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

Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN

ORDER AND AMENDED OPINION

ORDER

The majority opinion filed March 16, 2001 [ 263 F.3d 1106 ], as amended August 31, 2001 is further amended as follows:

2) Replace the paragraph beginning at the bottom of slip opinion p. 11976 with:

Judge Reinhardt has voted to deny the Petition for Rehearing En Banc, and Judge Bright has so recommended. Judge Silverman has voted to grant the Petition for Rehearing En Banc.

The full court was advised of the Petition for Rehearing En Banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R.App. P. 35.

The Petition for Rehearing En Banc is therefore denied.

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…

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 car. Mrs. Deorle told Mahon that Deorle was de *1287 pressed, that he had been drinking, that he was in a rage…

272 F.3d 1272 (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 Second Amended Opinion Filed November 19, 2001 NOTE: SEE OPINIONS AT 242 F.3d 1119 , AND 263 F.3d 1106 .[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: Bright, * Reinhardt, and Silverman, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Silverman ORDER AND AMENDED OPINION REINHARDT, Circuit Judge: ORDER 1 The majority opinion filed March 16, 2001, as amended August 31, 2001 is further amended as follows: 2 1) On slip opinion p. 11965, in the paragraph following…