Courtesy of James R. Touchstone, Esq.
In the July 2020 case of Monzon v. City of Murrieta, the Ninth Circuit Court of Appeals concluded that officers acted in an objectively reasonable manner in their use of deadly force on a driver of a van who posed an immediate threat to officers. In reaching its conclusion, the Court noted that the driver ignored an officer’s attempt to make a traffic stop, led officers on a high-speed chase, ignored commands to stop his vehicle, turned his van toward at least two officers on foot after he reached the dead-end of an unlit street, accelerated his car up to 17 mph in just a few seconds, and crashed his car into an officer’s cruiser.
In October 2016 early one morning at about 1:45 a.m., Officer Chris Zeltner ran the license plate of a van, discovering that the van was reported stolen. Junef Monzon was driving the van. Jerrico Reyes sat in the back of the van, although Zeltner did not know of the passenger’s presence. Zeltner informed dispatch that he planned to make a felony stop, and dispatch sent additional officers to assist him. Zeltner attempted to pull Monzon over, but Monzon did not stop, leading Zeltner on a car chase. Officers Scott Montez and Blake Williams joined the chase in a cruiser. Officers Kyle Mikowski and Zack Bradley, each drove separately in their vehicles as they joined the pursuit. The officers testified that Monzon swerved back and forth on the freeway, drove at speeds reaching up to 100 miles per hour, exited and reentered the freeway, and ran stop signs and stoplights.
At about 1:57 a.m., Monzon turned onto a dead-end street with no lights. The five officers in four vehicles turned in behind him. The officers were alerted over the radio that the street came to a dead-end and to use precautions. The events that follow occurred over an approximately two-minute period after the officers turned onto the dead-end street behind Monzon.
Monzon stopped the van at the end of the street. Zeltner stopped his cruiser behind Monzon near the van’s rear bumper. Bradley staggered his vehicle behind Zeltner on the right side of the road. Mikowski stopped on the left side of the street behind Bradley. Williams and Montez staggered their vehicle behind and to the right of Mikowski’s vehicle. Zeltner and Mikowski had activated the red and blue lights on their vehicles along with their headlights.
Soon after the officers parked, Monzon conducted a multi-point turn so that his vehicle was facing the officers on the street as well as their four parked vehicles. While Monzon was turning, Zeltner exited his vehicle, presented his firearm, and shouted for Monzon to stop and put his hands in the air. Reyes, the passenger in the van, testified that Monzon put his hands in the air at this point, but Reyes agreed that the van continued to turn and move forward. When the van was about 10 to 15 feet away from Zeltner, arcing near and around him in a counterclockwise motion, Zeltner fired his first shot at Monzon. As the van continued to move past Zeltner and toward the officers behind him, Zeltner fired five more shots at Monzon, aiming through the driver’s side window. The van passed to the left of Zeltner and his cruiser, headed in the general direction of the other officers and their vehicles.
Bradley had also exited his vehicle and moved toward the rear of Zeltner’s cruiser as Monzon was turning his van around. About a second after Zeltner stopped shooting and the van accelerated past Zeltner and Bradley, the van continued turning toward Mikowski and Williams, who were now on foot on the driver’s side of the third cruiser. Bradley fired multiple shots at Monzon when he saw the van driving toward Mikowski and Williams. The van turned so that, at least at one point, it was headed directly toward Mikowski and Williams, and then was headed for the gap between the second (Bradley’s) and third (Mikowski’s) cruisers. Missing the gap, the van struck Mikowski’s cruiser, pushing it into Williams, who was standing near the rear driver’s side window of the cruiser. The crash occurred with such force that Williams’s arm went through the cruiser’s window, injuring him. Williams fired 10 shots at Monzon. Mikowski fired seven shots at Monzon aiming through the passenger side window and front windshield. Stopped, the van’s engine revved and its tires spun. Believing the van could drive over Mikowski or Williams, Bradley fired one more shot. Another officer also fired.
The entire time from when Monzon started moving toward the officers to when the van crashed into the cruiser was 4.5 seconds. During that brief period, the van accelerated repeatedly, with the accelerator pedal pushed from 84 to 99 percent, and reached a maximum speed of 17.4 mph. Although no officer gave a deadly force warning, it was undisputed that at least Officer Zeltner yelled “Stop!” before firing.
Once the van’s engine stopped revving, it slowly rolled backwards until Zeltner stopped it by jamming a skateboard under its tire. The officers again commanded Monzon to show his hands. When Monzon did not respond, Mikowski deployed a canine. The dog jumped into the van and bit Monzon on the head and right arm before being disengaged by Mikowski. About 20 seconds elapsed between the time that the canine was deployed and disengaged. The officers then discovered Reyes in the back of the van. They called for medical assistance and performed chest compressions on Monzon until the paramedics arrived. Monzon, who had been shot eight times, was pronounced dead at the scene.
Monzon’s parents and Reyes filed suit under 42 U.S.C. section 1983, claiming that the five named officers and additional unidentified officers violated Monzon’s and Reyes’ respective Fourth Amendment rights by using excessive force resulting in an unreasonable seizure and by denying Monzon medical care. They also sought to hold “managerial, supervisorial, and policymaking employees” of the City of Murrieta police department and the City of Murrieta (“City”) liable for failing to train their employees and for ratifying an unconstitutional custom, practice, or policy. The City and all of the named and unidentified officers (collectively, “defendants”) filed a motion for summary judgment on each of these claims, as well as additional state law claims.
The District Court granted the motion for summary judgment on all claims, finding that the use of deadly force was objectively reasonable under the circumstances. Monzon’s parents appealed the District Court’s order. Reyes did not appeal.
On appeal, the officers asserted they were entitled to qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting in part Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Before considering whether the constitutional violation alleged by plaintiffs was “clearly established,” the Ninth Circuit Court of Appeals first considered whether the officers actually violated a constitutional right based on the record and plaintiffs’ alleged facts.
The Court of Appeals explained that apprehending a suspect through the use of deadly force is considered a Fourth Amendment seizure of the person, and that the Court must determine if the officers acted in an objectively reasonable manner when they “seized” Monzon using deadly force or if they violated his right to be free from unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 395-97 (1989). While the Court acknowledged that it must view the disputed evidence in favor of plaintiffs, the Court explained that it must view the specific use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, supra, at p. 396. When “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). To assess reasonableness, courts consider the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396).
The Ninth Circuit concluded that the officers’ use of deadly force was reasonable under Garner and Graham. First, the severity of the crime weighed in favor of the use of force. Monzon led officers on a dangerous high-speed chase at night, and he refused the command of officers to stop the van even after Monzon came to the end of a street. Second, Monzon posed an immediate threat to the safety of the officers when he ignored commands to stop the van and drove near, toward, and amongst the officers on foot. The Court declared that these actions also demonstrated that Monzon was actively resisting arrest and attempting to evade arrest by flight. Third, Monzon’s driving endangered the officers and left them with only seconds to consider less severe alternatives.
Elaborating on the third factor in its reasoning, the Court explained that in these brief few seconds, the officers were faced with a reckless driver who had already endangered their lives and the lives of the public with a high-speed chase, had broken traffic laws, ignored commands to stop his vehicle, and steered and accelerated his van toward them in close quarters on an unlit street. Then Monzon deliberately turned his car around and drove it toward and between five officers, creating the dynamic and quickly changing circumstances that the officers faced. Reading the record in the light most favorable to the plaintiffs, the Court noted that the officers did not provide a deadly force warning, but explained that the urgency of the situation made a deadly force warning impractical because the van went from a standstill to crashing into a cruiser at over 17 mph in 4.5 seconds. Moreover, Monzon was still driving and turning his car toward the officers while allegedly raising his hands in surrender (after having just hit a fence post and finishing a high-speed chase), adding to the dynamic situation the officers encountered in the short time period. The Court found that in that circumstance, it was objectively reasonable for the officers to believe that whatever else Monzon was doing, he was not surrendering. The Court concluded that a reasonable officer in the position of Zeltner, Mikowski, Williams, Montez, or Bradley would have probable cause to believe that Monzon posed an immediate threat to the safety of one or more of the other officers or himself as Monzon drove his car toward and among the five officers.
Considering the officers’ firing immediately after Monzon crashed the van into the cruiser, the Court recounted that the van crashed with enough force to push the cruiser into one of the officers, driving his arm though the cruiser’s window. Moreover, the officers, who were now situated on all sides of the van, could hear the engine revving. The Court explained that it was not unreasonable for the officers in that situation to believe that Monzon, “a driver desperate to escape” who had just seconds before crashed the van into a fence post yet proceeded, must be stopped after this second impact before he drove the van into one of them. Thus, the Court found that the officers did not violate a constitutional right when they fired on Monzon after he crashed into the cruiser.
Contrary to the plaintiffs’ assertion, the Court explained that it had never held that an officer must be in the direct path of a moving vehicle before his use of force is deemed reasonable, citing the Supreme Court’s opinion in Plumhoff v. Rickard, 572 U.S. 765 (2014). Rickard had also led officers on a chase a high-speed chase reaching more than 100 mph, collided with a police vehicle and came briefly to a near standstill, then resumed maneuvering his car and pushing down on the accelerator “in an attempt to escape.” Id. at 776. Under these circumstances, the Supreme Court concluded that “Rickard’s flight posed a grave public safety risk, and . . . the police acted reasonably in using deadly force to end that risk.” Id. Even when officers were not in the direct path of the car, they were “justified in firing at a suspect in order to end a severe threat to public safety.” Id. Thus, Rickard did not require an officer to be in the direct path of a vehicle to use deadly force.
Here, the Ninth Circuit explained that Monzon likewise created a grave public safety risk by fleeing from police, driving up to 100 m.p.h. and driving erratically. However, in addition to endangering public safety, he drove his van amongst the officers and directly toward some of them. The Court explained that it did not matter whether Monzon drove the van toward all of the officers when the shooting began, explaining: “In this chaotic situation spanning a mere 4.5 seconds, the officers that Monzon did not drive directly toward were justified in using deadly force to protect the lives of their fellow officers that Monzon was driving toward.”
The Court explained that Wilkinson, where the Ninth Circuit had found the officer’s use of deadly force to be reasonable, was the most similar case within the Circuit to the instant case. As in Wilkinson, Monzon turned his car in close proximity to multiple officers on foot, some of whom were, at times, directly in the path of the car. The van’s event data recorder (“black box”) evidence demonstrated that Monzon accelerated from a full stop to 15 mph in one second (4.5 to 3.5 seconds before the crash), never braked, and was moving at least 25 feet every second when he ran the van into the police cruiser. Moreover, as in Wilkinson, the officers were aware that the van headed in their direction could accelerate dangerously and without notice at any moment. The Court here observed that the black box evidence also revealed that the van’s acceleration pedal was repeatedly pressed down between 80 and 99 percent during the 4.5 seconds from start to impact, and the van reached a speed of over 17 mph before hitting Mikowski’s cruiser. The Court concluded that Monzon was obviously accelerating, and added, “even a van traveling at only 10 mph moves approximately 15 feet every second, which is significant when a van that has been driven erratically is moving in close proximity to officers.” As in Wilkinson, the Ninth Circuit determined here that the officers’ actions were reasonable.
The Court also found that the officers did not use excessive force when they deployed a canine to physically apprehend Monzon after the shooting. Under the circumstances, it was reasonable for the officers to be concerned that, even though the van was now stopped, Monzon might resist arrest or attempt to drive the van away again. The officers stopped the dog from subduing Monzon within a reasonably short period of time (about 20 seconds after the dog was released) once it was clear Monzon was not resisting.
Although the Ninth Circuit found that no constitutional right had been violated, thereby sufficing to establish that the officers were entitled to qualified immunity on that basis, the Court nevertheless considered the second prong of the qualified immunity analysis, i.e., whether the constitutional right was “clearly established.” The Court explained that to surmount the “clearly established” threshold, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and brackets omitted). To determine whether the violative nature of particular conduct is clearly established, courts “do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate” before courts can recognize that a right is clearly established. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Summarizing the context here, the Court noted that Wilkinson was the closest on-point case, and the Court stated that it weighed in favor of qualified immunity. Thus, the Court found no existing precedent that would clearly put a reasonable officer on notice that using deadly force against Monzon under the circumstances of this case would violate Monzon’s rights. Therefore, the plaintiffs could not overcome qualified immunity even if the Court had determined that the officers had acted unreasonably.
The Ninth Circuit also determined that because the officers acted in an objectively reasonable manner, summary judgment was properly granted to defendants with respect to the plaintiffs’ Section 1983 claims and state law claims. The Court accordingly affirmed the District Court’s grant of summary judgment in favor of defendants.
HOW THIS AFFECTS YOUR AGENCY
Agencies should note that the Ninth Circuit here emphasized the fact that the sequence of events that the officers faced in the dead-end street lasted only a few seconds. Moreover, the driver had already exhibited dangerous behavior, which included having fled from the initial pursuing officer and driving at high-speed and in an erratic manner. The Court addressed the circumstances here including the danger to the officers from the van heading toward, and then amongst them over this short time frame of a few seconds. The Court also accorded great weight to the objective evidence extracted from the “black box” in the van that Monzon was driving, noting that he continued to press the accelerator while purportedly placing his hands in the air to “surrender.” The Court also noted that in a context where more time was available, a deadly force warning would have been called for. However, the Court here reached a result that was appropriate based upon the totality of the circumstances faced by these defendants in a rapidly unfolding and dangerous situation.
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 2020 U.S. App. LEXIS 22859 (9th Cir. July 22, 2020).
 See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).
 Wilkinson, supra, 610 F.3d at 552.
 The Ninth Circuit observed that Plumhoff instructed that Monzon’s reckless, high-speed driving posed a severe threat to public safety that may itself have justified the use of deadly force. However, the Circuit Court explained that it need not consider that issue because the Court already determined here that the use of deadly force was reasonable to protect the officers whose lives were threatened by the accelerating van.
 See, e.g., Lowry v. City of San Diego, 858 F.3d 1248, 1256-57 (9th Cir. 2017) (en banc) (determining that the use of force was not excessive when a dog’s encounter with the suspect was brief and closely followed by an officer).