D.C. No.1:02-cv-06385- AWI-GSA Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding
The opinion of the court was delivered by: Hawkins, Senior Circuit Judge:
Argued and Submitted February 24, 2011-Seattle, Washington
Before: Betty B. Fletcher, Eugene E. Siler,*fn1 and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins;
Concurrence by Judge Siler
While handcuffed in the back seat of a patrol car, Everardo Torres ("Everardo") was mortally wounded when Madera City Police Officer Marcy Noriega ("Officer Noriega") shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo's family filed this survival action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit's decision in Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc),*fn2 we reverse and remand for trial.
FACTS AND PROCEDURAL HISTORY
In the course of responding to a complaint of loud music on October 27, 2002, Madera City Police officers arrested Everardo and Erica Mejia ("Mejia"), handcuffed them, and placed them in the back seat of a patrol car. After approximately thirty to forty-five minutes (during which time Everardo had fallen asleep), Mejia was removed from the car and replaced by another arrestee. Everardo awoke at this time and began yelling and kicking the rear car door from inside, though the parties dispute whether he was yelling, "Get me out of the car," or simply that his handcuffs were too tight.
Officer Noriega, one of several police officers on site that evening, was standing a few feet directly behind the patrol car when she first heard Everardo yelling. She recalls telling her fellow officers that whoever was closest should tase Everardo because he could injure himself if he kicked through the glass window. As it turned out, Officer Noriega herself was closest, so she approached the car. Upon reaching the rear driver's side door, she opened it with her left hand.*fn4 She then reached down with her right hand to her right side, unsnapped her holster, removed the Glock, aimed the weapon's laser*fn5 at Everardo's center mass, put her left hand under the gun, and pulled the trigger, all without looking at the weapon in her hand. She had turned off the safety to her Taser earlier that evening, enabling her to use it more quickly. The parties agree that Officer Noriega had intended to reach for her Taser, which she kept in a thigh holster immediately below her holstered Glock on her dominant right side, and that she had intended to use her Taser in dart-tase rather than touch-tase mode.*fn6
Everardo died later that evening from the gunshot wound.
This was not the first time Officer Noriega had mistakenly drawn the wrong weapon, though never before with such dire consequences. The Madera City Police Department first issued Officer Noriega a Taser, and certified her to use it, sometime in the winter of 2001, less than one year before Everardo's shooting. Her certification training consisted of a single three-hour class, during which she fired the weapon only once. She was given a right-side holster for her Taser and instructed to wear it just below her Glock. There was no discussion during this training session of a recent incident in which a Sacramento officer had mistaken his handgun for his Taser.*fn7
Nonetheless, Officer Noriega soon came to experience firsthand the risk of confusing the two weapons, both all-black and of similar size and weight. The first incident occurred about a month and a half after she was first issued the Taser when she was at a jail putting her weapons back in their holsters. She mistakenly put her Glock into the Taser holster, realizing her error when the weapon did not "sit right" in the wrong holster. Concerned about the mistake, she notified her sergeant, Sergeant Lawson, who instructed her to practice putting each weapon in its proper holster and to practice drawing them.
Just one week later, Officer Noriega again confused her weapons, this time during a field call. Seeking to touch-tase a kicking and fighting suspect who refused to get into the back seat of a patrol car, Officer Noriega instead pulled out her Glock. Only when she tried unsuccessfully to remove the cartridge, which would have been present on her Taser but was not a feature on her Glock, did she realize she was holding the wrong weapon "and it was pointing at [her] partner's head, the [Glock's] laser was pointing at his head." Fright- ened by this second incident of weapon confusion and by how narrowly she had averted a potentially fatal mistake, she again informed Sergeant Lawson, explaining that she "had pulled out my gun thinking it was my Taser." Again, Sergeant Lawson instructed her "to keep practicing like he's been doing and that he's having everybody do."
For the next nine months, leading up to the day of Everardo's tragic shooting, Officer Noriega followed her sergeant's instructions, practicing drawing her two weapons daily, both before work and during downtime throughout each shift. Officer Noriega described her daily self-training as follows: "I would have both my gun and my taser in their holsters. And I would draw my taser, and then I would draw my gun. And in my mind thinking taser, taser, taser, gun, gun, taser. Just practicing that way so I would draw, draw, draw." In the five or so times she used her Taser in the field, never again did she confuse her two weapons, until the night of Everardo's shooting. On all previous occasions, however, she had only touch-tased the subjects, which required her first to remove the Taser's safety cartridge. Never before had she dart-tased anyone, as she had intended to do to Everardo.
Everardo's parents, Maria and Melchor Torres ("the Torres Family"), as administrators of his estate, brought this action under 42 U.S.C. § 1983, asserting violation of Everardo's Fourth Amendment right against unreasonable seizure and seeking damages from Officer Noriega.*fn8 The district court initially granted Officer Noriega's motion for summary judgment, determining Everardo was not "seized" by Officer Noriega's unintended use of her Glock and therefore no Fourth Amendment violation occurred.
On interlocutory appeal, we reversed, concluding that under the Ninth Circuit's longstanding "continuing seizure" doctrine, Everardo was seized within the meaning of the Fourth Amendment at the time of the shooting. Torres v. City of ...