One recent cert petition before the Supreme Court regards the case of City of Santa Rosa, California v. DeSantisDeSantis involves the issue of whether a police officer acts with a legitimate law enforcement purpose and is entitled to qualified immunity when he shoots someone believed to be armed when no alternative force option was available to him, but alternative force options were available to other officers at the scene.  The trial court denied summary judgment for the police officers, and this was affirmed by the Ninth Circuit in an unpublished opinion.  

The excessive force rationales of majority and dissent in the Ninth Circuit opinion echo the familiar debate about the degree of intrusion on Fourth Amendment rights permissible under the Constitution in view of the countervailing government interest of police officers being able to effectively do their jobs.  The majority recounted specific facts in the case, stating that police were aware that the victim was mentally ill, unarmed at the time of the encounter, nonthreatening, outnumbered, and at least ten yards away from the nearest officer, and that the six officers had a number of less-than-lethal options at their disposal, including a Sage weapon, Tasers, batons, and a dog.  Thus, the majority briskly concluded that the trial court did not err in denying qualified immunity to the officers.  By contrast, the dissent stated that the majority’s holding “would paralyze police officers’ ability to make split-second judgments to protect themselves and the public.”  The dissenting judge based his argument primarily on the facts that the victim (1) “had been firing a weapon in an occupied residence just a minute earlier,” (2) “had not yet been searched for weapons,” and (3) “could have been concealing a weapon in his baggy jeans.”

However, given the majority’s careful recitation of the alternatives to lethal force available to the police officers, the dissenting opinion fails to articulate much more than a slightly different spin on facts that ought naturally compel the trial court’s finding that the police should not be protected in these circumstances by qualified immunity.  The dissent focuses on the short length of the 1-2 minute encounter in DeSantis, but such brief durations are typical for police work and officers are trained to respond appropriately to quickly-moving situations.  The Supreme Court should refuse this cert position and leave the Ninth Circuit’s judgment appropriately where it stands.