In S. B. v. County of San Diego, 15-56848, 2017 WL 1959984 (9th Cir. May 12, 2017), an individual with a history of mental health issues was acting aggressively and strangely all day, at one point threatening “someone was gonna get hurt” if he did not get some alcohol.  Concerned for their safety, family members called police.  When officers entered the residence, they found the individual in the kitchen with knives sticking out of his pockets. The man was clearly under the influence, staggering, and stumbling his words.  With guns drawn, the officers ordered the man to raise his hands and get on the ground, which he ultimately did.  As two of the officers moved in to handcuff him, the man reached down and grabbed one of the knives from his pocket.  According to one officer, the man then attempted to stand up and move toward the other officers, at which point he shot and killed the man.  The man’s family sued under § 1983, alleging excessive force.

The Ninth Circuit held that there were material facts in dispute that precluded summary judgment—whether the man was still on his knees or attempting to stand when shot; whether the shooting officer could see the other officers clearly when he fired; and the distance between the man and the officers when the man grabbed his knife.  However, the court granted the officers qualified immunity because there was no prior case that found a constitutional violation under similar (enough) circumstances.

In so holding, the panel expressly acknowledged the Supreme Court’s “recent frustration with [circuit courts’ repeated] failures to heed its [qualified immunity] holdings” that the inquiry must be undertaken “in light of the specific context of the case, not as a broad general proposition.”  It responded, “We hear the Supreme Court loud and clear,” and reiterated the proper test:  as of the night of the shooting, were the officers on “clear notice that using deadly force in these particular circumstances would be excessive?”  Despite acknowledging that at least three prior decisions with similar facts found a constitutional violation, the court nonetheless held that they were sufficiently distinguishable to afford immunity (e.g., in those cases, the suspects were merely standing with a knife in hand; here, the man grabbed a knife from his pocket after being told not to). The court also concluded that two district court decisions could not provide adequate notice that a constitutional right was clearly established.