Deorle v. Rutherford (9th
Cir. March 16, 2001)
* court: federal (Ninth Circuit)
* public agency: Butte County, California
* plaintiffs' job classes: deputy sheriff
* trial court's decision: in favor of individual Defendant
* Ninth Circuit's decision: against individual defendant
* issue area: Section 1983, excessive force, qualified
immunity, federal civil rights litigation
Deorle Facts
* On
September 9, 1996, Deorle began behaving erratically and suicidally
while at home. He began screaming and banging on the walls.
* His wife called
911. Deorle then told her
they would have to kill him.
*
Deputy Mahon responded. Mrs.
Deorle told him that Deorle was on probation and had previously been
arrested for assaulting her. Deorle
let his wife and child leave the house to go with Deputy Mahon who
took the family to safety and called for back-up.
*
Deorle at some point picked up part of the porch, a 2 X 6 board with
nails protruding, and used it like a baseball bat, but dropped it when
told to do so and when Mahon drew his weapon.
*
Deorle then picked up two hatchets but threw them away when told to
put them down.
*
After about 30-40 minutes, Deorle picked up a plastic crossbow and
some lighter fluid and advanced on one of the other deputies there by
the name of Rutherford.
*
Rutherford was a member of the county’s Special Incident Response
Team and was armed with a shotgun with a beanbag round.
*
Deorle advanced toward Rutherford who told him to drop the crossbow.
Deorle did so but kept coming toward Rutherford.
*
When Deorle was around 30 feet from Rutherford, Rutherford fired at
Deorle. Rutherford did
not shout a warning before firing.
Doerle was shot in the face, losing his left eye and having
embedded shot left in his skull.
*
Deorle sued Rutherford, the Sheriff and the County.
The trial court (Judge Lawrence Karlton) granted summary
judgment to Rutherford on the basis of qualified immunity.
* Deorle appealed the ruling as to Rutherford.
The Ninth Circuit by a split two-to-one decision sided with
Deorle, remanding the case back to the trial court.
Analysis of the Ninth Circuit's Deorle Decision
The
first issue before the Ninth Circuit was whether Rutherford had
committed a Fourth Amendment violation by using excessive force.
To decide whether Rutherford used excessive force, you weigh
the type of force used against the governmental interest at stake.
*
The Ninth Circuit concluded that the type of force used against Deorle
was substantial, since use of a beanbag round was close to using
lethal force. On the
other hand, the governmental interest at stake was slight, since
Deorle was clearly emotionally disturbed, had not committed a serious
crime, was not attempting to flee, and did not pose an immediate
safety threat, with the majority putting heavy weight on the fact that
Deorle put down his weapons when told to do so.
* The majority laid equally heavy stress on Rutherford’s
failure to warn Deorle before firing, especially since Rutherford had
plenty of time within which to give Deorle a warning.
*So,
unsurprisingly, the majority held that Rutherford used excessive
force.
*
That left Rutherford’s defense of qualified immunity. Rutherford would not be liable to Deorle if Rutherford in his
use of force did not violate clearly established constitutional
rights.
*Unfortunately for Rutherford,
the majority stated that in the Ninth Circuit a conclusion that an
officer used excessive force automatically meant that the officer did
not have qualified immunity.
*
The majority also held that Rutherford’s failure to warn Deorle
violated clearly established law.
*
The dissent argued strongly that the force under the circumstances was
reasonable and that the case law as it existed in 1996 (when the
underlying facts in this case occurred) did not require a warning.
(“Rutherford had no duty to wait to be doused with flammable
liquid or to be set ablaze before acting to protect himself.”)
