Officers Get Qualified Immunity, but Not Under the Fourth Amendment

by | March 21, 2022

Ochoa v. City of Mesa, 2022 WL 589300 (9th Cir. 2022)

Sergio Ochoa’s ex-girlfriend called 911 to report she and Ochoa had a fight and that a handgun was involved. She told the dispatcher Ochoa used heroin and meth, was under the influence of drugs, and had driven away. About eight minutes after the first call, a second 911 caller reported a man had entered the caller’s home, saying the intruder had two knives and that his girlfriend had stabbed him. The intruder left in a car matching the description of the car from the first 911 call. A police helicopter found and followed the car. Officers realized Ochoa had prompted both 911 calls.

An officer in a marked patrol car tried to pull Ochoa’s car over, but he would not stop. Ochoa drove erratically, stopping at green lights and driving on the wrong side of the road toward police cars. The patrol officers lost sight of the car, but the helicopter observer saw Ochoa abandon the car and flee into a residence.

When officers arrived at that home, a frantic man on the second floor shouted “Hey, he’s in here, he’s in here!” Another officer arrived and asked the man if Ochoa was supposed to be there. The man answered, “F— no!” and told the officers he had children with him in a locked bedroom. The man brought several children onto the roof to evacuate them with the help of officers.

Officers could see people yelling in a back room of the house. Ochoa was briefly visible through the front window, looking upset and possibly holding a knife. Ochoa ignored commands to come outside and, concerned a hostage situation was possible, the officers decided to enter the house. As officers entered through the front door, Ochoa ran into the backyard. Standing between Ochoa and the home, officers formed an L-shape around him. Ochoa had two knives in one hand and refused to obey the officers’ repeated commands to “Drop the knife!” Ochoa looked angry and ready to fight.

The subsequent events were recorded on body-worn cameras. One officer fired a beanbag round at Ochoa. At just about the same time, another officer released a police service dog. Ochoa took a large step sideways and officers fired about 30 shots at Ochoa. Approximately 16 seconds elapsed between the officers’ first entry into the home and the shooting.

Ochoa fell to the ground on his stomach, with at least one of his hands tucked near his waistline. He did not respond to commands to pull his hands out. While some officers went inside to clear the home, the police service dog handler directed the dog to drag Ochoa so his hands were visible to the officers.

Ochoa died at the scene. A postmortem toxicology report showed he had meth in his system. Two knives were recovered from the home’s backyard. Ochoa’s children and his mother sued in state court, claiming the officers violated the 14th Amendment by wrongfully depriving the plaintiffs of Ochoa’s companionship and familial association without due process of law. The officers and cities (officers from both the Mesa Police Department and Gilbert Police Department were involved) removed the case to federal court. (Removal is when a defendant “removes” a case filed by a plaintiff in state court and files it in federal court. A party can generally remove a case from state court to federal court if the case originally could have been brought in federal court, such as in cases of federal civil rights claims).

This case illustrates that not all lawsuits filed under 42 U.S.C. § 1983 allege a violation of the Fourth Amendment. For cases alleging excessive force in violation of the Fourth Amendment, the legal question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. This standard was established in the famous case of Graham v. Connor (490 U.S. 386 (1989)). The Supreme Court has held that “Fourth Amendment rights are personal rights which may not be vicariously asserted” (Plumhoff v. Rickard, 572 U.S. 765 (2014)). Thus, Ochoa’s family could not file suit under the Fourth Amendment.

The court held that the officers acted to “satisfy legitimate law enforcement objectives

When officers are alleged to have violated the Due Process Clause of the 14th Amendment, a different analysis applies. The 14th Amendment provides that “no State shall…deprive any person of life, liberty, or property, without due process of law.” Courts have held that a parent has a constitutionally protected liberty interest under the 14th Amendment to the companionship and society of his or her child, as does a child have a liberty interest in his or her relationship with a parent.

The first question asked when officers are accused of violating 14th Amendment due process rights is whether the officers’ conduct “shocks the conscience.” The court must consider two alternative tests to determine whether officers’ conduct shocks the conscience: the “deliberate indifference” test or the “purpose-to-harm” test.

If the officers had time to consider or deliberate over alternative actions, the deliberate indifference test applies. In this case, the court observed that deliberation was not possible, as the officers “encountered fast paced circumstances presenting competing public safety obligations.” On the other hand, the purpose-to-harm test applies if the situation at issue “escalated so quickly that the officer had to make a snap judgment.” The purpose-to-harm test requires the plaintiffs to show that officers acted with a purpose to harm the subject for “reasons unrelated to legitimate law enforcement objectives.” Legitimate objectives can include “arrest, self-protection, and protection of the public.” Contrariwise, illegitimate objectives include an officer’s acts prompted by ulterior motives for using force, such as retaliation or bullying or when an officer uses force against a clearly harmless or subdued suspect.

The trial court ruled the officers facing Ochoa did not have time to deliberate before shooting. Thus, the trial court followed the purpose-to-harm test to determine whether the officers’ conduct shocked the conscience and concluded it did not.

The court of appeals affirmed, holding the purpose-to-harm test was the correct test and that officers’ conduct toward Ochoa did not shock the conscience. Ochoa had allegedly used a gun while possibly under the influence of drugs during a domestic dispute with his ex-girlfriend; he fled from the police in an erratic manner; he had entered a stranger’s home, telling the occupants he was armed with knives. When the officers encountered Ochoa in the back yard, he ignored their repeated commands, refused to drop the two knives and took a large step. The court held that the officers acted to “satisfy legitimate law enforcement objectives: apprehension of an armed, dangerous suspect and protection of the safety of the officers, the home’s inhabitants, and the public.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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