Wednesday, May 31, 2023

Estate of Strickland v. Nevada County (9th Cir. - May 31, 2023)

You could definitely begin today's Ninth Circuit opinion the way Judge Bumatay does:

"When someone points a gun at a law enforcement officer, the Constitution “undoubtedly entitles the officer to respond with deadly force.” George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013). But what if the person points a replica gun that the officer believes is real? In this case, we must examine whether it was objectively reasonable for officers to believe a black toy airsoft rifle pointed in their direction presented an immediate threat justifying the use of deadly force. Based on the facts here, we say yes."

Or, perhaps, one could have begun the opinion this way instead:

"We've repeatedly held in multiple qualified immunity cases that there's a genuine issue of material fact that requires resolution by the common sense and experience of twelve jurors as to whether it's reasonable for police officers to shoot and kill someone who's carrying a fake replica weapon. In this case, we must examine whether it was objectively reasonable for police officers to shoot and kill a homeless man whom they knew from prior interactions with him was mentally ill, was carrying an plastic (fake) airsoft rifle with a conspicuous orange tip, who told the officers "It's a BB gun" and pointed to the orange tip, and who smacked the fake rifle with his hand to make a plastic-sounding sound to prove that it was fake. Base on the facts here, we say no."