Jim Maxwell v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIM MAXWELL, individually and as No. 10-56671 guardian of Trevor Allen Bruce and Kelton Tanner Bruce; KAY D.C. No. MAXWELL, individually and as 3:07-cv-02385- guardian of Trevor Allen Bruce and JAH-WMC Kelton Tanner Bruce; JIM MAXWELL, as executor of the Estate of Kristin Marie Maxwell-Bruce, Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO ; ALPINE FIRE

PROTECTION DISTRICT ; VIEJAS FIRE

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. MAXWELL V . COUNTY OF SAN DIEGO

JIM MAXWELL, individually and as No. 10-56706 guardian of Trevor Allen Bruce and Kelton Tanner Bruce; KAY D.C. No. MAXWELL, individually and as 3:07-cv-02385- guardian of Trevor Allen Bruce and JAH-WMC Kelton Tanner Bruce; JIM MAXWELL, as executor of the Estate of Kristin Marie Maxwell-Bruce, …

Opinion by Judge FARRIS; Dissent by Judge IKUTA.

ORDER

The panel has voted to deny the petition for rehearing in case number 10-56671; Judges Clifton and Ikuta vote to deny the petition for rehearing en banc, and Judge Farris so recommends.

Judges Farris and Clifton vote to deny the petition for rehearing in case number 10-56706; Judge Clifton votes to deny the petition for rehearing en banc, and Judge Farris so recommends. Judge Ikuta votes to grant the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. Fed. R.App. P. 35.

The petitions for panel rehearing and the petitions for rehearing en banc are DENIED.

ORDER

The Opinion and Dissent filed September 13, 2012, slip opinion number 11179, and appearing at 697 F.3d 941 , is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

OPINION

These associated 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…

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,” Rybum 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 to…