I can see where Judge Fisher (joined by Judge Noonan) is coming from. What the police did here was almost indisputably moronic. They were called by a social worker to transport a woman in her mid-50s who was severely mentally disabled and in a group home for a 72-hour psychiatric hold. When the officers entered this woman's room (without a warrant), the woman reacted violently, grabbed a knife, and forced the officers to retreat to the hallway. At which point the door to the woman's room closed (it's unclear from the opinion if the officers did that or the woman did). And the officers called for backup.
So far, that seems exactly the right thing to do. Deescalate the situation. Get backup. Maybe get an expert to calm her down. Maybe wait her out (there's no means of escape; she's stuck in her room). Maybe get some shields or pepper spray or the like. Worst that happens is that you get a lot of cops and some paramedics and tase her.
However, the officers then decided (1) not to wait for the backup they'd called, (2) to open the door, reenter the room and confront the knife-wielding woman, and then (3) to shoot her five or six times. Nearly killing her.
Remember: The sole reason the police were called was to transport this woman for a 72-hour hold. A woman who they decided to shoot.
Not an awesome decision. At all.
The majority holds that the officers' conduct may potentially have violated the woman's rights. Judge Fisher holds that while the initial entry was proper, the officers' decision to reenter the room may well have violated the Fourth Amendment as a result of their use of excessive force.
Judge Graber can't get on board for this. She partially dissents. Agreeing with the rest of the opinion (on some subsidiary claims), but dissenting from the Fourth Amendment holding.
I have little doubt -- exceptionally little -- where the Supreme Court would come out on this. And if Judge Graber can't agree with the majority's excessive force analysis, I think that's a pretty good indication of where a majority of the Ninth Circuit probably would come out.
Which means that even though this is a very fact-specific case, there's a pretty good chance of this opinion not persisting. Rehearing. Rehearing en banc. Certiorari. More likely than not, one of those three (if not more than one) is where this one's headed.
