I agree with the Ninth Circuit that it's not improper for a district court to demand that the parties brief qualified immunity even though the defendant hasn't elected to file a motion on the issue. Though it's certainly unusual. Typically, we let the parties take the lead on what motions and defenses they elect to advance.
But I do wonder about the substantive content of the majority opinion, to which Judge Pratt (sitting by designation from Iowa) dissents. Yes, the person who was shot was fleeing police officers, but he wasn't even suspected of a serious crime. Yes, the person who was shot also had a gun on him, and that's incredibly serious. When a police officer's chasing a person and that person has a gun, you can see why the police might potentially shoot him, in (at least perceived) self-defense.
But here's the thing. As the victim was running, he grabbed at his waistband, pulled the gun from his pants pocket, and threw the gun away. Two to four seconds later, the police officer shot the victim in the back and in his right arm.
The majority says that even "taking th[ose] facts and allegations in the light most
favorable to [the victim], [the police officer's] use of deadly force was
objectively reasonable." The dissent disagrees.
If the police officer shot the guy the instant he was throwing the gun, I could see how one might find that reasonable (if mistaken). Maybe the officer misperceived the guy starting to throw the gun as an attempt to turn and shoot.
But when a guy on the run throws something away, and then four seconds later the officer shoots him, that seems significant to me. Four seconds is a long time. One. Two. Three. Four. It seems strange to say that after a guy throws a gun away, after it's crystal clear there are no shots fired, and after the guy simply keeps running after throwing a gun away, an officer can wait four seconds and then shoot the guy, no reasonable person in the universe could say anything other than "Yeah, that seems right to me. Reasonable."
Admittedly, it's the heat of the moment. Hindsight's 20/20.
But shooting a guy 50 seconds after he throws a gun away seems totally wrong. Ditto for 20 seconds. Four seconds? What's the right line? I'm not exactly sure.
But I wonder if a reasonable person couldn't conclude that the line is more like 1 or 2 seconds. One one thousand, two one thousand. Enough time to perceive that, yeah, the guy's not actually shooting at you, so don't gun him down. And that four full seconds is too long.
So I'd definitely get granting summary judgment if the guy was shot a second or two later. But four seconds, to me, is in a much less clear gray area. Perhaps sufficiently gray that reasonable minds may in fact disagree, and in which I'm not completely certain that my own belief on the subject was conclusively the correct one.
