Deorle v. Rutherford

Incident Summary & Facts

On September 9, 1996, Richard Deorle, upset over a Hepatitis C diagnosis and having consumed vodka and his prescribed medication, became suicidal and began screaming and banging on the walls of his Butte County home. His wife called 911. At least 13 officers responded, set up roadblocks to cut off any escape, and waited for a Special Incident Response Team and crisis negotiators. Taking the facts in Deorle’s favor, the majority described him as verbally abusive but “physically compliant”: he dropped a porch board when ordered and, though shouting “kill me” and brandishing a hatchet at an officer, threw the hatchet into some trees when told to put it down. He told Deputy Greg Rutherford he would “kick his ass.” During the thirty to forty minutes Rutherford was on scene, he saw no assault and received no report of one.

Rutherford, armed with a 12-gauge shotgun loaded with a lead-filled, cloth-cased “beanbag” round, moved forward to reconnoiter before the negotiators arrived and watched Deorle from behind trees for five to ten minutes. Deorle, wearing only cut-off shorts, carried an unloaded plastic crossbow and a can or bottle of lighter fluid. On Rutherford’s command he discarded the crossbow, then walked toward Rutherford “at a steady gait.” Rutherford had picked a spot (a tree about 30 feet away; he also reported seeing Deorle at forty feet) and fired when Deorle passed it. He gave no warning, no order to halt, and no order to drop the container. The round struck Deorle in the face, destroying his left eye and leaving lead shot in his skull. Rutherford admitted the round could be lethal at thirty feet and potentially lethal up to fifty feet.

The district court granted summary judgment on qualified immunity. Deorle appealed.

Core Legal Issue

Whether firing a less-lethal beanbag round at an emotionally disturbed, mostly compliant man who had discarded his weapons and was walking toward the officer, without warning, was excessive force under the Fourth Amendment, and whether the officer was entitled to qualified immunity.

The Holding

The Ninth Circuit held that the force was excessive and that Rutherford was not entitled to qualified immunity, because “no reasonable officer could have concluded that the force employed was appropriate or lawful.” The grant of summary judgment was reversed and the case remanded (Judge Silverman dissenting).

The Court’s Analysis:

• Nature of the force: The beanbag round is not deadly force under the Ninth Circuit’s definition at the time, but it is force “capable of causing serious injury.” It “may be used only when a strong governmental interest warrants its use,” and only after a warning when feasible.
• Graham factors: The crime was minor (Deorle was charged only with obstructing officers); he was contained by roadblocks, had harmed no one, posed no flight risk, and had discarded his weapons when asked. “A desire to resolve quickly a potentially dangerous situation” does not justify such force, and an officer’s statement of fear must rest on “objective factors.”
• Mental illness and time: When it is or should be apparent that a person is emotionally disturbed, that “is a factor that must be considered.” This was not a “split-second” situation: Rutherford had over half an hour, a clear line of retreat, and negotiators on the way, and he made “a calculated and deliberate decision” to shoot at a predetermined point.
• Warnings: Warnings “should be given, when feasible, if the use of force may result in serious injury.” Deorle “certainly could not have been expected to comply with instructions that were never given to him.”
• Qualified immunity: No case directly on point was required, because “[a]n officer is not entitled to qualified immunity… every time a novel method is used to inflict injury.”
• Dissent (Silverman, J.): Deorle was “armed with a container of lighter fluid” and advancing while threatening the officer. The beanbag was designed to temporarily incapacitate, and no clearly established law prohibited its use.