John Adams; Cathy Adams v. PAUL SPEERS, No. 05-15159Defendant-Appellant, D.C. No.v.  CV-02-05741-LJO MERCED…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JOHN ADAMS; CATHY ADAMS,
Plaintiffs-Appellees,
v.
PAUL SPEERS, No. 05-15159Defendant-Appellant,
D.C. No.v.  CV-02-05741-LJO
MERCED COUNTY SHERIFF’S OPINIONDEPARTMENT; CALIFORNIA HIGHWAY
PATROL; COUNTY OF MERCED;
MARK PAZIN, Merced County
Sheriff Coroner,
Defendants. 
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Magistrate Judge, Presiding
Argued and Submitted
December 4, 2006—San Francisco, California
Filed January 10, 2007
Before: John T. Noonan, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Noonan
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COUNSEL
Scott H. Wyckoff, Deputy Attorney General of the State of
California, Sacramento, California, for the defendant-
appellant.
Jacques LeBoeuf, Oakland, California; Randal W. Hooper,
Oakland, California, for the plaintiffs-appellees.
OPINION
NOONAN, Circuit Judge:
Paul E. Speers, an officer in the California Highway Patrol
(CHP), appeals the district court’s denial of immunity in this
civil rights suit by John and Cathy Adams. Holding that, on
the basis of the facts submitted by the Adamses, Speers is not
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entitled to immunity as a matter of law, we affirm the judg-
ment of the district court.
FACTS
Preliminary to statement of the facts, we note that Officer
Speers can make an interlocutory appeal from the ruling on
immunity only if he accepts as undisputed the facts presented
by the appellees. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th
Cir. 2001). As Speers’ briefs show, he is familiar with this
maxim governing such appeals, but at times his briefs lapse
into disputing the Adamses’ version of the facts and even into
offering his own version of the facts. We regret these lapses
and, as they are made by the Attorney General of the State of
California defending Speers, we take this occasion to advise
the Attorney General that such practice could jeopardize our
jurisdiction to hear the interlocutory appeal. This exceptional
remedy is available only if the issue of immunity is presented
as a question of law. See Johnson v. County of Los Angeles,
340 F.3d 787, 791 n.1 (9th Cir. 2003).
As an appellate court, we are in no position to adjudicate
disputed facts that have not gone through the crucible of trial.
Still less are we in a position to accept as true something
asserted to be a fact by the appellant that has not been tested
in any judicial process. The exception to the normal rule pro-
hibiting an appeal before a trial works only if the appellant
concedes the facts and seeks judgment on the law.
The facts as presented by the Adamses are as follows:
Alan Adams, eighteen years of age, the youngest son of
John and Cathy Adams, lived with his parents at their home
in Hilmar, California. Early in the afternoon of June 26, 2001,
Alan borrowed his mother’s 1998 Ford Expedition to go to
look for work at a nearby dairy. At about 1:30 p.m., a detec-
tive from the Merced County Sheriff’s department observed
Alan run several stop signs. He put on a light to signal Alan
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that he should pull over. Alan did not, and a second Sheriff’s
deputy joined in the pursuit of his car. Two more county offi-
cers entered the chase, followed by two CHP vehicles. Alan
continued on his course, driving largely within the speed
limit, stopping at some stop signs and rolling slowly through
others. His driving was “nonchalant” or that of a “rapid Sun-
day drive.” He waved as he passed acquaintances.
Paul Speers had been assigned by the CHP to sit in his
patrol car, parked on the road, to serve as a visible deterrent
to speeders. On his radio he picked up news of the chase.
Shortly after 2:00 p.m. and before his assignment had ended,
he decided to join it, first picking up as a spectator a county
probation officer who was his occasional partner in appre-
hending probation violators. Speers drove north and parked at
a spot he guessed Alan would pass if he continued his present
route.
The Ford Expedition with Alan at the wheel reached the
point where Speers was waiting. Without advising the pursu-
ing law enforcement vehicles of his identity or his intentions,
Speers put his patrol car into gear, pulled out, and tried to ram
Alan’s vehicle. He missed. He continued in the procession of
police, putting his patrol car at the head of the chase, which
was now aided by a police helicopter that hung over the pro-
cession.
At 2:51 p.m., Alan’s Expedition exited the off-ramp and
made a left turn back over the freeway. It then entered the on-
ramp to go north. Speers used his patrol car to ram the Expe-
dition. The two cars became entangled. What the CHP report
termed “a significant hazard” to both vehicles was created.
The adjoining embankment was “very steep.” Speers had not
taken into consideration where his patrol car would end up. In
fact, the patrol car was dragged down the on-ramp for some
distance. Then the vehicles separated, and Alan and Speers
went on.
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At 3:00 p.m., Alan encountered traffic stopped by a colli-
sion. He entered the center divider to make a U-turn and
change direction. Speers accelerated, leaving the other police
cars behind. He cut through the divider and rammed the left
rear of Alan’s vehicle with sufficient force to knock it off the
shoulder of the road and down into a sandy embankment or
ditch where it came to rest. The impact was such that Speers’
own car spun down the shoulder, its bumper entangled with
the Expedition. As the two cars came to rest, they separated.
After the crash, as the CHP report continues, “additional
units positioned their patrol vehicles to prevent the suspect
vehicle’s escape.” A CHP unit was stopped on the shoulder
of the road about 35 feet from Alan’s right rear. Another CHP
unit stationed itself 25 feet away from the left rear. A Sher-
iff’s unit came into position about 30 feet away from the
Expedition and “slightly off-set to the left rear” of the Expedi-
tion. The patrol cars completely surrounded the Expedition,
cutting off any possible avenue of escape.
Alan began to inch the Expedition backwards, at no more
than 4 to 5 miles per hour, turning slowly to the left and let-
ting the front of the Expedition swing to the right towards
Speers’ patrol vehicle. Speers pushed his door open and hit
the Expedition. At the same time, Officer Marcos Rivera
approached the Expedition and stood next to the window on
Alan’s side. He raised his baton, struck the window and broke
it. He reached into Alan’s car with the intention of pepper-
spraying him.
Before Rivera could act, Speers exited his patrol car,
moved away from it, and stood in front of the Expedition as
it rolled backwards away from him. He drew his service
weapon and trained it on Alan. Without warning that he
would use it, he fired six rounds. Alan was killed.
A CHP investigation of the incident found, inter alia, that
Speers, contrary to regulations, was not wearing body armor
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that would “reduc[e] or minimiz[e] the possibility of injury in
the event of an accident or shooting.” Speers did not obtain
permission for the probation officer to ride as his passenger
in the chase; the probation officer was untrained in CHP pro-
cedure as to pursuits; he was, in the words of the CHP, “an
unauthorized passenger.” At no time did Speers request or
receive permission to enter the pursuit. He failed to communi-
cate with any of the other units engaged in the chase. He was
unfamiliar with the area he entered. In his failures to obtain
permission and to communicate, he violated CHP policy.
Speers was also found by the CHP to have twice “rammed
the suspect vehicle without obtaining permission” and to not
have given “consideration to the final resting place of the
involved vehicles after the ramming.” In each instance, Speers
violated CHP rules on ramming. In each instance, Speers dis-
regarded CHP policy that “consideration should be given to
the final resting place of the patrol car and its proximity to the
violator’s vehicle.” Speers failed to follow CHP policy in
making a stop by the use of force without authorization. In
each instance, Speers acted without communication with the
other units. The result of the second ramming, in the CHP’s
words, “left Officer Speers in a vulnerable and hazardous
position. Officer Speers had difficulty in exiting the patrol car
due to very little room to open the patrol car door.” The CHP
report concluded, “Based on the previously mentioned viola-
tions, it is recommended that Adverse Action be initiated
against Officer Paul E. Speers.”
When Speers fired the six rounds, as the CHP report also
stated, he “did not have a completely clear background for
discharging his weapon.” Two of the officers on the scene
saw no reason why Speers should shoot Alan. According to
Speers’ own deposition, he did not fire to protect other offi-
cers.
PROCEEDINGS
On August 28, 2002, the Adamses, parents of Alan, filed
their first amended complaint seeking damages under 42
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U.S.C. § 1983 and the Fourth Amendment to the Constitution
and under California law governing wrongful death. Other
officers besides Speers were named, but were ultimately dis-
missed by stipulation. Speers moved for summary judgment,
contending that he was entitled to qualified immunity. In a
written opinion the court denied his motion.
Following the steps set out in Saucier v. Katz, 533 U.S. 194
(2001), the court first determined that, if all the facts were
viewed in favor of the Adamses, Speers had violated the
Fourth Amendment. Id. at 201. The court stated that it is
unreasonable for a police officer to “seize an unarmed, non-
dangerous suspect by shooting him dead.” Tennessee v. Gar-
ner, 471 U.S. 1, 11 (1985). Serious questions, unresolvable by
summary judgment, existed “as to the objective reasonable-
ness of Officer Speers [firing] six rounds into Alan’s vehicle
in the absence of warning.”
The second Saucier step was for the court to ask if Speers
could have reasonably believed that his conduct did not vio-
late the Constitution. See Saucier, 533 U.S. at 205. Speers is
off the hook if, on the facts before us, he had the reasonable
belief that his conduct was lawful. In short, Speers is not held
to a correct constitutional reading, only to a reasonable one.
See id. The district court concluded that Speers was unreason-
able in believing that the law permitted him to fire six rounds
at Alan’s vehicle. Accordingly, the district court denied him
qualified immunity.
Speers appeals.
ANALYSIS
[1] Reviewing de novo the district court’s denial, we find
its judgment impeccable. On the facts presented by the
Adamses and the disciplinary report of the CHP itself, a jury
could find Speers to be an officer off on a mission of his own
creation, abandoning his assignment, picking up a buddy for
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no apparent reason except the excitement of the chase, barg-
ing in ahead of the police already engaged in pursuit, once
attempting to use force against Alan and twice doing so, cre-
ating each time a serious hazard for himself as well as Alan,
and finally stepping out of his patrol car and, without warning
and without the need to defend himself or the other officers,
killing Alan. Shooting of this sort was established as unconsti-
tutional by Tennessee v. Garner, supra, almost twenty years
ago. See Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), on
remand from 536 U.S. 953 (2002). No officer acting reason-
ably in these circumstances could have believed that he could
use deadly force to apprehend Alan.
The Supreme Court recently stated the governing law in
Brosseau v. Haugen, 543 U.S. 194 (2004). Two decisions of
circuit courts were there cited by the Supreme Court as exam-
ples of cases where it was reasonable for an officer to shoot:
Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993); Smith v. Fre-
land, 954 F.2d 343 (6th Cir. 1992). In Cole the officer had
probable cause to believe that the suspect’s truck “posed an
imminent threat of serious physical harm to innocent motor-
ists as well as to the officers themselves.” 993 F.2d at 1333.
In Smith, the suspect was cornered at the back of a street, but
freed his car and began speeding down the street. The Sixth
Circuit noted that the suspect “had proven that he would do
almost anything to avoid capture” and that he posed a major
threat to officers at the end of the street. Smith, 954 F.2d at
347. In Brosseau itself, the officer twice ordered the suspect
to get out of his car and then broke the window on the driver’s
side with her handgun. The officer then tried to grab the car
keys and struck the suspect with the barrel and butt of her
gun. Undeterred, the suspect put the key in the ignition and
started his car. The officer fired because she was fearful for
the safety of the other officers. The suspect survived the sin-
gle shot but subsequently pleaded guilty to driving in wilful
or wanton disregard for the lives of others. Brosseau, 543
U.S. at 196-197. The Supreme Court held that Brosseau was
entitled to qualified immunity because her actions fell in the
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“ ‘hazy border between excessive and acceptable force.’ ” Id.
at 201 (quoting Saucier, supra, at 206).
At the same time the Supreme Court reaffirmed the rule of
Tennessee v. Garner that the shooting of an unarmed, non-
dangerous suspect to prevent the suspect’s flight is a violation
of the Fourth Amendment and that cases would occur where
such a violation was “obvious.” Id. at 199.
[2] Accepting the Adamses’ facts as true, this case falls
within the obvious: the absence of warning and the lack of
danger to the shooter or others distinguish the case from Cole,
Smith, and Brosseau. On these facts, Officer Speers was not
entitled to qualified immunity.
AFFIRMED.
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