Darcy Harper v. City of Merced

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2020
• Docket: 20-15120
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARCY HARPER, No. 20-15120

Plaintiff-Appellant, D.C. No. 1:18-cv-00562-LJO-SKO v.

CITY OF MERCED; NATHANIEL MEMORANDUM* MCKINNON, Merced Police Officer,

Defendants-Appellees,

and

COUNTY OF MERCED,

Defendant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted November 19, 2020** San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Darcy Harper appeals the district court’s grant of summary judgment to

Officer Nathaniel McKinnon on Harper’s claim of excessive force under 42 U.S.C.

§ 1983.1 We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see

Monzon v. City of Murrieta, 966 F.3d 946, 950 (9th Cir. 2020), we affirm.

An officer who violates the plaintiff’s constitutional rights will incur liability

under § 1983 only if “the right in question was clearly established at the time of the

officer’s actions, such that any reasonably well-trained officer would have known

that his conduct was unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th

Cir. 2020). “Use of excessive force is an area of the law ‘in which the result

depends very much on the facts of each case,’ and thus police officers are entitled

to qualified immunity unless existing precedent ‘squarely governs’ the specific

facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)

(quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)).

Harper acknowledges that “there was no precedential case with the precise

facts of [his] case” at the time of his arrest. “Precedent involving similar facts

can . . . provide an officer notice that a specific use of force is unlawful,” id., but it

1 The district court also granted summary judgment to defendants on Harper’s claim under the Americans with Disabilities Act, 42 U.S.C. § 12132, and dismissed Harper’s municipal liability claim against the City of Merced. Harper forfeited any challenge to these rulings by not addressing them in his brief. See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).

2 “must have placed the statutory or constitutional question beyond debate,” id. at

1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). Thus, we

must define clearly established law with reference to the particular facts of a given

case rather than “at a high level of generality.” White, 137 S. Ct. at 552 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

None of the cases on which Harper relies are sufficiently similar to the facts

here to place the constitutionality of McKinnon’s use of force beyond debate. In

Deorle v. Rutherford, the plaintiff was surrounded and observed by 13 officers for

30–40 minutes, “was unarmed, had not attacked or even touched anyone, had

generally obeyed the instructions given him by various police officers, and had not

committed any serious offense.” 272 F.3d 1272, 1275, 1276 (9th Cir. 2001).

Similarly, in Bryan v. MacPherson, the plaintiff complied with the officer’s

commands to step out of his vehicle, made no moves toward the officer, and was

standing 20–25 feet from the officer, facing away, when the officer tased him

without warning. 630 F.3d 805, 822 (9th Cir. 2010).

The undisputed facts here show that Harper was not surrounded by officers

or in a controlled setting, was fleeing in the dark across treacherous terrain, was

pursued by a single police officer (with a second officer in the vicinity), ignored all

of the officer’s commands, and had been “swinging a stick” at staff at the hospital

from which he escaped. These “tense, uncertain, and rapidly evolving”

3 circumstances “forced [McKinnon] to make split-second judgments,” which we

must consider when assessing reasonableness. Graham v. Connor, 490 U.S. 386,

396–97 (1989). In the absence of a factually similar case finding a constitutional

violation, we cannot say that McKinnon’s use of force was clearly unreasonable at

the time.2

AFFIRMED.

2 Because we conclude that the rights in question were not clearly established, we exercise our discretion not to determine whether McKinnon violated Harper’s Fourth Amendment rights. See Orn, 949 F.3d at 1174.