Estate of Loren Simpson et al v. Yellowstone County
OPINION AND ORDER GRANTING AND DENYING IN PART 16 Motion for Summary Judgment; DENIED AS MOOT 31 Motion for Summary Judgment; GRANTING 41 Motion to Strike. READ ORDER FOR DETAILS Signed by Judge Susan P. Watters on 1/24/2017. (AMC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ESTATE OF LOREN SIMPSON et al,
OPINION AND ORDER
YELLOWSTONE COUNTY, et al,
Loren Simpson's Estate, mother, sister, brother, and maternal grandmother
(hereinafter collectively referred to as "the Estate") brought this action against
Yellowstone County and Yellowstone County Deputies Chris Rudolph and Jason
Robinson alleging that the deputies used excessive force when they shot and killed
twenty-eight year old Simpson on January 8, 2015.
The deputies moved for summary judgment on the issue of qualified
immunity. The Estate filed an opposition brief and the deputies replied. 1 For the
Estate captioned its response as a "Cross Motion for Summary Judgment"
but failed to comply with D. Mont. L. R. 56. l(a). Moreover, qualified immunity
either exists or it doesn't; the deputies' motion for summary judgment resolves the
issue. Accordingly, the Estate's "cross motion" for summary judgment is denied
and is instead construed as a response. When the deputies filed their reply on
October 31, 2016, the motion was fully briefed.
following reasons, the deputies' Motion for Summary Judgment (Doc. 16) is
GRANTED in part and DENIED in part. The deputies' Motion to Strike Reply to
Response to Motion re Cross Motion for Summary Judgment (Doc. 41) is
Scope of the Court's Inquiry
As a preliminary matter, the court must address the nature of the relevant
evidence. The shooting, and the moments before and after the shooting, were
captured on cameras mounted on the deputies' patrol car dashboards. The videos
form a large part of the record. (See Exhibit to Doc. 19 (found at Doc. 27),
containing Simpson Video Parts 1-3; see also Doc. 3 5, Ex. 4 attached to Pl 's
Statement ofDisputed Facts containing Leonhardt Video).
When videos capture the events in question, no genuine dispute of fact exists
for anything that is clearly discemable in a videotape of the events at issue, even if
sworn testimony in the record contradicts what the video shows. Scott v. Harris,
550 U.S. 372, 380-81 (2007). However, when the videos fail to capture
"everything," the court may consider supplemental evidence, including deposition
testimony, so long as it is viewed in the light most favorable to the non-moving
party. Brosseau v. Haugen, 543 U.S. 194, 195 (2004).
The deputies contend that the video footage provides everything the court
needs to know to grant summary judgment. (See Doc. 23 at 14.) But while the
dash-cam videos show most of the relevant facts, they do not show them all. In
this case evidence of the events leading up to the shooting is critical to the
determination of what reasonable officers in the same situation would have done.
Accordingly, the court will consider other evidence, including police and
investigative reports, and statements, to supplement the videos. The facts,
presented in the light most favorable to the Estate, as the nonmoving party, are set
On January 8, 2015, Deputies Robinson and Rudolph were working day-
shift patrol together. (Robinson Case Report, Doc. 33-2 at 7). Around 2:00 p.m.,
they were dispatched to Berry's Cherries, a used-car dealership, to investigate an
auto theft. (Id. at 7). Dispatch described the stolen vehicle as a 1995 purple Ford
Explorer without license plates. (Rudolph Case Report, Doc. 33-2 at 4).
According to Robinson's case report, the stolen vehicle's description
matched the description of a suspicious vehicle call he and Rudolph had responded
to earlier in the day at Rykken Circle, in another area of town. (Robinson Case
Report, Doc. 33-2 at 7). After matching the VIN numbers with dispatch,
Robinson and Rudolph decided to go to Rykken Circle before going to Berry's
Cherries to see if they could find the Explorer. (Id.). After searching and not
finding it, they drove to Berry's Cherries. (Id.).
There, manager Jerry Schuster told them that a 1995 purple Ford Explorer
had been stolen from the lot. (Id. at 4, 7). Schuster said he had taken the Explorer
in as a trade a couple of days earlier and when the previous owner had returned to
collect her belongings, it was gone. (Id. at 7). The Explorer had been parked on
the east side of the parking lot where no camera coverage existed. (Id.). Schuster
said he thought he could sell the Explorer for about $1,000. (Rudolph Case
Report, Doc. 33-2 at 4).
As the deputies were talking to Schuster, the Explorer's former owner
showed up and said she had just seen the Explorer in the area of the Country Inn
and Suites on Main Street in the Billings Heights. (Id.). She said it looked like a
male with a scruffy brown beard was driving. (Rudolph Case Report, Doc. 33-2 at
4). When asked ifthe Explorer had any identifiable characteristics, the owner told
the deputies that she thought it had a broken drivers' side headlight. (Id.).
Robinson and Rudolph went to where the Explorer was last seen, as well as
surrounding areas, but did not find it. (Id.).
According to Robinson's report, he thought Loren Simpson was possibly
involved, given the possible connection to Rykken Circle. (Robinson Case Report,
Doc. 33-2 at 7). Although the report does not provide any real detail about why
Robinson suspected Simpson, he apparently knew that Simpson was often in that
area and associated with someone who lived two trailers down from where the
Explorer had been parked. (Id.). The deputies drove to Simpson's residential
address and a nearby Wal-Mart parking lot, but still saw no sign of the Explorer.
(Id.). Robinson called Schuster and told him they were not able to find the
Explorer. He also informed dispatch he and Rudolph were "clear," meaning that
they were available to take other calls. (Id.).
Dispatch responded by advising Robinson and Rudolph of a burglary on
Justice Trail. (Rudolph Statement, Doc. 33-2 at 24). According to Rudolph, the
burglary was "cold" so the deputies did not feel any urgency to respond. (Id.) ("I
think it was a cold burglary. Q: At that time you didn't feel any urgency to
respond? A: No[.]"). So instead of heading directly to Justice Trail, they decided
to drive by Rykken Circle again to check for the Explorer. (Id. at 23). Still not
finding it, they headed out to handle the burglary call. (Id. at 23).
From Rykken Circle, they drove down Johnson Lane to Pryor Creek Road
and turned on to White Buffalo Road. (Id. at 24). At around 4:20 p.m., while
waiting for a school bus to unload children, they noticed a purple SUV pull out
from Justice Trail on to White Buffalo Road. (Rudolph statement, Doc. 33-2 at
24). According to Rudolph's statement, he could not tell if the SUV was a two
door or a four door and he had not seen it before. (See id.). 2 Despite the fact that
Nowhere in the record does either deputy identify the stolen Explorer as a two
door or four door prior to seeing it on White Buffalo Road.
Rudolph didn't recognize the SUV, according to Robinson, both deputies agreed
that it looked like the stolen Ford Explorer. (Robinson Case Report, Doc. 33-2 at
7). Accordingly, Rudolph advised dispatch that they had observed a vehicle that
matched the description of the stolen Explorer and they intended to follow it before
responding to the burglary. (Id.).
Deputy Joshua Leonhardt was dispatched to the burglary instead. (See
Leonhardt Case Report, Doc. 33-2 at 5). Leonhardt's investigation revealed that
the burglary was in fact a domestic dispute where a woman's husband stole a
number of items from her home because he was mad at her. (Id.). Neither
individual was involved with or related to this case. (Id.).
Meanwhile, however, Rudolph and Robinson deemed it likely that whoever
was driving the Explorer was also involved in the burglary that had occurred hours
earlier and that they had not yet investigated, so they followed the Explorer, "in
order to observe the driver's behavior." (Robinson Case Report, Doc. 33-2 at 7).
Robinson reported that they watched the Explorer from a distance and didn't tum
on the patrol lights "or anything like that" because they wanted to see if it was the
right car, in which case they wanted to make contact with it. (Robinson statement,
Doc. 33-2 at 12). Two cars were between the patrol car and the Explorer. (Id.) In
the video, when the deputies began following the Explorer, Rudolph asked
Robinson, without explanation, ifhe wanted his shotgun or his assault rifle.
(Simpson video Part 2 at 16:20:50-16:20:54, Doc. 27).
After following the Explorer for a few minutes, the road began to get steeper
and the two cars in between the patrol car and the Explorer turned off White
Buffalo Road. Robinson told Rudolph to get closer, "to make sure" it was the right
car. (Robinson statement, Doc. 33-2 at 12). At that point however, according to
Robinson, the Explorer started "pulling away." (Id.). From the video, it is
apparent that the roads were snow-covered and the Explorer was already some
distance in front of the deputies. (Simpson video Part 2 at 16:21 :40-16:22:07, Doc.
A few minutes after they started following the Explorer, Robinson received
a call from his supervising officer Joel Ketch. (Id. at 16:22:08). He can be heard
telling Ketch that he and Rudolph were on White Buffalo Road and that the
Explorer was headed into the hills. (Id. at 16:22: 10-16:22:25). He told Ketch that
he didn't know if they "[would] be able to catch 'em because the roads [were]
turning to shit." (Id. at 16:22:27-16:22:33). He also told Ketch that he was "pretty
sure" it was the right car, (id. at 16:23 :40) and that the deputies were "right behind
'em." (Id. at 16:22:48). Nevertheless, neither deputy turned on the overhead lights
or siren in an attempt to stop the Explorer. (Id. at 16: 19:43-16:24:57).
Inconsistent with his statement to Ketch that the deputies were right behind the
Explorer, in Robinson's post-shooting statement he explained that he and Rudolph
did not attempt to conduct a traffic stop at that time because Simpson "was too far
away," and was "running." (Robinson statement, Doc. 33-2 at 12).
In the video, as the deputies accelerated up the hill, the patrol car became
bogged down in the snow. (Simpson Video Part 2 at 16:23:00, Doc. 27).
Robinson can be heard telling Ketch that the patrol car was stuck in the snow, they
couldn't go forward, and that Rudolph was backing the patrol car down the hill.
(Id. at 16:23:08). Robinson told Ketch that he couldn't "see shit" and that he
wasn't "even 100% sure it's the car." (Id. at 16:23:34-16:23:37). He ended the call
with Ketch and contacted dispatch to advise that they were stuck and needed a four
wheel drive vehicle. (16:24:30-16:24:40). He also advised that they had "lost
sight of the suspect vehicle." (16:24:36-16:24:37). The first video then ends.
Not long after the patrol car became stuck in the snow, another vehicle with
teenagers heading home from school stopped and helped free the patrol car from
the snow. (Robinson report, Doc. 33-2 at 7). Instead of parking the patrol car in
one of the plowed driveways nearby, however, Rudolph parked the patrol car in the
center of the road where it was "unlikely to get stuck again." (Leonhardt Video
16:41:40-16:42:15, Doc. 35). Meanwhile, Robinson discovered from one of the
teens that White Buffalo Road was a dead-end so whomever was driving the
Explorer would have to come back down the road toward the officers to get out.
(Robinson report, Doc. 33-2 at 7). Robinson took down the teenager's cell phone
number, sent him up the road, and asked him to keep a look out for the Explorer.
(Id.). He told the teen he would call him to see if he had seen the Explorer up the
Now knowing that White Buffalo Road was a dead-end, the deputies
determined that they had the Explorer driver "bottled up." (Rudolph Statement,
Doc. 33-2 at 20, "We've got him bottled up."). Believing that they had "him
caught," they decided they would stay where they were instead of going back to
the main road, Pryor Creek. (Id.).
The second video begins while the deputies are waiting for the Explorer to
come back to them. (Simpson Video Part 2 at 16:31 :39, Doc. 27). Rudolph can be
heard telling Robinson that he sent Leonhardt and Ketch a message that there was
"only one way in." (Id. at 16:32:48-52). Robinson next called the teenager and
confirmed that the Explorer was headed back down the hill towards the deputies.
(Id. at 16:34:57-16:35:16).
Despite not knowing who was driving the Explorer, whether it contained any
passengers, and having no reason to believe the driver was armed, (Yellowstone
County's Discovery Responses, Request for Admission No. 3, Doc. 33-3 at 4), the
deputies decided that "since the suspect was in a stolen vehicle and possibly
involved in a recent burglary," they should "have rifles at the ready, just in case
[the suspect] decided to do anything drastic." (Robinson Case Report, Doc. 33-2 at
7). They did not discuss any plan, including whether they should let the Explorer
pass and then effect a standard traffic stop. Rather, they kept the patrol car parked
in the middle of the road. (Simpson Video Part 2 at 16:31:39-16:38:40, Doc. 27).
Neither deputy activated the patrol car's headlights or overhead lights. (Id.).
Robinson apparently requested that dispatch send Deputy Leonhardt to their
location "for cover" because "the more the better in these kind of situations."
(Robinson statement, Doc. 33-2 at 14). Neither Robinson nor Rudolph asked
Deputy Leonhardt about any suspects involved in the burglary. (Simpson Video
Part 2 at 16:31:39-16:38:40, Doc. 27).
Instead, after Robinson told Rudolph "it's coming back toward us right
now," Rudolph asked Robinson how to release Robinson's shotgun from its rack in
the patrol car, and then loaded it. (Id. at 16:35:23-16:36:03) (Robinson Case
Report, Doc. 33-2 at 7 ("Rudolph grabbed Robinson's 12-gauge shotgun out of the
gun rack in the patrol car.")). Robinson can be heard retrieving his AR-15 assault
rifle from the trunk and loading 18 rounds into the magazine. (Id.) (Simpson video
Part 2 at 16:36:50, Doc. 27).
According to Robinson, he told Rudolph "to be ready, because the Explorer
was returning," at which point Rudolph loaded three rounds of slugs into the
shotgun. (Robinson Case Report, Doc. 33-2 at 7). Robinson loaded a round into
the chamber of his rifle. (Id.). In the video, Rudolph told Robinson he has three
slugs ready. (Simpson video Part 2 at 16:36:50, Doc. 27). Robinson saw the
Explorer coming down the hill and told Rudolph "here he comes." (Id. at
16:37:59). Rudolph then told dispatch to standby. (Id. at 16:37:56-16:37:59).
Still, neither deputy activated the siren, headlights, or the overhead lights, before
stepping out of the patrol car. And neither stayed in the car to demand over the
loudspeaker that Simpson stop. (Id. at 16:38:02-16:38:04).
In the video, as the Explorer comes down the hill, it does not appear to be
traveling at a high rate of speed. (Id. at 16:38:00-16:38:15). Robinson and
Rudolph can be heard getting out of the patrol car. (Id. at 16:38:02-16:38:04).
Robinson appears first on screen, on the passenger side of the patrol car, walking
toward the Explorer with his assault rifle in the ready position, pointed down at a
45 degree angle. (Id. at 16:38:09). Rudolph comes into view next, also walking
toward the Explorer, but with his shotgun aimed at the vehicle. (Id. at 16:38:10).
Both deputies walk up the middle of the road toward the Explorer. (Id. at
Two seconds after Robinson comes into view, he yells at the Explorer to
stop while simultaneously raising his assault rifle and taking aim at the Explorer.
(Simpson video Part 2 at 16:38:11, Doc. 27). Robinson later reported that the
driver appeared to be a male wearing sunglasses. (Robinson Case Report, Doc. 3311
2 at 7). Neither Rudolph nor Robinson offered any other identifying information.
Nor did they indicate whether the Explorer had a broken drivers' side headlight or
had license plates.
During the four seconds between the time the deputies come into view and
the first shot is fired, the Explorer appears to slow down and veer left, away from
the deputies as it approaches them. (Simpson video Part 2 at 16:38:12-16:38:12,
Doc. 27). Robinson and Rudolph continue walking toward the Explorer with their
weapons aimed. They can be heard yelling, "stop" and "shut it down." (Id. at
16:38:11-16:38:15). They do not warn Simpson that they will shoot. (Id.)
According to Robinson, the Explorer accelerated and headed towards him.
(Robinson statement, Doc. 33-2 at 10: "I saw the wheels spin and I saw the front
end of the car come for me and I knew that if I didn't stop him he was gonna kill
me."). In reality, however, the Explorer veered further left, away from Robinson,
towards the side of the road. (Id. at 16:38: 15-16:38: 18) (see also Robinson
statement, Doc. 33-2 at 15: "I'm watching the video it looks like he's trying to
drive past me.") (See also Rudolph statement, Doc. 33-2 at 30: "Yeah it looks like
he could have been going around us."). As Simpson veers left to avoid Robinson,
both deputies also walk left, tracking toward the Explorer. (Simpson video Part 2
at 16:38:15-16:38:18, Doc. 27). Six seconds after coming into the dashcam's
view, Robinson walks into the Explorer's path and begins firing at it with his
assault rifle. (Id. at 16:38:16). Immediately, Rudolph also begins firing with his
shotgun. (Id. at 16:38:17).
The Explorer passes Robinson and begins to slide and the back end swings
around as the front end runs into the snowbank. (Id. at 16:38: 16-16:38: 19).
Robinson, still firing, steps back to avoid the Explorer's back end. In doing so, he
comes into Rudolph's line of fire and Rudolph pulls his weapon up to avoid
shooting Robinson. (Id. at 16:38: 18). The deputies continue firing their weapons
into the back of the Explorer after it passes them and lodges in the snowbank. (Id.
at 16:38:18:23). Both empty their magazines. (Id. at 16:44:04-16:4407, Doc. 27)
(Doc. 33-2 at 7). One of the shots, fired by Robinson, entered the back of
Simpson's neck, severed his brainstem, and killed him. (Doc. 33-2 at 31).
After emptying his assault rifle, Robinson drew his sidearm and continued
yelling at the Explorer. (Simpson video, Part 2 at16:44:04-16:44:07, Doc. 27).
Rudolph returned to the patrol car and advised dispatch, "shots fired," and
requested medical assistance. (Id. at 16:38:53-16:38:56). The Explorer's tires
continued to spin and Rudolph advised Robinson to tum the car off. In response,
Robinson approached the Explorer and turned it off. (Id. at 16:39: 17-16:39:37).
Rudolph returned to the patrol car and activated the overhead lights. (Id. at
16:40:07). He advised dispatch that a dog was in the car and that the suspect was
dead. (Id. at 16:40:12-16:40:20) ("Suspect is 10-7"). Robinson then told Rudolph
"good call on the rifle." (Id. at 16:41 :04).
A few minutes later, Deputy Leonhardt arrived. Rudolph told Leonhardt
that he was "pretty sure" this was the guy from "the [burglary] down the street."
(Id. at 16:42:23-26). He also identified the Explorer as the stolen vehicle. (Id. at
16:42:23); (Doc. 33-2 at 3). Rudolph told Leonhardt that he and Robinson were
"outside challenging [Simpson] and he gave it the goose." (Simpson video Part 2
at 16:42:48-16:42:50, Doc. 27). Robinson agreed and stated "he gave it the gas
and came right at us." (Id. at 16:42:52-16:42:54).
Approximately five minutes after the shooting, Rudolph verified that the
Explorer was the stolen vehicle from Berry's Cherries. (Id. at 16:42:23); (Doc. 332 at 3) ('Rudolph can be heard telling Deputy Leonhardt that he was "pretty sure
this is our guy from the Band E from down the street though. And that's our
stolen car."') None of the stolen items from the burglary were found in the
Explorer. (Michaelis Report, Doc. 33-2).
Subsequently, Detective Frank Fritz appeared on the scene to collect
evidence. (Investigative report excerpt, Doc. 33-2 at 2). He walked south on
White Buffalo Road for approximately a quarter of a mile, but found no evidence
on the road that Simpson spun the Explorer's wheels and accelerated at the
deputies. (Id.). He took pictures of the suspect's body in the driver's seat and
noted that Simpson had a pair of sunglasses laying in his lap. (Id.). Detective Fritz
stated that "over the course of several days of viewing the video it did not appear 
that the suspect's vehicle increased its speed as it approached the deputies." (Doc.
33-2 at 3).
Summary judgment is proper when "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only ifthere is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is "material" only if it could affect the outcome of the suit
under the governing law. Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 248
In considering a motion for summary judgment, the court "may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The court must
view the evidence in the light most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at
255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir.
2007). The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.
Qualified Immunity - Federal Claims
Where a plaintiff states a valid cause of action under 42 U.S.C. § 1983,
government officials sued in their individual capacities may raise the affirmative
defense of qualified immunity. Mullenix v. Luna, _ _ U.S. _ _ , 136 S. Ct. 305,
308 (2015). Qualified immunity protects government officials from civil liability
so long as the officers' conduct "does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Id. at 308.
Deciding whether a government official is entitled to qualified immunity is a
two-step inquiry. Id. First, the court must ask whether the facts, viewed in the
light most favorable to the non-moving party, establish a Fourth Amendment
violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court determines that
the officer did not violate any constitutional rights, the analysis stops because there
is no constitutional violation for which qualified immunity is needed. Id. If the
answer is yes, however, then the court must ask whether the law governing the
claim was clearly established at the time of the violation. Id. If the court
concludes that this second inquiry is also answered in the affirmative, the officer is
not entitled to qualified immunity. Davis v. City ofLas Vegas, 478 F.3d 1048,
1053 (9th Cir. 2007).
"A district court should decide the issue of qualified immunity as a matter of
law when the material, historical facts are not in dispute, and the only disputes
involve what inferences properly may be drawn from those historical facts."
Conner v. Heiman, 672 F.3d 1126, 1131 (9th Cir. 2012) (internal quotations
omitted). Thus, when factual disputes exist on issues necessary to decide the issue
of qualified immunity for excessive force, summary judgment is appropriate only
ifthe defendants are entitled to qualified immunity on the facts as alleged by the
non-moving party. Blankenhorn v. City a/Orange, 485 F.3d 463, 477 (9th Cir.
Turning to this case, the Court must address two questions: (1) whether
Deputies Robinson and Rudolph violated Loren Simpson's constitutional rights,
and if so, (2) whether those rights were clearly established at the time of the
Whether the Deputies Violated Simpson's Rights
Here, the Estate alleges that the deputies violated Simpson's rights under the
Fourth Amendment. "A Fourth Amendment claim of excessive force is analyzed
under the framework outlined by the Supreme Court in Graham v. Connor."
Davis, 478 F.3d at 1054. Under Graham, "all claims that law enforcement officers
have used excessive force - deadly or not - in the course of an arrest, investigatory
stop, or other seizure ... should be analyzed under the Fourth Amendment and its
'reasonableness' standard." Id. at 1053-54 (quoting Graham, 490 U.S. at 390)
(citation omitted) (emphasis in original). This analysis must be "an objective one:
the question is whether the officers' actions are 'objectively reasonable' in light of
the facts and circumstances confronting them, without regard to their underlying
intent or motivation." Graham, 490 U.S. at 397.
Under Ninth Circuit law, "[a]n officer's use of deadly force is reasonable
only if 'the officer has probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or others."' Scott v. Henrich,
39 F.3d 912, 914 (9th Cir. 1994) (emphasis omitted) (quoting Tennessee v. Garner,
471 U.S. 1, 3 (1985); see also Gonzalez v. City ofAnaheim, 747 F.3d 789, 794 (9th
Cir. 2014). The Ninth Circuit has also held that an officer must give a warning
before using deadly force "whenever practicable." Gonzalez, 747 F.3d at 794
(quoting Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997)).
In determining whether a particular use of force was unreasonable and thus
violates the Fourth Amendment, courts must balance the force used against the
plaintiff against the governmental interests at stake. Davis, 478 F.3d at 1054.
Whether the level of the government's interest justifies the force used is evaluated
by examining three primary factors from Graham: (1) the severity of the crime at
issue; (2) whether the suspect presents an immediate threat to the officer or to
public safety; and (3) whether the suspect is actively resisting or evading arrest.
Hughes v. Kisela, 841F.3d1081, 1085 (9th Cir. 2016) (citing Graham, 490 U.S. at
Courts are also free to consider other factors, whether or not specifically set
out in Graham, including the availability of less intrusive force, Kise/a, 841 F .3d at
I 085, whether the officer warned the individual prior to using force, Franklin v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994), and whether the officer considered the
existence of feasible alternatives to capture or subdue a suspect. Bryan v.
MacPherson, 630 F .3d 805, 831 n.15 (9th Cir. 2010). When considering these
factors, the court may not rely on hindsight, and instead must judge the officer's
conduct from the "perspective of a reasonable officer on the scene." Id. at 396.
Here, considering the Graham factors, and viewing the facts in the light
most favorable to the Estate, and consistent with the video footage, Scott v. Harris,
550 U.S. 372, 380 (2007), the record does not support the deputies' perception of
an immediate threat to their safety or the safety of third parties. The analysis
begins by assessing the quantum of force used against Simpson. See Davis, 4 78
F.3d at 1055 (stating that the Graham factors and other factors are not to be
considered in a vacuum but only in relation to the amount of force used to effect a
particular seizure). The deputies shot at Simpson at least twenty-four times.
(Ernest Burwell Report, Doc. 33-1: 24 shells recovered at the scene). In other
words, the deputies used the most severe kind of force available. Garner, 471 U.S.
at 9 ("The intrusiveness of a seizure by means of deadly force is unmatched.").
Next, the Court must weigh the governmental interest at stake to see if it
justifies deadly force. The Court begins with the "most important" Graham factor:
whether Simpson posed a threat to the officers. See Gonzalez, 747 F.3d at 806.
The deputies argue that they shot Simpson because Simpson veered his vehicle
toward Robinson in an apparent attempt to hit him, contending that "ample" cases
provide that an officer may use deadly force against the driver of a vehicle when
the vehicle poses a risk of death or serious bodily injury. (Doc. 36 at 10, I 3); see,
e.g., Plumhojfv. Rickard, 134 S.Ct. 2012, 2018 (2014).
The deputies' characterization of the case law is correct. In Plumhojf, for
example, the Supreme Court held that an officer acted reasonably when he fatally
shot a fugitive who was "intent on resuming" a chase that "pose[d] a deadly threat
for others on the road." 572 U.S. at--, 134 S.Ct. at 2022. But in order to accept
the deputies' assertion that their actions were objectively reasonable under
Plumhojf as a matter of law, one would have to accept, as a matter of fact, that
Simpson was accelerating and driving the Explorer towards Robinson as the
deputies yelled at him to stop. That is not what the video shows. Nor does any
other evidence support that theory.
Both deputies testified that they were concerned for Robinson's safety when
they fired their weapons. Nonetheless, "a simple statement by an officer that he
fears for his safety or the safety of others is not enough; there must be objective
factors to justify such a concern." Kise/a, 841 F.3d at 1086; see also Deorle v.
Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) ("A desire to resolve quickly a
potentially dangerous situation is not the type of government interest that, standing
alone, justifies the use of force that may cause serious injury.").
Here, the video reveals that Simpson drove the Explorer away from
Robinson, not toward him, a fact that both Robinson and Rudolph conceded after
viewing the video. (See Doc. 33-2 at 15, Robinson statement, "I'm watching the
video it looks like he's trying to drive past me."); (see also Doc. 33-2 at 30,
Rudolph statement: "Yeah it looks like he could have been going around us."). In
the video, Simpson drives the same measured rate of speed down the hill,
Robinson walks into the Explorer's path as it attempts to go around him, and there
is no indication that Simpson accelerated towards Robinson. The video contents
are corroborated by the fact that in the subsequent internal investigation into the
shooting, law enforcement did not find any evidence that Simpson accelerated
towards the deputies either. (Doc. 33-2 at 3).
On top of that, once it left the road and passed the deputies, the Explorer did
not move forward or back, nor did the reverse lights come on, but the deputies
continued firing. One of these shots, fired by Deputy Robinson, killed Simpson.
Although officers need not necessarily evaluate whether a deadly threat has been
eliminated after the firing of each shot in a close encounter, Wilkinson v. Torres,
610 F.3d 546, 552 (9th Cir. 2010), they are required to consider new information
regarding a passing threat. Waterman v. Batton, 393 F.3d 471, 482 (4th Cir. 2005).
Here, Robinson himself testified that he kept firing after Simpson had passed him
because he was "locked into the target" and it "just hadn't occurred to [him] to stop
yet," not because he believed he was in danger. (Doc. 33-2 at 17). And this
incident happened in a rural area in cold weather where no other persons were
present to whom Simpson could have posed a danger assuming he was fleeing.
Viewed in the light most favorable to the Estate, these facts, as in Waterman,
suggest that it was not objectively reasonable for the deputies to believe that
Simpson was accelerating and driving the Explorer towards Robinson or to keep
firing at the Explorer after it passed them.
In short, the video and other objective evidence demonstrates that Simpson
did not pose a threat to the deputies or anyone else, not as he tried to drive around
the deputies and certainly not after he passed them. As such, a rational jury could
find the deputies' use of deadly force was unreasonable.
Turning to the next Graham factor, the severity of Simpson's purported
offenses "provides little, if any basis for [the deputies'] use of physical force."
Bryan, 630 F.3d at 828. According to the deputies, they were attempting to stop
Simpson to determine whether the Explorer was stolen. (Doc. 36 at 5). At the
time of the stop, they knew the stolen Explorer was worth approximately $1,000,
so they knew the crime they were investigating was a misdemeanor in Yellowstone
County, see Mont. Code Ann. 45-6-301(8)(a); a crime they describe as "relatively
minor[.]" (Doc. 36 at 5).
While "the commission of a misdemeanor offense is not to be taken lightly,
it militates against finding the force used to effect an arrest reasonable where the
suspect was also nonviolent and posed no threat to the safety of the officers or
others." Bryan, 630 at 828-29. Here, the deputies only suspected Simpson had
committed a crime. And that suspicion appears to have been tenuous at best. Prior
to setting up a roadblock without even turning on the patrol car's overhead lights,
Robinson admitted to his supervising officer that he wasn't "even 100% it [was the
right] car." (Doc. Simpson video, Pt. 2, 16:23-30-16:23 :40). And although they
argue that "misuse" of a stolen vehicle can cause "serious bodily injury or death to
others," neither deputy had any information that Simpson was "misusing" the
vehicle, or even suspected him of doing so.
The deputies had not observed Simpson driving recklessly nor had he led
them on a high speed chase. Cf Scott, 550 U.S. at 386 (deadly force reasonable
when a police officer is attempting to terminate a dangerous high speed car chase
that threatens the lives of innocent bystanders); Williams v. City of Grosse Pointe
Park, 496 F.3d 482, 487 (6th Cir. 2007) (deadly force reasonable when driver's
reckless disregard for the safety of those around him posed a threat to everyone in
the vicinity). They did not suspect he was armed and there is no evidence they
believed he was under the influence of alcohol or drugs, thereby rendering his
crime inherently dangerous or violent. (Doc. 33-5, Request for Admission No. 3);
Cf Parker v. Gerrish, 54 7 F .3d 1, 9 (1st Cir. 2008) ("Though driving while
intoxicated is a serious offense, it does not present a risk of danger to the arresting
officer that is presented when an officer confronts a suspect engaged in an offense
like robbery or assault.").
In fact, in light of the suspected nature of the crime, no substantial
government interest existed for using any force to effect Simpson's arrest for this
misdemeanor violation. See Kisela, 841 F.3d at 1086 ("The character of the
offense is often an important consideration in determining whether the use of force
was justified, and where the crime being committed, if any, was minor and the
danger to ... others appear to have been minimal, the governmental interest in
using force was clearly not substantial."); Bryan, 630 F.3d at 831
("[M]isdemeanors are relatively minor and will generally not support the
deployment of significant force."). Courts have found less force unwarranted for
greater crimes. In Davis, trespassing and obstructing a police officer did not justify
slamming defendant head-first into a wall, throwing him on the floor, kneeing him
in the back and punching him in the face. 478 F.3d at 1055. Similarly in Smith v.
City ofHemet, a domestic violence incident where a husband was physically
abusing his wife did not warrant slamming defendant into a wall, pepper spraying
him, and instructing a police dog to attack. 394 F.3d 689, 693 (9th Cir. 2005).
Simply put, the force here far exceeds that found unreasonable in Davis and Smith
with seemingly far less justification.
Under the third Graham factor, Simpson did not actively resist arrest. The
question that will never be answered is whether Simpson even knew the deputies
were attempting to stop him. As the Estate points out, it was dusk and Simpson
was wearing sunglasses which would have impaired Simpson's ability to see the
deputies as he approached. Furthermore, the deputies failed to activate the
overhead lights on the patrol car to alert Simpson to their presence, that they were
law enforcement officers, and they wanted him to stop. Finally, it was winter, so
chances are that Simpson, like every other citizen in Montana, had his car windows
up and his heater on, greatly diminishing his ability to hear any shouting. All that
is to say, viewing the facts in the light most favorable to the Estate, ajury could
find that Simpson was not fleeing and that he simply did not see or hear the
deputies until the last second at which time he veered into the barrow pit to avoid
hitting them and their patrol car. Accordingly, this factor also weighs in the
Considering other factors, it is clear that the deputies could have used less
extreme force to conduct an investigative stop to determine the identity of the
driver and whether the Explorer was stolen. The deputies had not observed
Simpson speeding, driving recklessly, or doing anything other than legally driving
down a snow covered road. The deputies did not know ifthe Explorer was indeed
the stolen vehicle, and they did not know if the driver was the individual who had
stolen the suspected stolen vehicle.
According to both the Estate's expert and the Yellowstone County Sheriffs
Office Policy Manual (YCSO Manual), the easiest way to make both
determinations would have been to simply let Simpson pass and pull him over.
The deputies could have signaled Simpson with the patrol car's overhead lights
and sirens to pull over, figured out whether the vehicle was actually stolen, and
arrested him ifthe circumstances warranted arrest. (Burwell report, Doc. 33-1 at
9). Under these circumstances, failing to initiate a standard traffic stop and opting
instead for an emergency road-block, which is described as force likely to cause
death by YCSO Manual, was unreasonable. See Kise/a, 841 F.3d at 1085 (With
respect to the possibility ofless intrusive force, officers need not employ the least
intrusive means available but must act within a range of reasonable conduct). It
was a misdemeanor, after all. See Miller, 340 F.3d at 967 (determining that
another less forceful means of arrest includes signaling at the suspect with
emergency lights and sirens).
In sum, the force used by the deputies was severe, the crime they suspected
Simpson had committed was minor, the danger to the deputies was minimal, and
the deputies could have used less intrusive means to effect the investigative stop.
Thus, viewing the evidence in the light most favorable to the Estate, and weighing
the severity of the force used against the governmental interests at stake, a jury
could conclude that Simpson was not an immediate threat to the deputies or others
at the time he was shot and killed, or even if he posed a threat, that the deputies'
response to that threat was unreasonable and violated Simpson's Fourth
Clearly Established Right
Because a constitutional violation has been found, the next step in the
qualified immunity analysis is to ask "whether the right was clearly established ...
in light of the specific context of the case." Saucier, 533 U.S. at 202. A clearly
established right is one that is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right. Mullenix, 136
S.Ct. at 308. Although a case "directly on point" is not required, existing
precedent must have placed the statutory or constitutional question beyond debate.
Id. (quotingAshcroftv. al-Kidd, 563 U.S. 731, 741 (2011)).
Clearly established law may not be defined at a high level of generality. a/Kidd, 563 U.S. at 742. The correct inquiry is whether the law, at the time of the
incident, clearly established that the Fourth Amendment prohibited the officer's
conduct in the situation he confronted. Mullenix, 136 S. Ct. at 309. "Such
specificity is especially important in the Fourth Amendment context, where the
Supreme Court has recognized that it can be "difficult for an officer to determine
how the relevant legal doctrine, here excessive force, will apply to the factual
situation the officer confronts." Id. (internal citations and quotations omitted).
Here, armed with a shotgun and an assault rifle, Robinson and Rudolph set
up an emergency road-block in the middle of a rural road using their patrol car, at
dusk in the wintertime, on a snow-covered road, without activating the patrol car's
overhead lights, to stop a suspected stolen vehicle valued at $1,000. The relevant
inquiry is whether existing precedent placed the conclusion "beyond debate" that
Rudolph and Robinson acted unreasonably in these circumstances. Mullenix, 136
S.Ct. at 309. The answer, given these circumstances, is yes.
As discussed above, claims of excessive force by police officers are judged
pursuant to the Fourth Amendment's reasonableness standard. Graham, 490 U.S.
at 388. The Supreme Court has explained that it is unreasonable for an officer to
"seize an unarmed, nondangerous suspect by shooting him dead." Garner, 471
U.S. at 11. On the other hand, "[w ]here 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." Id. at 11. Because Graham and Garner "are cast at a high level of
generality," however, these standards do not, except in "an obvious case," provide
fair warning to a police officer that is necessary to defeat a claim of qualified
immunity. Mullenix, 136 S.Ct. at 310.
As the Supreme Court explained in Mullenix, situations such as high speed
chases and felons fleeing arrest require officers to take actions somewhere "in the
hazy border between excessive and acceptable force." Id at 312. This hazy border
consists of varying factors like the existence of innocent bystanders, threats to
officers, a suspect's intoxication or mental incapacitation, an armed suspect,
general public safety and the severity of the suspect's crime, among others. See
e.g. Kise/a, 841 F.3d at 1086; Graham, 490 U.S. at 386; Plumhojf, 134 S.Ct. at
2018. Thus, the specificity requirement serves to protect the officers and to allow
them to make judgment calls in highly vulnerable, sometimes dangerous situations,
without fear of being sued. See Mullenix, 136 S. Ct. at 309 ("It would be
unreasonable to expect a police officer to make the numerous legal conclusions
necessary to apply Garner to a high-speed car chase .... ) (quoting Pasco v.
Knoblauch, 566 F.3d 572, 580 (5th Cir. 2009)).
The distinction here, is that this is not a fleeing case, or a high-speed chase,
or anything remotely comparable. Unlike law enforcement in Mullenix, Garner,
Kise/a, and Plumhoff, Rudolph and Robinson were not confronted with the hazy
border between excessive force and force appropriate to effect Simpson's arrest,
because they had no legal basis for arrest. Indeed, Rudolph and Robinson did not
even have probable cause to arrest Simpson.
Simpson was not suspected of committing a felony or any violent crime, he
had not led the deputies on a high speed chase, the deputies did not think he was
armed, and he was not driving dangerously. Instead, Rudolph and Robinson
merely suspected the Explorer that Simpson was driving was stolen. They knew
the color, and had identified the number of doors. But even then, they admittedly
were not sure whether it was the right car or one that just looked like the stolen
Explorer. And, they had no idea who was driving the car. So, as Simpson was
driving back toward them on White Buffalo Road, all Rudolph and Robinson had
was reasonable suspicion that the vehicle was stolen.
As a result, 40 years of law provided them with the authority only to conduct
a Terry stop in order to determine whether criminal activity was afoot. See Terry
v. Ohio, 392 U.S. 1 (1968); United States v. Sako/ow, I 09 S.Ct. 1581, 1586 (1989)
(determination of reasonable suspicion for an investigative stop is the degree of
suspicion that attaches to particular types of noncriminal acts). To that end, the
deputies admitted that they attempted to stop Simpson to determine whether the
vehicle he was driving had been stolen. (Doc. 36 at 5). What makes this case
quite distinct from all of the cases relied upon by the parties is Rudolph and
Robinson never attempted a proper stop. They immediately used deadly force.
Knowing that Simpson had "no way out," they parked the patrol car in the
middle of the road and did not turn on the patrol car's overhead lights which would
have given Simpson advance notice of the deputies' presence. 3 Then, without
discussing any less deadly alternative for stopping Simpson, they loaded their
weapons, stepped onto a snow covered road with those weapons aimed, shouted at
a man inside a moving car with its windows up, gave no warning they would shoot,
allowed him four seconds to try to stop under these highly questionable
circumstances on a snowy road, and then shot him. And all this where the video
demonstrates that they did not have cause to believe Simpson posed a threat to
The Estate's expert, Ernest Burwell, pointed out that proper police procedure
provides that emergency roadblocks to apprehend suspects should be used "only
after other reasonable alternatives have been exhausted," (id. at 8 (citing YCSO
Manual)), and that when the patrol car is parked in position, it should be parked "at
such an angle that [it] reveals the Sheriffs office emblem on the door [with] ...
emergency lights activated." (Id. at 9 (citing YCSO manual)). The patrol car was
parked straight ahead.
Even without the benefit of pre-existing court decisions, any reasonable
officer would recognize that using deadly force to effect a Terry stop violates
clearly established law. Regardless, the deputies had the benefit of long-standing
case law. According to established Ninth Circuit law, in a typical Terry stop where
an officer has no reason to suspect danger, it is a Fourth Amendment violation for
an officer to employ aggressive tactics such as drawing a weapon, forcing a
suspect to lie prone on the ground, and using handcuffs. United States v. Del Vizo,
918 F.2d 821, 825 (9th Cir. 1990). Such tactics transform the Terry stop into an
arrest. Id. at 824. In fact, the Ninth Circuit has long recognized that "[w]here
there is no need for force, any force used is constitutionally unreasonable."
Headwaters Forest Defense v. County ofHumbolt, 240 F.3d 1185, 1199 (9th Cir.
That law is dispositive here. Ifit is well-established that officers may not so
much as use handcuffs or draw a weapon to effectuate a Terry stop, it is axiomatic
that they may not use deadly force to do so. When law enforcement illegally
attempts an arrest, the "countervailing government interest" required by Graham is
absent. No level of force is justified in such circumstances. Given the clarity of
Ninth Circuit law on the use of force in Terry stops, every reasonable officer would
have known that the deputies' conduct violated the Fourth Amendment in light of
the specific context of this case. Thus, viewing the facts in the light most favorable
to the Estate, Rudolph and Robinson are not entitled to qualified immunity on the
excessive force claim.
State Statutory Immunity- State Claims
The Estate concedes summary judgment on these claims.
For the above stated reasons, the Court GRANTS Defendant's motion (Doc.
16) for summary judgment on the Estate's state law claims but DENIES
Defendant's motion for summary judgment on qualified immunity.
Based on this Order, Plaintiffs Cross-Motion for Summary Judgment (Doc.
31) is DENIED as moot. Also, Defendant's Motion to Strike Reply to Response to
Motion for Cross Motion for Summary Judgment (Doc. 41) is GRANTED.
United States District Judge
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