Shelly Lal, et al v. State of California, et al

Filing

FILED OPINION (CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and ALVIN K. HELLERSTEIN) AFFIRMED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [9037011]

Case: 12-15266

03/31/2014

ID: 9037011

DktEntry: 28-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHELLY LAL, individually and in her
representative capacity on behalf of
the Estate of Kamal L. Lal, decedent,
and in her representative capacity as
guardian ad litem for Sagar Lal;
ESTATE OF KAMAL L. LAL; SAGAR
LAL, a minor,
Plaintiffs-Appellants,

No. 12-15266
D.C. No.
4:06-cv-05158PJH

OPINION

v.
STATE OF CALIFORNIA; CALIFORNIA
HIGHWAY PATROL; FRANK
NEWMAN, C.H.P. Officer;
MATTHEW OTTERBY, C.H.P. Officer,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
February 13, 2014—San Francisco, California
Filed March 31, 2014

Page: 1 of 15

Case: 12-15266

03/31/2014

2

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA
Before: Consuelo M. Callahan and Milan D. Smith, Jr.,
Circuit Judges, and Alvin K. Hellerstein, Senior District
Judge.*
Opinion by Judge Callahan

SUMMARY**

Civil Rights
The panel affirmed the district court’s summary judgment
which found that police officers were entitled to qualified
immunity in a 42 U.S.C. § 1983 action alleging that the
officers used excessive force when they shot and killed
Kamal Lal following a high speed chase.
The panel held that under the totality of the
circumstances, the district court’s determinations that the
officers objectively feared immediate serious physical harm
and that a reasonable officer could have believed that Lal
threatened him with immediate serious danger were sound.
The panel noted that Lal led the police on a high speed chase
for 45 minutes before the officers were able to disable his
pickup truck. In the four minutes that elapsed after Lal exited
the truck, he first tried to seriously injure himself, tried to

*
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 15

Case: 12-15266

03/31/2014

ID: 9037011

LAL V. CALIFORNIA

DktEntry: 28-1

Page: 3 of 15

3

provoke the officers into shooting him by pantomiming
shooting at them with his cell phone, threw rocks at the
officers, and then, ignoring directions to stop, advanced upon
two officers threatening them with a large rock he held over
his head. The panel held that although Lal may have been
intent on committing “suicide by cop,” it did not negate the
fact that he threatened the officers with such immediate
serious harm that shooting him was a reasonable response.

COUNSEL
Charles Stephen Ralston (argued), Mi Wuk Village,
California, and A. Catherine LaGarde, Kentfield, California,
for Plaintiffs-Appellants.
Kamala D. Harris, Attorney General of California, Jon Wolff,
Steven M. Gevercer, and John P. Devine (argued), San
Francisco, California, for Defendants-Appellees.

OPINION
CALLAHAN, Circuit Judge:
This case arises out of a tragic incident. Kamal Lal
(“Lal”), upset over a domestic disturbance with his wife, led
police on a 45-minute high-speed chase on and off freeways
before the officers were able to disable his vehicle. When Lal
exited his truck he first tried to seriously hurt himself, then
tried to provoke the officers into shooting him, and finally
advanced on two officers holding a large rock over his head.
When Lal refused to stop and continued to advance to within
a few feet of the officers, the officers shot him. Lal’s widow,

Case: 12-15266

4

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

daughter, and estate (“Plaintiffs”) filed this action, asserting
claims under 42 U.S.C. § 1983 and California law. The
district court granted summary judgment for the defendants,
finding that the officers were entitled to qualified immunity.
We affirm the district court’s determinations that the officers
thought that Lal posed an immediate threat of serious
physical harm and that the officers’ beliefs were reasonable.
I
On March 6, 2005, the South San Francisco Police
Department received a 911 telephone call from Lal’s wife
reporting a domestic disturbance involving her husband, Lal.
Lal interrupted the call, the police called back, and after
another disconnect, the police dispatcher managed to speak
to Lal’s wife and overheard someone hitting her. While the
dispatcher was still on the phone, Lal drove away in his grey
Toyota pickup truck, and his wife gave the dispatcher the
truck’s license plate number as well as Lal’s cell phone
number.
Lal proceeded to the freeway where he entered
southbound Highway 101. The California Highway Patrol
(“CHP”) was notified and a high-speed chase ensued. For
approximately 45 minutes, Lal traveled south and north on
Highway 101, exiting the freeway to travel over city streets,
and reentering the freeway. He did this at speeds ranging
from 50 to over 100 miles an hour. At one point while on the
freeway, Lal may have attempted to cause a motorcycle
officer who was pursuing him to crash.
A police sergeant contacted Lal on his cell phone and told
him to slow down because he would otherwise injure other
people. Lal responded that he wanted to kill himself, and on

Page: 4 of 15

Case: 12-15266

03/31/2014

ID: 9037011

LAL V. CALIFORNIA

DktEntry: 28-1

Page: 5 of 15

5

a subsequent call, twice stated that he wanted to kill himself
or have the police shoot him.
Meanwhile CHP Officer Frank Newman saw the pursuit
heading toward his position and entered traffic to become the
lead police vehicle. During the pursuit, Newman learned that
Lal wanted officers to shoot him. The dispatcher also learned
that Lal did not have any record of gun ownership and did not
have any outstanding warrants.
Eventually Lal took an exit from the freeway onto a
collector road where the CHP officers deployed a spike strip.
Lal drove over the strip, partially disabling his vehicle, and
managed to reenter the freeway and reach another off-ramp,
where he lost control of his truck and veered off the ramp.
The truck came to a stop in a ditch alongside the freeway.
When Lal got out of his vehicle, numerous officers, including
CHP Officer Otterby, yelled commands at him. Officer
Newman addressed Lal through his patrol car loudspeaker
and told him to put his hands in the air. Lal briefly complied,
and then, putting his hands in his pockets, responded to
Newman by saying “just shoot me, just shoot me.”
Lal then reached down to the ground and picked up a big
rock that he smashed against his forehead three or four times,
causing considerable bleeding. He next attempted to pull a
four-foot long metal pole out of the ground and impale
himself on it.
Lal started walking toward Officer Newman and CHP
Officer Otterby, carrying a rock in his hand. When the
officers told him to drop it, he pretended that his cell phone
(which was also in his hand) was a pistol and pantomined
pointing it at the officers. Officer Otterby recognized that the

Case: 12-15266

6

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

cell phone was not a gun and yelled to the officers not to
shoot. Lal then threw several soft-ball sized rocks at Officers
Newman and Otterby. The rocks missed the officers, but one
shattered the spotlight on the patrol car.
During these events, Officer Newman requested
assistance from any agency that could respond to the situation
with less than lethal assistance, and was told that a K-9 unit
was on its way.
Lal began walking toward the patrol cars while continuing
to throw rocks. As he neared Officers Newman and Otterby,
who were standing shoulder to shoulder, he held a large rock
about the size of a football above his head. Lal failed to drop
the rock when ordered by Officer Otterby to do so. Lal kept
advancing at an irregular pace, forcing the officers to back up.
Officer Otterby told Lal, “we are going to have to shoot you
if you don’t drop that rock.” Lal continued to advance, and
when he was within a few feet of the officers, they
simultaneously shot him. The eight shots killed Lal despite
efforts to resuscitate him. Just over four minutes elapsed
between the time Lal’s truck stopped moving and his
shooting.
II
Plaintiffs filed this action in state court in December 2005
against California, the CHP, and Officers Newman and
Otterby, asserting that Plaintiffs’ rights were violated when
Lal was shot and killed. Plaintiffs asserted claims under
42 U.S.C. § 1983 for violations of the Fourth and Fourteenth
Amendments and under California law for negligence,
wrongful death, and assault and battery. In August 2006, the
case was removed to the district court for the Northern

Page: 6 of 15

Case: 12-15266

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

Page: 7 of 15

7

District of California on the ground of federal question
jurisdiction over the central claim that the officers had used
excessive force in violation of the Fourteenth Amendment.
After removal, Plaintiffs’ attorney failed to prosecute the case
and the district court dismissed the case. New counsel filed
a motion for relief from judgment pursuant to Federal Rule of
Civil. Procedure 60(b). The motion was denied, Plaintiffs
appealed to the Ninth Circuit, and the Ninth Circuit reversed
and remanded. Lal v. State of California, 610 F.3d 518 (9th
Cir. 2010).
On remand, certain issues were dismissed, a second
amended complaint relating to the state court claims was
filed, the parties conducted discovery, and the defendants
moved for summary judgment. On January 10, 2012, the
district court granted the motion and dismissed the case.
Plaintiffs filed a timely notice of appeal.
The district court offered the following explanation for its
ruling:
[T]aking the totality of circumstances into
account, and viewing the undisputed evidence
in the light most favorable to plaintiffs, the
court finds that the officers acted reasonably.
The evidence demonstrates: the officers were
aware that officers were originally called to
Lal’s home for a domestic violence report by
Lal’s wife about him; Lal led police officers
on a long and high speed chase over city
streets as well as the freeway, during which
Lal drove recklessly and in apparent disregard
of others’ safety; Lal indicated he wanted to
kill himself or have the officers shoot him;

Case: 12-15266

8

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA
when Lal got out of his car near the ditch at
the off ramp, he did not comply with the
officers’ instructions to put his hands up; Lal
hit his own head with a rock until he bled and
attempted to impale himself on a metal pole;
Lal mimed using his cell phone as a gun that
he pointed at the officers, which initially
prompted Otterby, who recognized the phone
was not a gun, to instruct all officers on the
scene not to shoot; Lal picked up rocks and
threw them at the officers’ car, breaking the
light on the car; Lal came toward the officers
with a football sized rock over his head, and
ignored the officers’ instructions to put the
rock down. Lal advanced with this rock to
within a few feet of the officers; and both
officers simultaneously shot Lal. . . . Based
on these facts, the court concludes that
defendants had probable cause to believe that
they faced a threat of serious physical harm
from Lal. As such their conduct in using
deadly force was objectively reasonable.
III

We review “de novo a grant of summary judgment on the
basis of qualified immunity,” and in “determining whether
summary judgment is appropriate, [view] the evidence in the
light most favorable to the non-moving party.” Garcia v.
County of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); see
also Elder v. Holloway, 510 U.S. 510, 516 (1994). In Smith
v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc),
we reiterated:

Page: 8 of 15

Case: 12-15266

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

Page: 9 of 15

9

The Supreme Court has said that “the
‘reasonableness’ inquiry in an excessive force
case is an objective one: The question is
whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and
circumstances confronting them[.]” [Graham
v. Connor, 490 U.S. 386, 397 (1989)] . . . .
The question is not simply whether the force
was necessary to accomplish a legitimate
police objective; it is whether the force used
was reasonable in light of all the relevant
circumstances.
(Internal quotation marks and citations omitted).
In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en
banc), we quoted the Supreme Court’s explanation that “[t]he
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Id.
at 440 (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). We further explained that qualified immunity
shields an officer from liability even if his or her action
resulted from “a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact,” and that
the “purpose of qualified immunity is to strike a balance
between the competing need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id.
(internal quotation marks and citations omitted). In
Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012),
the Supreme Court reiterated that “[q]ualified immunity gives

Case: 12-15266

10

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

government officials breathing room to make reasonable but
mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law.”
(Internal quotation marks and citations omitted).
Furthermore, because “qualified immunity is ‘an immunity
from suit rather than a mere defense to liability . . . it is
effectively lost if a case is erroneously permitted to go to
trial.’” Pearson, 555 U.S. at 231 (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).
In determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct. Pearson, 555 U.S. at 232. Courts are “permitted
to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.” Id. at 236.
The measuring rod for determining whether an official’s
conduct violates a plaintiff’s constitutional right was set forth
by the Supreme Court in Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011):
A Government official’s conduct violates
clearly established law when, at the time of
the challenged conduct, “[t]he contours of [a]
right [are] sufficiently clear” that every
“reasonable official would have understood
that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640
(1987).

Page: 10 of 15

Case: 12-15266

03/31/2014

ID: 9037011

LAL V. CALIFORNIA

DktEntry: 28-1

Page: 11 of 15

11

The Supreme Court provided further guidance in Graham v.
Connor, 490 U.S. 386 (1989). We have held that Graham
directs courts to first consider the nature and quality of the
alleged intrusion and to then “consider the governmental
interests at stake by looking at (1) how severe the crime at
issue is, (2) whether the suspect posed an immediate threat to
the safety of the officers or others, and (3) whether the
suspect was actively resisting arrest or attempting to evade
arrest by flight.” Mattos, 661 F.3d at 441. Of these, the most
important is whether the suspect posed an immediate threat
to the safety of the officers or others. Id. (citing City of
Hemet, 394 F.3d at 702).
This is the crux of the appeal. The district court found
both that Lal posed an immediate threat to the safety of the
officers, and that, even if he did not, a reasonable officer
could have thought he did. Both conclusions are sound.
Plaintiffs admit that Lal was holding a football-sized rock
over his head when he continued to advance toward Officers
Newman and Otterby, who shot him when he was about a
yard away. In light of Lal’s prior actions – the high speed
chase, hitting himself with a stone, throwing rocks at the
officers – the officers reasonably believed that Lal would
heave the rock at them. Indeed, Plaintiffs do not really argue
otherwise.
Instead, they argue that the officers should have retreated
or that they somehow should have defused the situation
before Lal started advancing. These contentions are not
factually or legally persuasive. The confrontation was in a
ditch alongside a freeway, and the officers could hardly allow
Lal to proceed on foot onto the freeway. Nor could they have
allowed Lal to remain in his truck and reenter the freeway, for

Case: 12-15266

12

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

Lal’s wish to commit suicide would have endangered the
lives of others, as well as his own. Indeed, the officers were
exploring alternate methods of dealing with Lal, attempting
to continue the engagement with Lal until the K-9 unit
arrived. But Lal forced the issue by advancing on the
officers. By the time that Lal, contrary to the officer’s
commands, advanced to within seven or eight feet of the
officers, thereby creating a reasonable fear of imminent
serious physical harm, spraying Lal with pepper spray would
not have stopped Lal from hurling the rock at the officers.
The fact that Lal was intent on “suicide by cop” did not mean
that the officers had to endanger their own lives by allowing
Lal to continue in his dangerous course of conduct.
Plaintiffs’ experts, however, argue that the situation
should not have come to this point. They contend that the
officers should have seized Lal earlier, should have used
pepper spray, and should have waited for less than lethal
devices to arrive. They criticize the officers for containing
Lal in a small area, not waiting, and not retreating. Clearly,
when Lal advanced on the officers with a large rock held over
his head, the officers sincerely and reasonably believed that
Lal intended to seriously harm them if they did not shoot him.
The cases cited by Plaintiffs are not to the contrary. In
A.D. v. California Highway Patrol, 712 F.3d 446 (9th Cir.
2013), the court affirmed the denial of qualified immunity to
an officer who had emptied his gun shooting a person who
had rammed her car into the police patrol cars after she was
cornered following a high speed chase. The court found that
a reasonable jury could find that the officer had “used deadly
force with a purpose to harm [the deceased] unrelated to a
legitimate law enforcement objective.” Id. at 451. In Glenn
v. Washington County, 673 F.3d 864 (9th Cir. 2011), the

Page: 12 of 15

Case: 12-15266

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA

Page: 13 of 15

13

Ninth Circuit vacated a grant of summary judgment where the
police officers used a beanbag shotgun on a person armed
with a knife, who was not threatening the police or others
when he was shot. Id. at 873–74. Unlike those cases, here,
Lal was threatening the officers with immediate serious harm.
Plaintiffs, however, argue that under the totality of the
circumstances, the jury should be allowed to determine
whether the officers were unreasonable in not de-escalating
the situation before Lal advanced on the officers with a rock
over his head. Citing Billington v. Smith, 292 F.3d 1177 (9th
Cir. 2002), Plaintiffs argue that where an officer intentionally
or recklessly provokes a violent confrontation, he may be
held liable for his otherwise defensive use of deadly force. A
careful reading of Billington weighs against Plaintiffs’
perspective in this case. We explained:
In Scott v. Henrich [39 F.3d 912 (9th Cir.
1994)], we held that even though the officers
might have had “less intrusive alternatives
available to them,” and perhaps under
departmental guidelines should have
“developed a tactical plan” instead of
attempting an immediate seizure, police
officers “need not avail themselves of the
least intrusive means of responding” and need
only act “within that range of conduct we
identify as reasonable.” We reinforced this
point in Reynolds v. County of San Diego,
[84 F.3d 1162 (9th Cir. 1996)] which
distinguished Alexander because “the court
must allow for the fact that officers are forced
to make split second decisions.” We affirmed
summary judgment for the defendant police

Case: 12-15266

14

03/31/2014

ID: 9037011

DktEntry: 28-1

LAL V. CALIFORNIA
officers despite experts’ reports stating—like
the expert report in the case at bar—that the
officers should have called and waited for
backup, rather than taking immediate action
that led to deadly combat. We held that, even
for summary judgment purposes, “the fact that
an expert disagrees with the officer’s actions
does not render the officer’s actions
unreasonable.” Together, Scott and Reynolds
prevent a plaintiff from avoiding summary
judgment by simply producing an expert’s
report that an officer’s conduct leading up to
a deadly confrontation was imprudent,
inappropriate, or even reckless. Rather, the
court must decide as a matter of law “whether
a reasonable officer could have believed that
his conduct was justified.”

Billington, 292 F.3d at 1188–89 (footnotes omitted).
In the case at bar, there is no suggestion that the officers
intentionally provoked Lal. Rather, the totality of the
circumstances shows that they were patient. They allowed
Lal to lead them on a 45-minute high-speed chase, during
which they tried to talk him into surrendering, and when he
got out of the truck, they were willing to give him time to
cool off. Instead, it was Lal who forced the confrontation.
Thus, even assuming that it might have been possible for the
officers to have given Lal a wider berth, under our opinion in
Billington, there is no requirement that such an alternative be
explored. A police officer’s immunity does not become less
if his assailant is motivated to commit “suicide by cop.”

Page: 14 of 15

Case: 12-15266

03/31/2014

ID: 9037011

LAL V. CALIFORNIA

DktEntry: 28-1

Page: 15 of 15

15

IV
This lawsuit arose out of a tragic event. Lal was so upset
after an argument with his wife that he led the police on a
high speed chase for 45 minutes before the officers were able
to disable his pickup truck. In the four minutes that elapsed
after Lal exited the truck, he first tried to seriously injure
himself, tried to provoke the officers into shooting him by
pantomining shooting at them with his cell phone, threw
rocks at the officers, and then, ignoring directions to stop,
advanced upon two officers threatening them with a large
rock he held over his head. At that moment, the only
alternative force then available to the officers, pepper spray,
would not have alleviated the danger of Lal hurling the rock
at the officers. Moreover, there was no reason for the officers
to believe that Lal would act rationally. Under the totality of
the circumstances, the district court’s determinations that the
officers objectively feared immediate serious physical harm
and that a reasonable officer could have believed that Lal
threatened him with immediate serious danger are sound.
That Lal may have been intent on committing “suicide by
cop” does not negate the fact that he threatened the officers
with such immediate serious harm that shooting him was a
reasonable response. The district court’s grant of summary
judgment is AFFIRMED.