Torres

Opinion by Judge HAWKINS; Concurrence by Judge SILER.

OPINION

While handcuffed in the back seat of a patrol car, Everardo Torres (“Everardo”) was mortally wounded when Madera City Police Officer Marcy Noriega (“Officer Noriega”) shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo’s family filed this survival action under 42 U.S.C. § 1983 , asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit’s decision in Henry v. Purnell, 652 F.3d 524 , 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), 1 we reverse and remand for trial.

*1121 FACTS AND PROCEDURAL HISTORY

I. Background

In the course of responding to a complaint of loud music on October 27, 2002, Madera City Police officers arrested Everardo and Erica Mejia (“Mejia”), handcuffed them, and placed them in the back seat of a patrol car. After approximately thirty to forty-five minutes (during which time Everardo had fallen asleep), Mejia was removed from the car and replaced by another arrestee. Everardo awoke at this time and began yelling and kicking…

concurring:

I concur in the majority opinion herein. However, because I was on the original panel in the Fourth Circuit in Henry v. Purnell, 619 F.3d 323 (4th Cir.2010), vacated and superceded by Henry v. Purnell, 652 F.3d 524 , 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), I should explain why I agreed in Henry that the officer was entitled to qualified immunity, but the officer in this case does not have that protection.

As the majority correctly states, a police officer is entitled to qualified immunity in a § 1983 action unless the officer’s conduct violated a constitutional right, and the right at issue was clearly established at the time of the incident so that a reasonable officer would have understood her conduct to be unlawful in that situation. See Saucier v. Katz, 533 U.S. 194 , 201-02, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001).

In my opinion, unlike the case law in the Fourth Circuit at the time of the conduct in Henry , the law in effect in the Ninth Circuit in this case was clearly established by Wilkins v. City of Oakland, 350 F.3d 949 , 955 (9th Cir.2003), and Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998). In both Wilkins and Jensen , it was…

Thomas A. Brill, Young & Nichols, Bakersfield, CA, for the plaintiffs-appellants.

Bruce D. Praet, Ferguson, Praet & Sherman, Santa Ana, CA, for the defendants-appellants.

Before: BETTY B. FLETCHER, EUGENE E. SILER, [*] and MICHAEL DALY HAWKINS, Circuit Judges.

Opinion by Judge HAWKINS; Concurrence by Judge SILER.

HAWKINS, Senior Circuit Judge:

While handcuffed in the back seat of a patrol car, Everardo Torres ("Everardo") was mortally wounded when Madera City Police Officer Marcy Noriega ("Officer Noriega") shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo's family filed this survival action under 42 U.S.C. § 1983 , asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit's decision in Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), [1] we reverse and remand for trial.

In the course of responding to a complaint of loud music on October 27, 2002, Madera City Police officers arrested Everardo and Erica Mejia ("Mejia"), handcuffed them, and placed them in the back seat of…