Jim Maxwell v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIM MAXWELL, individually and as  guardian of Trevor Allen Bruce and Kelton Tanner Bruce; KAY MAXWELL, individually and as guardian of Trevor Allen Bruce and Kelton Tanner Bruce; JIM MAXWELL, as executor of the Estate of Kristen Marie Maxwell- Bruce, Plaintiffs-Appellants, No. 10-56671 v. COUNTY OF SAN DIEGO; ALPINE FIRE  D.C. No. 3:07-cv-02385-

PROTECTION DISTRICT; VIEJAS FIRE JAH-WMC

DEPARTMENT; LOWELL BRYAN

“SAM” BRUCE, Deputy; BRADLEY

AVI; JEREMY FELBER; GREGORY

REYNOLDS; ANTHONY SALAZAR; M.

KNOBBE; JEFFREY JACKSON; WARREN

VOTH; GARY KNEESHAW; WILLIAM

REILLY; L. RODRIGUEZ; BRIAN

BOGGELN; COLBY ROSS; CHIP

HOWELL; MICHAEL MEAD; DOES,

Defendants-Appellees. 

11179 11180 MAXWELL v. COUNTY OF SAN DIEGO

JIM MAXWELL, individually and as  guardian of Trevor Allen Bruce and Kelton Tanner Bruce; KAY MAXWELL, individually and as guardian of Trevor Allen Bruce and Kelton Tanner Bruce; JIM MAXWELL, as executor of the Estate of Kristen Marie Maxwell- Bruce, Plaintiffs-Appellees, v. No. 10-56706

COUNTY OF SAN DIEGO; ALPINE FIRE

D.C. No.

PROTECTION…

Opinion by Judge FARRIS; Dissent by Judge IKUTA.

*945 OPINION

These consolidated appeals concern the aftermath of the shooting of Kristin Marie Maxwell-Bruce by her husband, Lowell Bruce.

I

Around 10:50 PM on December 14, 2006, Lowell, a San Diego County Sheriffs Department deputy, shot Kristin in the jaw in the couple’s bedroom. 1 At the time, Lowell and Kristin lived in the home of Kristin’s parents, Jim and Kay Maxwell, along with Lowell and Kristin’s children and Kay’s father, Fred Stevens. Kristin was able to call 911 for help. Lowell also called 911 and told the 911 dispatcher that he had shot Kristin.

Deputy Jeffrey Jackson of the Sheriffs Department was dispatched to the scene and arrived at about 10:53 PM. Jackson, along with Bill Davis, a neighbor who happens to be a San Diego Police Department sergeant and who was apparently notified of the shooting via telephone by Jim, went into the Maxwell house. Jackson knew before he went into the house that the suspect was a fellow deputy sheriff. When Jackson arrived, he saw Kristin sitting in a chair, still talking to the 911 dispatcher. Jackson walked past Kristin and determined that Lowell was not a threat. Jackson took…

dissenting:

The facts of this case are undeniably tragic. But despite the ill-fated sequence of events, the Sheriffs deputies who secured the crime scene did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), by delaying the ambulance’s departure for a few minutes, if at all, or detaining the Maxwells while they obtained and executed a search warrant for the Maxwells’ home. Accordingly, qualified immunity protects all the deputies from suit for civil damages. See id.

In reaching the opposite conclusion, the majority draws strained analogies to cases whose facts are not “even roughly comparable to those present in this case,” Ryburn v. Huff, — U.S. -, 132 S.Ct. 987, 990 , 181 L.Ed.2d 966 (2012), and fails to heed the Supreme Court’s instruction “not to define clearly established law at a high level of generality,” Ashcroft v. Al-Kidd, — U.S. -, 131 S.Ct. 2074, 2084 , 179 L.Ed.2d 1149 (2011). I therefore join Part IV of the majority opinion but dissent with respect to Part III.

I

In holding that the Sheriffs deputies were not entitled…