Richard Leo Deorle v. Greg Rutherford, Butte County Deputy Sheriff Mick Grey, Butte County Sheriff County of Butte

263 F.3d 1106 (9th Cir. 2001) RICHARD LEO DEORLE, Plaintiff-Appellant, v. GREG RUTHERFORD, Butte County Deputy Sheriff; MICK GREY, Butte County Sheriff; COUNTY OF BUTTE, Defendants-Appellees. No. 99-17188 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 12, 2000 Filed March 16, 2001 Amended Opinion Filed August 31, 2001 [Copyrighted Material Omitted] Larry L. Baumbach, Law Offices of Larry L. Baumbach, Chico, California, for the plaintiff-appellant. Michael R. Deems, Stewart, Humpherys, Burchett & Sandelman, Chico, California, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-97-434-LKK Before: Myron Bright, * Stephen Reinhardt, and Barry G. Silverman, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Silverman AMENDED OPINION REINHARDT, Circuit Judge: 1 Police Officer Greg Rutherford fired a "less lethal" lead-filled "beanbag round" into the face of Richard Leo Deorle, an emotionally disturbed resident of Butte County, California, who was walking at a "steady gait" in his direction. He did so although Deorle…

Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.

AMENDED OPINION

Police Officer Greg Rutherford fired a “less lethal” lead-filled “beanbag round” into the face of Richard Leo Deorle, an emotionally disturbed resident of Butte County, California, who was walking at a “steady gait” in his direction. He did so although Deorle was unarmed, had not attacked or even touched anyone, had generally obeyed the instructions given him by various police officers, and had not committed any serious offense. Rutherford did not warn Deorle that he would be shot if he physically crossed an undisclosed line or order him to halt. Rutherford simply fired at Deorle when he arrived at a spot Rutherford had predetermined. The projectile Rutherford fired removed Deorle’s eye and left lead shot implanted in his skull. We are presented on appeal with two questions: whether the force used was excessive; and, if so, whether Officer Rutherford is nevertheless entitled to qualified immunity because the law was not clearly established or because the officer made an objectively reasonable error in judgment. Both inquiries are a part of the qualified immunity issue on which the district court granted…

dissenting:

The essential facts are not disputed. Plaintiff Richard Deorle was deranged and out of control when Deorle’s wife made her 911 call to the police. When Deorle saw his wife on the telephone calling for help, he told her that they would have to come kill him.

After the first deputy sheriff (Mahon) arrived at the scene, Deorle was observed holding a two-by-six board with nails protruding from the end of it. According to Mrs. Deorle’s taped-recorded statement on the day in question, Deorle “was so angry, that he just started lifting up the porch, you know the board, it has a railing and he lifted up the railing and he was like swinging it” like a baseball bat. At her deposition held three years later, Mrs. Deorle stated that he was “screaming” but not swinging the board around. Either way, the undisputed fact is that Deorle, while screaming and on a rampage, was in possession of a board with protruding nails, and that he finally dropped it when Mahon took his pistol out of his holster.

Mahon was able to get Deorle’s wife and children safely into his police ear. Mrs. Deorle told Mahon that Deorle was depressed, that he had been drinking, that he was in a rage caused by…