Too Close for Safety: Qualified Immunity Granted Within Zone of Imminent Danger

by | October 27, 2020

Ventura v. Rutledge, 2020 WL 6192981 (9th Cir. 2020)

Martha Andrade called police to report Omar Ventura had assaulted her (the mother of Omar Ventura’s children) and his own mother, Maria Ventura. Officer Rutledge responded to Andrade’s 911 call. When she arrived, she found Omar Ventura had left the scene. In addition to assaulting both Andrade and Maria Ventura, Omar had broken Andrade’s car window.

As Officer Rutledge was interviewing Andrade, Omar Ventura walked up the street. Andrade pointed him out to Officer Rutledge, then took cover behind some trash cans. Omar advanced toward Andrade, knife in hand, and shouted, “Is this what you wanted?” Officer Rutledge was approximately 10 yards from Omar when she warned him to “stop or I’ll shoot.” Omar closed within 10-15 feet of Andrade and Officer Rutledge fired two shots, killing Omar.

Maria Ventura sued, alleging excessive force. The trial court granted qualified immunity to Officer Rutledge and awarded summary judgment to the officer and the city and dismissed the lawsuit. The appellate court upheld the trial court ruling.

Where discretionary time and tactical circumstances permit, giving a warning before using force is essential.

Qualified immunity is proper when the court resolves one of two factors in favor of the defendant officer: Whether the facts “taken in the light most favorable to the party asserting the injury show that the officer’s conduct violated a constitutional right,” and whether “the right was clearly established at the time of the alleged violation.” The court may consider the questions in either order.

In this case, the court asked only if Ventura could show the use of deadly force against Omar Ventura was clearly established as unconstitutional. “Omar was advancing with a knife toward a woman whom he had reportedly just assaulted. He ignored Officer Rutledge’s repeated commands to stop and a warning that she would shoot.” The officer was responding to a “violent domestic disturbance.” Given those facts, Maria Ventura could show no clearly established constitutional violation.

Though the officer was as much as 30 feet away from Omar Ventura at the time she fired (potentially still within the zone of imminent danger from a rapid knife attack), the key point is that the suspect was a scant 10-15 feet from his intended target. The court also positively cited the officer’s warning prior to shooting Omar. Where discretionary time and tactical circumstances permit, giving a warning before using force is essential.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

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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