There are lots I could say about this en banc opinion. You can read the majority and the dissent in this qualified immunity/excessive force case and see which one you find more persuasive.
But I'll stick to two basic points. Which I'll try to articulate without much elaboration.
(1) The dissenters -- principally, Judges Kozinski and Trott -- both say that it doesn't matter to them one iota how fast the car was going. They say that no reasonable juror could possibly care how fast the car was going because the officer was indisputably trapped inside it and so did what he had to do.
Okay. I understand that you and I might not see the world in invariably the same way. Maybe I have a perspective that's so absurd to you that you'd find me (and my conclusions) patently unreasonable, and the fact that 11 citizens bereft of black robes unanimously agreed with me wouldn't change your mind. I get that.
But, for whatever it's worth, let me tell you my personal perspective.
To me, it absolutely matters how fast the car was going.
Yes, the minivan was weaving in lanes, so I get the officers conducted a traffic stop. And yes, after stopping, the driver was uncooperative, and tried to swallow a baggie of something, so one cop started grabbing and beating the guy through the driver's side window, while the other cop eventually jumped inside the passenger side door and started punching the driver in the head. And, yes, the driver acted improperly, and pushed the stick shift into gear and jammed on the accelerator, causing the vehicle to move.
Yes, that put the officer who entered the car in a tough position. The car was moving. The door had shut. He was inside. He quickly tried shifting the car into neutral or turning off the ignition, but that didn't work. So the officer had to make a call. I get that.
But to me, for what happens next, it matters how fast the car is going. Very much so.
If -- as the officer testified -- the car was going fifty miles per hour, that's one thing. Speeding car, speeding officer, trapped, no way out. I get it.
But if, as everyone admits may in fact be the case, the car had in fact only gone 50 feet, and in fact was only going 3.4 miles per hour, to me, that's an entirely different situation. And even if you're an officer and are "trapped" on the passenger side of a vehicle, to me, it is not reasonable to put a gun six inches from the driver's temple and pull the trigger, killing him.
Judges Trott and Kozinski both write opinions that expressly say that what the officer here did was totally okay even if the car was going 3.4 miles an hour. No need to simply open the door and walk out. No need to try pepper spray, or retry the ignition, or continue to try nonlethal force. To put it the way Judge Kozinski does in his succinct dissent, even if the car was going three miles an hour, "no sane officer in [the officer's] situation would have acted any differently, and no reasonable jury will hold him liable."
With all due respect to Judge Kozinski, we see the world differently. I can't speak with certainty to your former point, having never been a police officer, but I nonetheless think that there are plenty of "sane" officers who would not deliberately kill a man at point blank range if they found themselves in the passenger side of a vehicle traveling at three miles per hour. And, in any event, I can definitely speak to your latter point. If I'm on a jury, and an officer kills a man in these circumstances while going three miles per hour, I may well hold him liable. As may eleven others. You may perhaps call the twelve of us "unreasonable". But with respect, perhaps a little deference to the common man is in order here. Perhaps it is your perspective that is unreasonable. Or perhaps both of our approaches are within the range of reason. One important part of being a judge is recognizing that the Founders were pretty confident that there might well be a divergence in what judges thought and what jurors might think on identical facts. And enshrined in the Constitution the Seventh Amendment as an important constraint on what we should do in situations like that. I think that's pretty important. Not always. But at least where reasonable minds can disagree.
And I understand that you might think that I, and everyone else like me, is unreasonable. All I can say is that I bet the number of such "absurd" conclusions is nontrivial. And sincerely felt. Even by those who might be as approximately as informed and as sophisticated as you are on these topics.
So maybe just give that some thought. Because whether it's three miles per hour or fifty really does matter to people like me. Again: For whatever that's worth.
(2) Second, a doctrinal point. One of my first-year students in Civil Procedure asked me just last week in class why a judge would grant a JML motion -- a "directed verdict" -- if they had previously denied a summary judgment motion. This case is a perfect example. The evidence on a summary judgment motion is limited to what the parties submit. Here, the officer's testimony had real problems, and the moving party's summary judgment papers didn't clear those problems up. The officer said the car was going 50 miles per hour, but also said that the car went 50 feet in five to ten seconds. Those two figures don't add up. As the majority opinion amply demonstrates. Fifty feet in ten seconds is more like three miles per hour.
Now, maybe, in fact, the car went more than 50 feet. There may well be demonstrable evidence to prove this point -- incident reports, photographs, etc. But the moving party didn't introduce any such evidence. It didn't explain the inconsistency. Ergo a reasonable jury could, in fact, conclude, viewing all reasonable inferences in favor of the nonmoving party, that the car was only going around three or so miles an hour. Which may well make a difference.
At trial, this error may well be remedied. There may well -- indeed, probably will -- be photographs and complete reports introduced into evidence. Evidence that may well demonstrate that the car went well over fifty feet. Which would explain the officer's error and, perhaps, lead to a directed verdict.
But that's not the evidence here. When lawyers make mistakes, or don't anticipate problems, you can get results like the one here.
Which is what I essentially told my students. Without a concrete example. Explaining just in general how the evidence on a summary judgment motion might be different than that introduced at trial, and hence lead to different results even though the underlying substantive standard (whether a genuine issue of material fact exists) is identical.
Now I've got a case to use as an example.
P.S. - One tangential point. Unrelated to the merits. Check out footnote 10 of Judge Trott's dissent (at page 44). I cannot tell you how thrilled I am to see that unmarked sarcasm has now made its way to a published Ninth Circuit opinion. Judge Trott doesn't even add *Sarcasm Alert* to the footnote. He simply says what he says and let's the reader decide if he's kidding or not. Totally awesome.