3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
6 MARCUS RONALD SWALLOW, Case No. 3:23-CV-00227-ART-CLB 7 Plaintiff, v. 8 ORDER GRANTING SUMMARY MIGUEL PANTELAKIS, et al., JUDGMENT 9 Defendants. 10 11 12 Pro se Plaintiff Marcus Swallow (“Mr. Swallow,” or “Plaintiff”), an inmate in 13 the custody of the Nevada Department of Corrections (“NDOC”), brings this 42 14 U.S.C. § 1983 action against Wendover Police Department Officers Miguel 15 Pantelakis, Matthew Ulm, and Luis Perez (collectively referred to as 16 “Defendants”). Plaintiff claims that Defendants used excessive force in violation 17 of his Fourth Amendment rights when they fired upon him during the course of 18 an arrest. Defendants have brought a motion for summary judgment, arguing 19 that Plaintiff’s claims are time-barred, that they did not violate his constitutional 20 rights, and that they are entitled to qualified immunity. (ECF No. 54). Plaintiff 21 has not filed a substantive response to Defendants’ motion, although he 22 requested and was granted an extension of time to do so. (ECF No. 61). 23 The Court finds that while Plaintiff’s claims are not time-barred, 24 Defendants are entitled to qualified immunity. The Court therefore grants 25 Defendants’ motion for summary judgment.
26 27 28 1 I. BACKGROUND 2 A. Factual Background 3 The relevant facts in this case are undisputed unless indicated. This 4 incident took place in Clearview Mobile Home Park, in West Wendover, Nevada in 5 the early hours of the morning on March 12, 2020. While Mr. Swallow was visiting 6 a residence that he describes as a “trap house,” he smoked and injected 7 methamphetamine. (ECF 54-3). Fifteen to thirty minutes later, Mr. Swallow left 8 the residence. (Id.) He remotely started a Dodge Ram 1500 parked in the 9 driveway, and got in. (Id.) The truck stood with a residence in front of it, and a 10 cul-de-sac to its rear. (Id.) In the cul-de-sac, behind the driveway, were police 11 officers on foot with their marked cars and their emergency lights on. (ECF No. 12 54). Mr. Swallow was unarmed and there were no arms in the truck. (ECF Nos. 13 7, 54). 14 Defendants state that they arrived on the scene after receiving a report that 15 drugs were being delivered to that residence in a Chrysler 300 sedan. (ECF No. 16 54-2). Mr. Swallow slowly reversed the truck a few feet. (ECF No. 54-1). From 17 behind the truck, the officers ordered Mr. Swallow to “stop your car.” (Id.) Mr. 18 Swallow stopped the truck and a passenger exited the vehicle. (Id.) Mr. Swallow 19 did not. (Id.) The officers continued ordering Mr. Swallow to “get out of the car.” 20 (Id.) Mr. Swallow moved the truck forward a few feet, and the officers shouted, 21 “stop the car” and “get out of the vehicle”. (Id.) 22 Mr. Swallow revved the engine and began reversing out of the driveway. 23 The video of the incident shows that when Mr. Swallow began to pass between 24 two police cruisers, officers opened fire. (Id.) Defendants claim that Mr. Swallow 25 reversed the truck “directly at the officers and their marked police vehicles.” (ECF 26 No. 54). Mr. Swallow testified in his deposition that he drove towards the source 27 of the gunfire, and that bullets hit the sides and the back of the truck (ECF No. 28 54-3). The body cam footage shows officers somewhat off to the side of the path 1 of the reversing truck, diagonal to its direction of travel. (ECF No. 54-1). Mr. 2 Swallow did not hit any officers or police cruisers. (Id.). The officers continued 3 shooting for approximately eight seconds, and stopped after Mr. Swallow brought 4 the truck to a stop on a lawn on the opposite side of the cul-d-sac. (Id.) They 5 ordered him to “get out of the vehicle,” “let me see your hands,” and “show me 6 your hands.” (Id.) The engine of the truck started again, after which officers 7 ordered “do not move” and “police, get down.” (Id.) 8 After several moments, Mr. Swallow began driving away from the officers. 9 (ECF No. 54-1). As he retreated down the street, the officers resumed shooting at 10 him from behind, continuing their fire for a period of about four or five seconds. 11 (Id.) Mr. Swallow crashed into a nearby home. (Id.) The officers then ran over and 12 arrested him. (Id.) Although Defendants state in their motion for summary 13 judgement that Mr. Swallow “was not struck by any of the rounds” and that his 14 only injuries resulted from the crash, Mr. Swallow testified in his deposition that 15 he had a mark on his arm from where a bullet grazed him. (ECF Nos. 54, 54-3). 16 B. Procedural History 17 On May 31, 2023, Plaintiff filed a complaint in this Court. (ECF No. 1) After 18 screening his First Amended Complaint (ECF No. 7), the Court allowed Mr. 19 Swallow to proceed on a claim of excessive force in violation of the Fourth 20 Amendment against Officers Pantelakis, Ulm, and Perez. (ECF No. 8). 21 On September 17, 2024, Officers Pantelakis, Ulm, and Perez filed a motion 22 for summary judgment. (ECF No. 54). Mr. Swallow timely moved for an extension 23 of time to oppose Defendants’ motion. (ECF No. 58). The Court later granted Mr. 24 Swallow’s motion, extending his opposition deadline to August 13, 2025, but he 25 did not file a response. (ECF No. 61). As a result, Defendants’ motion for summary 26 judgment is unopposed. 27 28 1 II. LEGAL STANDARD 2 A “court shall grant summary judgment [to a moving party] if the movant 3 shows that there is no genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 5 genuine only if there is sufficient evidence for a reasonable jury to find for the 6 nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 7 (1986). At the summary judgment stage, evidence must be viewed in the light 8 most favorable to the nonmoving party and all justifiable inferences are drawn in 9 the nonmovant’s favor. See id. at 255. Nevertheless, when a defendant moves for 10 summary judgment based on a claim for which the plaintiff bears the burden of 11 proof, the defendant need only point to the plaintiff's failure “to make a showing 12 sufficient to establish the existence of an element essential to [the plaintiff's] 13 case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). And when the facts at 14 issue are unambiguously captured in a video recording, courts view the “facts in 15 the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81. 16 “[A] motion for summary judgment may not be granted based on a failure 17 to file an opposition to the motion ....” Heinemann v. Satterberg, 731 F.3d 914, 18 916 (9th Cir. 2013). Per the advisory committee notes to Rule 56, district courts 19 are prohibited from granting “summary judgment ‘by default even if there is a 20 complete failure to respond to the motion.’” Id. at 917 (citing Fed. R. Civ. P. 56 21 Advisory Committee Notes (2010)). “If there is a failure to respond, the Rule 22 ‘authorizes the court to consider a fact as undisputed.’” Id. (quoting Fed. R. Civ. 23 P. 56 Advisory Committee Notes (2010)). 24 A pro se litigant’s motions and pleadings may be considered as evidence to 25 meet the non-party's burden to the extent that: (1) the contents of the document 26 are based on personal knowledge, (2) they set forth facts that would be admissible 27 into evidence, and (3) the litigant attested under penalty of perjury that the facts 28 were true and correct. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Such 1 documents may be considered as evidence in opposition to summary judgement 2 even where a pro se litigant did not respond with anything more than a motion to 3 extend time. See McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (citing 4 Celotex, 477 U.S. at 324). 5 III. DISCUSSION 6 Defendants argue in their motion for summary judgment that Mr. 7 Swallow’s complaint is untimely. Although Mr. Swallow did not oppose the motion 8 for summary judgement, he earlier argued that he is entitled to equitable tolling. 9 (ECF No. 25). The Court deferred its decision. (ECF No. 32). Defendants further 10 argue that they are entitled to qualified immunity. (ECF No. 34). The Court 11 addresses each of these defenses in turn. 12 A. Statute of Limitations 13 Federal courts apply state statutes of limitations to § 1983 claims, Lockett 14 v. County of Los Angeles, 977 F.3d 737, 740 (9th Cir. 2020), and Nevada’s statute 15 of limitations for claims such as Mr. Swallow’s is two years. NRS 11.190(4)(e); see 16 also Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014) (“in the 17 absence of a federal provision for § 1983 actions, the analogous [Nevada] state 18 statute of limitations for personal injury claims applies.”); Perrez v. Seevers, 869 19 F.2d 425 (9th Cir. 1989). Mr. Swallow’s alleged injury occurred on March 12, 20 2020. Accounting for the fact that March 12, 2022 fell on a Saturday, NRS 21 11.190(4)(e) bars any claim brought on or after March 14, 2022. Fed. R. Civ. P. 22 6(a). Since Mr. Swallow filed his complaint with this court on May 30, 2023, his 23 claim was 443 days late. It will only survive dismissal if tolling applies. 24 1. Administrative Tolling 25 Mr. Swallow is entitled to a period of administrative tolling due to Governor 26 Steve Sisolak’s Emergency Directive 009, as amended by Directive 026. Monarch 27 Casino and Resort v. Second Jud. Dist. Ct, No. 89535, 2025 WL 2426704, at *1 28 (Nev. Aug. 21, 2025); cf. Dignity Health v. Eighth Jud. Dist. Ct. ex rel. Cnty. of 1 Clark, 550 P.3d 341, 343 (2024). Directive 009 was issued on April 1, 2020, in 2 response to the Covid-19 pandemic. Emergency Directive 009 (Revised) (April 1, 3 2020). In Section 2, Governor Sisolak ordered that “[a]ny specific time limit set 4 by state statute… for the commencement of any legal action is hereby tolled from 5 the date of this Directive until 30 days from the date the state of emergency … is 6 terminated.” Id. § 2. In the subsequent Directive 026, Governor Sisolak ordered 7 that “[a]ll time tolled by Section 2 [of Directive 009] shall recommence effective 8 July 31, 2020 at 11:59 pm.” Emergency Directive 026 (June 29, 2020) § 5. The 9 Directives therefore tolled the applicable state statute of limitations from April 1, 10 2020 to August 1, 2020, a period of 122 days. Dignity Health, 550 P.3d at 344. 11 2. Equitable Tolling 12 After accounting for the period of administrative tolling, Mr. Swallow’s 13 complaint is still late. The remaining 321 days of delay must still be tolled if his 14 claim is to survive. 15 In the context of a § 1983 claim, federal courts apply the forum state's 16 tolling doctrines. See Hardin v. Straub, 490 U.S. 536, 543–44 (1989); Trimble v. 17 City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). To equitably toll the statute 18 of limitations in NRS 11.190(4)(e), plaintiffs must demonstrate that, despite their 19 diligence, extraordinary circumstances beyond their control prevented them from 20 filing within the limitations period. Fausto v. Sanchez-Flores, 482 P.3d 677, 681 21 (2021). The focus of equitable tolling is “whether there was excusable delay by 22 the plaintiff.” Id. (citing City of N. Las Vegas v. State, Local Government Employee- 23 Management Relations Board, 261 P.3d 1071, 1077 (2011)) (emphasis in original). 24 Where relevant to the context of the case, the Nevada Supreme Court also looks 25 to nonexclusive factors such as the claimant's knowledge of the relevant facts, 26 “the claimant's reliance on authoritative statements ... that misled the claimant 27 about the nature of the claimant's rights”, any deception or false assurances on 28 the part of party against whom the claim is made, the prejudice to the defendant 1 that would actually result from delay during the time the limitations period is 2 tolled; and “any other equitable considerations appropriate in the particular 3 case.” Id. (citing Copeland v. Desert Inn Hotel, 673 P.2d 490, 492 (1983)). 4 There are sufficient facts to show that extraordinary circumstances 5 prevented Mr. Swallow from gathering information needed to file his complaint. 6 Mr. Swallow spent the approximately sixteen-month period from March 12, 2020 7 to about June or July 2021 in the hospital and in Utah state prison. (ECF Nos. 8 25, 54-3). Upon his detention in prison, Mr. Swallow found that due to the 9 pandemic, the law library was closed, and that he did not have access to the 10 packet that he needed to file a civil rights complaint, which included the “M 11 populous”—possibly referring to an application to proceed in forma pauperis. (Id.) 12 Cf. Asbury v. State, 538 P.3d 445 (Nev. App. 2023) (where a prisoner claimed that 13 the prison law library contained the form he needed to file his habeas petition, 14 and that it was only open for one week before the statutory deadline, he may have 15 alleged facts sufficient to show that official interference made compliance with 16 the statutory deadline impracticable.) Nor did he have the address of the court 17 where he needed to file the complaint. (ECF No. 54-3). It was not until July 2021, 18 when Mr. Swallow was extradited to the Elko County Jail, that he had access to 19 a law library for the first time since his arrest. (Id.) 20 There are also sufficient facts in the record to show that despite the 21 extraordinary circumstances Mr. Swallow diligently pursued this action by 22 attempting to gather needed factual and legal information. While detained in Utah 23 for sixteen months without law library access, Mr. Swallow corresponded with 24 friends and his sister, and had hopes of reaching the police and the prosecution 25 through them. (Id.) After Mr. Swallow obtained the name and the contact 26 information of the prosecutor, he wrote multiple letters to him to try to get 27 necessary facts such as the names of the police officers involved in the shooting 28 but received no reply. (ECF No. 25.) During this same period, Mr. Swallow 1 attempted to reach the courts, but they were shut down due to Covid-19. (ECF 2 No. 54-3). Despite his efforts, Mr. Swallow lacked information on how to file a 3 civil rights complaint, where to file it, the names of the officers involved, the 4 address where the shooting and arrest took place, and the date. (Id.) It was not 5 until June or July 2021 that Mr. Swallow finally received the names of the officers 6 who shot at him and identified, with help from counsel, the location of the arrest. 7 (Id.) Mr. Swallow believed that if he filed before his criminal case concluded, his 8 civil rights case would be “stayed until the criminal case [was] completed.” (ECF 9 No. 17.) The conclusion of his criminal case, he says, was delayed due to the 10 pandemic until February 2023, nearly three years after the incident. (Id.) Though 11 Mr. Swallow could have filed sooner, he diligently and promptly filed after his 12 state proceedings concluded, on May 30, 2023, while incarcerated in the 13 Northern Nevada Correctional Center. (ECF No. 1). 14 Viewing the record in the light most favorable to Mr. Swallow, the Court 15 finds that a reasonable jury could conclude that Mr. Swallow demonstrated 16 diligence in pursuing this action despite the extraordinary circumstances he 17 faced of hospitalization and imprisonment during the Covid-19 pandemic. Mr. 18 Swallow began attempting to prepare his claim during a period of pandemic 19 restrictions that were “unique” in recent world history and were especially severe 20 in prisons. Diaz v. State, 519 P.3d 505 (Nev. App. 2022) (quoting United States v. 21 Olsen, 995 F.3d 683, 693 (9th Cir. 2021)). Due to his hospitalization and the 22 pandemic, he lacked access to the law library and the forms needed to file a civil 23 rights complaint for a sixteenth month period. Defendants have not articulated a 24 particular prejudice that would result from allowing a late filing. At this stage in 25 the proceedings, the Court does not necessarily decide that Mr. Swallow has 26 shown that equitable tolling is warranted, but only that a reasonable jury could 27 find so under the most charitable version of the facts. Although he filed after the 28 1 limitations period, his claim is not time-barred for the purposes of summary 2 judgment. 3 B. Qualified Immunity and Excessive Force 4 In their motion for summary judgment, Defendants argue that they did not 5 violate Mr. Swallow’s constitutional rights and are entitled to qualified immunity. 6 (ECF No. 54). 7 Qualified immunity is not merely an immunity from liability, but also an 8 immunity from suit. Hunter v. Bryant, 502 U.S. 224, 227-28 (1991); Sinaloa Lake 9 Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1098–99 (9th Cir. 1995). The 10 doctrine of qualified immunity balances two important interests: “the need to hold 11 public officials accountable when they exercise power irresponsibly” against “the 12 need to shield officials from harassment, distraction, and liability when they 13 perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). 14 The qualified immunity defense allows for mistaken judgments and protects “all 15 but the plainly incompetent or those who knowingly violate the law.” Id. In so 16 doing, it protects public officials “‘from undue interference with their duties and 17 from potentially disabling threats of liability.’” Elder v. Holloway, 510 U.S. 510, 18 514 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). 19 The Supreme Court has set forth a two-part analysis for resolving 20 government officials’ qualified immunity claims. Saucier v. Katz, 533 U.S. 194, 21 201 (2001). Under the Saucier analysis, “[q]ualified immunity protects 22 government officials from liability under § 1983 unless (1) they violated a federal 23 statutory or constitutional right, and (2) the unlawfulness of their conduct was 24 clearly established at the time.” Cuevas v. City of Tulare, 107 F.4th 894, 898 (9th 25 Cir. 2024) (internal quotation marks and citations omitted). In the first step of 26 the process, the court considers whether the facts “[t]aken in the light most 27 favorable to the party asserting the injury . . . show [that] the [defendant’s] 28 conduct violated a constitutional right[.]” Saucier, 533 U.S. at 201. In the second, 1 the court determines whether the right was clearly established at the time of the 2 alleged violation. Id. A right is clearly established if, at the time of the challenged 3 conduct, “every reasonable official would have understood that what he [was] 4 doing violate[d] that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citations 5 and quotations omitted). “This accommodation for reasonable error exists 6 because ‘officials should not err always on the side of caution’ because they fear 7 being sued.” Hunter, 502 U.S. at 229. 8 1. Plaintiff’s Excessive Force Claim 9 Relying on their expert’s testimony, the body-worn camera videos, and Mr. 10 Swallow’s deposition, Defendants contend that their use of lethal force was 11 reasonable under the circumstances. Although Mr. Swallow did not oppose the 12 motion, the court considers Mr. Swallow’s previously-submitted evidence and the 13 Defendants’ evidence in the light most favorable to him as the non-moving party. 14 See McElyea, 833 F.2d at 198; Anderson, 477 U.S. at 255. 15 a. Standard 16 Courts examine the lawfulness of force used during an arrest under the 17 Fourth Amendment’s prohibition on unreasonable seizures. Graham v. Connor, 18 490 U.S. 386 (1989). “Under the Fourth Amendment, officers may only use such 19 force as is ‘objectively reasonable’ under the circumstances.” Jackson v. City of 20 Bremerton, 268 F.3d 646, 651 (9th Cir.2001) (citing Graham, 490 U.S. at 397). 21 Determining whether a particular use of force is reasonable requires a factfinder 22 to balance “the nature and quality of the intrusion on the individual’s Fourth 23 Amendment interests against the countervailing governmental interests at 24 stake.” Graham, 490 U.S. at 396 (internal quotation marks omitted). The 25 “reasonableness” of a particular use of force must be “judged from the perspective 26 of a reasonable officer on the scene, rather than with the 20/20 vision of 27 hindsight.” Id. 28 1 In cases involving the use of deadly force, the Ninth Circuit applies a “more 2 definitive rule”: an officer may only use deadly force if they have “probable cause 3 to believe that the suspect poses a threat of serious physical harm, either to the 4 officer or to others.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) 5 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). A suspect may pose a threat 6 of serious physical harm “if there is probable cause to believe that he has 7 committed a crime involving the infliction or threatened infliction of serious 8 physical harm, or if the suspect threatens the officer or others with a weapon 9 capable of inflicting such harm.” Garner, 471 U.S. at 11 (internal citation 10 omitted). When it comes to the government’s interest, courts generally examine 11 factors such as, but not limited to: (1) the severity of the crime; (2) whether the 12 suspect posed an immediate threat to the safety of the officers or others; and (3) 13 whether the suspect actively resisted arrest or attempted to evade arrest by flight. 14 Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (citing Graham, 490 U.S. 15 at 396). 16 Use of lethal force is generally unreasonable when a suspect is in a slow- 17 moving vehicle that presents officers with an avoidable risk of harm. For example, 18 where the vehicle is moving so slowly that officers could easily step out of the 19 way, the Fourth Amendment may protect the driver against the use of lethal force. 20 Villanueva v. California, 986 F.3d 1158, 1170 (9th Cir. 2021) (citing Orn, 949 F.3d 21 at 1174-75). Or, where a vehicle is moving away from an officer, and an officer 22 fires into its side, that officer may lack an objectively reasonable basis for claiming 23 that he did so out of fear for his own safety. Id. at 1175. Nevertheless, officers 24 may reasonably consider themselves at risk of being struck by a stopped or slow- 25 moving vehicle “when the driver was trying to evade arrest in an aggressive 26 manner involving attempted or actual acceleration of the vehicle.” See Monzon v. 27 City of Murrieta, 978 F.3d 1150, 1161 (9th Cir. 2020); Wilkinson v. Torres, 610 28 F.3d 546 (9th Cir. 2010) (lethal force was reasonable where a person whose car 1 was stuck in the mud was attempting to accelerate out of the mud, and where an 2 officer reasonably feared that his colleague had already been struck); Williams v. 3 City of Sparks, 112 F.4th 635, 645 (9th Cir. 2024) (lethal force was reasonable 4 against a driver pinned between police cruisers and attempting to accelerate out 5 of the pin). 6 b. The Record 7 Turning to the record, several unknowns in the record preclude summary 8 judgment. While it is undisputed that officers used deadly force against Mr. 9 Swallow, the facts relevant to the government’s interests in subduing him are 10 more complex. 11 First, some facts of the encounter are clear. Police encountered Mr. Swallow 12 as part of an investigation into the sale of drugs, a serious but not inherently 13 violent crime. (ECF No. 54-2). See Graham, 490 U.S. at 396. Mr. Swallow, 14 emerging from a house, got into a truck that was parked in a driveway. Before he 15 began driving, police and police cruisers were arrayed behind him, and a fence 16 and a residence were in front. Mr. Swallow revved his engine and moved the truck 17 forward and back a few feet. Mr. Swallow did not lead the police on a high-speed 18 chase, and his truck was not stuck and threatening to break free in a sudden 19 and unpredictable burst of speed. Cf. Williams, 112 F.4th. He reversed out of the 20 driveway with officers on foot generally to his rear. Mr. Swallow stopped on 21 someone’s lawn, turned, and drove away from the officers. As he was driving 22 away, officers resumed firing and continued for about four or five seconds. (ECF 23 No. 54-1). While Defendants do not address the second volley of shots in their 24 motion for summary judgment, and indeed suggest that it never happened, (ECF 25 No. 54) a reasonable jury would have to find that the video evidence shows that 26 they fired at Mr. Swallow from the rear while he retreated. Regardless of whether 27 he knew he was fleeing police or not, Mr. Swallow did flee, and his flight ended 28 when he crashed into a house. (ECF No. 54-1). See Graham, 490 U.S. at 396. 1 Next, some crucial facts are either in dispute or otherwise unclear. The 2 gaps are particularly relevant to evaluating whether Mr. Swallow “posed an 3 immediate threat to the safety of the officers or others.” Id. Neither party claims 4 to know Mr. Swallow’s precise speed or acceleration, which has been important 5 in similar decisions. Contrast Villanueva, 986 F.3d at 1170 (denying qualified 6 immunity for officers who shot a driver who was moving at 5 miles per hour or 7 slower) with Monzon, 978 F.3d at 1161 (granting qualified immunity to officers 8 who shot a driver who accelerated from a standstill to 17.4 miles per hour in 9 fewer than five seconds). Defendant’s expert says that the truck was “rapidly 10 accelerating” towards the officers. (ECF No. 54-2). In contrast, the body-worn 11 camera video shows that Mr. Swallow was moving at a low speed when the officers 12 opened fire. It is not clear when he began accelerating or exactly how much, 13 although after the officers opened fire, he started moving at a higher rate of speed. 14 Cf. Monzon, 966 F.3d at 950 (noting that the decedent pushed the accelerator 15 pedal “from 84 to 99 percent” while facing towards officers). 16 No evidence purports to give a full accounting of where officers stood 17 relative to Mr. Swallow’s truck or how close they were to being hit. See Orn, 949 18 F.3d at 1175; Monzon, 978 F.3d at 1157 (finding relevant the number of feet away 19 the moving vehicle was from officers, which individual officers were in the path 20 of travel, and when). The video footage of Mr. Swallow reversing the truck does 21 not show officers directly in his path of travel. (ECF No. 54-1). Officers are seen 22 firing upon Mr. Swallow from diagonally behind him as he reverses. (ECF No. 54- 23 1). In his deposition, Mr. Swallow acknowledged that bullets came in through the 24 rear and side of the truck, and that he reversed roughly “towards” the direction 25 of gunfire. (ECF No. 54-3). Mr. Swallow testified that he did not intend to hit the 26 officers, but rather wished to exit the driveway. (Id.) He claimed that he did not 27 know that there were officers behind him at all, that while he was parked he could 28 not hear the officers’ orders over the loud sound of the truck’s engine and the 1 radio playing at a high volume, and that when his passenger exited the truck she 2 did not tell him that police were there. (Id.) Mr. Swallow acknowledged that he 3 was high on methamphetamine at the time and testified that while high he does 4 not “feel reality.” (Id.) When the police began shooting, Mr. Swallow claims that 5 he thought they intended to rob him, and did not realize that they were police 6 officers until they arrested him. (Id.) Such testimony, if believed, would make it 7 less likely that Mr. Swallow intended to hit the officers and incapacitate them in 8 order to flee. In contrast, Defendants’ expert opines that “officers behind Mr. 9 Swallow’s truck were not in positions of cover that could shield them from the 10 truck that was rapidly accelerating towards them. As such, an officer would 11 recognize that any delay in addressing the threat could result in great bodily 12 harm or death to the officers and any innocent people in the area.” (ECF No. 54- 13 2). 14 There is almost no admissible information in the record about what 15 individual officers perceived. Although the two body-worn camera videos can 16 fairly be assumed to represent the point of view of two officers, it is not clear 17 whose camera is whose. The third defendant’s perspective is unknown. 18 Taking the record in the light most favorable to the non-movant, a 19 reasonable jury might not necessarily find in officers’ favor. Defendants’ expert’s 20 testimony and the video footage do not completely align. A jury could infer from 21 the video that no officers were directly in Mr. Swallow’s path of travel, and that 22 he maneuvered around officers and their vehicles. Mr. Swallow’s speed is not in 23 evidence, although the video suggests that it was not high when officers opened 24 fire. A jury would take this together with the facts that are clearly established, 25 such as the fact that Mr. Swallow was not under investigation for a violent crime, 26 but rather merely exiting a house that was under investigation for possible drug 27 offenses. Defendants have not established that they did not violate Mr. Swallow’s 28 Fourth Amendment rights. 1 c. Declining to Reach a Constitutional Question 2 When so many key facts remain unknown, courts are not always required 3 to rigidly execute the two-step analysis of Saucier. 533 U.S at 201. Normally, the 4 two prongs of the qualified immunity analysis are (1) whether officers violated a 5 constitutionally protected right, and (2) whether the right in question was clearly 6 established at the time when the incident took place. Id. But where the second 7 prong alone is enough to determine the outcome, courts may skip the first. See 8 Pearson, 555 U.S. at 239. This may be done in “circumstances in which the first 9 step of the Saucier procedure may create a risk of bad decisionmaking,” such as 10 when “the briefing of constitutional questions is woefully inadequate.” Evans v. 11 Skolnik, 997 F.3d 1060, 1065 (9th Cir. 2021) (citing id.). Furthermore, “although 12 the first prong of the Saucier procedure is intended to further the development of 13 constitutional precedent, opinions following that procedure often fail to make a 14 meaningful contribution to such development,” particularly where the 15 constitutional question is “so factbound that the decision provides little guidance 16 for future cases.” Id. (citing Pearson, 555 U.S. at 237). 17 This case is just the kind in which avoiding the constitutional question is 18 appropriate. The briefing is ‘inadequate” to render a decision on a constitutional 19 question, as the nonmovant has not made a response, and the movants have not 20 had an opportunity to give a substantive reply. Without more information about 21 what individual officers could see and hear, it is not proper to leap to a conclusion 22 about whether their uses of lethal force were reasonable. Mondragon v. City of 23 Fremont, 854 F. App'x 197, 198 (9th Cir. 2021) (in a motion for summary 24 judgement based on qualified immunity, officers’ actions must be analyzed 25 individually); cf. Lopez v. City of Mesa, No. CV-19-04764-PHX-DLR, 2022 WL 26 363994, at *3 (D. Ariz. Feb. 3, 2022), aff'd, No. 22-15278, 2024 WL 3250380 (9th 27 Cir. July 1, 2024) (denying qualified immunity in part because a reasonable jury 28 could determine that an officer did not perceive sufficient facts to support his 1 purported belief that his colleague had been hit by a car, and was at risk of being 2 hit again). Fourth Amendment law involving the rights of suspects fleeing in 3 motor vehicles at low speed is fact-bound, turning on holistic assessments of 4 factors such as speed, direction, location relative to officers and members of the 5 public, and likely imminent movements. Not only are many of those facts 6 unknown here, but even if they were, any decision on the Fourth Amendment 7 issue would be difficult to extend to future fact patterns. See Brosseau v. Haugen, 8 543 U.S. 194, 201 (2004). Finally, the constitutional question is not necessary to 9 the decision, as the officers ultimately prevail under the qualified immunity 10 analysis. 11 2. Whether the Right was Clearly Established 12 Qualified immunity shields officers from suit even when they violate the 13 Constitution, so long as the constitutional right in question was not clearly 14 established at the time of their acts. Saucier, 533 U.S. at 206. “A right is clearly 15 established when it is ‘sufficiently clear that every reasonable official would have 16 understood that what he is doing violates that right.’” Rivas-Villegas v. 17 Cortesluna, 595 U.S. 1, 5 (2021) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 18 7, 11 (2015) (per curiam)). “Although this Court’s case law does not require a case 19 directly on point for a right to be clearly established, existing precedent must 20 have placed the statutory or constitutional question beyond debate.’” Id. (quoting 21 White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam)). “This inquiry ‘must be 22 undertaken in light of the specific context of the case, not as a broad general 23 proposition.’” Id. (quoting Brosseau, 543 U.S. at 198)). Cases “cast at a high level 24 of generality” are unlikely to establish rights with the requisite specificity, except 25 in the rare “obvious case.” Brosseau, 543 U.S. at 199; District of Colombia v. 26 Wesby, 583 U.S. 48, 64 (2018). A clearly established right usually requires 27 “controlling authority or a robust consensus of cases of persuasive authority.” Id. 28 at 63 (internal quotation marks omitted) (quoting Ashcroft, 563 U.S. at 741–42). 1 It is the plaintiff’s burden to show that a right is clearly established. See Hopson 2 v. Alexander, 71 F.4th 692, 698 (9th Cir. 2023). 3 Mr. Swallow has not met his burden to show that Defendants are not 4 entitled to qualified immunity. Precedent does not establish that officers violated 5 a clearly established right.1 6 By March 12, 2020, the date of the shooting, the Ninth Circuit had decided 7 two cases presenting comparable facts to this case. In these two cases, officers 8 violated the Fourth Amendment where they shot a slow-moving driver from the 9 side or the back of the vehicle. Orn, 949 F.3d; Acosta v. City & Cnty. of San 10 Francisco, 83 F.3d 1143, 1144 (9th Cir. 1996), as amended (June 18, 1996). In 11 Orn, the Ninth Circuit held a reasonable jury could conclude that an officer 12 violated the Fourth Amendment where he shot a driver through the passenger- 13 side window of a vehicle moving away from him. 949 F.3d at 1175, 1177. The 14 incident in Orn began with a low-speed chase, during which the driver avoided a 15 police cruiser blockade without injuring or attempting to injure any officers. Id. 16 at 1172. When a police officer attempted to block the driver’s path with a cruiser 17 for a second time, the driver came to a brief stop, then attempted to drive up on 18 a strip of grass to maneuver around the police. Id. His speed was an estimated 5 19 miles per hour when police shot him. Id. at 1173. 20 It is less clear in Mr. Swallow’s case than in Orn that officers were not at 21 any serious risk. Even taking the evidence in the light most favorable to Mr. 22 Swallow, his speed is unknown, and the possibility that he was driving at more 23 than 5 miles per hour or significantly accelerating cannot be ruled out. (ECF No. 24 54-1). Neither is it exactly true in this case that all three officers were directly to 25 1 Although Defendants invoke Williams, that case was decided in 2024 and 26 evaluates whether official actions taken in May 2020 violated a clearly established 27 right. Williams v. City of Sparks, 112 F.4th 635, 645 (9th Cir. 2024) As such, it does not weigh on whether or not Defendants should receive qualified immunity 28 for their actions in March 2020. See Brosseau, 543 U.S. at 200 n.4. 1 the “side” of the truck or that the truck was moving away from them. Orn, 949 2 F.3d. at 1178. While the officers’ locations are not in evidence, Mr. Swallow 3 testified in his deposition that gunshots came in through the rear and sides of 4 the truck as he reversed. (ECF No. 54-3). It appears from the video that the 5 officers may have been diagonal to Mr. Swallow’s path, and that Mr. Swallow 6 continued getting closer to at least some of them as they fired and he drove on.2 7 (ECF No. 54-1). Furthermore, given what they knew at the moment of the 8 shooting, officers may have been less unreasonable here to fear erratic and 9 dangerous acceleration and changes in direction than in Orn. See Graham, 490 10 U.S. at 396 (use of force must be evaluated from the perspective of a reasonable 11 officer at the scene, not with the benefit of hindsight). The driver in Orn had been 12 attempting to evade officers at low speed for a period of time, Id. at 1172, while 13 Mr. Swallow began driving from more or less a standstill. (Id.) Police in Orn had 14 previously watched the driver maneuver around a blockade without hitting 15 anyone, Id., while in Mr. Swallow’s case, the shooting occurred at the beginning 16 of the encounter, before officers had an opportunity to learn how he was likely to 17 behave. (Id.) While the driver in Orn had already driven up on a grassy strip 18 specifically to avoid hitting police vehicles, 949 F.3d. at 1172, Mr. Swallow started 19 revving the engine and accelerated the truck from a standstill out in the general 20 direction of the officers on foot, giving a less clear indication of his intent and 21 where he was going to drive next. (Id.) 22 23 2 Even though officers fired upon Mr. Swallow from the rear when they shot at 24 him for the second time, their position relative to Mr. Swallow at that moment is not as critical to the analysis as their position when they first began shooting. 25 The purpose of evaluating whether officers were at risk of being hit or not is to evaluate the reasonableness of the officers’ evaluation that Mr. Swallow posed a 26 threat to them or to the public, and if Mr. Swallow posed a threat to officers when 27 he reversed in their direction, then it may have been reasonable for officers to believe he still posed a threat to the public when he fled them and crashed into a 28 house. 1 In Acosta, an officer was held to have violated the Fourth Amendment when 2 he shot a suspect through the side of a slowly moving vehicle. Acosta, 83 F.3d. 3 The officer had chased two men on foot on suspicion of stealing a purse, and 4 when the two men got into a car, the officer shot and killed the driver. Id. Expert 5 and lay testimony established that the officer was off to the side of the car, which 6 was “moving or rolling slowly,” and that he could have avoided injury by simply 7 stepping to the side. Id. at 1146-48. 8 Mr. Swallow’s conduct may have differed from Acosta in the critical matters 9 of “the speed at which the vehicle was traveling and the officer's ability to avoid 10 the oncoming vehicle” Id. at 1147 n. 9. From the video, it does not seem that a 11 reasonable jury could describe him as merely “rolling,” Id. at 1147, a word which 12 suggests negligible intentional acceleration. (ECF No. 54-1). If any officers were 13 in Mr. Swallow’s path, it is possible that they could not simply step to the side to 14 avoid injury. (Id.) Mr. Swallow may also have also been closer to driving towards 15 officers than the driver in Acosta, as the evidence shows that officers were not 16 fully off to the side of the truck as he reversed. (Id.) 17 Because the law did not “squarely govern” the Defendants’ conduct at the 18 time of the shooting, they are entitled to qualified immunity. Brosseau, 543 U.S. 19 at 201. Although the officers have not shown that their actions were 20 constitutional, there are differences between this case and precedents that have 21 found a Fourth Amendment violation. To be clear, the record does not show that 22 these officers were presented with the indicia of danger found in cases such as 23 Wilkinson, 610 F.3d at 551 (where a fleeing suspect had led officers on a chase, 24 and one officer believed that the other one had already been hit by the suspect’s 25 minivan and was likely to be hit again, use of lethal force was reasonable). 26 Nevertheless, for purposes of qualified immunity, the dispositive point is that Orn 27 and Acosta may reasonably be interpreted not to control Mr. Swallow’s case. 28 Officers would not have been wholly unreasonable to believe that their behavior 1 || was lawful. Taken together, precedents governing at the time suggest “that [the 2 || officers’] actions fell in the ‘hazy border between excessive and acceptable force.” 3 || Id. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court GRANTS Defendants’ motion for 6 || summary judgment (ECF No. 54). 7 Defendants are dismissed from this case. 8 The Clerk of Court is directed to close this case and enter judgment 9 || accordingly. 10 DATED: September 29, 2025 11
13 ANNE R. TRAUM 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28