- No.

: 05- 15159
IN THE UNITED STATES COURT OF ApPEALS FOR THE NINTH CIRCUIT

John and Cathy Adams

Plaintiffs and Appellees
vs.
Paul Speers

Defendant and Appellant.

Appeal from an Order Denying a Motion for Summary Judgment of the United States District Court for the Eastern District of California Hon. Lawrence J. O' Neill , U. S. Magistrate Judge No. CIV- 01- 5741

APPELLEES' BRIEF
A. Charles Dell' Ario (SBN 60955) - Jacques LeBoeuf (S. N. 163579)
DELL' ARIO & LEBOEUF , P.

Richard C. Bennett (SBN 60561)

Randal W. Hooper (SBN 95068)

BENNETT, JOHNSON & GALLER

201 Nineteenth Street , Suite 200 Oakland , CA 94612 Telephone: (510) 763- 7700
Facsimile: (510) 763- 7755

1901 Harrison Street , Suite 1650 Oakland , CA 94612 Telephone: (510) 444- 5020 Facsimile: (510) 835- 4260

Attorneys for Plaintiffs and Appellees John and Cathy Adams

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TABLE OF CONTENTS
INTRODUCTION AND SUMARY OF ARGUMNT

STATEMENT OF FACTS AND OF THE CASE . .

Alan Adams Runs a Stop Sign and Leads the Police on a Low- Speed Chase " ................................... 4

Without Seeking or Obtaining Authorization , Officer Speers

Leaves His Assigned Area , Joins the Pursuit , and Rams the

Expedition. . .
Officer Speers Rams the Expedition Again and Then Fires Six Rounds Through the Windshield , Killng Alan

John and Cathy Sue , and Officer Speers Moves for Summary Judgment on the Ground That He Shot Alan in Self- Defense..
The Adamses Introduce Evidence That Neither Officer Speers Nor Any Other Officer Was in Any Danger When He Fired and That Whatever Danger He May Have Been In Was His

Own Fault. .
_u_

Officer Speers Argues That His Belief in the Need to Use Deadly Force , Even If Mistaken , Was Reasonable , But the District Court Finds That a Jury Could Conclude Otherwise
The Adamses Move to Dismiss Officer Speers ' Appeal in the Ground That the Court Has No Jurisdiction to Consider the Sufficiency of the Evidence in an Interlocutory Appeal , but the Court Denies the Motion Without Prejudice

.. 18

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.............................................. . . . . . . . . . ........ . .. .. .. .. ..... .. .. . . ....... .

. . . . . . . . . . . . . . ..

III

ARGUMNT
Because this Court Has No Jurisdiction to Entertain Officer Speers ' Appeal , It Should Dismiss It

The Courts of Appeals Have No Jurisdiction

Belief in the Need to Use Deadly Force

to

Entertain An Interlocutory Claim That the Defendant'

Possibly

Though Mistaken , Was Reasonable under the

Circumstances. . . .

The Sole Basis for Officer Speers ' Motion for Summary

Judgment Was His Claim that His Belief in the Need to

Though Possibly Mistaken , Was Reasonable Under the Circumstances
Use Deadly Force ,

None of Officer Speers ' Authorities Suggests That an Interlocutory Appeal Is Appropriate
If the Court Does Not Dismiss Officer Speers ' Appeal

Outright , It Should at the Very Least Disregard His Arguments Insofar As They Depend on Facts that the Adamses Dispute

.. 38

. . . . . . . . . . . . . . ..

Because a Jury Could Conclude That Officer Speers and the Other Officers Were in No Danger When He Fired , and That a Reasonable Officer Would Have Recognized as Much , the
Court Should Affirm Judge O' Neil'

s Ruling Even If

Addresses the Sufficiency of the Evidence

Summary Judgment Would Have Been Appropriate

Only If the Undisputed Evidence Established

That

Officer Speers Had Reason to Believe That Alan

Actions Posed an Immediate Threat of Serious Physical Harm to Officer Speers or Someone Else
A Reasonable Jury Could Conclude That Officer Speers

and the Other Officers Were in No Danger When He Fired , and That Any Reasonable Officer Would Have Recognized as Much. . . . Because the Law in 2001 Clearly Established That a Police Officer Could Not Kil a Driver Who Posed No Continuing
Threat to the Officer or Anyone Else , The Court Should Reject

Officer Speers ' New Claim of Qualified Immunity Even If It Considers It on Its Merits

the Ground That A Reasonable Jury Could Conclude That Whatever Danger
Could Also Affirm on
Officer Speers

The Court

May Have Faced Was Due to His Own

Reckless Conduct

CONCLUSION. .

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.............. . . . . . . . . . . . . . . . . . "
TABLE OF AUTHORITIES
Cases
Abney v.

United States

431 U. S.
Abraham v.

651 (1977)

....................................... 23

Raso 183 F.3d 279 (3d Cir. 1999)

v.

Alexander

City and County of San Francisco

................................ 59

29 F.3d 1355 (9th Cir. 1994)

Allen v.

Muskogee, Oklahoma
119 F . 3d

837 (10th Cir. 1997)

............................... 59

Armendariz

v.

Penman
(en bane)

75 F.3d 1311 (9th Cir. 1996)

..................... 22

Baldwin

v.

Placer County,

418 F. 3d 966 (9th Cir. 2005)

Behrens

................................ 39

Pelletier 516 U. S. 299 (1996)

v. v.

.................................... 28 , 34

Blanford

Sacramento County, 406 F. 3d 1110 (9th Cir. 2005)

............................... 43

Cobbledickv. United States

309 U. S.
Cohen v.

323 (1940)

....................................... 22

Beneficial Industrial Loan Corporation

337 U. S.
Coopers Lybrand

541 (1949) ..............................

v.

22-

Livesay,
....................................... 22

437 U. S.

463 (1978)

- -

Devereaux

v.

Abbey,
(en bane)

263 F.3d 1070 (9th Cir. 2001)

....................... 41

Estate of Starks

Enyart 5 F. 3d 230 (7th Cir.

v. v.

1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. 57

Estate of Thurman

City of Milwaukee

197 F. Supp. 2d 1141 (E. D. Wis. 2002) ......................... 57

Ghotra v.

Bandila Shipping, Inc.

113 F. 3d
Graham v.

1050 (9th Cir. 1997) ...............................

38

Connor

490 U. S.
Hope v.

386 (1989) .......................................

42

Pelzer 536 U. S. 730 (2002) .......................................

54

In re Nissan Motor Corp. Antitrust Litigation

552 F. 2d
Jeffers v.

1088 (5th Cir. 1977) ...............................

22

Gomez 267 F. 3d 895 (9th Cir. 2001) ............................. 35

v.

Johnson

Jones
..................................... 25-

515 US 304 (1995)

Knox

v.

Southwest Airlines 124F.3dl103 (9th Cir. 1997) ............................ 29

v.

Margolis

Ryan

140 F. 3d 850 (9th Cir. 1998) ................................ 38

McAfee v.

Ricker

195 Ca1.App. 2d 630 (1961) ................................. 57

Matsushita Electrical Industrial Zenith Radio Corp., 475 U. S. 574 (1986) .......................................
Co. v.

38

.. .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

Mitchell

v.

472

Forsyth U. S. 511 (1985) ..............................

23

, 29 , 34

Nixon

Fitzgerald 457 U. S. 731 (1982) .......................................

v. v.

23

Pace

Capobianco
283 F. 3d 1275 (11 th Cir. 2002)
..................... 32 , 52-

, 55

Pellegrino

United States 73 F. 3d 934 (9th Cir. 1996) ................................. 28

v.

People

Hinshaw 194 Ca1. 1 (1924) . . . . .

v.

Reese

Anderson 962 F. 2d 494 (5th Cir. 1991) ................................ 55

v.

Reyes

City of Richmond 287 F. 3d 346 (5th Cir. 2002) .......................... 27v. v.

Saucier

Katz

533 U. S.
Schwenk v.

194 (2001) .......................................

42

Hartford
............................... 35

204 F.3d 1187 (9th Cir. 2000)

Scott v.

Clay County,

- 205F:Jdg67-- (6thCtr. WOO) ................................

Sears
, Roebuck and Co. v. F. T

55

676 F.2d 385 (9th Cir. 1982)

Sevier v.

................................ 33

City of Lawrence
................................ 58

60 F.3d 695 (10th Cir. 1995)

Smith v.

Freland

954 F. 2d 343 (6th Cir. 1992) ................................ 55

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . ..

Squaw Valley Development Co.

v.

Goldberg,

375 F. 3d 936 (9th Cir. 2004) ................................ 42

Tennessee

471

Garner U. S. 1 (1985) ................................

v.

42

53-

Thomas

v.

Gomez

143 F. 3d
United States v.

1246 (9th Cir. 1998) ............................

United States District Court (Keith),

28 , 31

407 U. S.
Vaughan v.

297 (1972) .......................................

1323 (1Ith Cir. 2003) ..............................

23

Cox
49

343 F. 3d
West v.

Atkins
487 U. S.

42 (1988) ........................................

41

Wilkins

City of Oakland 350 F.3d 949 (9th Cir. 2003) ............................. 36

v. v.

Yates

City of Cleveland

941 F. 2d

444 (6th Cir. 1991) ................................

58

Statutes, Rules, & Constitutional Provisions

28 U.

C. 9 1291 ............................................... 21

28 U. C. 9 1983 ......................................... 11
Ca1. Penal

Code 9 240 . .

. .. 48-

Fed.

Civ. P.

56 ................................................

38

S. Const.

, amdt. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .. 11 , 42

S. Const. , amdt. XIV

V11

INTRODUCTION AND SUMMARY OF ARGUMENT

In his zeal to get involved in the pursuit of Alan Adams , Officer Paul Speers

violated nearly every applicable rule in the books. He then rammed Alan s vehicle

repeatedly and without authorization and then-when Alan ,

understandably

panicked , inadvertently caused the Expedition to brush against Officer Speers

door-Qfficer Speers

calmly and deliberately shot him dead. He initially claimed

that he shot Alan while being crushed behind his door, but when that theory was
rendered unavailable by the

ballistics evidence and the testimony

of seven

percipient witnesses-including his own colleagues-he changed his story, and

claimed that he fired because he thought Alan was about to run him down.

The evidence- including Officer Speers '

own change of theory-casts

considerable doubt on the honesty with which he held that belief. More
importantly, even ifhe really did perceive a deadly threat , that perception-which

none of his co-workers shared-was not objectively reasonable. To the contrary,

the evidence depicts Alan as a confused and frightened teenager-not the ruthless

desperado that Officer Speers claims to have gunned down-and it depicts Officer
Speers as an officer too quick to perceive a deadly threat.

Officer Speers ' novel view of the facts persists in his opening brief. Every
argument he makes either invites the Court to accept his view of disputed facts or

simply assumes that the Court wil

do

so. But established rules of jurisprudence

prohibit the Court from seeing the evidence his way. In fact , in an interlocutory
appeal such as this, the Court is not even supposed to be assessing the sufficiency

ofthe evidence , as it normally would when passing on a summary judgment order.

When faced with an interlocutory appeal such as this-one that rests entirely on
an implicit challenge to the sufficiency of the evidence-the proper response is

to dismiss the appeal , since the Court does not have jurisdiction to consider it. At

the very least , however , the Court must disregard

Officer Speers '

arguments

insofar as they depend on facts that the Adamses disputed below.

Even if the Court chooses to assess the sufficiency of the evidence , it wil
find that Magistrate Judge O' Neil' s ruling is unassailable. In fact , every shred of

evidence other than Officer Speers ' own testimony suggested

thatOfficer Speers

calmly and deliberately shot a boy whose worst offense was reckless driving, who

had nowhere left to run , and who posed no continuing threat to Officer Speers or
anyone else.

When the evidence is viewed through the proper lens , Officer Speers
newly-minted arguments concerning the state of the law in

2001 become ilusory.

Long before 2001 , it should have been clear to any reasonable officer that a
suspect who posed no continuing threat to the officer or anyone else could not be

kiled , even if the suspect

against the officer

had just inadvertently caused his vehicle to brush

Lastly, even if the Court finds that Alan s driving placed Officer Speers in

jeopardy, it should still affirm Magistrate Judge O' Neil' s

ruling for another

reason: An officer may not shoot himself out of a dangerous situation that he
himself recklessly created. Because a jury could find that that is what
Speers did , the Court could affirm for this reason alone.
Officer

John and Cathy Adams deserve

the chance to ask a jury to assess the

reasonableness of Officer Speers ' conduct. One way or anotherthis appeal or affirming the district court' s
get it.

by dismissing

ruling-this Court should see that they

, "

, "

STATEMENT OF FACTS AND OF THE CASE

Alan Adams Runs a Stop Sign and Leads the Police on a " LowChase

Speed

John and Cathy Adams lived in Hilmar , California , with their youngest son

Alan , who was eighteen. (SER 579- 81. y

Early

in the afternoon of June 26 , 2001

Alan borrowed Cathy s Ford Expedition to go look for work at a nearby dairy.
(SER 571, 775- 76. )
A few minutes later-at

about

:30-a detective

with the

Merced County Sheriffs department who was driving an unmarked car saw him
run several stop signs. (SER 467 601- 603 825- 26. )
The detective turned on an

interior red emergency lamp to signal Alan to pull over , but he did not do so.
(SER 604.

Within a few minutes , a Sheriff s Deputy driving a marked patrol car joined

the pursuit. (SER 607- 608 615 829. ) He , too , put his lights on to signal Alan to
pull over, but Alan kept driving. (SER 608 , 634 , 755 , 829.
Two more county

In this

brief

supplemental excerpts filed concurrently

ER" refers to the excerpts of

appendix to the motion to dismiss filed on April 28 , 2005.

record with this brief, and

SER" to the
" App. "
to the

).

officers then joined the pursuit , followed by two CHP vehicles. (SER 326

609

637 , 727 , 831. )

Still

Alan kept driving.

F or

the most part , Alan

seemed unconcerned by the law

enforcement

vehicles behind him. He drove largely within the speed limit

stop signs and rolling slowly through others. (SER 325536-

, stopping at some
426-

331 378-

634 669 , 829. )

He even

waved at acquaintances. (SER 635 , 831. ) One

a " rapid

witness described his driving style as that of

38182; see also

Sunday drive. " (SER

SER 325- 26 (describing driving style as " nonchalant"

Without Seeking or Obtaining Authorization , Officer Speers Leaves

His Assigned Area , Joins the Pursuit , and Rams the Expedition

While other law enforcement officers were joining the pursuit

, defendant

and appellant Paul Speers was parked in his CHP patrol car on the side of the

road. Although his assignment that afternoon was to sit in his car to serve as a
visible deterrent to would- be
speeders ,

he was dressed

in a dark blue

utility

uniform

more

appropriate

for military-style
(SER 29 ,

engagements

(see

ww. chp. ca. gov/html/uniforms.

170 , 192.

While he sat there , he heard about the pursuit on his radio. (SER 170.

) The

radio traffic indicated that there were already too many vehicles involved in the
pursuit , and no supervisor had told Officer Speers to get involved.
122 ,
131-

(SER 64 , 120

, 137 , 171 , 193-

, 266 , 314. )

Nonetheless ,

shortly after 2:00 , he

decided to join the pursuit.

(SER 92 , 168. )

Along the way, he stopped to pick

worked. (SER 171 ,

a county probation officer with whom he sometimes

194-

189

293.

The radio traffic indicated that Alan was heading north , out of Officer
Speers s jurisdiction. (SER 170Speers left , his

262 293-

317. )

Nonetheless ,

Officer

assigned area, drove north , parked at a spot that he thought Alan

would pass , and waited. (SER 196 , 317.

no one asked or authorized him to join the pursuit , and that

Officer Speers ' suggestion that he was only responding to a " request for help " (AOB 6) is contradicted by the undisputed evidence , which established that

, by the time unilaterally chose to do so , there were already too many vehicles involved. (SER 120 122 131137 171 193266 314.
Officer Speer s statement that he merely "picked up his partner " (AOB 6) is also misleading. In fact , Probation Officer Gutierrez worked for a the county probation department , not the CHP; they only worked together a few shifts each week as part of a special joint project involving probationers. Because the undisputed evidence establishes that they were not working on that project on June 26 , 2001 , Officer Gutierrez was present not in his official capacity but only
as a spectator. (SER 171 , 266- 67.

He didn t have to wait long. At 2:41 , he saw the Expedition approaching,

a train of law enforcement vehicles behind it. (SER

169 , 294. ) Without asking

of his

anyone s permission-or even telling the other pursuing officers

intention-he pulled out and tried to ram the Expedition. (SER 171 , 198 , 202205 243-

263. )

He missed ,

but he joined the pack of pursuing cars in front of

the CHP officer who had been leading it (and who , unlike Officer Speers , was
operating within his assigned area). (SER 171 , 196 330; App. 135, 140 , 149.

About ten minutes later , Alan was driving southbound on route 99 when he
got off the highway, turned left , crossed over the highway, and turned left again

to get back onto the highway heading north. (SER

169 , 208 , 263. ) As he was

turning onto the on-ramp, Officer Speers tried to ram him again , once again

without asking anyone s permission or telling anyone of his intentions. (SER 169
209 263 , 419(SER 169 ,

, 428- 29. )

This time ,

he succeeded in hitting the Expedition.

172 208- 209 263 429. ) The two vehicles became briefly entangled

then separated , and Alan headed north up the highway. (SER 169 , 172 212 214-

263 429.

Officer Speers Rams the Expedition Again and Then Fires Six Rounds

Through the Windshield, Kiling Alan

As Alan drove north , all but one of the Sheriff s department vehicles
dropped out of the pursuit , leaving four CHP vehicles and one County vehicle.
(SER 136-

619 639-

685-

, 700 , 702- 703 , 805 ,

831.) Then , at about 3:00

ten minutes after the incident on the on-ramp-Alan tried to avoid a traffic
jam by making a U- turn across the dirt median. (SER 169 216 332 392. )
As he

did so , Officer Speers broke away from the pack of pursuing vehicles and rammed
him again,

once again without asking anyone s permission or tellng

anyone

what

he was doing. (SER 169 , 172 217 263 , 762- 65.

The force of the collision propelled both vehicles down the highway
western embankent and into a ditch. (SER 169 , 762, 806- 807. ) They came

to rest against a fence , with Officer Speers ' vehicle parallel to , and about two or

three feet to the right of, the Expedition. (SER 11 ,

806- 807.

14-

, 169 ,

707 712

The other

pursuing

officers then surrounded the Expedition

positioning their vehicles so as to prevent Alan from escaping. (SER 11, 15

169 233-

264 402- 403 , 704 ,

707 ,

712 , 807 , 809. )

Most of the officers other

than Officer Speers then took cover behind their vehicles , as they had been trained

to do when performing a " high-risk" stop. (SER 221 , 403 , 799. ) Merced County
Sheriffs Deputy Mark Taylor , who had pulled in behind the Expedition
, stayed

in his car on the radio , telling his dispatcher what was happening. (App. 253.

Although he was completely surrounded , Alan nonetheless began to inch

the Expedition slowly backwards , turning slowly to his left as he did so

, and

forcing the front of the SUV to swing to the right toward Officer Speers ' car.
(SER 169. )
At the

same time , Officer Speers tried to get out of

his car on the

driver s side , immediately next to the Expedition. He pushed his door open until

it hit the slowly-moving SUV , and he then stood for a moment on the door-jam as

the Expedition backed up, its front end inching ever closer to him. (SER
264. )
(The following

169

page contains a diagram drawn from SER 868.

Meanwhile , CHP officer Marcos Rivera-who had stopped his vehicle

immediately to the Expedition

s left-approached the SUV and stood directly next

to Alan s driver s-side window. He then broke the window with his baton and

reached in with the intention of incapacitating Alan with pepper spray.

129;App. 146-

(ER

229-

259 263

268; SER 11 ,

15

359 363-

441-

445- 47.

Cf.Unit
#102581

CHP Uni

CHP

#1025759

t9246
EqnD

tc.

He never had the chance. Just as he was reaching through the window, he
realized that Officer Speers had stepped out from behind his door and moved away
from his vehicle , and was standing directly in front of the SUV training his gun

on Alan , seemingly oblivious to Officer Rivera s presence. (SER 20 24-

445

448. ) Then , as the Expedition continued to roll slowly away from him and toward
Deputy Taylor

s car (there was no one between the two vehicles), Officer Speers

fired six shots through the Expedition s windshield. (SER 363 , 449 , 713 , 715;
App. 102; ER 81. )
The Expedition continued

to roll slowly backwards until it

struck Deputy Taylor s car. (SER 450 452 554. ) Minutes later , Alan was dead.
(SER 713.

The CHP subsequently determined that Officer Speers had violated CHP

policy in numerous ways , including by wearing an unauthorized , military-style

utilty uniform joining the pursuit without authorization , leaving his assigned area
to do so ,

stopping to pick up a passenger without authorization , repeatedly

ramming the Expedition without authorization , and failing to communicate his

intentions to the other pursuing officers. (SER 166-

209- 10. )

But the

CHP

also concluded that Officer Speers had shot Alan in self- defense. (SER 168 , 173.

John and Cathy Sue, and Officer Speers

Moves for

Summary

Judgment on the Ground That He Shot Alan in Self- Defense

John and Cathy sued Officer Speers and others ,

alleging negligence

unlawful seizure in violation of the Fourth Amendment and section 1983 , and
deprivation ofliberty in violation ofthe Fourteenth Amendment and section 1983.
(App. 1- 11. ) Their claims against Officer Speers rested generally on the allegation

that he was not in any danger when he shot Alan , and that he had no other
legitimate reason for doing so. (App.

Officer Speers moved for summary judgment , arguing that he was entitled
to judgment under each of the causes of action because
, at the moment he opened

fire , the SUV was crushing him between his door and his car:

He asserted that summary judgment under the first cause of action

was appropriate because " (tJhe undisputed facts in this case show
were in imminent danger of serious bodily harm or death at the time he shot
that Officer Speers , as well as the other officers present ,

Alan Adams. "

(App. 34.

He argued that he was entitled to judgment under the second cause

of action because Alan s vehicle was " crushing Officer Speers " and

because he " literally had less than seconds to assess the severity of

the physical threat that he was experiencing and respond

accordingly. "
(App.

37.

He asserted that he was entitled to judgment under the third cause of

action because his " split-second decision to shoot Adams was made
in self- defense while Officer Speers was in fear of his own death or

serious bodily injury. . . . "

(App.

39.

The Adamses Introduce Evidence That Neither Officer Speers Nor Any

Other Officer Was in Any Danger When He Fired, and That Whatever

Danger He May Have Been In Was His Own Fault

In opposition to his motion , the Adamses first introduced the reports of

seven percipient witnesses.

All testified or declared that Officer Speers was no

longer behind his door and in danger of being crushed , but was standing in the
clear in front of the Expedition , when he opened fire:

Officer Rivera , who had been standing right next to the driver s door

of the Expedition when Officer Speers opened fire , testified that

Officer Speers was not in contact with his car , but was standing on

the ground about five feet away and " out

in front of the Ford

Expedition " when he fired. (App. 225 , 227 , 231-

, 243.

CHP Officer Michael Brush , who was standing a few feet behind and
to one side of Officer Rivera , never saw Officer Speers pinned by the

vehicle. (SER 364 370- 72.

Deputy Taylor , who was in his patrol car behind the Expedition

testified that the Expedition was not in contact with Speers ' car , and
that Speers had been able to come out from behind his door , when he

fired. (App. 253; SER 551- 54.

J oseph Walker , who watched the event from the back lot of a factory immediately adjacent to the scene
of the shooting, declared that

Officer Speers was standing two to three feet from the door of his
vehicle and two to three feet from the corner of the Expedition when

he opened fire. (App. 258- 60. ) He added that " at no time did I see the CHP Officer who fired his weapon to be in any danger. " (App.
260.

Jerr Benge ,

who was in the same lot as Joseph Walker, declared that

Officer Speers was standing " between his CHP vehicle (near the
driver s side rear door) and the right front corner of the Expedition
when he fired. (App. 262- 63. ) He added that " I do not think that the
CHP Officer who fired his weapon was in any danger at the time he

shot at the Expedition. . .. "

(App.

263.

Steven Holt , who saw the incident from the same lot as Messrs.
Walker and Benge , said that Officer Speers was " standing in front of
the white Expedition near it'
(sic)

front right corner , between it and

the patrol vehicle. . .. "

(App. 268.

Raymond Santos , who was stuck in the traffic jam that Alan had tried
to avoid , declared that Officer Speers was standing " between the left

front of his patrol vehicle and the front of the Expedition in a

shooting position "

and " directly in front of the Expedition and to the

(SER 24- 25.

left side (driver s) of his CHP patrol vehicle. . .. "

. .

In addition to these seven percipient witnesses , the Adamses also introduced

evidence setting forth the opinions of two forensic

experts ,

who agreed that

Officer Speers could not have fired while being pinned behind his door by the
comer of the Expedition:

Jennai Lawson , a forensics expert with the California DOJ , plotted

the trajectories of Officer Speers ' bullets , and concluded that they
were fired not from the passenger ' s-side corner of the Expedition but

in an array beginning near the center of the Expedition s hood and

extending to the driver
s side corner. (See

SER 865 , 867- 69.

Alexander Jason ,

the Adamses ' retained forensics expert , reported

not consistent with having

that the trajectories of the bullets " are

been shot while the Expedition was in contact with the driver s door. The trajectories are consistent with having been shot while the

Expedition was no longer

in contact with Speers ' door. "

(SER

461- 62. ) He reiterated this opinion at his deposition , where he

testified that "

the Expedition could not have been in contact with the

" (SER 463.

door when Officer Speers fired the first shot group. .

In addition to evidence establishing that Officer Speers was in no danger

when he opened fire , the Adamses introduced evidence that Alan s actions posed

no danger to anyone else at the scene. For one thing, Officer Speers admitted in
his deposition that he fired only to protect himself, not to protect anyone else:

Okay. And you fired your weapon not to-you didn t fire your

weapon to protect any other officers , did you?

When I fired my weapon , I thought that he was going to kil me

or seriously hurt me , that' s why I fired.

Didn t fire because you thought other officers were in danger

of being struck by this vehicle?

At the very moment that I fired , no.
So you fired your weapon in no way h,ad any-there is no way
you fired your weapon to defend other people from what you thought

was death or serious bodily injury; is that correct?

I fired to protect myself.

So it was a strictly self- defense , firing of your weapon?

It was self- defense.

(ER 81)

In addition , the evidence established that there was no one in the SUV'
path as it rolled away from Officer Speers in any event; Deputy Taylor was in his
car , and the only other officer who was anywhere near the rear of the Expedition

(CHP Officer John McDermott) had taken cover behind his vehicle. (App. 253;
SER 403.
Officer Speers ' passenger had gotten out of the vehicle on the
s side , and

passenger

Officers Rivera and Brush were standing

near the

Expedition s driver s door , and thus in no danger of being run over. (App. 227232; SER 221 364.

Moreover , the Expedition was moving " very slowly, " possibly " a few miles
per hour " when Officer Speers fired , according to Officer Brush. (SER 365- 66)

Officer McDermott agreed , stating that the Expedition was probably moving at

around " four to five miles per hour. "

(App. 103. )

As a result , Officer Brush

(SER 368.

testified , none of the officers on the scene

were in any danger.

Officer Rivera agreed. (SER 456. )

In fact ,

neither Officer Brush nor Officer

368.

Rivera could see any reason why Officer Speers fired. (SER 232-

Finally, the Adamses also introduced evidence suggesting that whatever

danger Officer Speers might have been in was his own fault , since he had acted
recklessly in trying to squeeze out of his car on the side closest to the Expedition

and staying behind the door even while the Expedition was pressing against it.
(SER 152-

288- 89.

Officer Speers Argues That His Beliefin the Need to Use

Deadly Force,

Even If Mistaken, Was Reasonable, But the District Court Finds That

a Jury Could Conclude Otherwise

In his reply papers , Officer Speers acknowledged that ajury could conclude

that he was not in fact being crushed by Alan s vehicle when he opened fire.
(App. 279- 81.) All the same ,

he argued that he was nonetheless entitled to

summary judgment because he had made a reasonable mistake of fact about

whether he was stil
in

danger when he fired:

Unfortunately, Officer Speers did not have the

luxury of

months of retrospection. Nor did he have a crystal ball that plaintiffs

seem to rely on in his CHP cruiser. He did not have time to pull out

a stop watch to determine how fast the ford Expedition , that had
driven into his vehicle and struck him , was now moving. He had no
time to pull out a tape

measure and measure how far the Ford

Expedition was now from where he was standing. And he had no

mind reading powers that would allow him to determine the intent of

the driver ofFord Expedition. ....

All Officer Speers

had was the

realization that the driver had just caused the Ford Expedition to
injure Officer Speers and that the stil moving Ford Expedition was
stil close as three feet

from him. Officer Speers then had , at most

only seconds to decide whether or not this still resisting suspect that

just struck him with a full-size SUV stil posed a threat to Officer

Speers. This decision in that incredibly brief moment can

only be

described as objectively reasonable. (App. 280- 82.

The district court ,

speaking through the

Honorable Magistrate Judge

Lawrence J. O' Neil , disagreed , concluding that ajury could find that (1) Officer

Speers was no longer in any danger when he fired; and (2) a reasonable officer
would have realized as much:

Viewing the evidence in the light most favorable to Mr. and Mrs.
Adams reveals , at a minimum , a question whether Alan s vehicle had
passed Officer Adams (sic)

when he shot. As such ,

a question

remains whether Alan posed a threat to Officer Speers safety to

justify deadly force without warning, especially since Officer Rivera
was prepared to pepper spray Alan. " " The evidence poses serious

questions as to the objective reasonableness of Officer Speers to fire

six shots into Alan s vehicle in the absence of warning.

Mr. and Mrs. Adams contend that Officer Speers

cannot

establish the reasonableness of his belief in that his version of events

Adams present evidence to raise factual questions whether it would be clear to a reasonable officer
Mr. and Mrs.

is disputed. . ..

that he/she could fire six rounds when Alan s vehicle and alleged
danger had passed. (App.

300- 302.

The court added that the facts as a jury might find them would give rise to
a reasonable inference that

Officer Speers opened fire "without sufficient

Put another way, the

provocation or after danger had passed. . .. " (App. 304. )

court stated that " Mr. and Mrs. Adams have raised factual issues whether Officer
Speers ' safety was in danger when he fired six shots and whether Officer Speers

acted reasonably. Mr. and Mrs. Adams have raised factual issues. whether the
circumstances generated a reasonable fear of danger to Officer Speers or others.
(App. 305- 306.

The Adamses Move to Dismiss Officer Speers ' Appeal in the Ground

That the Court Has No Jurisdiction to Consider the

Sufficiency

of the

Evidence in an Interlocutory Appeal , but the Court Denies the Motion

Without Prejudice

Officer Speers then appealed. (ER 316. )

The

Adamses moved to dismiss

to entertain

the appeal on the ground that the courts of appeals have no jurisdiction

interlocutory appeals in which the sole question is whether the evidence would

permit a jury to find that a police officer s mistaken belief in the need to use

deadly force was unreasonable. After taking the motion under consideration for
several months , the Court denied it without prejudice to the right to renew the

same argument in this brief.

III
ARGUMENT

Because this Court Has No Jurisdiction to Entertain Officer Speers

Appeal, It Should Dismiss It

The Courts of Appeals Have No Jurisdiction to Entertain An

s Belief in the Need to Use Deadly Force, Though Possibly Mistaken, Was Reasonable
under the Circumstances
Interlocutory Claim That the Defendant'

28 U.

C. section 1291 vests the courts of appeals with jurisdiction over

decisions " of the

app als only from " final

district courts. This " one final

judg ent" rule serves a number of important goals. First, it allows district court
judg s to do their jobs-supervising trial court proceedingsdela and

with a minimum of

interference. It also spares litigants the expense and delay caused by

minimizes

mulfple trips to the reviewing court. And perhaps most importantly, it

the b rden on the courts of appeals , by (1) ensuring that they need not familiarize

themselves with a given case multiple times; (2) enabling them to conduct their
review with the benefit of well- developed records; and (3) ensuring that they do
not waste their energy resolving issues that wil
at trial. Cobbledick v.

be

mooted by subsequent events

Armendariz

United States
1316 (9th Cir. 1996)

309 U. S. 323 , 325 (1940);

Penman

75 F.3d 1311 ,

(en bane); In re Nissan Motor Corp.

Antitrust Litigation 552 F. 2d

1088 ,

1094 (5th Cir. 1977).

Nonetheless

, in

Cohen

v.

Beneficial Industrial Loan Corporation 337 U.

541 , 546 (1949), the Supreme Court held that the courts of appeals have appellate

jurisdiction over district court decisions that fall into " that small class which
finally determine claims of right separable from , and collateral to
, rights asserted

in the action , too important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until the whole case is
adjudicated. "
Under what has
now come to be known as the Cohen

doctrine , the

courts of appeals are authorized to entertain appeals from any order that (1)
conclusively determines the disputed question; (2) resolves an important
completely separate from the merits of the action; and (3) is
unreviewable on appeal from a final judgment. Coopers Lybrand v.

issue

effectively
Livesay,

437 U. S.

463 , 468 (1978).

The

Cohen

Court held that the rule that it was announcing authorized

interlocutory appeal from a district court order refusing to apply a state statute that

required the plaintiff in a stockholder s derivative action to post security for the
defendant' s costs , including attorneys ' fees. Subsequent opinions applied the
same reasoning to defenses resting on double jeopardy (Abney v.

United States

431 U. S. 651 (1977)) and legislative immunity

(Nixon

v.

Fitzgerald 457 U. S. 731

(1982)).

Then
that the Cohen

, in

Mitchell

v.

Forsyth 472 U. S. 511 (1985), the Supreme Court held

rule authorized an interlocutory appeal from a district court order

denying a defendant' s motion for summary judgment premised on a

claim of

qualified immunity. That case

involved warrantless wiretaps that Attorney

General John Mitchell had authorized in 1970 on the ground that they
necessary to protect "national security interests
Court subsequently invalidated in United States v.

were

ajustification that the Supreme

United States District Court

(Keith),

407 U. S.

297 (1972). The Attorney General did not dispute any of the

plaintiff's facts , and he conceded that he had violated the plaintiff's constitutional
right to be free from warrantless " national
security " wiretaps. But he argued that

he was nonetheless entitled to qualified immunity because that right had not been

clearly established in 1970 , when he authorized the wiretaps. The district court
disagreed and denied the Attorney General' s motion for summary judgment.

The Supreme Court held that the district court' s ruling was immediately

appealable

, since it satisfied all three of the

Cohen

factors: It conclusively settled

, and it violated
post-

an issue that was conceptually distinct from the merits of the case

a right-the

right not to stand trial-that could not be vindicated in a

judgment appeal. But the Court cautioned that its ruling rested on the particular
nature of the Attorney General' s defense:

An appellate court reviewing the denial of the defendant' s claim of

immunity need not consider the correctness of the plaintiff s version
of the facts

, nor even determine whether the plaintiff s allegations

actually state a claim. All it need determine is a question of law:

whether the legal norms allegedly violated by the defendant were
clearly established at the time of the challenged actions or, in cases

where the district court has denied summary judgment for the
defendant on the ground that even under the defendant's version of
the facts the defendant' s conduct violated clearly established law

whether the law clearly proscribed the actions the defendant claims
he took. (472 U. S.

at 528.

The Court took pains to emphasize that its ruling applied only where the
appealable issue is a purely legal one
(id.

at 528 n. 9), and it reiterated that an

interlocutory appeal would be cognizable only " to the extent that it turns on an
issue of law
(id.

at 530).

The Supreme Court considered another interlocutory qualified- immunity

appeal ten years later in Johnson v.

Jones 515 US 304 (1995). The plaintiff

that case was in the throes of an insulin seizure when the police arrested him for

what they believed to be public drunkenness , breaking several of his ribs in the

process. The plaintiff sued , and three of the police officer defendants moved for
summary judgment on the ground that there was no evidence that they personally

had used excessive force. The district court denied the motion on the ground that

the evidence was in dispute. The police officers then appealed , but the Seventh
Circuit dismissed the appeal. The Supreme Court affirmed that ruling, finding that
the district court' s decision was not an appealable " final decision.

The Court characterized

Mitchell

as involving two issues that were readily

separable: (1) whether the defendant violated the law; and (2) whether that law
was clearly established at the time. 515 U. S. at 315. But the would- be
appellants

in

Johnson on the other hand , raised " a question of' evidence sufficiency,
may, or

i. e.

which facts a part

may not

, be able to prove at trial."

(Id.)

And that type

of claim , the Court explained , did not represent a discrete , separately-appealable

issue; it was , in fact

'precisely

the question for trial."

Id.

at 314.

The Court further explained that ,

because the issue of

evidentiary

sufficiency could not be separated from the merits

of the plaintiffs case

permitting an appeal from such a decision would implicate the very considerations

that make the one- final-judgment rule so important. First , it would permit the
appellate courts to interfere with a type of issue that the district courts confront
almost daily, and one regarding which the appellate courts can claim no special
expertise: the existence of a triable issue of fact. Id.

at 316. Second , it would in

many cases require the courts of appeals to digest " a vast pretrial record , with numerous conflicting affidavits , depositions , and other discovery materials
thereby consuming " inordinate amounts of appellate time.
Id.

And third , it

would in many cases force the appellate court to confront the same issue-or
nearly the same issue-multiple
times:

the appellate court

, in the many instances in which it upholds a

district court' s decision denying summary judgment , may well be

faced with approximately the same factual issue again , after trial

with just enough change brought about by the trial testimony to

require it , once again , to canvass the record.

That is to say, an

interlocutory appeal concerning this kind of issue in a sense makes

unwise use of appellate courts ' time , by forcing them to decide in the

context of a less developed record , an issue very similar to one they

may well decide anyway later , on a record that will permit a better
decision. (Id.

at 316- 17.

The Court therefore held that " a district court' s determination that the evidence is

sufficient to permit a particular finding of fact after trial" did not fit within
Cohen

narrow exception to the one-

final-judgment rule.

Id.

at 314.

In the wake of

Johnson the courts of appeals have not hesitated to dismiss

only

appeals from denials of summary judgment in which the defendant'

claim
was

is that the undisputed evidence shows that his or her use of deadly force
justified. In Reyes v.

City of Richmond 287 F. 3d 346 (5th Cir. 2002), for

example , the Magistrate Judge determined that the evidence would support two
possible versions of the facts surrounding the defendant' s shooting ofthe plaintiff.
In one version ,

the plaintiff was shot while violently resisting arrest under

gain control of the

circumstances suggesting that he was about to

arresting

officer s handgun. In the other version , the plaintiff had escaped the arresting

_._

_._

.-

officer s grasp without obtaining his handgun and was trying to run away when
he was shot. Id.

at 350. The Fifth Circuit concluded that the defendant's appeal

was "merely an attack on the Magistrate s conclusion that sufficient evidence

exists for a fact finder to conclude that Reyes was fleeing and no longer posed a
threat when he was shot." Id.

at 351 n. 2. The court then held that , under the rule

as articulated in

Johnson
v.

(t

Jhis is not an argument we can review here.

Id. See

also Pellegrino

United States

73 F.3d 934 , 937 (9th Cir. 1996).

This same rule applies if the defendant's claim is that he or she believed

that

the plaintiff ( or the decedent) posed a danger and that that belief , though mistaken
was reasonable under the circumstances. In Thomas v.

Gomez 143 F. 3d 1246 (9th

Cir. 1998), for example , a prisoner was arguing with some guards when one of
them ordered him to the floor while another trained a loaded rifle on him. When

the prisoner sued , the guards sought summary judgment

, but the district court

1 )

denied the motion , finding among other things that ajury couldconc1ude(

that

4 A

arguments: (1) that no substantial evidence could support a finding that he or she engaged in the charged conduct; and (2) that that conduct did not amount to a violation of clearly established law. In such a case , the court of appeals must reject the first argument , effectively assuming that the defendant engaged in the charged conduct
two and proceed to address the second argument. Behrens

different result is appropriate if the defendant advances

312-

v.

13 (1996);

Armendariz , supra 75 F. 3d at 1316- 18.

Pelletier 516 U. S. 299

g.,

there was no need to apply force; (2) that the amount of force used was
disproportionate to the need to do so; and (3) that the guards had no reasonable

basis for believing that the prisoner posed a threat. This Court , finding that the
appeal fell squarely within the rule of

Johnson dismissed the guards

' appeal.

Id.

at 1248- 49.

Of course ,

the court of appeals should not dismiss

every

case in which the

motion for summary judgment rested on the premise that the defendant made a
reasonable mistake. If the defendant' s claim is that he or she harbored a mistaken
but reasonable belief

that the

plaintif was violating the law

or a mistaken but

reasonable belief

that he or she was authorized to take certain steps in response

one at issue in Mitchell:

then the defense is essentially the same as the

it turns on

the question of whether the law that the defendant violated was clearly established
at the time.

See

Knoxv. Southwest Airlines 124F. 3d

1103 , 1106- 1107(9th

Cir. 1997). But if the defendant' s claim is that he or she harbored a mistaken but
reasonable belief

that the

plaintif posed a threat then the question is one offact

and it should not be resolved in an interlocutory appeal.

In the end , the line that separates appealable orders from unappealable
orders is easily drawn. On one side are those orders that resolve questions having

to do with the state of the law at a given point in time: Was the plaintiff breaking

the law? If so , was the defendant allowed to take a particular action in response?
If not , was the law prohibiting that particular action clearly established? Orders
resolving questions such as these ,

which can be reviewed

without a

lengthy

examination of the record , are immediately appealable. On the other side are those

orders having to do with the state of the evidence: Was the plaintiff posing a
threat? If not , was the officer s contrary belief reasonable? Orders resolving

(or-more accurately-refusing to resolve) issues such as these , which require the

court of appeals to undertake a detailed examination of the evidence , are not
immediately appealable.

The Sole

Basis for Officer Speers ' Motion

for Summary
Need to Use

Judgment Was His Claim that His Belief

in the

Deadly Force, Though Possibly Mistaken Was Reasonable Under the Circumstances

Officer Speers '

motion for summary judgment falls squarely within

the

Johnson

rule , because it rested squarely on only two claims: First , he asserted that

he was entitled to use deadly force against Alan because he was being crushed in

his door when he opened fire. But when the Adamses pointed out that a jury
might choose to believe the seven other percipient witnesses and two forensics

experts-all of whom disputed Officer Speers ' version ofthe events-he switched
gears and argued that , even ifhe was mistaken about the need to use deadly force

his belief was still reasonable. At no point did he argue that he would have

been

permitted to open fire even if the Adamses were right about the facts-that is
even if no reasonable officer could have believed that Alan posed a threat.

The Court does not have jurisdiction over an appeal resting on this type of
claim , because it does not conclusively resolve a discrete issue separate from the

merits of the plaintiffs ' case. Instead , this appeal asks the Court to examine the
very same issue that a jury should be called upon to resolve: whether Alan posed
a danger to Officer Speers and , ifnot , whether Officer Speers ' contrary belief was
reasonable. Under

Johnson , Reyes

and

Thomas

the court of appeals should

address that type of question only once in each case: after the entry of final
judgment.

To consider the merits of most of Officer Speers '

arguments , the Court

would be required to pore over hundreds of pages of testimony and declarations

from at least eight percipient

witnesses

, as well as the testimony

of

several

forensics experts. Then , ifthe Court affirms Magistrate Judge O' Neil'

s order-

seems likely, given the many witnesses arrayed against Officer Speers-it could

well need to refamiliarize itself with the same case in another year or two , this

time weighing the testimony of the same ten witnesses as it emerged at trial

instead of at deposition or in declarations. The Court should not be made to

undertake that effort twice.

In his opening

brief-which he

filed after the Adamses first moved to

dismiss his appeal-Officer Speers makes a belated and half- hearted effort to

advance an argument that might be cognizable in an interlocutory appeal: he

claims that ,

even

if Alan

had

the right not to be fired upon under the

circumstances , that right was not so clearly established in 2001 that Officer Speers

should have been charged with knowing it. (AOB 24. )

that , if such a right exists now
, it was established only by

Officer Speers suggests

Pace

v.

Capobianco

283 F.3d 1275 (11 th Cir. 2002).

As argued below , the Court should reject this new argument if it reaches its
merits. More importantly, however , the Court should simply disregard it. After
all , this Court does not normally entertain discussion ofissues that were not raised

in the district court , and with good reason: allowing an appellant to raise a new

issue-even a purely legal one-deprives the reviewing court of the lower court'
considered judgment on that issue , and it encourages needless appeals by allowing

parties to reserve arguments that might have led the lower courts to different
conclusions in the first place.

Cf Sears, Roebuck and Co.

v.

F. T

, 676 F.2d

385 , 398 (9th Cir. 1982) (articulating same rationale in administrative review

context). The Court should therefore decline to consider this new argument.

None of

Officer Speers

Authorities Suggests That

Interlocutory Appeal Is Appropriate

In his opposition to the motion to dismiss

the appeal that the

Adamses

previously filed , Officer Speers pointed to five authorities that he claimed

provided some precedent

for permitting an

interlocutory appeal under the

circumstances of this case. None of those authorities helps him in the least:

shot the plaintiff (who was not actively involved in the rioting)
inadvertently as part of their effort to control the riot or intentionally

simply for sport or out of malice. This Court acknowledged that the
sole issue posed by the guards ' appeal was whether the prisoner had

introduced any evidence that would have permitted a jury to find that

they had shot him intentionally. And the

Court further
jurisdiction

acknowledged that the court of appeals normally " lacks

over an interlocutory appeal challenging the sufficiency of the

evidence supporting the trial court' s conclusion that an issue offact
exists. "
Nonetheless ,

the Court declared that a special rule should

apply where the sole disputed issue for trial is the whether the

defendant harbored an improper motive-a charge that is easily made

and that can be supported with a slender evidentiary showing, such
as testimony about " an alleged remark of the defendant made when

only the plaintiff was present." The Court therefore held that it had

jurisdiction , in an interlocutory appeal , to rule that the plaintiff had

introduced no substantial evidence to support his claim of improper
motive. Id.

at 900- 910.

Lastly, the opinion in

Wilkins

v.

City of Oakland 350 F. 3d 949 (9th

Cir. 2003), although ultimately cast in terms of an affirmance , was in

effect a dismissal of the appeal. The defendant police officers in that

case shot and kiled

an undercover

officer without realizing who he

was; when his family sued , the officers ' defense rested on the claim

that their mistake about his identity was reasonable.

This Court

began its analysis by pointing out that it had no jurisdiction in an

interlocutory appeal to consider the sufficiency of the evidence that

the family had introduced to support their claim that the fellow
officers ' mistake was unreasonable- a point that the Court indicated

it would explain more fully later in its opinion. Then , later in the
opinion , the Court explained that , because the reasonableness of the
fellow officers ' mistake " depends on disputed issues of material fact

it is not a legal inquiry, but rather a question of fact best resolved by

a jury. "

Based on

that premise , the Court then announced that the

Id.

proper disposition was to affirm.

at 952- 56.

The opinion

Court examined the record to determine whether the evidence would have permitted a jury to rule
that the

contains no indication

in the family s favor , as the Court would have been required to do

had it been ruling on the merits of the appeal. Thus , although the

Court' s ruling was denominated an affirmance , its opinion-which

did not actually address the merits of the appeal-amounted to a

dismissal.

In short , Officer Speers has not identified a single case in which a court of
appeals did what he is now inviting this Court to do: comb through the record in
an interlocutory appeal to

determine if the circumstances

that led up to

the

mistaken resort to deadly force were such as to render the mistake reasonable.

For

this reason alone , the Court should dismiss the appeal

If the Court Does Not Dismiss Officer Speers ' Appeal Outright, It
Should at the Very Least Disregard His Arguments Insofar As They
Depend on Facts that the Adamses Dispute

A district court should grant a motion for summary judgment only

pleadings , depositions , answers to interrogatories

if "the

, and admissions on file , together

with the affidavits , if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

Civ.

matter of law.

56(c). In evaluating amotion for summary judgment

, the court must

draw all inferences in a light most favorable to the nonmoving party.

Matsushita
475 U. S. 574 ,

Electrical Industrial Co.

v.

Zenith Radio Corp.

587 (1986).

In the normal case , this Court

determination

would reVIew

the

district court'

de novo proceeding through the same analysis as the district court.

v.

Ghotra

Bandila Shipping, Inc. 113 F.3d 1050 1054 (9th Cir. 1997). In other

words , the Court would need to canvas the record to determine whether there were

any genuine issues of fact-that is , whether the Adamses

a jury to find in their favor on each of the disputed issues of fact.

' evidence would permit

Margolis

Ryan 140 F. 3d 850 , 852 (9th Cir. 1998).

In an interlocutory appeal , however, the Court'

s review is restricted by the

permitted to undertake a

unusual procedural posture: the Court is simply not

review of the sufficiency of the evidence.

Wilkins 350 F. 3d

at 952. In other

words , it must accept as true every allegation that the Adamses made

, and it must

accept their version of every disputed fact regardless of whether the record
contains any evidence to support it. Baldwin v. Placer County,

418 F. 3d 966 969

(9th Cir. 2005).

In particular

, that means that the Court should assume the truth of the

following facts:

Officer Speers was not being crushed behind his door when he
opened fire;

Alan posed no continuing danger

officer on the scene;

to Officer Speers or any other

Nothing in Alan s behavior gave officer Speers any reason to believe

that he posed a continuing threat to anyone on the scene;

The Expedition s contact with Officer Speers ' door was obviously

inadvertent , and any reasonable officer would have recognized it as

such;

At the time of the shooting, the Expedition was

rollng backwards

, and there was no indication that it was about to accelerate or reverse direction;

away from Officer Speers at four or five miles per hour

Because Alan posed no danger to anyone on the scene

he could not escape ,

, and because

there was no exigency necessitating a quick

response; and

Officer Speers had sufficient time to walk out from behind his door
and plant himself squarely in front of the Expedition before shooting.

Officer Speers does not come to grips with this standard of review. Instead he advances arguments that depend for their force on his own version of the facts.

At many points , he seems to be inviting the Court to assess the sufficiency of the

evidence supporting the Adamses ' allegations. And even

when he advances a
the

legal" argument-such

as his claims about the state of the law in 200 I-

argument requires the Court to accept his version of disputed facts.

This the Court

is not allowed to do. Accordingly, insofar as Officer Speers

' arguments depend

on his version of the facts-a

category

that encompasses all or virtually all of his

brief-the Court should simply disregard them.

Conclude That Officer Speers and the Other Officers Were in No Danger When He Fired, and That a Reasonable
Because a Jury Could

Officer Would Have Recognized as Much , the Court Should

Judge O' Neill' s

Affirm

Ruling Even If It Addresses the Sufficiency of the

Evidence

Summary Judgment Would Have Been Appropriate Only If the

Undisputed Evidence Established That Officer Speers Had

Reason to Believe That Alan s Actions Posed an Immediate

Threat of Serious Physical Harm to Officer Speers or
Someone

Else

A plaintiff states a claim under section 1983 by alleging the violation of a

right secured by the Constitution and the laws of the United States by a person
acting under color of state law. West v.

Atkins 487 U. S. 42 , 48 (1988). The

defendant , however , is shielded by qualified immunity ifhis or her conduct did not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known. Devereaux v. Abbey,

263 F.3d 1070 ,

1074 (9th Cir.

2001) (en bane).

Where a defendant seeks summary judgment on the ground that he or she

is entitled to qualified immunity, the court must address two issues. First
, it must

determine whether the evidence submitted in support of and in opposition to the

motion would permit a jury to conclude that the
constitutional violation. Saucier v.

defendant committed a
201 (2001);

Katz

533 U. S. 194

Jeffers , 267
, then the

3d at 909. If this threshold inquiry reveals a constitutional violation

court must proceed to determine whether the right at

stake was so clearly

established that any reasonable law enforcement officer should have known about

it. If it was , then the defendant is not entitled to qualified

Valley Development Co. v. Goldberg,

immunity.

Squaw

375 F.3d 936 , 943 (9th Cir. 2004).

The Adamses alleged primarily that Officer Speers had violated Alan

s right

to be free from unreasonable seizures under the Fourth Amendment

, in that

Officer Speers improperly resorted to deadly force in trying to arrest Alan.

) See
Graham v.

(ER

Connor

490 U. S. 386 , 393- 94

(1989). In a case resting on

Supreme Court'
case ,

such an allegation , the starting point for the

opinion in Tennessee v.

analysis is the

Garner

471 U. S.

1 (1985). In that

the Court

announced that a law enforcement officer may not use deadly force against one

suspected of committing a crime unless the officer has reason to believe that the

suspect poses an immediate threat of serious physical harm

, either to the officer

or to others , or that the suspect committed a violent crime and is about to escape.
Id.

at 11- 12.

See also Blanford

v.

Sacramento County,

406 F.3d 1110 , 1115 (9th

Cir. 2005).

Officer Speers has never seriously argued that Alan had committed a violent
crime or that he was about to escape. Instead , he claimed that his decision to

resort to deadly force was proper either because (1) Alan was in the process of

causing serious physical harm to him or possibly

to

some other officer (the

position articulated in his principal papers); or (2) he mistakenly believed that

Alan posed an immediate threat of serious physical harm to him
, and that mistake

was reasonable under the circumstances (the position articulated in his reply
papers). (App. 34-

, 280- 82. ) Thus , the sole question posed by his summary

judgment motion was whether it was objectively reasonable for him to believe

, in

light of the totality of the circumstances , that Alan s actions posed a significant

threat of death or serious physical injury either to Officer Speers himself or to

someone else. See Abraham v.

Raso 183 F. 3d 279

289 (3d Cir. 1999).

The district court concluded that Officer Speers was not entitled to summary

judgment , since the evidence would permit ajury to conclude that Alan

s actions

did not pose an immediate threat of serious physical harm to Officer Speers or
anyone else , and that a reasonable officer would have realized as
much. (App.

300- 302 , 304- 306. ) As noted above , the Court is not permitted to assess the

sufficiency of the evidence supporting this conclusion. But if it

undertake the task , it wil find that the evidence is more than enough:

chooses to

A Reasonable Jury Could Conclude That Officer Speers and the

Other Officers Were in No Danger When He Fired, and That

Any Reasonable Officer Would Have Recognized as Much

The evidence arrayed against Officer Speers

was in danger when he firedwas overwhelming:

' primary claim-that his life

Two of Officer Speers ' fellow law enforcement officers testified that

he was not trapped behind his door, but was in fact standing in front
of the Expedition , when he fired. (App. 225
, 227 , 231-

, 243; SER

551- 54. ) A third officer-Officer Brush-never saw Officer Speers

pinned by the SUV. (SER 364 370- 72.

F our

bystanders-three who were working at the plant on the other

, and one who was stuck in the traffic jam that Alan had avoidedall declared that Officer Speers was standing away from his car and in front of the
262268; SER 24- 25. Two of them added that Officer Speers was in no danger when he

side of the fence with which Alan had collded

Expedition when he fired. (App. 258-

opened fire. (App. 260 , 263.

Two forensics experts agreed that the shots were fired not from the

passenger s-side corner of the Expedition (as they would need to

have been if Officer Speers had been pinned behind his door by the

corner of the SUV) but in an array beginning near the center of the

hood and extending to the driver

s side corner.

(See

SER 461-

865 , 867- 69. ) Mr. Jason stated squarely that

" the

Expedition could

not have been in contact with the door when Officer Speers fired the

first shot group. . . . "

(SER 463.

It should go without saying that a jury would be entitled to believe these

nine witnesses and to discount Officer Speers
' contrary description of the

circumstances. This is especially

true in light of the

undisputed evidence of

Officer Speers ' inappropriately enthusiastic reaction to the pursuit

by his decisions to pick up a passenger , leave his jurisdiction

, as illustrated

, join the pursuit , and

try three times to ram the Expedition , all without obtaining any

authorization

whatsoever , and without even bothering to tell the other pursuing officers of his

intentions. (SER 166243-

, 171-

, 189 , 194-

, 198 ,

202- 205 , 209-

, 217

263 293 317 419-

428-

762- 65. )

In particular ,

a jury might be
Alan

persuaded by the fact that

Officer Speers

tried three times to ram

(see

vehicle-

an act that itself amounts to the use of deadly force

ER 75J-Iong
Ajury could

before his articulated justification for using deadly force had arisen.
conclude that Officer Speers
' desire to

inject himself into the pursuit

and

immediately thereafter to escalate the level of violence that characterized it

, all in

violation of numerous CHP policies , helps to explain why he drew and fired his
weapon when no other officer on the scene saw any reason to do so.

A jury would also be entitled to reject Officer Speers

there was "no
time "

' protestations that

for him to consider any course of action other than

kiling

Alan , that there were " only seconds " in which to decide whether to

kil Alan or

not

, and that his decision to shoot was a

split-second , life-or- death decision.

Once again ,

(App. 280- 82; AOB 2 , 19- 20. )

these characterizations seem to result

from nothing more than Officer Speers ' own inclination to perceive a deadly
threat-necessitating a quick ,

military-style response-where none in fact exists.

According to the evidence introduced by the Adamses-

which must be accepted

as true for purposes of these proceedings-Officer Speers in fact had time to step

out from behind his door and plant himself squarely in front of the Expedition
which was still rolling slowly away from him , before firing. And given that the
Expedition was completely boxed in , and that no one was in any danger
in fact all the time in the world.
, there was

A jury would also be entitled to conclude that Alan

danger to anyone at the scene other than Officer Speers

s actions posed no

, especially since (1) the

Expedition was backing up slowly, probably no faster than for or five miles per

hour (SER 365- 66; App. 103); (2) there was no one standing behind it (App. 227232 253; SER 221 364 403); (3) two officers stated squarely that none of the

officers at the scene were in any danger (SER 368

456); and (4) Officer Speers

admitted in his deposition that he fired only to protect himself , not to protect
anyone else (ER 81).

completely 264 402- 403 , 704 , 707 712 807 809), the Court should reject Officer Speer s unsupported and passing reference to him
surrounded (SER 11 ,

Because the undisputed evidence established that Alan was

15

, 169 233-

only if Alan was a dangerous criminal in any event.

as an " escaping suspect" (AOB 10)-a characterization that would be relevant Garner 471 U. S. at 11- 12.

In an effort to justify his kiling of Alan , Officer Speers does

everyhing he

can to portray Alan as a ruthless desperado who had demonstrated that he would

stop at nothing-including murdering a law enforcement

officer-to evade

capture. According to Officer Speers , Alan s driving had become " aggressive
high-risk " and " unpredictable " demonstrating that he would " do anything to
avoid capture. " (AOB 7 , 8 , 15 , 17. ) Alan had also reportedly " assaulted" Officer
Speers with his SUV , and was " shifting the car between drive and reverse.

" (AOB

20. ) Thus , Officer Speers concludes , it was reasonable for him to conclude

that Alan might throw the SUV into drive and intentionally run him down. (AOB
, 19. )

And even

if Alan continued to drive backwards , Officer Speers claims

his behavior stil gave Officer Speers reason to fear that he might intentionally run

down " other officers who were standing near the SUV.

" (AOB 18 , 19- 20.

No part of this violent fantasy bears any resemblance to the evidence in this
case. To begin with ,

Alan s driving, far from evidencing a callous disregard for

life , in fact belied such an unusual concern for those around him that it drew
unsolicited comments from several of the pursuing officers. (See

SER 381See also

(describing Alan s driving style as that of a " rapid Sunday drive.

325-

SER

, 331 , 378-

, 426-

, 536-

, 634-

, 669 , 829 , 831.) Nor does the

g.,

record contain any suggestion that Alan had " assaulted" Officer
if the term " assault" is interpreted in its usual sense
act designed to put another in fear of violent injury. See

Speers-at least

, as connoting an intentional
Cal. Penal Code 9 240

(defining " assault"

as an unlawful attempt , coupled with a present abilty, to

commit a violent injury on the person of another

To the contrary, all of the evidence-including

Officer Speers '

own

deposition testimony-suggests that Alan was trying to maneuver the SUV in

reverse so as to squeeze between two of the cars that had surrounded him

, and that

in the commotion and confusion he inadvertently came into contact with Officer
Speers ' door in the process- a door behind which Officer Speers himself was
unwisely standing.

(See , e.

ER 82 (Officer Speers testifying that, as far as he

knew , Alan was simply trying to escape and was " hurting me in the process

statement that , at the moment he opened fire , Alan was shifting the car between drive and reverse " (AOB 20) is unaccompanied by any citation to the record , and in fact nothing in the record supports it. Although the record contains some evidence that Alan might have "rocked" the Expedition to get it out of the ditch (ER 77; SER 264 363), the record contains no evidence that he threw it into drive after Officer Speers stepped out from behind his door and positioned himself directly in front of the backward-moving SUV.

Officer Speers '

This evidence alone would permit ajury to reject Officer Speers

he had reason to fear that Alan would intentionally run over either
other officer. See Vaughan v.

' claim that

himself or some

Cox 343 F. 3d 1323 ,

1330 (1Ith

Cir. 2003)

(inadvertent collision with police car does not give officer

believe that suspect poses a continuing threat). But even

probable cause to

if that weren t enough

six other pieces of evidence would provide further support:

In his deposition , Officer Speers never suggested that he was afraid

that Alan was about to

injure him or someone else. To the contrary,

only reason he fired was because Alan was

he testified that the

in the

process of

injuring him-a version of the facts with which every

which is inconsistent with the ballstics
effectively

other witness disagreed ,

evidence , and which Officer Speers himself has now

abandoned. (ER 81.) This change alone would permit a jury to

disbelieve everyhing that Officer Speers says.
There was no one behind the Expedition

, and-given that Officer

Speers knew that the other officers had been trained to take cover
behind their vehicles-he had no reason to believe that any of his
fellow officers were in such a position.

(App. 227-

, 232 , 253; SER

221 364 403 599 697 761 766-

798- 99; ER 70 77- 78.

The Expedition was moving "very slowly, " possibly "

a few miles per

hour "

or "

four to five miles per hour. "

(App. 103;

SER 365- 66)

Officers Brush and Rivera testified that none of the officers on the
scene were in any danger. (SER 368 456. ) In fact , neither of them could figure out why Officer Speers fired. (SER 232368.

No other officer on the scene saw any reason to shoot.

Officer Speers

testified that he stopped firing after six

rounds

because "the immediate danger had passed" (ER 81), even though all

of the circumstances-including the Expedition

backward toward Deputy Taylor
moment when he opened fire.

s slow movement

s car-remained identical to the

In short ,

a jury could conclude that the pursuit presented Officer

Speers

with the opportunity he was hoping for when he left for work

inappropriately

dressed in a military-style uniform , and that the shooting was not the act of an

officer whose life was in danger but was instead an exaggerated response to an
imaginary threat that no reasonable policeman would have perceived.

Because the Law in 2001

Could Not Kil a Driver

Clearly Established That a

Police Officer

Who Posed No Continuing Threat to the

' New

Officer or Anyone Else , The Court Should Reject Officer Speers

Claim of Qualified Immunity Even If It Considers It on Its Merits

Although the only type of argument that this Court should be considering
in an interlocutory appeal is one that involves the state of the law in 2001
Speers ' brief makes only a few passing references to this idea.

, Officer

At one point , he

asserts that he is entitled to qualified immunity because the law in force at the time

of the shooting did not specify whether a law enforcement officer could properly
use deadly force against a motorist who had just "

hit and injured" him. (AOB 10.

Elsewhere , he asserts that , even if he violated Alan

under the circumstances ,

s right not to be fired upon

he is stil entitled to qualified immunity because that

) He suggests that ,

right was not clearly established in 2001. (AOB 24.

if such a

right exists now

, it was established only by

Pace.

As noted above (at page 33), Officer Speers waived the right to make this

claim by failing to even hint at it in the district court. More

argument ignores both the facts of this case and the law in 2001.

importantly, the

In assessing this

argument , the Court must take the facts as the Adamses allege them: it must

assume that , although Alan may have inadvertently injured Officer Speers

, it was

obviously an accident , and his behavior gave Officer Speers no reason to believe

that he posed a continuing threat to Officer Speers or anyone else.

When the evidence is viewed in the proper light , Officer Speers

' arguments

about the state of the law in 2001 become ilusory. For one thing, the right of a
suspect who poses no ongoing threat to avoid being fired upon was not established
by Pace.

In fact , as Officer Speers trumpets elsewhere in his brief (AOB 15-

16),

. the

defendants in that case were found not to have committed any constitutional

violation at all. Rather , the right of a suspect who poses no ongoing threat to
avoid being shot at was squarely established by

Garner fully sixteen years before

Alan.

Officer Speers shot and kiled

Under

Garner the appropriate inquiry centers on whether the officer had

offuture

reason to believe that the victim posed a genuine threat

injury. 471 U.

at 11. This simple rule

articulated in

Garner

applies in an infinite number of

particular factual scenarios , and a law enforcement officer is not free to ignore it

simply because no court has yet applied it in the precise circumstances in which
the law enforcement officer finds himself. See Hope v.

Pelzer 536 U. S. 730 , 741

(2002) (explaining that " officials

can stil be on notice that

their conduct violates

established law even

in

novel factual

circumstances

SInce "

general

constitutional rule already identified in the decisional law may apply

clarity to the specific conduct in question

with obvious

). In other words

Garner

gave Officer

Speers all the notice that he needed that it was improper to shoot a suspect who
did not pose a continuing threat of death or serious injury.

Given

Garner

forward- looking inquiry, the fact that a driver

, while

attempting to maneuver his vehicle amidst a great deal of commotion

, had just

inadvertently brushed against another vehicle in a way that caused mild injuries

to an officer standing in a surprisingly il-advised position is simply

irrelevant.

The only relevant inquiry is whether the facts were such as to give the officer
reason to believe that the driver continued

to pose a threat. And under the facts

that this Court must accept as true , Officer Speers had no reason to believe that
Alan continued to pose a threat.

Because the facts as a jury could find them gave Officer Speers no reason
to believe that Alan posed a continuing danger to anyone
, none of the four cases

on which Officer Speers relies provides any support for his position:

The decedent in

Smith

v.

Freland

954 F. 2d 343 (6th Cir. 1992), had

just tried to ram the defendant three times , succeeding in his last
effort , and he was about to escape , when the defendant fired a single
shot, kiling him.

The driver who drew the gunfire in Scott v. Clay County,

205 F.

867 (6th Cir. 2000) had already lost control of his vehicle and
like the decedent in

, much Smith had attempted to ram two police cars and

to run down one policeman who was on foot.

Scott had tried on several occasions to ram at high speeds police cars that were trying
Like the drivers in Smith and the driver in Pace

to intercept him or block his path. 283 F. 3d

1275.

Finally, the police had reason to believe that the decedent in

Reese

v.

Anderson 962 F. 2d 494 (5th Cir. 1991), together with his three
an armed robbery. After being

companions , had just committed

ordered to raise his hands , he nonetheless twice reached down toward

the floor as though he were retrieving a gun from under the seat
prompting a single fatal shot.

In each of these cases , the police had legitimate reason to believe that the
victims had committed violent crimes and would intentionally use (or had already
used) deadly force to evade capture. These cases thus provide little guidance here

where a jury could find the Expedition s contact with Officer Speers ' car door was
obviously unintentional.

In short , because Officer Speers has thus failed to point to any intervening

change in the law that might have rendered unclear in

2001 that which is now

clear, the Court should reject his claim of qualified immunity.

The Court Could Also Affirm on the Ground That

A Reasonable Jury

Could Conclude That Whatever Danger Officer

Faced Was Due to His Own Reckless Conduct

Speers May Have

Criminal courts have long accepted the sensible rule that a defendant who
intentionally provokes an attack may not plead selfdefense. See People

Hinshaw

194 Cal. 1 ,

26 (1924) (approving of instruction informing jury that

self- defense is not available as a plea to a defendant who has sought a quarrel

with the design to force a deadly issue and thus

or fault

, through his fraud , contrivance

, to create a real or apparent necessity for making a felonious assault"

This same rule

applies in civil cases as well. McAfee v.

Ricker ,

195

Cal.App.2d 630 , 635 (1961). It has also been adopted for use in section

1983

cases , albeit in a slightly expanded form: A law enforcement officer who has

intentionally or recklessly created a dangerous situationa suspect or needlessly placing himself or herself in harm

whether by provoking

s way-may be liable
, an officer who

for resorting to deadly force in self-protection. In other words

shoots a suspect in an effort to protect himself

cannot escape liability if the

danger he faced was created by his own

Thurman v.

unreasonable conduct."

Estate of

City of Milwaukee 197 F. Supp. 2d

1141 , 1148 (E. D. Wis. 2002).

The principle that a law enforcement officer may not use deadly force to
protect himself from a dangerous situation of his own creation formed the basis
of the Seventh Circuit'
s holding in Estate of Starks v.

Enyart 5 F.3d 230 (7th Cir.

1993). In that case , three police officers cornered a man who had just pulled into

a parking space at a Taco Bell in a stolen taxi.

The suspect maneuvered his car

into a position from which he would have been able to escape (hitting one of the

police cars in the process) and then floored the

accelerator. One of the police

officers-Officer Black-thenjumped directly

in front of the rapidly accelerating

taxi , less than ten feet away; all three police then opened fire

, killing the driver.

The district court denied the police officers

' motion for summary judgment , and

the Seventh Circuit affirmed. The Court found that the jury

could conclude that

by jumping in the taxi' s path without leaving the driver time to brake

, Officer

Black had " unreasonably created the encounter that ostensibly permitted the use

of deadly force to protect him , because the decedent would have been unable to
react in order to avoid presenting a deadly threat to Black." Id.

at 234.

This basic principle-that

an

officer who improperly compromises his own

has been adopted by numerous
Tenth. See Yates v.

safety cannot use deadly force in self- defense-

other circuits , including both the Sixth and the

City of

Cleveland 941 F. 2d
summary judgment
in self-

444 ,

447 (6th Cir. 1991) (affirming denial of motion for

filed by police officer who alleged that he was forced to fire

the entrance of a

defense after he entered a dark hallway in

private

residence in the middle of the night without

identifying himself as a police officer); Sevier v.

waiting for backup and without

City of Lawrence 60 F. 3d 695

699 (10th Cir. 1995) (dismissing appeal; holding that district court could properly

have denied summary judgment motion on the ground that a jury could find that

the defendant police officers recklessly or deliberately provoked a suicidal man

into lunging at one of them with a knife); Allen v.

Muskogee, Oklahoma 119 F.

837 ,

840- 41

(10th Cir. 1997) (reversing summary judgment on the ground that a

reasonable jury could conclude that the defendant police officers had recklessly
or deliberately provoked a suicidal man into aiming his handgun at them).

This Court has adopted this rule as well.

In Alexander v.

City and County

of San Francisco 29 F.3d 1355 (9th Cir. 1994), the police were called to help the
public health department inspect a leaky sewer line at the house of an elderly,
mentally il ,

half- blind recluse who had threatened to shoot anybody who entered.
, the police

Rather than waiting out the homeowner or driving him out with tear gas

deployed a SWAT team , broke down the door with a battering ram

, and stormed

the house with their guns drawn. When the homeowner tried
his . 22 caliber handgun (it misfired), the police opened fire
district court granted the defendants ' motion for

to shoot them with

, kiling him.

The

summar judgment , but this Court

reversed , holding that a jury could hold the defendants liable for having created
the situation that necessitated the use of deadly force. Id.

at 1366.

This sensible rule would permit a jury to hold Officer Speers liable even if
he actually was in danger at the moment he fired his weapon.
After all , his vehicle

came to rest less than two feet away from the Expedition

, and that gap was

steadily closing as the Expedition inched slowly backward while turning. (SER

169 264. )

At that point ,

Officer Speers could have (1) stayed in his vehicle; (2)

exited through the passenger door; or (3) exited through his own door and then

immediately moved away. (SER 152- 53. )

But instead ,

he choose to squeeze

partway out his door and then stay in that position as the slowly moving SUV

pressed the door gradually closed against him. Two CHP officers testified that
this conduct needlessly placed Officer Speers into a dangerous position (SER 152-

, 288- 89J-a conclusion amply corroborated by simple common sense.

Under the circumstances , a JUry could conclude that Officer Speers

recklessly created the very danger that he claims necessitated his resort to deadly

force. Thus , even if Officer Speers ever was in any danger-a conclusion that
argued above , the jury could
also reject-a

, as

properly instructed jury could stil find

s denial

him liable. For this reason , too , this Court should affirm the district court'
of summary judgment.

CONCLUSION

Only a jury can determine whether Alan Ad ms was a ruthless desperado

about to run down a posse oflaw enforcement office
s or a confused and frighted

teenager who posed no threat to anyone else. The Court should therefore either
dismiss the appeal or affirm the district court' s judgment.

Dated: November 2 2005.

DELL' ARIO & LEBoEUF. P.

By:

omeys for Plaintiffs and Appellees John and Cathy Adams

STATEMENT OF COMPLIACE WITH RULE

32(a)(7)

Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32- 1 , I certify

that the foregoing Appellees ' Brief is proportionately spaced , has a typeface of 14
points , and contains 12
719 words.

Dated: November 2 2005.

STATEMENT REGARDING RELATED CASES

I certify that I am not aware of any other case that is related to this one within

the meaning of Ninth Circuit Rule 28-

Dated: November 2 , 2005.

PROOF OF FILING AND SERVICE BY

I declare that:

COMMRCIAL CARER

, California. I am over the age of eighteen years and not a party to this cause; my business address is 201 Nineteenth
Street , Suite 200 , Oakland , California 94612. On November 2

I am employed in the County of Alameda

2005 , I filed and

accompanying Supplemental Excerpts of Record , by consigning envelopes or boxes containing

served the foregoing Appellees ' Brief, together with the

carrier promising delivery within three calendar days in Oakland , California addressed as follows:
commercial

true copies thereof to a third-pary

Attorney General of the State of California Lead Supervising Deputy Attorney General Thomas D. McCrackin , Supervising Deputy Attorney General Scott H. Wyckoff, Deputy Attorney General Andreas O. Garza , Deputy Attorney General 1300 I Street , Suite 125 Sacramento , CA 94244- 2550
Darrl Doke ,

Bil Lockyer,

Clerk, United States Court of Appeals 95 Seventh Street

CA 94103- 1526 (415) 556 - 9800

I declare under penalty of perjury under the laws of the State of California

San Francisco ,

that the foregoing is true and correct and that this declaration was executed on
November 2 2005 ,

in Oakland , California.

R:;ae