg e reported her husband was l a st

seen o n the b ack patio with a f irearm. The th re e of us walked down the driveway a nd throug h a side g ate that led to the backy ard.

W e decided to set up a p erimeter a r o u n d the h ouse to c ontain the threat of the man with the g un. D eputy Rog ers took the “1-2” corner of the h ouse which covered the front door a nd
east side of the house, I took position in th e “2-3” corner o f the house, and D eputy Morris covered the “3-4” corner of the house.G E O R G E V

. M O R

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Once I arrived at the “ 2-3” c orner in the backy ard I stay ed in position, ga t h ering i n f ormation and broadcasting my o b s e r v a t i o n s

over the radio. I sta y ed in this position for
approx imately seven minutes when at 8:11:17

a.m. I saw the door to the patio open, and then
at 8:11:51 a.m

. the suspect came out on the patio with a firearm in hi s left hand. I immediately b roadcast this in fo rmation over the radio.

I s a w D eputy Rog ers take position to the
east of the p atio about 10–12 feet from where the suspect stood, a

nd Deputy Morris moved his position closer to my

west side.

I beg an to shout commands to the suspect, such as: “Sheriff’s Departm e n t , ” “Show me y our hands,” and “Drop the g un.”

At this time the suspect held the g un down towards the y ard, and he appeare d to be scanning the b a c k y ard looking for the direction of my

voice.

I saw the suspect manipulate the g un with his rig ht hand in w hat appeared to me a move to take off the s a f

e t y o n his g u n. I heard the suspect say , “No y ou won’t.”

I then saw the suspect lif t h i s g un a

nd point it directly at Deputy Rog e rs. F earing for the safety of Deputy Rog ers I s h o t at the suspect.G E O R G E V

. M O R

R I S 50

After firing two s hots I saw the suspect fall to the g round. I immediately beg an to run towards the patio. I heard one more shot. W h en I g ot closer to t h e p a t io I saw the suspect ly ing on the g round with his g un ly ing on the center of his chest.

Nex t, I turn to Deputy

Morris:

Once I arrived at the “ 3-4” corner in t he backy ard I stay ed in positi o n , g athering informatio n a

n d b r o a d c a s t i ng my observations

over radio. I stay ed in this position for
approx imatel y seven minutes until Deputy Schmidt announced (ove r t h e radio) at 8:11:51

a.m. that he saw the suspect o n the back patio with a firearm in his left hand.

Once I hear d D e puty Schmidt’s report, I moved closer to the patio to aid Deputy Schmidt. I positioned my self to t he west o f Deputy Schmidt. F rom that position I was able to see the suspect with the g un in his hand, and he appeared to be pushing a bug g y or a bicy c le.

I saw Deputy Rog ers take a position to the east of the patio where the suspect stood.

At this time the suspect held the g un down towards the y a

rd, and I heard Deputy Schmidt sh o u ting commands to him, such as, “Drop the g un,” “Show m e y our hands,” a nd

“ S heriff’s Departmen t

. ” T h e s u s p e ctG E O R G E V

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R I S 51

appeared to be scanning the backy ard looking for the direction of Deputy Schmidt’s voice.

I th e n saw the suspect lift his g un, turn eastward, and point his g un directly at Deputy Rog ers. F earing for the safety of Deputy Rog ers I fired at the suspect.

L awrence Hess was Schmidt’s, Rog ers’s, and Mor r i s’s

s u pervisor. He h eard the initial dispatch call to the G e o r ge residence a n d arrived shortly a fter his deputies. This is his input:

I arrived a t [ address omitted] at approx imately 8:06: 5 1

. I p arked my vehicle

on Sa n A ntonio Creek Road, north o f V ia Gennita. I walked down Via Gennita a n d I found Deputy Hudley talking wi t h a woman, Carol Georg e, b ehind his pa trol vehicle. Deputy Hudle y told me Mrs. Georg e was the report i n g party , that her husband was depressed, r e c ently had brain surg ery to

r emove a tumor, and that she had secured al l of the f irearms that she could find in the home because of his depression. Mrs. Georg e

ex p lained that he r h usband had been frustrated, a n g r

y and arg u ed with her that morning

. He produce d a h andg un and she called 9-1-1 for help.

I used Deputy

Hudley ’s cell phone to c all the Georg e’s house telephone. Mr. Geor g e did n ot a n s w e r but an answering machine activated. I repeat e d ly called out to Mr.G E O R G E V

. M O R

R I S 52

Georg e over the telephone and into t h e answering machine to come to the phone in an attempt to open d ialog u e with h im. Mr. Georg e did not answer.

During this attempted phone call I heard

one of t he deputies in the backy ard shouting commands, such a s “Dr o p i t ” and “ Put it down.” I nex t heard several g

un shots.

S h o r t l y t h e r ea f

t e r I heard radi o transmissions advising “Shots fired” a nd “Suspect d own” w ith medical assistance requested. I q

uickl y w a lked to the backy ard and instruc t e d Deputy Hudley to stay with Mrs. Georg e.

I n a ddition to the dep u ties’ declarations, w e have by stander citiz en infor mation from Karla MacDuff corroborating their description of the sequence of events a nd the deputies’ warning s before the shooting started. MacDuff

was a g uest and a friend o f the Georg es who was living in the lower apartment level o f the house. According to MacDuff,

s h e was awakened at approx imately 7:45 a.m. that morni n g b y someone ex citedly shouting “Drop the g un.” She heard this command two times

. After these commands, then she heard “quite a f

ew g unshots.” There is nothing r elevant in the record that challeng es her information.

Th e u nchalleng e d d epartment log of real-time radio broadcasts f

rom the deputies in the f

ield revea l how quickly these events unfolded. At 8:04:22 a.m. (Deputy Schmidt), the log r eports “

. . . no visual on the subject.” A t 8 : 08:04 a .m. ( D e p uty Morris), “ Subj on the second floor to the rea r o fG E O R G E V

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R I S 53

residence just opene d t h e door to balcnoy (sic) no v osual (sic).” 8:11:51 a.m. (Deputy Schmidt), “Subj with a firearm in left hand.” Twelve seconds later, at 8 :12:03 a.m. (Deputy Schmidt), “Shots f

ired.” Th i r teen seconds later at 8:12:16

a.m. ( Deputy Rog ers), “Subj down.” These radio b roadcasts and this timeline corroborate the deputies’ version o f the
events. T he elapsed time f rom Mr. Georg e’s appearance on the balcony to “shots fired” w as a mere tw e l v e seconds. Twelve seconds is roug hly fifteen normal heartbeats. T hat is how precipitously

this encounter transpired.

F inally

, Deputy Rog ers’s shot that h it Mr. Georg e entered into the front of his body and emerg ed throug h the rear. This evidence indicates that Mr. Georg e had turned to face Deputy Rog ers—who was station e d t o t he left side of Mr. Georg e when he walked onto the patio. I note that the photog raphs in
t h e record are consistent with the deputies’ descriptions o f their locations at the time of the shooting

.

W a s Mr. Georg e suicidal? W as he planning that morning
to use his g un? Mrs. G eorg e thoug ht s o

. P a m Plesons, her friend and n eig hbor, recounts thi s conversation with h er on the morning immediately after the shooting :

A.

. . . S o as a result of his stroke he was incontinent that nig ht a nd a p p arently woke up very depresse d

, and Carol told

me that he a s k e d h er to leave the house, and she said that she d id not want to leave h i m alone and she was afraid for h i m because she thoug ht that he mig ht commit suicide. And she told me t h a t she didn’t believe there wer e any g uns in the house, but apparently h e had g one to the truck inG E O R G E V

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R I S 54

the driveway and there was a gu n in the

g love compartment of t h e t ruck, and that he had come back in the house with it.

Q. Okay

. D i d Carol tell y ou that she was concerned about Don was suicidal?

A. She told me that one o f t he doctors they

were working w ith had warned her that he thoug ht he m i g ht become suicidal or was suicidal a n d to make sure that a ny thing that was of dang er to him in the h ouse was removed.

Q. Did Carol tell y ou that she had locked u p

or she had thoug ht she locked up all the
g uns?

A. Uh-huh, t hat’s why she didn’t think that there was any

thing that he could g et to.

Q. Did Carol tell y ou why she thoug ht Don asked her to leave that morning ?

A. H e said that he just wanted to g o out a nd sit on the back p atio and e n j o y the morning

. She sai d t hat she felt that he
was g oing to commit suicide.

V

Ag ainst the combined force of this compelling evidence, the district court concluded nevertheless that the defendant’s motion must fail. On what did the district court rely ? (1) AG E O R G E V

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tex tbook ex ample of a self-serving declaration from Mr. Georg e’s wife who d id not see the shooting

, a declaration prepared during litig ation which is impeached b y h er o wn words, (2) disputed facts that are not material, and ( 3 ) a demonstrably flawed report f r o m an ex -F B I Ag ent f

ull o f irrelevant inadmissible speculation.

The fatal problems with Mrs. Georg e’s manufactured declaration h a v e been discussed in Part I I of this opinion. Thus, let’s ex amine the district court’s “disputed facts.”

Here the court cited to differences between the deputies’ memories as to who “made the decision to set u p a perimeter around the house.” Remembering that this entire event took only a few minutes a

n d that it was f

luid and rapidly evolving

, who set up the perimeter is u t t e r l y immaterial. N o o ne d i s p utes that the deputies set up a perimeter. W ho g ave t h e

o r d e r is of n o moment. Moreover, the record and the deputies’ declarations previously q uote d re veal that two perimeters were established, the first when Morris and Rog ers arrived, and the se c o n d w h en Schmidt arrived, saw Mr. Georg e emerg e on the patio, and the deputies then moved a nd surrounded the rear of the house. I r ep e a t , the perimeter chang ed when Mr. Georg e appeared on the patio.

The nex t “ disputed fact” seiz ed u pon by the district court

was who saw Mr. Georg e firs t an d how he was holding the
g un. Ag ain, the deputies were n ot tog ether, a nd who saw him first and how he was holding the g un is inconsequential. To quote the d i s trict court, “Deputy Morris stated that it was Deputy Schmidt who f

irst made contact with Mr. Georg e

. However, Deputy Schmidt stated that Deputy Morris was the first one to see Mr. Geor g e.” Under these kaleidoscopic circumstances, who saw Mr. Georg e first is immaterial to theG E O R G E V

. M O R

R I S 56

question of whether the deputies’ use of force was reasonable

or ex cessive

. So is how he w as holding the g un when he emerged on the pa t i o

. Every one, every one ag rees he was carry ing a loaded g

un in his hands.

I n summary , these “disputed f acts” add n oth i ng to the plaintiff’s case. To g ive them probative weig ht violates a central p rinciple of summary judg ment law: “ Only disputes

over facts that mig ht affect the outcome of the s u i t under
g overning law will properly p r e clude the entry o f summary judg ment. F actual disputes that are irrelevant or unnecessary will no t be counted.” Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 248 (1986).

Nex t, we g et to whether Mr. Georg e provoked the shooting because instead of dropping his g un as commanded, he pointed it at Deputy Rog ers. Here, the district court relied

on an o pinion, purported to be an ex pert opinion, offered a fter the f act by Thomas Parker. Parker say s h e d id n ot believe Deputy Schmidt could see Mr. Georg e and therefore Deputy Schmidt could not tell whether or not Mr. Georg e had a g un. Ag ain, Mr. Georg e did

have a g un, and second, it is news to

me that a witness can test ify as an ex pert that from point A
, he doesn’t believe someone can be f u lly seen from point B

. This isn’t “ ex per t testimony .” And here, it is no more than

r a n k a nd inadmissible result-oriented speculation. Did Parker simply disreg ard Karla McDuff’s statements tha t she heard the deputies shouting “drop the gun!”?

Mr. Parker’s opinion on the key issue of whether Mr. Georg e pointed his g u n in Deputy Rog er’s direction is no better. Parker’s report makes no mention of the v i olent strug g le the Georg es had over the g un before the dep u ties arrived. Parker incompletely d escribes Mr. Georg e a sG E O R G E V

. M O R

R I S 57

h a n d i c a pped with a rig ht side and arm that were “ex tremel y weak.”

Moreover, Parker claims a special a bility to r ead b o d

y lang uag e and to divine w h o i s “ly ing ” and who is not. He claims b y v irtue of hi s e d u c ation, training

, knowledg e, a nd

ex p erience that he i s a ware of a “ truism of the law enforcement p rofession that law enforcement officers lie

. . . [ in an attempt] to justify inappropriate, unethical, and illeg al actions taken by them.” F ortunately for all of us, we resolve

cases and controversies with evidence, not self-ag g randiz ing “truisms.” H is offering s as to whether a witness is telling the truth will not be admissible as ex pert—or even lay —opinion. His report is rife with rank g uesswork.

Parker g oes o n to opine th a t Mr. Georg e probably could
not have c oherently said what the d e puties say he said because he had aphasia. Was not Mr. Parker aware of the pre 9-1-1 conversation b etween husband and wife? Mr. Georg e’s voice can b e heard clearly o n the 9-1-1 call recording

, which Parker claims he listened to when pre p a r i n g his declaration. Or of Mrs. Georg e’s d escription of his responses to her pleas? Now
, Parker is a speech patholog y ex pert in aphasia. Undaunted, he g oes in to g u ess that Mr. Georg e “had no idea

w h a t s o e v er that the deputies were in his y a rd o r issuing commands to him.” I assume this i s p art of the “evidence” the d is t r i c t court struck from the record when the court concluded that Parker was not a qualified “medical ex pert.”

More fundamentally

, however, Parker’s report—which is

a classic ex ample o f Monday morning quarterbacking —is o f restricted value in this setting

. His report suffers most of the problems identified by us in Reynolds v

. C ounty of San D i ego , 84 F .3d 1 162 (9th Cir. 1 996), overruled in par t o nG E O R G E V

. M O R

R I S 58

o t h e r g rounds by Acri v. Varian A ssoc., Inc.
, 114 F .3d 99 9 (9th Cir. 1997) (en banc). There, we said, “The fa c t t hat an

ex p ert disag r ees with an officer’s actions does not render the of f i c e r ’ s a ctions unreasonable. The inquiry is not ‘whether another reasonable or more r e a sonable interpretation o f
events can be constructed

. . . after the f act.’ Rather, the issue is whether a reasonable officer could have beli eved that his conduct was justified.” Id. at 1170 (quoting Hunter v

. Bryant
, 502 U.S. 224, 228 (1991)). Id. W e also said, “The fact that [ the ex pert] disag rees with the steps [ taken by the deputy ] is
not enoug h to create a g enuine issu e of material fact
reg arding the reasonableness of [ the deputy ’s] conduct.” Id.;

see also Tennessee v. Garner
, 4 71 U .S. at 20 ( warning ag ainst “inappropriate second-g

uessing of police officers’ splitsecond decisions”).

Parker also paints a naive picture of domestic calm in the Georg e residence when the officers arrived, leaving out why Mrs. Georg e called 9-1-1, focusing instead to the ex clusion of every thing else in her statements that “every thing is fine,” and that “he won’t do a

ny thing .” Probably Parker is unaware of o ur jurisprudence reg arding do m e s tic trouble in connection with police intervention. Thi s m ig ht be because the F

. B .I

. where he was employ ed for most of his c areer d o es not respond to local 9-1-1 calls involving this challeng ing problem, w here dang er alway s lurks and where frig htened spouses cannot alway s be e x pected to g ive a reliable picture of what had happened to provoke the call.

I n summary , Mr. Parker cannot be allowed as an “ex pert”
to surmise or speculate or opine (1) that the deputies a re ly ing

, (2) that he doesn’t bel i ev e Mr. Georg e knew the de p u t i es were in his backy ard or that he could hear the deputies commands, (3) that Mr

. G e o rg e could not haveG E O R G E V

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uttered any coherent words in r esponse to the deputies commands, a

nd (4) that Deputy Schmidt could n ot see a g un in Mr. Georg e’s hands when Deputy Schmidt was y e lling at him on the p a t i o

. W h a t is left of Mr. Parker’s report that is rel e vant or material to the issues of ex cessive force? Nothing

. There is no such thing as an ex pert on these issues short o f medicall y

- trained personnel familiar with Mr. Georg e ’ s s enses. Apparently Mr. Georg e was coherent a nd responsive—if not rational—in his conversations with his wife, but Mr. Parker appea r s to believe that capacity evaporated when he walked onto his patio.

VI

Simply put, there i s no competent a dmissible d irect o r circumstantial evidence in this record to p r o v e or even to sug g est under rig o rous Scott v. Henrich 3 r e view that Mr. Georg e did not point his g un at D eputy Rog e rs before h e was shot. The disputes cited by the district court are not material, and the remainder o f the plaintiff’s evidence is demonstrably
not competent either to resolve the u ltimate issue o f e x cessive force or the deputies’ credibility

.

W h at we are inex orably left w ith is a situation (1) where the d e puties h ad incontrovertible cause to believe Mr. Georg e posed “a threat of ser i o u s phy sical h arm, either to the officer[ s] or to others,” (2) where h e had threatened them with a w eapon, and (3) where he had been g iven a warning to drop the g un. Tennessee v. Garner
, 471 U.S. at 11–12.

3 S co tt v. Hen rich

, 3 9 F.3 d 91 2
, 9 1 5 (9 th Cir. 1 9 9 4); S a n to s v. Ga tes , 2 8 7 F.3 d 8 4 6 , 8 52 (9 th

Cir. 2 0 0 2 ).G E O R G E V

. M O R

R I S 60

These a

re life a nd death encounters. F oc u s i ng on inconsequ ential details out of contex t distorts the totality o f the facts and leads one to errant c o nclusions. No reasonable factfinder could conclude o n this record that the disputed use

o f force was unreasonable o r ex cessive. A jury verdi c t i n favor of the plaintiff could not survive Rule 50(a). The plaintiff’s theory that the deputies simply g unned down a harmless man is nothing more than g roundless conjecture. The plaintiff’ s evidence in this c ase ex amined “as a whole” is no better than the plaintiff’s evidence in Scott v. Harris o r in W ilkinson v. Torres

. Her case is not “supportable by the record.” Scott v

. H

a r r is
, 550 U.S. at 381 n.8 (emphasis omitted); Anderson

, 477 U .S. at 249 (“[ T] here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a v erdict for that party .”) This is not just a case where s o m e t h ing like a videotape demolishes the plaintiff’s factual alleg ations, it is a situation where the plaintiff has no c a se at all, because, amo n g o t her deficiencies, her own words spoken just four ho u rs after the shooting undercut what her lawsuit n o w c laims. Her
statement in the main was the com p e l ling evidentiary equivalent of the videotape in Scott v. Harris

. Coble v. City

o f W hite House, Tenn.
, 6 34 F .3d 865, 869 (6th Cir. 2 0 1 1 ) (“The Scott opinion d oes not focus on the characteristics of a videotape, but on ‘the record.’”).

VII

W h y does all of t h i s m atter? I t matters b ecause the doctrine of q

ual i f i ed immunity requires the judiciary to refrai n from inappropriately intruding into and interfering with the assig n ed r espon sibilities of the ex ecutive branch o f
g overnment. The Supreme Court h as repeatedly stressed this

concern an d d e t e r mined it to be so substantial that qualifiedG E O R G E V

. M O R

R I S 61

i m m unity is not just a “mere d efense to liability ,” but a n

“ immunity from suit .” Mitchell v. Forsyth

, 472 U.S. 511, 526 (1985) (emphasis in o rig inal). F leshing out this defense, the Court has ca lled it “an entitlement not to stand trial or face the other burdens of litig a tion

. . . .” Id. Moreover, the Court also emphasiz ed that the immunity “is effectively lost if a

case is erroneously permitted to g o to trial.” Id. at 526–27. I t is for this r eason that a district cou rt’s denial of qualified immunity i s i m mediately appealable. Id. This r easoning disting uishes denials of normal interlocutory decisions which

are not immediately appealable, and this inte r l o c utory decision which is.

The Supreme Court’s rati o n a l e for this doctrine finds it
roots i n t h e C ourt’s recog nition that a rule to the contrary would have sig nificant and undesirable c osts “to society as a whole.” Harlow v. Fitzgerald , 457 U.S. 800, 814 (1982).

These socia l c o sts include the ex penses o f litig a t ion, the diversion of o fficial energ y f r o m pressing public issues, and the deterrence o f able citiz e ns from acceptance o f public office. F inally

, there is the dang er that fear o f being sued w ill “d am p en the ardor o f all but the most reso l u te, or the most i r r e s p onsible [ public officials]

, i n t h e unflinching discharg e of their duties.”

Id. (quoting Gregoire v

. Biddle , 177 F .2d 579, 581 (2nd Cir. 1949)) (brackets in orig inal).

This doctrine is not of recent v intag e. I n an article cited i n a footnote by the Court in Harlow

, 457 U.S. at 814 n.22, we discover thatG E O R G E V

. M O R

R I S 62

the L o rd May or of L ondon, in 1666, when that city was on fire, would not g ive directions for, or consent to, the pulling down 40 wooden houses, or to removing the furniture, & c, belong to the L awy ers of Temple, then on the Circuit, for fear h e s h ould be answerable for tresspass; and in consequence of this conduct half that g reat city was burnt.

Peter H. Schuck, Suing Our Servants: The Court, Congress, and the Liability of

Public O fficials for Damages
, 1980 S. Ct. R e v. 2 81 (quoting Respublica v. Sparhawk

, 1 DAL L

. 35 7
, 363 (PA. Sup. Ct. 1 788)). Scott v

. Harris follows inex orably from the pre emptive purpose of the doctrine and wisely calibrates J

ohnson v. Jones according ly

.

T h u s, we must remand with instructions to g rant t h e motion for summary judg ment based o n q u alified immunity and enter judg ment for the defendants. M r

. K a ehn h ad it rig ht: To do otherwise is not fair to the sheriffs.