Argued and Submitted: January 16, 2013, San Francisco, California
Petition for certiorari filed at, 05/22/2014
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Appeal from the United States District Court for the Northern District of California. D.C. No. 3:09-cv-03889-CRB. Charles R. Breyer, District Judge, Presiding.
John L. Burris, Ayana Cuevas Curry and Benjamin Nisenbaum (argued), Law Offices of John L. Burris, Oakland, California, for Plaintiff-Appellant.
Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial Deputy, Blake P. Loebs and Peter J. Keith (argued), Deputy City Attorneys, San Francisco, California, for Defendants-Appellees.
Before: John T. Noonan, Susan P. Graber and Raymond C. Fisher, Circuit Judges. Opinion by Judge Fisher; Partial Concurrence and Partial Dissent by Judge Graber.
FISHER, Circuit Judge:
This case involves a near fatal tragedy in which police officers attempted to help a mentally ill woman who needed medical evaluation and treatment but wound up shooting and nearly killing her instead. They did so after entering her home without a warrant, causing her to react with violent outrage at the intruders. Fundamentally at issue is the constitutional balance between a person's right to be left alone in the sanctity of her home and the laudable efforts of the police to render emergency assistance, but in a way that does not turn the intended beneficiary into a victim or a criminal.
Teresa Sheehan, a woman in her mid-50s suffering from a mental illness, lived in a San Francisco group home that accommodated such persons. Her assigned social worker, Heath Hodge, became concerned about her apparently deteriorating condition and summoned the police for help in transporting her to a mental health facility for a 72-hour involuntary commitment for evaluation and treatment under California Welfare & Institutions Code § 5150. Hodge deemed Sheehan " gravely disabled," because she was not taking her medication or taking care of herself, and a danger to others, because she had threatened him when he attempted to perform a welfare check on her. When San Francisco police officers Kimberly Reynolds and Katherine Holder arrived on the scene, they entered Sheehan's room, without a warrant, to confirm Hodge's assessment and take her into custody. Sheehan reacted violently to the officers' presence, grabbing a knife, threatening to kill the officers, telling the officers that she did not wish to be detained in a mental health facility and forcing the officers to retreat to the hallway, outside Sheehan's closed door, for their safety. The officers called
for backup, but rather than waiting for backup or taking other actions to maintain the status quo or de-escalate the situation, the officers drew their weapons and forced their way back into Sheehan's room, presumably to disarm, subdue and arrest her, and to prevent her escape (although there do not appear to have been any means of escape available). Sheehan once again threatened the officers with a knife, causing the officers to shoot Sheehan five or six times. Sheehan, who survived, filed this 42 U.S.C. § 1983 action against the officers and the city, asserting violations of her rights under the Fourth Amendment and the Americans with Disabilities Act, as well as tort and statutory claims under state law. The district court granted summary judgment to the defendants, and Sheehan appealed.
Although a warrantless search or seizure in a person's home is presumptively unreasonable under the Fourth Amendment, our case law recognizes exceptions to the warrant requirement to render emergency assistance or respond to exigent circumstances. We hold that the officers were justified in entering Sheehan's home initially under the emergency aid exception because they had an objectively reasonable basis to believe that Sheehan was in need of emergency medical assistance and they conducted the search or seizure in a reasonable manner up to that point. Officers conducting a welfare search, where the objective is rescue, are expected to err on the side of caution, and under the circumstances of this case the officers reasonably could have believed that Sheehan's situation presented a genuine emergency and that entering as they did was a reasonable means of providing her with assistance.
We nonetheless hold that there are triable issues of fact as to whether the second entry violated the Fourth Amendment. If the officers were acting pursuant to the emergency aid exception, then they were required to carry out the search or seizure in a reasonable manner. Similarly, if they were acting pursuant to the exigent circumstances exception, they were required to use reasonable force. Under either standard, a jury could find that the officers acted unreasonably by forcing the second entry and provoking a near-fatal confrontation. We therefore cannot say that the second entry was reasonable as a matter of law.
We further hold that there are triable issues of fact as to whether the officers used excessive force by resorting to deadly force and shooting Sheehan. The shooting was lawful when viewed from the moment of the shooting because at that point Sheehan presented an immediate danger to the officers' safety. Under our case law, however, officers may be held liable for an otherwise lawful defensive use of deadly force when they intentionally or recklessly provoke a violent confrontation by actions that rise to the level of an independent Fourth Amendment violation. See Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002). Here, Sheehan has presented a triable issue as to whether the officers committed an independent Fourth Amendment violation by unreasonably forcing their way back into her home, and she has also presented evidence from which a reasonable jury could find that the officers acted recklessly in doing so. She has therefore presented a triable issue of the unreasonable use of deadly force under Billington 's provocation theory.
We hold that the district court properly rejected Sheehan's claims of municipal liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Sheehan's claim that the city is liable on a failure to train theory fails because she concedes that the police department
employed appropriate training materials to guide police officers' responses to persons they knew to be suffering from mental illness. That the officers may not have followed those policies does not establish that the city was deliberately indifferent to Sheehan's rights. Sheehan's claim that the city is liable for ratifying the officers' allegedly unconstitutional acts fails because there is no evidence that the city adopted or expressly approved the officers' actions.
Turning to an issue of first impression, we join the majority of circuits that have addressed the issue and hold that Title II of the Americans with Disabilities Act applies to arrests. But we emphasize, as have those other circuits, that the exigencies surrounding police officers' decisions in the field must be taken into account when assessing the reasonableness of the officers' actions. We hold that, on the facts presented here, there is a triable issue whether the officers failed to reasonably accommodate Sheehan's disability when they forced their way back into her room without taking her mental illness into account or employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness.
Finally, we vacate summary judgment on Sheehan's state law claims and remand for further proceedings.
Teresa Sheehan was a resident of Conrad House, a group home for persons dealing with mental illness located in San Francisco. Residents of the home have private rooms and share common areas, like the kitchen and living room. On August 7, 2008, Heath Hodge, a social worker, attempted to perform a welfare check on Sheehan. When he entered Sheehan's room without her permission, Sheehan told him to get out. She also told him that she had a knife and threatened him.
In light of Sheehan's threat, Hodge cleared the building of other residents. He also completed an application under California Welfare & Institutions Code § 5150 for Sheehan's 72-hour detention for psychiatric evaluation and treatment. He telephoned the police department's nonemergency number and requested police assistance in transporting Sheehan to a mental health facility.
Section 5150 provides a mechanism for mental health professionals or others to initiate a temporary detention of persons who are a danger to themselves or others or " gravely disabled." Section 5150 states in pertinent part:
When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Health Care Services as a facility for 72-hour treatment and evaluation.
Cal. Welf. & Inst. Code § 5150(a). The statute defines " gravely disabled" as, inter alia, " [a] condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." Id. § 5008(h)(1).
The San Francisco Police Department dispatched Officer Katherine Holder and Sergeant Kimberly Reynolds to respond to Hodge's call for assistance. The computer automated dispatch information provided to the officers stated: " Social worker just went inside to check on his patient, subject
is known to make violent threats, told reporting party to get out or she'll knife him (no weapon seen) / / Name is Teresa Sheehan / Eurasian, early 50's, wearing striped shirt/pants."
Officer Holder and Sergeant Reynolds met Hodge outside the group home. Hodge showed the officers a card issued by the city identifying him as a person authorized to initiate a 72-hour detention under § 5150. Hodge advised the officers of his reason for the call. He explained that he had gone into Sheehan's room to check on her and that Sheehan had threatened to kill him with a knife. He explained that Sheehan had been off her medication for a matter of months and that she had not been taking care of herself. Hodge also informed the officers that he had cleared the building of other residents and that the only way out of Sheehan's room, other than the main door to the second floor hallway, was a second floor window that could not be used as a means of egress without a ladder.
Hodge also showed the officers the § 5150 application he had completed before their arrival. The application said:
Client has been without psychotropic meds times one and a half years. Has been presenting with increased symptoms for several weeks. Client has not been seen by the house counselor times two weeks. Housemates reported that client has been coming and going at odd hours and reportedly said she had stopped eating. It was also reported that client has been wearing the same clothing for several days. Writer conducted outreach to client and she was not responsive. Made no sound behind her closed door. Writer and property management keyed in for wellness check. Upon opening the door, client was found lying in her bed with a book over her face, eyes open and was not responsive. Addressed client several times and she did not move or answer. Client then suddenly got up, threw the covers, and yelled at writer violently, " Get out of here! You don't have a warrant! I have a knife and I'll kill you if I have to!" Client then slammed her door and locked it behind her.
Near the bottom of the application form, Hodge checked two boxes, one to indicate that Sheehan was a danger to others and one to indicate that she was gravely disabled. Hodge did not check the box to indicate that Sheehan was a danger to herself, nor did he give the officers any other reason to believe Sheehan was suicidal or likely to injure herself.
Based on the information furnished by Hodge, the officers decided to contact Sheehan to confirm Hodge's assessment and take Sheehan into custody. Sheehan's room was located at the end of a hallway on the second floor. As the officers faced Sheehan's closed door, there was a closed door to the right and a small alcove, also containing closed doors, to the left.
When they reached Sheehan's door, the officers, accompanied by Hodge, knocked on the door and announced that they were police officers. They used a key that Hodge had given them and opened the door. When the door opened, the officers saw Sheehan lying on her bed with a book on her chest or stomach.
What happened next is mostly, though not entirely, undisputed. In Sergeant Reynolds' telling, Sheehan " raised up, reached over with her left hand very quickly grabbed one of the knives, a larger knife, from the plate and immediately
walked in an aggressive threatening manner towards us saying, get out of here. I'm going to kill you. Get out of my room. I don't need your help. Stuff like that, and was repeating it over and over and over again." The " knife was shoved out in front of her, blade pointed towards us. She had her hand on the... handle, and as she approached closer to us the knife was always in front of her and there was some moving going on, like a jabbing motion or a stabbing motion." In Officer Holder's telling, Sheehan " grabbed the knife" and " raised it above her head coming towards Sergeant Reynolds and me saying I'm going to kill you." Hodge confirmed that Sheehan held a knife in her hands and said several times that she would kill the officers if they came near her. Although Sheehan's version of events departs in certain respects from those of the other three witnesses, Sheehan concedes that she held a knife and threatened to kill the officers. Sheehan testified that she told the officers that they didn't have a search warrant and that they needed to subpoena her if they wanted to talk to her. She testified that she told the officers to go away and leave her alone.
This encounter ended when the officers retreated and Sheehan closed the door, leaving Sheehan in her room and the officers and Hodge in the hallway. The officers responded to this situation by calling for backup, drawing their service weapons and directing Hodge to go downstairs to let in additional officers who would be responding to the call for backup. Rather than waiting for backup to arrive, however, the officers decided to forcibly reenter Sheehan's room. As Sergeant Reynolds later explained:
With the door being closed and us not having the ability to see what she was doing, we had no way of knowing whether or not, one, she... had an avenue of escape. Two, there were the possibility of other weapons that she could gain access to. And so in my opinion, as soon as that door was closed, the threat became more scary for us and more uncertainty about what we were dealing with.
Because Sheehan had " displayed obvious signs of violence and wanting to kill" the officers, Reynolds deemed the entry necessary to ensure officer safety and to prevent Sheehan from escaping (and becoming a threat to others). Consequently, Reynolds directed Holder to attempt to force the door open. Reynolds acknowledges that she did not take Sheehan's mental illness into account when she decided to force the second entry. As Holder used her feet and shoulders to attempt to gain entry, Reynolds stood behind Holder with her pepper spray in one hand and her service weapon in the other. Holder also had her service weapon out. The door opened.
What happened next is subject to some dispute. Under the officers' account, Sheehan emerged from the room brandishing a knife and advanced on the officers.
Reynolds pepper sprayed Sheehan, but without effect. When Sheehan continued to advance, Holder, and then Reynolds, fired their weapons, hitting Sheehan five or six times. Sheehan fell to the ground, but continued to swing the knife at the officers until a backup officer arrived and kicked the knife from Sheehan's hand. The officers testified that Sheehan was between two and four feet from Holder when Holder first fired -- so close that Holder was forced to fire from the hip to prevent Sheehan from cutting her arm.
In Sheehan's telling, she opened the door and showed the officers the knife. She had the knife upraised in her right hand and took one step toward the officers. This step placed her on the threshold and it was at that point that she was pepper sprayed by the officers. Sheehan testified:
And then I screamed at them. You're blinding me, you're blinding me. I can't see. And then I started... to fall. And they right away were shooting me. I started to come out the door because I was blinded. I had my knife in my hand.... I was wearing my glasses. And I started to raise my other arm. And then the shots happened.... And then I fell against the wall in the corridor. Close to the kitchen door.
After she fell to the floor, an officer kicked the knife from her hand. Sheehan acknowledges that she continued to hold the knife after she was pepper sprayed and shot. She also concedes that it was her intent to resist arrest and to use the knife to defend herself against the officers because she ...