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

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

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; Partial Concurrence and Partial 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

Michael Maury Y o u n g dahl, County of Santa B arbara, CA,
arg ued the cause for the d efendants-appellants/crossappellees. Kelly Duncan Scott, Deputy County Counsel, filed the briefs. W i t h her on the briefs was Dennis A. Marshall, County Counsel.

Stephen K. Dunkle, Sang er Swy sen & Dunkle, Santa B arbara, CA, arg ued the c a u se and filed the briefs for the plaintiffappellee/cross-appellant. W ith him on the briefs w ere Robert M. Sang er and C a therine J

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

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decide whether a reasonable j u ry could d e termine that three sheriff’s deputies violated th e Constitution when they fatally shot an armed homeowner on his patio.G E O R G E V

. M O R

R I S 5

I

A

At half p ast five, on the morning of March 6, 2009, Carol Georg e awoke. Her husband Donald needed food. 1 D o nald had a terminal case o f b r a i n cancer and, as a r esult of his chemotherapy

, ate frequently to manag e headaches. His wife broug ht him a snack and then, n ot h aving slept well, r eturned
to bed. Shortly after, G eorg e t o o k the key s to the couple’s truck from the nig ht stand and went downstairs. Concerned for his well-being

, Carol followed him. She w i t n e s sed him retrieve his pistol from the truck and 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 California Hig h way Patrol. O n the audio recording in evidence, she c a n b e heard e x claiming

“ No!” and “My husband has a g un!” The hig hwa y p a t r o l dispatcher could only determine that she lived somewhere in Santa B arbara. Her h usband wanted her t o h ang up, so she did. The dispatcher then contacted a S anta B arbara County 911 operato r who called Carol back and obtained her complete address.

Deputies were dispatched to the residence for a domestic disturbance involving a firearm. Santa B arba r a Sheriff’s Deputies J arrett Morris and J er em y Rog ers responded f irst. Carol met them at the front door. She asked them to be quiet

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

and not to scare her husband, while a lso advising that h e was on the patio with his g un.

The deputies decided to established a perimeter ar o u nd the house. They crossed the d riveway toward a g ate o n the

e a s t side of the property

. Morris was in the lead, with S ch m i d t and Rog ers following

. They carried two AR-1 5 rifles in a ddition to their service re v o l v e r s. U nable to spot Donald, a nd concerned that h e mig ht use a door o n the west side of th e h o u s e t o ex it, Rog ers turned back to cover that side. Morris tried to assume a p o s i t i o n out of sig ht a nd Schmidt lay down in ice plants at the b ottom of a steep slope

near the southeast corner of the house. F rom his position on the g round, Schmidt could see the back of th e house, which had an outdoor balcony

on the second floor with a patio.

The district court concluded ther e was a dispute as to which officer made c o n tact with D onald f i r s t

. Morris said that Schmidt h ad—announcing “I see the suspect” o n the

ra d i o

— while Schmidt 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.

F our minutes later, dispatch was t o l d that Donald had a firearm in his left hand. Morris testified to seeing D onald “carry ing [ a ] s ilver colored pistol in his left hand, while holding ” w hat he described “as a walker or a bug g y .” 2 Rog ers state d t h a t when Georg e came into view, he was

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.G E O R G E V

. M O R

R I S 7

holding a g un with the barrel pointing down. Carol does not dispute that Donald e x ited onto the b alcony with his w alker and holding his firearm. However, the district court concluded that Carol’s e v i dence, which included an ex pert witness’s report, 3 called in t o q u estion whether Donald ever manipulated the g u n , or pointed it directly at deputies. 4

Soon after the d eputies b roadcast that Donald h ad a firearm, the dispatch log records “shots fired.” Donald fell to the g round, a n d R o gers c ontinued to shoot. Tog e ther the three deputies fired approx imately nine shots. They then ran to assist him, applied first aid, and called a n a mbulance.

3 A lth o u g h v ario u s m ed ical 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 t h e d ep u ties’

acco u n ts co m

p ared w ith ty

p ical p o lice b e h av io r an d co n tain ed o p in io n s

a b o u t h o w th e p h y sical lay ou t o f th e p ro p erty m ay h av e i n f lu en c e d t h e d ep u ties’ an d Do n ald ’ s o n

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

4 Mo rris o f

f ers a v iv i d acco u n t o f Do n ald ’ s f in al m o m en t s t h 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 e p isto l braced ag ain s t 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 t

h 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 t

h e rear o f th e p isto l

an d I said to m

y s elf

. . . 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 [S c hm 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 esn ’ 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 d o w

n an d I’ m , I rem em

b er seein g th e, th e b lack h o le actu ally lo o k in g d o w n th e b arr e l a s it’ s p o in t ed rig h t at m e an d th at w as w h e n , t h at w as w

h en I f ired m y f irst sh o t.G E O R G E V

. M O R

R I S 8

Donald died two hours later a t 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 onstitutional c l a i m s. 5 Ag ainst Morris, Schmidt, a nd Rog ers she claimed a violation o f her late husband’s rig ht to be free from ex cessive f

orce under the F ourth Amendment, a s incorporated. 6 I n a claim chiefly implicating Deputy Ha r r y Hudley

, Carol asserted that her own F ourth Amendment rig ht
ag ainst u nreasonable seiz ure was violated when Hudley k ept her from the c rime sc e n e i n the shooting ’s aftermath a nd when she was briefly sto pped f rom visiting Donald in the hospital. T he deputies and their supervisors moved for
summary judg ment invoking qual i fied 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 t h e d eputies is a material

5 S h e also raised a v ariety o f state- law cau s es 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 claim s w o u l d

n ecessarily dictate 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

.

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 .” Ta tu m v. City & Cn t y. o f S an Fra n cisco
, 4 4 1 F.3 d 1 0 9 0
, 1 0 9 3 n .2 (9 th Cir. 2 0 0 6 ) (citin g 42 U.S.C. § 19 8 8 (a))

. C a r o l ’ s co m p lain t alleg es 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 C a l i fo r n ia law

. 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.G E O R G E V

. M O R

R I S 9

fact that is g enuinely in dispute.” 7 This meant a constitutional violation could be proven and the court deni e d q u a lified immunity on 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 reasonable o f f icer that his conduct was unlawful in the situation he confronted.” Lacey v. Maricopa Cnty.
, 693 F .3d 896, 915 (9th Cir. 2012) (en banc). A s t o C a r o l’s seiz ure c laim, the district court decided there was no constitu t i o n a l v iolation and, in the alternative, that “the rig ht at iss u e w as not clearly establi s h e d.” I t therefore 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. Carol t i m e l y c ross appeals, seeking review of the district court’s g rant of summary j u d gm ent to the deputies on her unreasonable seiz u re claim.

II

B e caus e M orris, Rog e r s, and Schmidt challeng e the denial of q

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

, 472 U.S. 511, 530 (1985). H owever, the scope of o ur rev i e w over the appeal i s circumscribed. See Kennedy v

. City of Ridgefield

, 439 F

. 3d 1 055, 1059–60 (9th Cir. 2006). Any decision b y the district cou r t “ that the p arties’ evidence presents g enuine

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 2

– 33

.G E O R G E V

. M O R

R I S 10

issues of material f

act is c a teg orically u nreviewable on i n terlocutory appeal.” Eng v

. Cooley

, 552 F .3d 1062, 10 6 7 ( 9 t h Cir. 2009). Stated differently

, “we may not consi d e r questions o f eviden[ tiary ] sufficiency

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

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

Noting that we do h ave au t h ority to consider the materialit y 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 o f the suit under the g overning law”—the deputies arg u e that Carol’s disputed facts are ancillary

, a nd therefore immater i a l

. Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 248 (19 8 6 )

. I n that respect, they claim that a review of the d istrict court’s “ reasoning establishes that rather
t han delineating actual m aterial disputed facts, [ the cou rt ]

c omming led a g roup of insig nificant discrepancies in statements” in order to conclude that a dispute ex isted about what had transpired during Donald’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 e o r ge’s evidence. At bottom, their c ontention is that Ca r o l c ould not “prove at trial” that D onald did not turn and point his g un at deputies. Johnson v. Jones , 515 U.S. 304, 313 (1995).

I n c ases where the best (and usually only ) witnes s w ho could o f fer direct testimony for the plaintiff a b o u t what happened before a shooting ha s died, our precedent 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

, 39 F .3d 912, 915 (9th Cir. 1 994); S

antos v. G ates , 287 F .3d 846, 852 (9th Cir. 2 002)G E O R G E V

. M O R

R I S 11

(“Nowhere in our c a ses have w e held that police misconduct
may be proved only throug h direct evidence.”). 8 The district
court applied this principle. I t p arsed the deputies’ testimony for inconsistencies, found that medical evidence (and Carol’s declaration) called into question whether Donald was phy sically capable of 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 jury could “disbelieve the officers’ testimony ” and rely on

r e c ord e vidence to conclude that Donald had not ig no r e d commands to drop the g un, o r taken other threatening measures such as pointing the weapon at deputies.

B e cause this inquiry

, under S cott v. Henrich and its
prog e ny , concerns g enuinene s s —namely “ the question wh e t h e r t here is enoug h evidence in the record for a jury to conclude that certain facts are true”—we m a y not decide at this interlocutory stag e if the distr i c t court properly performed it. Kinney v. W e aver , 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) ( discuss i ng the Ninth Circuit’s approach)

. The dissent, however, would have us effectively

c ast off the interlocutory -review framework. Disse n t at 40–45. I t tells us we may do so under the banner of S cott v

. Harris
, a case in which n o t a s i ng le J ustice of the Supreme Court “ discussed the limits of the collateral order doctrine in qualified immunity cases” or even cited the Co u r t’s prior authorities on the subject. Blaylock v. City of Philadelphia

,

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

504 F .3d 4 05, 413–14 (3d Cir. 2007) (“[ n] either the majority nor the dissent in Scott

cited Johnson or Behrens ”).

I n Johnson

, a unanimous Supreme C o u r t told us these interlocutory a

ppeals involving qualified immunity (1) would be suited to our compa r ative ex pertise as appellate judg es, centering on “abstract iss u e s of law,” as opposed to “the

ex istence, or nonex istence, of a triable issue of fact” and (2) would spare us from pouring over “affidavits, dep o s i t ions, and other discovery materials.” Johnson

, 515 U.S. at 316–17. I f we could e x ercise the sa m e plenary r eview as the district judg e below, or if w e were jurors called upon t o weig h the evidence, the arg umen t s o f o ur able colleag ue in dissent mig ht persuade us. Yet, h is scrutiniz ing of the record cannot be squared with the Johnson paradig m. 9 Even accepting for the sake of a

rg ument, thoug h, that S

cott v. Harris is meant to establish an ex ception to the rules for interlocutory review,

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 t

h e y ears sin 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 ecisio n c o u l d 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 2
, 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 78 F.3 d 1 0 6 2, 1 0 6 7

– 6 8 (9 th Cir. 2 0 1 2 ) (ex plain in g t h a t “ [u ]n der t

h e co llateral o rd er d o ctrin e[,]

. . . . [w ]h ere th ere are d i s p u ted issu es o f m aterial f act, o u r rev i ew is lim ited to w h eth er t h e d ef en d an t w o u ld b e en titled t o qu a l i fi e d 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 30 n .1 (9 t h Cir. 2 0 1 2 ) (ex plain in g th at u n d er Jo h nso n it 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 ly m ay b e d raw

n f ro m

. . . h isto rical f

acts th at are n o t in d isp 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 om 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 i ctio n ex isted b ecau se ap p e l lan 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 e a l i n g th e pu rely l eg al issu e o f w h eth er th ey v io l ated A lsto n ’ s clearly

estab lish ed f

ed eral rig h ts”).G E O R G E V

. M O R

R I S 13

the dissent d oes not fit w ithin that case’s terms e ither. I t points t o no videotape, audio recording

, or similarly dispositive evidence that “blatantly c ontradict[ s] ” or “utterly di s c r e d i t [ s] ” Carol’s side of the story

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

O u r decision not to assume Scott v. Harris implicitl y abrog ated a line of precedent also accords with the Supreme Court’s later g uidance. I n a more re ce n t s ection 1983 c ase, the Court reaffirmed that “immediate a p peal from the denial of summary judg ment o n a q ualified immunity plea is avai l a ble when the a

ppeal presents a ‘purely leg al issue.’” Ortiz v. Jordan

, 1 3 1 S

. Ct. 8 84, 8 91 (2011); see also 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

10 Aft er recitin g th e su

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

, th e S co tt 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 l e in t

h is case:

ex i s t e n ce in th e reco rd o f a v id eo t ap e cap t u rin g th e ev en ts in q u estio n

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

f ers f ro m

w h at actu ally h ap p en e d

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

v ersio n o f th e s to ry t o ld b y resp o n d en t a n d a d o p t e d b y th e Co u rt of A p p e a l s .” 5 5 0 U .S. at 3 7 8

. W h ile 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 o k in g g u n , all it m ig h t estab lish is th at a

w arn in g w as u ttered

. D issen t at 5 1

– 5 2

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

.

Ou r co l l eag u e in d issen t also co n t en d s th at n on e of th e o p in i o 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

. W e w ill n o t j o in issu e o n th is po in t b ecau se th e d ep u ties ex p ressly d isclaim an ev i den 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 ).G E O R G E V

. M O R

R I S 14

or omitted, but disputes about the su b s t ance and c larity o f
pre-ex isting law” (citing Behrens and Johnson )). 1 1

T h u s, in this appeal, we are confined to the quest i o n o f “whether the defendant[ s] would be e ntitled to qualified immunity as a matter of law, assuming all factual disputes a re

r esolved, and a ll reasonable inferences are drawn, i n plaintiff’s favor.” Karl v. City of Mount l a k e Terrace
, 678 F .3d 1062, 1068 (9th Cir. 2012).

11 Un l ik e th e d issen t w e are n o t co n v in ced t h 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 ) is 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 iew an in terlo cu to ry ap p eal of

a den ial o f q u alif

ied i m m u n i ty

. . . 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 2
, 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

i lkin 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 ain tif

f ’ s ] v ersio n om its th e u r g e nc y 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 a s t ak en t h e p o sitio 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 t ser v. N

. La s Veg a s Po lice Dep ’t
, 4 4 5 F. Ap p ’ x 9 3 2
, 9 3 3 (9 t

h Cir. 2 0 11 ) (p er cu riam ) (a p an el in clu d in g J u d g e 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 15

III

The dep u t i e s’ appeal touches on two questions o f qualified immunity

. F irst, the deputies 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

Us u a l l y w e c an start with the second prong of qualified immunity if we think it advantag e o us. See P e a r s o n v

. Callahan

, 555 U.S. 223, 236 ( 200 9). Here, thoug h, we a re not satisfie d that the deputies have adequately pursued that
arg ument. As Carol observes, the district c o u r t concluded that the deputies had not “arg ue[ d] that the consti t u t ional rig ht was clearly established at t h e time of the alleg ed misconduct.” Our review of the recor d r e v e als that while they made passing references to this de f e n s e , they did not develop it in their briefing below. At an oral hearin g on the motion f or summary judg ment, they made absolutely no reference to prong two either. “Althoug h no brig ht line rule

e x ists to determine whether a matter [ has] b een pro p e r l y raised below, an issue will g enerally be de em e d waived on appeal if the arg ument w as not raised sufficiently for the trial
court to rule on it.” In re Mercury Interactive Corp. Sec. L i t i g

. , 618 F .3d 988, 992 (9th Cir. 2010) (internal quotati o n marks omitted).

W e need not definitely decid e , h o wever, whether they waived the arg ument at the d i strict c ourt. On a ppeal, the deputies have not a dvanced an arg ument as to why the law is

n o t c l early established that takes the facts in the lig ht mos t favorable to Carol. See Adams v. Speers , 473 F .3d 989, 991G E O R G E V

. M O R

R I S 16

(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 judgment on the law.”). W e will not “ do

an appellant’s work for it, either by m anufacturing its leg al
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’ “briefs lapse into disp u t ing [ Carol’s ] v ersion of the f acts” as to the threshold constitutional v i olation as well, we discern enoug h of a distinct leg al claim t o entertain that first-prong qualified immunity contention. Adams , 473 F .3d at 990. 1 2

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 ssive force inquiry

, while Tenne s see v. Garner
, 471 U.S. 1 (1985), offers some g uidance tailored to the application of deadly f

orce.

“ Graham sets out a non-ex haustive list of fact o r s for evaluating [ on-the-scene] reasonability : (1) the severity of the crime a t issue, (2) whether the s u s pect posed an immediate threat to the safety of the officers o r others, a n d ( 3 ) w h ether

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

the suspect actively resisted arrest or attempted to escape.” M a x w e l l v

. Cnty. of S

an Diego
, 697 F .3d 941, 9 51 (9th Ci r. 2012). I n Garner
, t h e Supreme Court considered (1) the immediacy of the threat, (2) whether force was necessary to safeg uard officers or the public, and (3) whether off icers administered a w arning

, a s s u m ing it was practicable. See Scott v. Harris
, 550 U .S. 372, 381–82 (2007). Y et, “ there a re

no per se rules in the F ourth Amendment e x c e s s i v e force
contex t.” Mattos v. Agarano
, 6 6 1 F .3d 433, 4 4 1 (9th Cir. 2011) (en banc). 1 3

The dis t r i c t court applied 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, and that he was not actively r esistin g a rr e s t or attempting to evade arrest b y flig ht.” The deputies d o not challeng e these conclusions o n appeal. They correctly observe, however, that the “‘most important’ factor under G r aham is whether the suspect posed an ‘immediate threat to the s a f e t y of the officers o r others.’” Bryan v. MacPher s o n , 6 3 0 F .3d 805, 826 (9th Cir. 2010). As to this thir d k e y factor, while the deputies certainly aver f

eeling t h reatened before they shot Georg e, such a statem e nt “is not enoug h ; there must be objective factors to justif y s u c h a concern.” Id

. W hen an individual points his g u n “ in the officers’ direction,” the Constitution undoubtedly e ntitles the officer to respond with deadly force. Long v. City & Cnty. of Honolul u , 511 F .3d

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

901, 906 (9th Cir. 2007). I n Scott
, we likewise recog niz ed that officers firing their weapons at a defendant who “held a ‘long g un’ and pointed it at them” ha d n ot been constitutionally

ex cessive. 39 F

. 3d at 914.

Taking the facts as w e must reg ard them, that specific circumstance is n o t p r e s ent in this case. I n G lenn v

. W ashington County
, we found that in a 911 scenario without flig ht or an alleg ed crime, t h e o f f icers’ 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 armed with a d e a d l y weapon” does not render the officers’ response per se reasonable under the F ourth Amendment. Id. a t 8 72–73; see also Harris v

. Roderick

, 1 26 F .3d 1189, 1204 (9th C i r

. 1997) (“L aw enforcement officials may not kill suspects who do n ot pose

an immedia t e t h r e at to their safety or to the safety of others simply because they

are armed.”).

T his is n ot to say that the F o urth A mendment alwa y s requires officers to delay their f ire unt i l a suspect turns his
weapon on them. I f the person is arm e d

— o r reasonably suspected o f being armed—a f urtive movement, harrowing
g esture, or serious verb al threat mig ht c reate an immediate threa t

. O n this interlocutory 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 sume that he took other actions that would have b een objectively threatening

. Given that v ersion of events , a reasonable fact-finder could conclude that the deputies’ use of force w a s constitutionally ex cessive. Contrary to the dissent’s charg e, we are clear-ey ed about the
p o t e n tially volatile a

nd d ang erous situation these deputies confronted. Yet, we cannot say they assuredly stay e d withinG E O R G E V

. M O R

R I S 19

constitutional bounds without knowing “[ w] hat happened at the rear of the George r esidence during the [ four minutes between when] Mr. Georg e walked out into the op e n on his patio a nd the fatal shot.” Dissent a t 4 0. That is, indeed, “the core issue in this case.” Id

.

The deputies arg ue that the reasonableness of their actions is enhanced because they were told to ex pe c t 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 violence situation s are “particularly dang e rous” because “more officers are killed or injured on d omestic violence calls than on a ny other ty

pe o f call.” Id. At the same time, we

ex p lained in Mattos that the leg itimate escalation of an officer’s “ con c e rn [ ] about his or her safety ” 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 h a d h e ld—in another en banc decision—that a husband’s criminal abuse of his spouse “ provide[ d] little, if an y , basis for the officers’ use of phy sical force” b e c ause when law enforcement “arrived [ the husban d ] w as 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 f

r om Smith a

nd M attos is present h ere. Carol was u n s cathed and not in jeopardy when deputies

a r r i v ed. Donald was not in the vicinity ; instead he was sa i d to be on the couple’s rear patio.

Today ’s holding should b e unsurprising

. I f the deputies indeed shot the six ty -four-y ear-old dec edent without objective provocation w hile h e used his walker, with his g un trained on the g round, then a reasonable jury could determine that they violated the F ourt h A m e n dment. See S aucier v

.G E O R G E V

. M O R

R I S 20

Katz , 533 U.S. 194, 2 01 ( 2001), overruled on other grounds by Pearson , 555 U.S. at 227. 1 4

IV

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

we a s k e d t he parties to address at oral arg ument whether Carol’s cross appeal had been well taken. Her counsel conceded it had not. I n cont rast to the situation in which an officer denied immunity finds himself, Carol will not lose any

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

ai l s an d sh o u ld b e ex clu d ed at trial. Sp ecif ically

, sh e f

au lts th e d ep u t ies f

or (1 ) n o t g ath erin g in tellig en ce f ro m h er b e fo r e h e ad in g to th e b ack y ard

, (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 th

Circu it law d id p erm it th ese k i n d of

co n sid eratio n s to in f

o r m t h e su

b seq u en t ex cessiv e f

orce in q u iry

, “ [w ]e h av e sin ce p laced im

po rtan t l im ita t i o n s ” o n th at 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. of S an Fra n cisco
, 5 9 8 F.3 d 5 2 8 , 5 4 7 –4 9 (9 th Cir. 2 0 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 plain ed th at in terv en in g caselaw

, sin ce Alexa n der

v. City & Co u n ty o

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

– 67 (9 th Cir. 1 9 9 4 ), “ p rev en t[s] a p l ain tif f f ro m av o id in g su

m m ary j u d g m en t b y s im

p ly
p ro d u cin g an ex p ert’ s rep ort th at an o f f ic e r ’ 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 , in ap p ro p riate, o r ev e n reck l ess.” 2 9 2 F .3 d at 1 1 8 9. T h en , h arm o n izin g Alexa n d 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 at

resu lt in a dead ly co n f

ro n tatio n th at c o 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 ally 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 an 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 s u

b seq 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

.G E O R G E V

. M O R

R I S 21

rig ht by having appellate review of h er unreasonable seiz ure claim deferred until final judg men t

. S e e LaTrieste Rest. & Cabaret

, I n c. v

. Vill. of Port Chester

, 96 F

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

W e therefore lack appe l l a

t e j u r i s diction over Carol’s cross appeal in its entirety

.

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
t h e f a c t s , as we must reg ard them, show that Santa B arbara Sheriff’s D e puties Morris, Rog ers and Schmidt could be found to have violated the F o urth Amendment’s p rohibition

on ex cessive force. They ar e t herefore not entitled to qualified immunity

on that basis.

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

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

TROTT, Circuit J u d g e, concurring in small p art a nd disag reeing

in larg e part:

Mrs. G eorg e has been throug h a p a i n ful set o f circumstances, and she deserves not to be subjected to these f a c t s ag ain and ag ain. Nevertheless, with the advice of counsel, she has chosen to sue the deputies who r esponded to her emerg e ncy ca l l

, a n d they

, too, are entitled to fair 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

a s t h e failed p hy sical attempt b y Mrs. Georg e to disarm her
ang ry and dang erous husband.

M oreover, the majority opinion misperceives a n important aspect of the doctrine of q ualified 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, Six th, Eig hth, Tenth, and Eleventh Circuits—not to mention

our own. T he Court’s holding in Scott v. Har ris and the principle upon which it rest s e nsures that g overnment officials will n ot be required to defend themselves in court if it appears to an appellate c o u rt from the record taken a s a whole that the plaintiff has no c a se, a nd therefore as a matter

“ of law

, ” id. at 381 n.8 (emphasis added), the lawsuit cannot survive summary judgm e nt. T hus, the majority opinion inadvertently

dilutes an essential public interest the doctrine protects: the ability of g overnment o f f icials to perform their responsibilities without p araly zing fear of inapp ropriate 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 n ot a success. W hy ?G E O R G E V

. M O R

R I S 23

B ecause Mr. G eorg e died, a n d the best result of interventions like this is to resolve them with no loss of life or other injury

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

I

W ith all re s p e c t to my colleag ues, I disag ree with their and the d i s t r ict court’s c onclusion that Mr. Georg e did not pose an immediate threat “to the safety of the officers” called
to the scene by his di straug ht and terrified wife in a 9-1-1
emerg ency call, or an i m m ediate threat to the safety “of others.” Bryan v. Mac Pherson

, 630 F .3d 805, 826 (9th Cir. 2 0 1 0 ). This f

actor is central to this case because, i n t h e calculus of whether or n ot the f o rce used by police to respond
to a haz a

rdous tactical situation was unreasonable a nd

e x c es sive, it is the “most important.” Id. W e must g et this 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, w hen Mrs. Georg e, the decedent’s wife, placed a 9-1-1 emerg ency call which was r e c ei v e d b y the Ventura B ranch of the California Hi gh way Patrol (“CHP”). A recording of the call indicates that Mrs. Georg e

was hy sterica l ly screaming

, indeed shrieking almost incomprehensively as loud as a ny human being c ould.

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 24

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 husband h as a g un!” The 911 operator attempts u n s u c c e ssfully to calm her down. A male voice—most certainly h e r husband’s—can b e heard in the backg round say ing

, “ nothing ,” to w hich she say s “okay

. ” A moment of calm during which she sai d s h e was in Santa B arbara is interrupted by more sudden blood cu r dling screaming a n d shrieking

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

The V entura CHP dispatch op e r at or then immediately called Santa B arbara Sheriff’s emerg ency and advised that dispatch operator of Mrs. Georg e’s c all. Santa Ba r b a r a was told that Ventura CHP had received a c all from a woman in S an t a B arbara “screaming that her husband has a g un.” Ventura CHP also advised that the operator was unable to g et

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

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

S h e r i f f ’ D i s p a t c h e r ( “ S

. D

. ” ) : 9

- 1

- 1
emerg ency

.

CHP Dispatcher (“CHP”): I had a calle r that

w as a female caller. The only thing I have i s the number [ number omitted]

.
S.D.: 805-[ number omitted]G E O R G E V

. M O R

R I S 25

CHP: [ number o mitted]

. And I g ot three – the first three of her a ddress 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

o u calling from?

CHP: F rom Ventura CHP.

S.D.: Ventura CHP, o k a y

. I don’t know, okay

, I g uess, was she actually in Santa B a rbara City ?

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 her a s sounding “scared.”

S.D.: Hi, this is the S heriff’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?G E O R G E V

. M O R

R I S 26

Mrs. Georg e: I ’m at home. He said
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.: What’s y our a ddress ma’am, w h a t’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)

Mrs. G eorg e: (A p parently a ddressing her husband) I ’m not talking

. ( Responding to the dispatcher’s ques tion) [ street address a nd name omitted] is my

address.

S.D.: [ address omitted] ?

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

At this point, the dispatcher indicated in he r d ep osition that she thoug ht Mr. Georg e h a d h u n g up the phone. The dispatcher called back:

Mrs. Georg e: Hello.

S.D.: H i ma’am, it’s the Sheriff’s Department.

Mrs. Georg e: Yeah?G E O R G E V

. M O R

R I S 27

S.D.: We have help on the way , can y ou talk?

Mrs. Georg e: Yes, h e’s outside rig ht now. He
say s h e won’t do a

ny thing

. He has cancer a

nd he just pulled a g u n out. I thoug ht all of them

were hidden. H e has one, and he say s he won’t d o any

th i n g b u t he just wants to have the

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

S.D.: No, we are send ing Sheriff’s Department out.

Mrs. Georg e: All rig ht. 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 need any

thing else, let me know, okay ?

Mrs. Georg e: Thank y ou.

At 7:51 a .m., Sheriff’s deputies w ere 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 dispatch ( 1) o f a domestic violence incident in prog res s (“415 D”), (2) that a f i r earm w as involved, (3) that Mr. G eorg e had hung up t h eG E O R G E V

. M O R

R I S 28

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 is tered firearms in his residence. This

co n s t e llation of facts and circumstances amounted to “pr o bable c ause to believe that [ Mr. Georg e] p ose[ d] a sig nificant threat of d e a t h or serious phy sical injury to the off i c e r s o r others.” 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 o n w h at went on in the Georg e household immediately b efore th e f irst 9-1-1 call. These facts c ome f

r o m M r s

. G eorg e’s own words recorded by the 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 say ing I d o n’t want to live like this, I don’t want to live like this, I ’m g oing to be a v e ge t able. He was ang ry to the point wher e we locked the g uns that were in the house.

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

o n i t

. . ., there was one handg u n in the b e d
stan d

, w h ich I took out, b ecause for a few weeks he could n ot 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 key

. . . . And so las t n i gh t , when he went to bed h e was furious because h e couldn’t g o to the bathroom.

. . . Very
, very ang ry , a nd he
g oes I ’m not g oing to live like this. And then
t h i s morning I saw that he had g otten this d r a w e r, in the b ed stand had a nail throug h i t and so nobody e lse, that’s also where we keptG E O R G E V

. M O R

R I S 29

the jewelry and stuff, y ou k now, beca u s e nobody could g et to it. I noticed it was open. So I g ot scared and he wa s v e ry ang ry a nd wanted me to leave, he wanted me to leave the house.

. . . So finally he went downstairs a nd I followed him, and he said he wanted me to leave, h e wanted me to leave in my car and I knew someplace in the trunk there was a gun hidden, but I had looked for i t a couple 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

o u t t h e gun and I am yanking at him and a m screaming at the top of my lungs and I started panicking a n d I called 9-1-1. And he got furious that I c a lled 9-1-1 a nd he said “if y ou don’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 al 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. G e o rg e said, “Yeah, he had stuck a p in in it, I

saw him do that

. ” (Emphasis added). W hen asked what she
meant by “ pin,” she said, “ That clip, something

. . . y eah, I

saw h im do that because it wa s n ’ t loaded in the c ar , and I

saw him pull it out from a d i f f e r e n t 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 .” (Emphasis a d d e d ). W h e n Mr. Georg e’s g un was r ecovered, it was loaded with hollow-point bullets.G E O R G E V

. M O R

R I S 30

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 p h y s ically a

ble to point his g un at D eputy Rog ers. Dur i n g oral arg ument, counsel said, “I n particular, Deputy Ro ge rs say s that [Mr. Georg e] li f t e d i t up standing with two h ands standing and pointing it at him. Mrs. Georg e’s statement was that he was phy sically incapable of doing that a t that time.

. . . The ma n ner in which he was pointing at the officer being directly c ontradicted by what h i s w ife

. . . .” 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 hu s band’s behavior that morning

. He was ambulatory

, o bdurate, “pretty strong ” e noug h t o resist his 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 in t o an automatic pistol—an action that takes tw o hands to accomplish. Moreover, she was not a witness t o t h e shooting

. Months 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 “under p enalty o f perjury ” t h a t he “was unable
to stand on his o wn without holding his w a l k er and hold a g u n w i t h b oth hands in front of him.” I t will be quite interesting on cross-ex amination when s h e is asked to demonstrate for the jury how her husband loaded the clip into his g un. This si t u a tion is a close cousin to our “sham affidavit” rule that a “party cannot create an issue o f fact b y

a n a f fidavit contradicting

. . . prior d eposition testimony

. ” Kennedy v. Allied Mut. Ins. Co.

, 952 F .2d 262, 266 (9th Cir. 1991). As we said in Kennedy

, “if a p arty w ho h as been

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

, this would g reatly diminish the utility of summary judg ment a s a procedure f o r s c r eening out sham issues o f fact.” I d. (alteration & internal quotation marks omitted).G E O R G E V

. M O R

R I S 31

After Scott v

. H

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

I n addition, w e have the testimony of Mr. Georg 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 before Mr. Georg e fell i l l

, he said, “W ell, I know what I would do if I came down with

cancer. I would g e t a g un, call the sheriff and h a v e 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 for

a while,” and chang ed the subject. Unfortunately

, “suicide b y cop” is a w e l l-documented, terrible phenomenon alway s present when law en f

o r c e ment responds to a “man with a g un” call.

On top of all of this, Mrs. Georg e’s cry for h el p w a s 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. Geo r ge ’ s own words, that is what it was. I repeat, he had threatened to use the g un a nd strug g led phy sically with his wife o ver its possession. These 9-1-1 calls are a tex tbook case of what local law enforcement confronts when receiving such a 9-1-1 request for help. I n this r espect, “we must view the fa c t s [from the deputies’] perspective at the time [ they ] decided to fire.” W il k i n s o n v

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

I n Mattos v. Aga r a no , 661 F .3d 433 (9th Cir. 2011) (en banc), in conn e c t i on with our d iscussion of the appropriateness of force in that case, w e had much t o say about what law enforcement faces when it responds to a 9-1-1 domestic dispute call. W e did so in consideration of “theG E O R G E V

. M O R

R I S 32

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 h ave observed that “ [ t] he volatility o f situations involving d ome s tic v iolence” makes them particularly dang e r ous. United States v. Martinez
, 406 F .3d 1160, 1164 (9th Cir. 2005). “W hen officers respond to a domestic a buse call, they understand that violence may be lurking and ex plode with little war ning

. Indeed, more officers are killed or injured on domestic v iolenc e calls than on any other type of c all

. ” Id. (internal quotation marks and citation omitted). W e have also “recog

niz ed 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 considerations of privacy .” Uni t e d 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 he w as o n t h e b alcony (1) Mr. Georg e had not committed a crime, (2) he was not a c t u ally 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 j u s tified the u se of f

orce. W ith a ll respect, to portray thi s incident in this f

ashion is to e x p o s e t h e irrelevance of theG E O R G E V

. M O R

R I S 33

“missing factors” to these events and a misunderstanding o f domestic disputes, especially those involving firearms. 2 I f the majority opinion’s ine r t view of the events at the Georg e residence is c o r r e ct, should the officers have simply left the scene? After all, Mr. Georg e h ad not committed a crime, his

w i fe was supposedly safe, he w as not resisting arrest or

a ttempting to flee, and he w as entitled by the Secon d Amendment to have a loaded g un on his own property

. This reasoning is illog ical, as is G eorg e’s purported e x pert’s, Thomas Parker, statement in his declaration that the deputies “apparently did not take into a c co u nt the fact that under California law, it is n o crime to keep or carry a firearm in one’s own home or on one’s property as long as it is not fired and no one is threatened.” I n elaboration on this irrelevancy

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

2 T h e Elev en th Circu it in Ha rris v. Co weta Co u n ty , 4 3 3 F.3 d 8 0 7 (1 1 th Cir. 2 0 05 ), m ad e th e sam e an aly t ical 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 an 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 circ u m s t a nc e s th at w ere 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 a n t’ s v iew p o in t, H arris rem ain ed in co n tro l o f h is v eh icle, slo w ed f o r tu rn s a n d in tersectio n s, an d ty

p i cally u sed h is i n d i c a t o rs f o r tu rn s

. He d id n o t ru n

an y m o t o rists o f

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 ich 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 s ed

. Sig n if ican tly

, b y th e tim e th e p arties w ere 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 34

I n this incident, there was n o evidence that M r

. Georg e had broken any laws prior to t h e arrival of the deputies arrival [ sic] on scene,

nor that he had threatened any one.

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

no state o r F ederal law i n C alifornia prohibiting an individual f rom pos s essing o r carry ing a non-fully automatic f irearm in their [ sic] own house or on their [ sic] own property , absent any illeg al discharg e of same or threat
to h arm an individual. Neither ex isted in this

case.

Mr. Parker a

ppears in his sanitiz ed version 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 ent manner which could r esult in injury o r death to a person. People v. Leslie

, 54 Cal. Rptr. 2d 545 (Cal. Ct. A pp. 1996) describes this c r i m e as a “serious felony .” Section 417 of the Penal C o d e m a k es 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 l a n d s cape of this incident 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.

M r

. Georg e had terminal brain cancer and was c lear l y suicidal. H e had armed himself with a loaded g un, he was not thinking c l e a r l y , he was threatening to use it; and his wife,G E O R G E V

. M O R

R I S 35

w h o had tried unsuccessfully to disarm him, was terrified

. She did not call Mr. Georg e ’s doctor, his pastor, her neig hbor,

or his friend Mr. Kaehn—she called law enforcem e n t

. She knew what a d ang erous situation she had on her hands, a s we p l a i n l y did in Mattos
, but we waive it off as not dang ero u s ? Minutes later, a residential n eig hborhood was the sc en e o f
g unfire and a dead body

. This situation could not be “safe” for anyone until Mr. George no longer had a l o a ded gun

. Mrs. Georg e certainly understood this, even thoug h Mr. Parker d oes not. So do the frie n d s and families of officers killed or injured responding to this categ ory of 9

- 1

- 1 calls. 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 a rmed, suicidal, defiant, and
ang ry husband in the house.

L ike the Eleventh Circuit in Harris v. Coweta County
, my colleag ues place undue e mphasis on the absenc e o f the circumstances specifically identified in Graham

, even thoug h

we have clearly labeled them non-ex h austive: “These factors, however, are not ex c lusive. Rather, we ex amine the totality of the circumstances and consider ‘whatever specific f actors may be appropriate in a p articular case, whether or not listed in Graham

. ’” Bryan
, 630 F .3d at 826 (quoti n g F r a n k lin v

. Fo x worth

, 31 F

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

n o t

. A plaintiff’s “ sanitiz ed version of the incident cann o t

co n trol on summary judg ment when the record as a whole d o e s not support that version.” W ilkinson

, 610 F .3d at 5 5 1

. I suppose pursuant to the irrelevant and immaterial idea in the abstra c t that Mr. Georg e’s possession of the g un was lawful and that h e had 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 U n i ted States DistrictG E O R G E V

. M O R

R I S 36

J u d g e J ohn Roll and United States Representative Gabriell e Giffords, Adam L anz a b efore the Sandy Hook massacre, a nd J ames Holmes befo re t he Aurora Colorado slaug hter. Mr. Georg e certainly wasn’t in t h e i r categ o ry , but armed people

w h o are combative, furious, ang r y , a n d m e n t a l l y unstabl e—whatever the reason—are dang erous, period. W h en we send law e nforceme n t out to c ope w ith them, 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 we re respond i n g a

nd reacting to a “tense, uncertain, and rapidly evolvin g” situation requiring them to make split second decisions involving —i n t his case—life and death. Graham

v. Connor
, 490 U.S. 386, 397 ( 1989); B ry an, 630 F .3d at 818 (Tallman d issenting from de n i a l of r eh’g en banc). Mrs. 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 his w eapon o u t s i de his home, no telling where the bullets mig ht have g one. I note with some irony that we continue to search nationall y f o r w a y s to keep firearms out of the hands of mentally unstable persons.

R eg rettably

, our f

ederal courts have had ex tens i v e

ex p erience with domestic disputes involving an gr y a nd
q u a r reling spouses, and we 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 situations invo l ving domestic violence make them particularlyG E O R G E V

. M O R

R I S 37

w e ll-suited for an a

pplication of the
emerg ency doctrine. W hen officers r e spond
to a d omestic abuse call, they u nderstand 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 d omestic v iolence call s t h a n on any o ther type of call.” Hearings before Senate Judiciary Committee
, 1994 W L 530624 (F

. D.C.H.) (Sept. 13, 1994) ( s tatement on behalf of National Task F orce on Domestic Violence).

2. United S

tate s v. Brooks

, 367 F .3d 1128, 1137 ( 9th Cir. 2004).

B r ooks contends that e ven if there were probable cause and ex ig ent circu m s t ances to justify Perez ’ s warrantless entr y , 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 F o u r th Amendment rig hts. . . .

W e disag r ee. I n Perez ’s ex perience, as he testified in the district c o u r t , it was “very common” f

or victims of domesti c a buse initially to deny that they had b een assaulted. This view could be credited by the district
court. W e , too, ag r ee 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 potentialG E O R G E V

. M O R

R I S 38

victim in B eng is’s situation with justification
may f ear that by complaining to police, he o r she mig ht ex pose himself or herself t o likely future h arm at the hands o f a hostile ag g ressor who may remain unrestrained by

the law.

3. Tierney v

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

I n deed, it may have been a dereliction o f d uty for Davidson to h ave left the premises without ensuring that any dang er had passed. S e e Barone
, 330 F .2d at 545. And Davidso n could not tell that t h e dang er had passed unl e s s he found the other participant in the dispute. See Sta te v. Raines
, 55 W ash.App. 459, 778 P.2d 538, 5 42-43 ( 1989) (“[ T] he fact that the occupants appeared to be unharmed when the officers entered did not g uarantee that the disturbance h ad cooled to the point wher e their c o ntinued safety was assured. Until they

had an opportunity to observe [ the boy f riend] and talk to h im, th e y had no knowledg e of his condition a n d state o f 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 immunit y i s g iven not only for the protection of the officers, but also to protect victims of crime. I n t h e domestic violenceG E O R G E V

. M O R

R I S 39

contex t, imm u n i ty is g iven so that officers will not hav e strong incentives to do nothing when they

believe a domestic a

buse victim is in dang er. Pe r m i tting suit ag ainst officers who have acted reasonably w hen there is

reason to fear would create ex a ctly the wrong in ce n t i ves. I ndeed, if the officers had d o ne nothing

, and F letcher had been inj u r e d

, they would have f

aced the threat of suit. I n e ither

e v e n t, their c hoice w ould be protected if it

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

5. Fletcher v

. T

o w n o f Clinton

, 196 F .3d 41, 52 (1st Cir. 1999).

I n domestic violence situations, officers m a y reasonably consider whether t he victim is acting out of f

ear or intimidati o n , or out o f

some desire to protect the abuser, b o t h

common sy

ndromes. See United Stat es v

. Bartelho

, 7 1 F .3d 436, 4 38 (1 st Cir. 1995) ( n o ting that officers are often trained not t o take the statements of abu s e victims at face value, but instead to consider whet her the victims are acting out of fear). I ndeed, o ne commentator has estima t ed that domestic vi o lence victims are uncooperative in eig hty
to ninety percent o f attempted criminal prosecutions ag ainst their batterers.G E O R G E V

. M O R

R I S 40

IV

I turn to what is t h e core issue in this case: W hat happened at the r ear of the Georg e residence during the time M r

. Georg e walked out into the open on his patio and t h e fatal shot fired by Deputy Rog e rs? Did they g un down a sick

man w h o d i d not even know they w ere there? Or, did they fire only when he pointed a g un at one of them? Scott v

. Harris requires that we ex amine w hat the evidence shows, not

raw speculation and g uesswork, but the evidence

. Has Mrs. Georg e tendered a case suff i c i ent to survive summary judg ment or to support a verdict in her favor? O r, does her

case fail before trial a s a matter of law for want of evidence?

A.

B e fore I tackle this question, however, let’s put in proper analy tical focus the “facts” we must v iew in t h e l i ght 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 a s t o require a trial. I n Scott v

. Harris , the Court said,

W h en the moving p arty has c arried its burden under Rule 56(c), its opponent must do more th an simply show that there is some metaphy sical doubt a s to the m a terial facts.

. . . W here the record taken as a whole could
not lead a rationa l trier of fact to find for the non-moving party , ther e is no ‘g enuine issue for trial.’G E O R G E V

. M O R

R I S 41

550 U .S

. a t 380 (quoting Matsushita Elec. Indus. Co. v

. Zenith Radio Corp.
, 4 7 5 U

. S. 5 74, 586–87 ( 1986) (footnote & alteration omitted) (emphasis added).

The Court continued:

[ T] he mere ex is t e n ce of some alleg ed f actual dispute between the parties will not defeat an otherwise p roperly s u pported motion for
summary judg ment; the requirement is that
t here be no genuine issue of material fact. W h en opposing p arties t e ll two different stories, one of w hich is blatantly contradicted by the record so that no reasonable jury could believe it, a court should n ot adopt that version of the facts f

o r p urposes of ruling on

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 gain noted the importance of resolving qualified immunity issues as soon a s possible, b ecause “it is effectively lost if a case is erroneously permitted to g o to t r i a l

. ” Id. at 376 n.2 (internal quotation mark omitted). I n Scott v

. H a r r i s , the Court looked at the “record taken as a whole,” id. a t 380, and it overrode the district court’s and the Eleventh Circuit’s ex p l i c it conclusions that a g e nuine dispute of material facts precluded t h e denial of summary judg ment for the defendant o f fi ce rs. Id. at 38 0

– 8 1

. The Eleventh Circuit 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 pedestrians. This is a disputedG E O R G E V

. M O R

R I S 42

i s sue to be resolved by a jury .” H arris v. Coweta County
, 433 F .3d at 8 15. The Court dismissed J ustice Stevens’s dissent ing view that the issue of unreasonable and therefore

ex c e ssive force w as “best reserved for a jury ,” and that the 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 have de t e r m ined the relevant set of facts a nd drawn all i nferences in f avor 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).

T hree y ears after S

c o tt v

. Harris
, we followed t h i s jurisdictional and leg a l g u idance in W i l k inson w here we looked p ast the district court’s conclu s ion that summary judg ment w as inappropriate because o f the p erceived

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

, 610 F .3d at 548.

B.

Some observations about my colleag ues concerns 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’Scannlain writes, “Any decision by the district cour t ‘ t h at the parties’ evidence presents g enuine issues of material fact is categ o rically unreviewable on int e rlocutory appeal.’” Maj. Op. a t 9–10 (quoting Eng v. Cooley

, 552 F .3d 1062, 1067 (9th Cir. 2009)) (emphasis a dded). This categ orical u n d e r s tanding mig ht have been correct before Scott v. Harris , but it is no long er.G E O R G E V

. M O R

R I S 43

F irst, the Court decided Johnson in 1995, Scott v. Harris in 2 007. I n d eciding Scott v

. Harris
, the Court no doubt was

aware of Johnson

, but my collea gu e s a r e correct, it was not mentioned. Thus, I read the two case s n o t a s in conflict, a s the Supreme Court surely understood, b ut plainly compatible. Noting clearly that J on e s did offer sufficient information to support a verdict i n his favor, 505 U.S. at 307–08, Johnson held that we will not on interlocutory appeal revisit that issue, id. at 313. Scott v. Harris
, on the other hand simply say s, but if after ex amining the “record as a whole” it becomes clear to

an appellate court that the plaintif f h as no case sufficient to survive Rule 50(c), the unique preempt i v e p u rpose 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 be “supportable by the r ecord. ” 5 5 0 U .S. at 3 81 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 stand alone in my understanding o f S c o tt v

. Harris

. To beg in with, we have the W ilkinson opinion in our

own circuit. F urthermore, other circuits have weig hed in on this issue. The Third Circuit described Scott as marking “the
outer limit of the principle of J o h n s o n v. Jones

—

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 review.” Blaylock v. C ity of Philadelphia

, 5 0 4 F .3d 4 05, 414 (3rd Cir. 2007). The Six th a nd Tenth Circuit s v i ew Scott as an ex ception to Johnson ’s jurisdictional limitation. I n Mo l d o wan v

. City of W a r ren , 578 F .3d 351 ( 6th Cir. 2009), the Six th Circuit described Scott v. Harris as recog niz ing “an apparentG E O R G E V

. M O R

R I S 44

ex c e ption to [ Johnson ’s] jurisdiction a l limitation when its considered a n d r e

jected a district court’s denial of summary judg ment even thoug h t h e d istrict c ourt had found g enuine issues ex isted as to material facts.” Id. at 370. The court then

s aid, “I n try ing to reconcile Scott w ith the Supreme Cour t ’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 false, a court of appeals
may say s o , even on interlocutory appeal.’” Id. (quoting Blaylock

, su

pra ); Lewis v. Tripp
, 6 0 4 F .3d 1221, 1225–26 (10th Cir. 2010) (“[ W ] h en the ‘version of events’ the district
court holds a r eas o n a b l e jury could credit ‘is blatantly 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
, 5 50 U.S. at 380)). B oth circuits have relied on their understanding of Scott v. Harris in thoroug h, u npublished opinions

. Rodriguez v. City of C leveland

, 439 F

. App’x 4 33, 456–57 (6th Cir. 2011); Blackwell v. Strain
, 496 F

. App’x 836, 8 4 5–847 (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 i s t e nce of g enuine disputes of material fact.

The F ourth, Eig ht h

, and Eleventh Circuits view Scott a s simply “rein f

o r c[ ing ] the unremarkable principle that a t the
summary judg ment stag e, fac t s must b e viewed in a lig ht
most favorable the nonmoving party when there is a genuine dispute as to those facts.” W itt v. W

. Va. Stat e P o l i c e, Troop 2
, 633 F .3d 2 7 2, 277 (4th Cir. 2011) (internal quotation marks omitted); W

a llingford v. Olson

, 5 92 F .3d 888, 892 (8th Cir. 2010) (“Althoug h we v iew the f acts and any

reasonable inferences in the lig ht most favorable to [ the plaintiff]

, we cannot ig n ore evidence which clearly contradicts [ theG E O R G E V

. M O R

R I S 45

plaintiff’s] alleg at i o n s.” (citation omitted)); Morton v

. Kirkwood

, 707 F .3d 1276, 1284–85 (11th Cir. 2 013) ( recog niz ing that a circuit court may “discard[ ] a part y ’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 d e f endants evidence d id not completely discredit the plaintiff’s version of events (internal quotation marks omitted)).

F urthermore, Scott v. Harris ’s rule does not apply only to situati o n s where a videotape d emolishes a plaintiff’s c ase. Althoug h some of t h e c a s es I refer to did benefit from 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 w hole record there made that principle appl i c a b le as a matter of law

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

as “an added w rinkle,” not a s a prerequisite to the a pplication

o f t h e a rticulated principle. 550 U.S. at 378. W ilkinson did
not rely on a videotape either, but we followed Scott v. Harris nevertheless. 610 F .3d at 549–51.

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

case involves a g enuine iss u e o f material fact, not when it does not.

C.

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

W e decided to set up a p e r i meter around the h ouse to contain the threat of the man withG E O R G E V

. M O R

R I S 46

the g un. I took the “1-2” corner of the house whic h c o v ers the front door and east side o f the house, Deputy Schmidt took position in the “2-3” corner o f the house, and Deputy Morris covered the “3-4” corner of the house.

W h ile holding my position I asked Deputy Hudley to determine if ther e a re any ex its on the west side of the property

. Deputy Hudley advised that there is a door on the west side, and h e ag reed to cove r that portion of the house.

At approx imately 8:11:17 a .m. I heard Deputy Schmidt try to c o n tact me over the radio and then I heard him b ro a d c a st 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 w alked down the n ortheast c o rner of the house towards the backy ard, and there I saw the sus p e c t with a g un in his hand and pushing a wa l k e r o r bug g y walk out of a door onto a p atio. I immediately crouched down be hind a tree with no foliag e.

At approx imately 8:11:51 a .m. I heard Deputy Schmidt broadcast 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 shouting commands to the suspect, such as, “Dr o p theG E O R G E V

. M O R

R I S 47

g un,” “Show me y o ur hands,” and “Sheriff’s Department.”

I o b s erved the suspect manipulating the

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

remove the safety while Deputy Schmidt was still shouting commands

. The suspect held the g un down t o wards the y ard a nd b eg an to

scan the backy ard

. I also heard the suspect t a l k i ng , and w hat appeared to be in response to Deputy Schmidt’s orders. He said, “No” a few times and something that sounded like, “No y ou won’t.”

The suspect then tu r n ed 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 my safety I f ire d m y weapon at him.

The suspect did not fa l l down after my first shot and the b ar r el of his g un was still pointed at me. Still fearing f or my safet y I fired my weapon five times u n til I no long er perceived the threat o f serious bodily harm o r death.

Deputy Rogers’s first-person d escription of his use of a firearm is corroborated by Deputy Schmidt:

Deputies Morris a

n d Rog ers told me that Mrs. Georg e reported her husband was la s t

seen on the back p atio with a firearm

. TheG E O R G E V

. M O R

R I S 48

t h ree of us walked d own the driveway a n d throug h a side g ate that led to the backy ard.

W e d e c i d e d to set up a perimeter around the h ouse to c ontain the threat o f the man with the g un. Deputy 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 the “2-3” corner o f the house, and Deputy Morris covered the “3-4” corner of the house.

Once I arrived at the “ 2-3” corner in the backy ard I stay ed i n position, g athering information and broa d c a s t i n g m y o b s e rvations

o ver the radio. I stay ed in this position fo r 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 i n his left hand. I imme d i ately broadcast this information over the radio.

I saw Deputy Rog e rs take p o s i t i o n to the
east of the p atio about 10–12 feet from where the suspect stood, a

nd Deputy Morri s moved his position closer to my

west side.

I beg an to shout commands to the suspect, such as: “Sheriff’s Department,” “ S h ow me y our hands,” and “Drop the g un.”

At this time the suspect held the g un down towards th e y ard, a

nd he appeared to beG E O R G E V

. M O R

R I S 49

s c a nning the backy 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 safety o n h i s gu n

. I heard the suspect say , “No y ou won’t.”

I then saw the suspect lift his gu n a nd point it directly at Deputy Rog e rs. F e aring for th e safety o f Deputy Rog ers I shot at the suspect.

After firing two shots I saw the suspect fall to the g round. I immediately beg a n to run towards the patio. I heard one more shot. W h en I g ot closer to the patio I saw t h e 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 a t the “3-4” corner in the ba ck y ard I stay ed in position, g athering informati o n a

n d b r o a d c a s t ing my observations

over radio. I stay ed in this position for
approx imately seven minutes until Deputy Schmidt announced (over the radi o ) a t 8:11:51

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

Once I heard Deputy Schm i d t ’ s report, I moved closer to the patio to aid Deputy Schmidt. I positioned my self to the west o fG E O R G E V

. M O R

R I S 50

D e puty Schmidt. F rom that position I was able to see the suspect with the g un in his hand, a nd 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 shouting commands to him, s u ch as, “Drop the g un,” “Show m e y our hands,” a nd “Sheriff’s Depart m e n t

. ” T h e s u s p e ct appeared to be scanning the backy ard looking for the direction of Deputy Schmidt’s voice.

I then saw the suspect l i ft 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 He s s w as Schmidt’s, Rog ers’s, and Morris’s supervisor. He heard the i n i t i a l d ispatch call to the Georg e residence and arri v e d shortly a fter his deputies. This is his input:

I arrived a t [ address omitted] at ap p r o x imately 8:06:51. I p arked my vehicle

on San Antonio Cre e k Road, north o f V ia Gennita. I wa l k ed down Via Gennita and I found D ep u ty Hudley talking with a woman, Ca rol Georg e, behind his p atrol vehicle. Deputy Hudley told me Mrs. Geor ge was the reporting p arty , that h er husband wasG E O R G E V

. M O R

R I S 51

depressed, recently had brain surg ery to

remo v e a tumor, a

n d that she had secured all of the firearms that she c o uld find in the home because of his depression. M rs. Georg e

ex p lained that he r h usband had been frustrated, ang ry and arg ued with her that morning

. He produced a h a n d g un and she called 9-1-1 for help.

I used Deputy

Hudley ’s cell phone to c all th e Georg e ’ s house telephone. Mr. Georg e did n ot a nswe r b u t an answering machine

a ctivated. I repeatedly c a lled out to Mr

. Georg e ove r the telephone and into the answering machine to come to the phone in an attem p t to open dialog ue with him. Mr. Georg e did not answer.

During t h is attempted phone call I heard

one of the deputies in the backy ard shouting

c o mmands, such as “Drop it” and “P u t i t down.” I nex t heard several g

un shots.

S h o r t l y t h ereafter I h ea r d r a d i o transmissions advising “Shots fired” and “Suspect down” with me d ical assistance requested. I q

uick l y w alked to the backy ard and instructed Deputy Hudley t o stay with Mrs. Georg e.

I n a ddition to th e deputies’ declarations, w e have by stander citiz en information from Karla MacDuff corroborating their description of the sequence of events a nd the deputies’ warning s before the shooting started. MacDuffG E O R G E V

. M O R

R I S 52

was a g uest and a friend of the Georg es who was living in the lower apartment level of the house. According to MacDuff, she was awakened at approx imately 7:45 a.m. tha t m o rning by someone ex citedly shouting “Drop the g un.” She heard this command two times. Af t e r these commands, then she heard “quite a few g unshots.” There is nothing relevant in the record that challeng es her information.

F inally

, Deputy Rog ers’s shot that hit Mr. Georg e entered into the f ront of h is body and emerg ed throug h the rear. This evidence indicates that Mr. Georg e had turned to face Deputy Rog ers— w h o w a s stationed to the left side of Mr. Georg e when he walked onto the patio. I note that the photog raphs in the record ar e c o n sistent with the d eputies’ 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 so. P a m P lesons, her friend and n eig hbor, recounts this convers ation with h er on the morning immediately after the shooting :

A.

. . . So as a result of h i s s t r o ke he was incontinent that n ig ht and apparently woke up very depre s s e d, and Carol told

me that he asked her to lea v e t h e house, and she said that she d id not w ant to leave him alone and s h e was afraid for him because she thoug ht that he mig ht commit suicide. An d she told me that she didn’t believe there were a

n y g uns in the house, but apparently h e had g one to the truck in the dr i v e way and there was a g un in the
g love compartment of the tr u c k

, and that he had come back in the house with it.G E O R G E V

. M O R

R I S 53

Q. O k a y

. Did Carol tell y ou that she was concerned about Don was suicidal?

A. Sh e t old me that one of the doctors they

were working w ith had warned her that he thoug ht he mig ht be c o me suicidal or was suicidal and to m a k e 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 ha d locked up

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

A. Uh-huh, that’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. He said that he just wanted to go o ut a nd sit on the back p atio a n d enjoy the

m o rning

. She said that she felt that h e 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) A
tex tbook ex ample of a self-serving declaration from Mr. Georg e’s wife who d id not see the shooting

, a d ecla r ation prepared during litig atio n w hich is impeached by her o wn words, (2) disputed fact s that are not material, and (3) aG E O R G E V

. M O R

R I S 54

demonst r a b l y flawed report from an ex -F B I Ag ent f ull o f irrelevant inadmissible speculation.

The fatal problems with Mrs. Georg e’s manufactured declaration have been dis c u s s ed 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 up a perimeter around the h ouse.” Remembering that this e ntire event took only a few minutes and that it was f luid and rapidly evolving

, who set u p t h e perimeter is utterly immaterial. N o o ne disputes that the d e p u t ies set up a perimeter. W ho g ave the order is o f n o moment. Moreover, the record and the deputies’ declarations prev i o u s ly quoted r eveal that two perimeters were established, the first when Morris and Rog ers arrived, and the second when Schmidt a r r i v ed, saw Mr. Georg e emerg e on the patio, and the deputies then moved a nd surrounded the rear of the house. I re p e a t , t h e perimeter chang ed when Mr. Georg e appeared on the patio.

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

was who s a w M r. Georg e first and how he was holding the
g un. Ag ain, the deputies were not tog ether, and who saw him first and how he was holding the g un is inconsequential. T o quote the d istrict co u rt , “Deputy Morris stated that it was Deputy Schmidt who f

irst made contact with Mr. Georg e

. However, Deputy Schmidt stated that Deputy Morris w as the first one to see Mr. Georg e.” Under these kaleidoscopic circumstances, who saw Mr. Georg e first is immaterial to the 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

em e r ged on the patio

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

un in his hands.G E O R G E V

. M O R

R I S 55

I n summary , these “disputed f acts” add n othing to t h e plaintiff’s case. To g ive them pr obative weig ht violates a central p rinciple of summary judg ment law: “ Only disputes

over facts that mig ht affect the outcome of the suit u n d er g overning law will prope r l y preclude the entry o f summary judg ment. F a ctual d isputes that a r e irrelevant or unnecessary will not be counted.” Anderson v

. Li b e rty 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 opinion, purported to be an ex pert opinion, offered a fter the f act by Thomas Parker. Parker say s he d i d n o t 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 u n, and second, it is news to

me that a witness can testify as an ex p ert that from point A, he doesn’t believe someone can be fully s een from point B

. This isn’t “ ex pert testimony .” And here, i t is no more than rank and inadmissible result-oriented specula t i o n. Did Parker simply disreg ard Karla McDuff’s statement s that she heard the deputies shouting “drop the g un!”?

Mr. Parker’s opinion on the key issue of whether Mr. Geor ge p ointed his g un in Deputy Rog er’s direction is no better. Parker’s report makes no mention of t he violent strug g le the Georg es had over the g un before th e deputies arrived. Parker incompletely describe s Mr. Georg e a s handicapped with a rig ht sid e an d a rm that were “ex tremely weak.”

Moreover, Parker claims a special a bi l i ty to read body l ang uag e and to divine w ho is “ly ing ” and who is not. H eG E O R G E V

. M O R

R I S 56

claims b y v irtue of his education, tr a i n i n g, knowledg e, a nd

ex p eri en c e that he is aware 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 o rtunately for all of us, we resolve

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

Parker g oes o n to opine that Mr. Georg e proba b ly could

n ot have coherently said what the deputies say he sa i d 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 be h eard clearly on the 9-1-1 call recording

, which Pa rk e r c laims he listened to w hen preparing his declaration. Or of Mrs. Georg e’s description of his responses to her pleas? N o w, Parker is a speech patholog y ex pert in aphasia. Undaunted, he g oes in to g uess that Mr. Georg e “had no idea whatsoever that the deputies were in his y a r d o r issuing commands to him.” I assume this is p a r t o f the “evidence” the d istrict court struck from the record when t h e c o u rt 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
pr o b l e m s identified by us in Reynolds v. County of San Diego
, 84 F .3d 1162 (9th Cir. 1996), o verruled i n p a r t on other grounds by Acri v. Var i a n A s s oc., Inc.
, 114 F .3d 999 (9th Cir. 1997) (en banc). The r e , we said, “The fact that an

ex p ert disag rees with an officer’s actions does not render the officer’s a ctions unreasonable. The i n q u i r y is not ‘whether another r e asonable or more reasonable interpretation o fG E O R G E V

. M O R

R I S 57

events can be constructed

. . . after the fact.’ Rather, the issue is whether a reasonable officer c ould have believed that his conduct w as justified.” Id. at 1170 ( quoting Hunter v. Bryant
, 502 U.S. 2 24, 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 issue of mat er ial fact
reg arding the reasonableness of [ the deputy ’s] conduct.” Id. ;

see also Tennessee v

. Garner
, 471 U.S. at 20 ( warning ag ainst “inappropriate second-g

uessi ng o f 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 clusi on of every thing else in h er statements that “every thing is fine,” and that “he won’t do any thing .” Probably Parker is unaware of o ur j u r i sprudence reg arding domestic trouble in connection with police intervention. This mig h t be beca u s e the F

. B .I

. w h e re h e was employ ed for most of his career does not respond to local 9-1-1 c alls involving this cha lleng ing problem, w here dang er alway s lurks and where frig htened
spouses cannot alway s be ex 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 believe Mr. Georg e kne w t he deputies were in his backy ard or t h a t he could hear the deputies commands, (3) that Mr. Georg e co u l d not have uttered any cohe re nt words in response to the deputies commands, a

nd (4) that D eputy Schmidt could not see a g un in Mr. Georg e’s hands w hen Deputy Schmidt was y elling at h i m o n t h e p atio. W hat is left of Mr. Parker’s report that i s relevant or material to the issues of ex cess i ve force?G E O R G E V

. M O R

R I S 58

Nothing

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

- trained personnel f amiliar with Mr. Georg e’s senses. A pparently Mr. Georg e was c oh e r e n t a nd responsive—if not rational—in his conversations with his wife, but Mr. Parker appears to b e l ieve that capacity evaporated when he walked onto his patio.

VI

Simply put, there is no competent admi s sible d irect o r circumstantial evidence in this record to prove o r e v en to sug g est under rig o rous Scott v. Henrich 3 rev i e w that Mr. Georg e did not point his g un at Deputy Rog ers 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 ultimate issue o f e x cessive force or the deputies’ credibility

.

W h at we are inex orably

left with is a situation ( 1) where the deputies had incontrovertible cause to believe Mr. Georg e p osed “a threat of serious phy sical harm, either to t h e officer[ s] or to others,” (2) where h e had threatened them with a w eapon, and (3) where h e had been g iven a warning to drop the g un. Tennessee v. Garner
, 471 U.S. at 11–12.

These a re life a nd death e n c ounters. F ocusing on inconsequential details out of contex t distorts t he totality o f the facts and leads one to errant conclusions. No reasonable factfinder could conclude o n this record that the disputed use of force was unreasonable or e x c e ssive. A jury verdict in favor of the plaintiff could not survive Rule 50(a). The

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 59

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 thi s 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

r e c o r d.” S

cott v. Harris
, 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 su fficient evidence favoring the nonmoving party for a jury to r eturn a verdict f or that party .”). This is not just a case where something like a videotape demolishes the plaintiff’s f a c t ual alleg ations, it is

a situation where the p l aintiff h as n o c ase at all, because,
among other deficienc i e s , her own words spoken just four hours after t h e s h ooting undercut what her lawsuit n ow claims. Her state m e n t in the main was the compelling evidentiary

equivalent of the videotape in Scott v. Harris

.

VII

W h y does all of this m a t t e r ? I t matters b ecause the doctrine of q

ualified immunity requires the j u d i ciary to refrain from inappropriately intr u ding into and interfering with the assig n ed r esponsi bilities of the ex ecutive branch o f
g overnment. The Supreme Court has r epeatedly stressed this

concern and d et e r m i ned it to be so substantial that qualified immunity is not just a “ mere def e n s e to liability ,” but an

“ 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 called it “an entitlement not to stand trial or face the other burdens of litig ation

. . . .” I d. 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 court’s denial of qualifie d immunity is immediately a p pe a l a b l e. Id. This r easoningG E O R G E V

. M O R

R I S 60

disting uishes denials of normal interlocutory d ecisions which

are not immediately appealable, and t h i s interlocutory decision which is.

T h e Supreme Court’s rationale f or this d octrine finds i t roots in the Court’s recog nition that a rule to the co n t r a r y would have sig nificant and undesirable c osts “to society as a whole.” Harlow v. Fitzgerald , 457 U.S. 800, 814 (1982).

These social costs include t h e ex penses o f litig ation, the diversion o f o fficial energ y from press i n g public issues, and the deterrence o f able citiz e n s from acceptance o f public office. F inally

, there is the dang er that fea r o f being sued will “dampen the ardor o f all but the m o st r esolute, or the most i r r e s p o n s i b le [ public officials]

, in t h e unflinching discharg e of their duties.”

Id. (quoting G regoire v. B iddle

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

This doctrine is not of rec e nt v intag e

. I n an article cited in a footnote by the Court i n Harlow

, 457 U.S. at 814 n.22, we discover that

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 t h e Circuit, for fear he should be answera b l e for tresspass; and in consequence of this conduct half that g reat city was burnt.G E O R G E V

. M O R

R I S 61

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

Public Officials for D amages , 1980 S. Ct. Rev. 281 (quoting Respublica v. Sparhawk

, 1 D A L L

. 357, 363 (PA. Sup. Ct. 1788)). Scott v

. Harris follows inex orably fro m the p reemptive purpose of the doctrine and wisely calibrates J

ohnson v. Jones according ly

.
Thus, w e must r emand w ith instruc t i o n s to g r ant the motion for summary judg ment based o n qualified i m munity and enter ju d gm e n t for the defendants. Mr. Kaehn h ad it rig ht: To do otherwise is not fair to the sheriffs.