Deboer

MEMORANDUM *

Plaintiff-Appellant Kent DeBoer appeals the district court’s order granting Defendants-Appellees’ motion for summary judgment. We affirm.

The district court properly granted summary judgment as to DeBoer’s claim that police officers used excessive force in taking him into custody, in violation of 42 U.S.C. § 1983 . The police did not act unreasonably in formulating a plan to seize DeBoer. See Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir.2002). In being dispatched to the house, the officers were told that DeBoer had threatened to harm his parents and himself. When they arrived at the DeBoer home, DeBoer appeared to be assaulting his father. As police investigated, DeBoer threw chairs and a pot of scalding water at the officers and threatened them with knives. Even after his parents were out of the house, the number of officers at the scene was limited and the officers could properly consider the possibility that DeBoer would leave the house and put others at risk. Although it might have been prudent to consult the mental health professionals present at the scene before forcibly entering the house, we cannot conclude that the responsible officers violated…

dissenting.

I cannot agree with the majority that summary judgment should be granted to Defendants-Appellees on DeBoer’s claim of excessive force. Under Billington v. Smith, 292 F.3d 1177 (9th Cir.2002), an officer’s otherwise reasonable defensive use of force may be rendered unreasonable as a matter of law if “an officer intentionally or recklessly provokes a violent response, and the provocation is an independent constitutional violation.” Id. at 1190-91 . Here, the officers committed an independent Fourth Amendment violation by *674 recklessly using unreasonable force in entering the house — where DeBoer was legally residing — with guns drawn, in order to take custody of him, and in doing so, “caused the ‘escalation that led to the shooting’ ... and ‘provoked an armed response,”’ Id. at 1189 (emphasis and citation omitted). It therefore follows that “they [may] be held liable for [the] shooting ... — even though they reasonably shot him at the moment of the shooting.” Id. at 1188 . The contours of this constitutional rule were clearly established in Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir.1994). Any conclusions the officers may have drawn as to the…