Carol George v. Jarrett Morris

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROL ANN GEORGE, No. 11-55956 Plaintiff-Appellee, D.C. No. v. 2:09-cv-02258-

CBM-AGR

DEPUTY JARRETT MORRIS; DEPUTY

JOSEPH SCHMIDT; DEPUTY JEREMY

ROGERS,

Defendants-Appellants.

THE COUNTY OF SANTA BARBARA;

DEPUTY HARRY HUDLEY; DEPUTY

LARRY HESS,

Defendants.

CAROL ANN GEORGE, No. 11-56020 Plaintiff-Appellant, D.C. No. v. 2:09-cv-02258-

CBM-AGR

JARRETT MORRIS; JOSEPH SCHMIDT;

JEREMY ROGERS,

Defendants-Appellees, OPINION

and THE COUNTY OF SANTA BARBARA;

HARRY HUDLEY; LARRY HESS,

Defendants.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted February 7, 2013—Pasadena, California

Filed July 30, 2013

Before: Diarmuid F. O’Scannlain, Stephen S. Trott, and Richard R. Clifton, Circuit Judges.

Opinion by Judge O’Scannlain; Partial Concurrence and Partial Dissent by Judge Trott

GEORGE V. MORRIS

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment denying…

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge TROTT.

OPINION

We must decide whether a reasonable jury could determine that three sheriffs deputies violated the Constitution when they fatally shot an armed homeowner on his patio.

I

A

At half past five, on the morning of March 6, 2009, Carol George awoke. Her husband Donald needed food. 1 Donald had a terminal case of brain cancer and, as a result of his chemotherapy, ate frequently to manage headaches. His wife brought him a snack and then, not having slept well, returned to bed. Shortly after, George took the keys to the couple’s truck from the night stand and went downstairs. Concerned for his well-being, Carol followed him. She witnessed him retrieve his pistol from the truck and load it with ammunition.

Carol called 911. Because she used her cell phone, the call went to the Ventura California Highway Patrol. On the audio recording in evidence, she can be heard exclaiming “No!” and “My husband has a gun!” The highway patrol dispatcher could only determine that she lived somewhere in Santa Barbara. Her husband wanted her to hang up, so she did. The dispatcher then contacted a Santa Barbara…

concurring in small part and disagreeing in large part:

Mrs. George has been through a painful set of circumstances, and she deserves not to be subjected to these facts again and again. Nevertheless, with the advice of counsel, she has chosen to sue the deputies who responded to her emergency call, and they, too, are entitled to fair and proper treatment under the law. To render these deputies subject to this misguided lawsuit misapprehends the hazardous situation in which they found themselves, and it devalues case law on the dangers of domestic *1202 disputes such as the failed physical • attempt by Mrs. George to disarm her angry and dangerous husband.

Moreover, the majority opinion misperceives an important aspect of the doctrine of qualified immunity as explained by the Supreme Court in Scott v. Harris, 550 U.S. 372 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007), an aspect since embraced by the Third, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits — not to mention our own. The Court’s holding in Scott v. Harris and the principle upon which it rests ensures that government officials will not be required to defend themselves in court if it appears to an appellate court from…