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SIDNEY BAYER; AMBER BAYER; ANN BAYER, as Guardian ad litem for STEPHEN
BAYER, JR., a minor child, and CAMILLE BAYER, a minor child, Plaintiffs -
Appellants, v. CITY OF SIMI VALLEY; RANDY G. ADAMS; ANTHONY HARPER, in both
their personal and official capacities, Defendants - Appellees.
No. 01-55736
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
43 Fed. Appx. 36; 2002 U.S.
App. Lexis 15796
July 10, 2002, Argued and
Submitted, Pasadena, California
July 25, 2002, Filed
MEMORANDUM *
* This disposition is not
appropriate for publication and may not be cited to or by the courts of this
circuit except as may be provided by Ninth Circuit Rule 36-3.
Argued and Submitted July 10, 2002
Pasadena, California
Before: HUG, FARRIS, and SILVERMAN, Circuit
Judges.
The
district court granted summary judgment in favor of defendants City of Simi Valley and police department
officials (collectively "Simi Valley") against the family of Stephen
Bayer following the fatal shooting of Bayer by police. On appeal, the Bayers argue
primarily that the district court erred in concluding that the actions of the
police were objectively reasonable under the Fourth Amendment. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. As the parties are
familiar with the facts and procedural history of the case, we will not detail
them here except as necessary. We review a grant of summary judgment de
novo. Botosan v. Paul McNally Realty,
216 F.3d 827, 830 (9th Cir. 2000).
The Bayers argue that the police
used excessive force in violation of the Fourth Amendment when they fired tear
gas into Stephen Bayer's car. They claim that the police provoked a
confrontation with a mentally disturbed man that they should have known would
lead to his inevitable death. "Claims that law enforcement officers have
used excessive force . . . [are] analyzed under the Fourth Amendment and its
'reasonableness' standard . . . ." Graham v. Connor, 490 U.S. 386, 395,
104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). This reasonableness determination requires a careful balancing of
"the nature and quality [*38] of the intrusion . . . against the
countervailing governmental interests at stake," and "must be judged
from the perspective of a reasonable officer on the scene." Id. at 396
(internal quotation marks omitted).
In evaluating the government
interests at stake, we consider (1) the severity of the crime at issue, (2)
whether the suspect poses an immediate threat to the safety of the officers or
others, and (3) whether he is actively resisting arrest or attempting to evade
arrest by flight. Id. As to the severity of his crimes, Bayer led the police on
a three-hour chase, disobeyed police orders to desist, and shot at police
officers. Bayer also posed a serious threat to others at the time tear gas was
used; he was unstable, armed, and had threatened to fire on police again. And,
while barricaded in his car, he refused to surrender or even put his gun down
after a four-hour standoff. In sum, the government interest at stake was great.
As to the nature and quality of the intrusion, while the use of tear gas was
certainly intrusive -- it was intended to and did result in Bayer's leaving the
car -- it was not deadly force and did not in itself harm Bayer.
"Remembering always that
'the "reasonableness" of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight,'" Liston v. County of Riverside, 120 F.3d 965,
976 (9th Cir. 1997) (quoting Graham, 490 U.S. at 396), we agree with the
district court that the use of tear gas was objectively reasonable under the
circumstances. It is reasonable for police, following four hours of armed
standoff and failed negotiations, to use non-lethal force to extricate a subject
who has shot at police and refuses to surrender. We therefore affirm the
district court's grant of summary judgment for defendants on the Bayers'
excessive force claim.
The
Bayers argue that the reports of experts Clark and Streed are sufficient to
defeat summary judgment. Although the district court was within its discretion
in striking the reports because they did not comport with the requirements of
Federal Rule of Civil Procedure 56(e), even if considered these reports do not
alter the outcome of this case. At most, they show a difference in opinion as to proper police tactics; they do not
create a question of fact sufficient to defeat summary judgment. See Billington
v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002) (reading Ninth Circuit precedent
to "prevent a plaintiff from
avoiding summary judgment by simply producing an expert's report that an
officer's conduct leading up to a deadly confrontation was imprudent,
inappropriate, or even reckless").
AFFIRMED.