Rosa Cuevas was an “uninvolved passenger” in a high-speed police chase that resulted in an injured officer and the death of a police dog. She sued the City of Tulare, California, as well as the officers and the local police chief for the injuries she suffered from three gunshot wounds that left her permanently and severely disabled. The Ninth Circuit ruled in favor of the defendants after they determined there was no evidence that the shooting was excessive, even though it harmed an “innocent and compliant passenger.”

The car in which Cuevas and another passenger were riding in 2018 was driven by Quinnten Castro, who was initially followed by the police after he went through several intersections without coming to a stop as required. The police then witnessed him making a left turn without signaling and going through a stop sign. When Castro saw the Tulare police following him, he tried to evade capture by driving over several residential lawns and recklessly driving, barely missing several other vehicles.

During the chase, Castro’s car got stuck in the mud. He kept trying to get away but just got further stuck. Afraid that the driver could not hear him, one of the police officers broke Castro’s car window, while a different officer put a police dog inside the vehicle and instructed him to “bite” the driver. Castro then fired five shots, killing the dog and hitting the K-9 officer, who survived.

The police kept shooting, eventually killing Castro and shooting Cuevas three times. This happened despite the fact that, according to the police, Cuevas “sat terrified in the front seat with her hands up, waiting for orders.” The shots caused Cuevas to have facial paralysis, hearing loss, impaired vision and limited mobility. She had three surgeries to repair the damage.

Cuevas sued under 42 U.S.C. § 1983 and California law. She also asserted that the officers violated her Fourth Amendment right to be “free from excessive force.” U.S.C. Section 1983 states that people who are “deprived of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured…except actions brought against a judicial officer….” Cuevas also filed what the Ninth Circuit termed a “bevy of claims” under California law.

The defendants moved for summary judgment and Presiding District Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California granted it. On appeal to the Ninth Circuit Court of Appeals, a unanimous 3-0 panel found Thurston’s decision to be “erroneous” because “Cuevas was not seized for Fourth Amendment purposes.” Despite her faulty reasoning on Fourth Amendment grounds, Ninth Circuit Judges Ronald M. Gould, Richard C. Tallman, and Ryan D. Nelson still affirmed Thurston’s ruling because even though Cuevas was seized for Fourth Amendment purposes, the officers were entitled to qualified immunity for the shooting and injuries that resulted.

The Ninth Circuit opinion authored by Nelson began with an explanation of qualified immunity under 42 U.S.C. § 1983. It states that qualified immunity protects government officials from liability “unless they violated a federal statutory or constitutional right, and the unlawfulness of their conduct was clearly established at the time.” Citing case law, he then clarified that the key issue in Cuevas’s case therefore was “’whether the violative nature of particular conduct is clearly established’ in the specific context of the case.”

This led to two decisions. First, the appellate court disagreed with Judge Thurston’s holding that Cuevas was not seized. However, they also ruled that excessive force was “not clearly established.” Nelson then explained that there are two types of seizures under the Fourth Amendment – a use of force to aid in apprehension or a show of authority that “restrains liberty.” He concluded that when the police pull over a car, both the driver and the passenger are in fact “seized.”

With the seizure issue resolved, Nelson then moved to the issue of whether the police used excessive force. He first agreed with the district court that “no case clearly established that officers could not return fire at Castro, even if they collaterally hit Cuevas.” He then said the Ninth Circuit was therefore free to “exercise our discretion to resolve (the) case only on the grounds of excessive force.”

In doing so, he determined that none of the precedents cited by Cuevas had facts that were similar enough to her case to “clearly establish excessive force,” because none of them showed that passengers’ rights were violated when shot while the police were “defensively returning fire during an active shooting.” Thus, the opinion determined that “Cuevas has not carried her burden.”

Nelson then focused on Cuevas’s constitutional arguments. She alleged that her Fourth Amendment arguments made the issue of excessive force “obvious.” But again, the Ninth Circuit was not persuaded, stating that the U.S. Supreme Court has only held qualified immunity inappropriate in Eighth Amendment cases where cruel and unusual punishment was involved. He wrote that although the Supreme Court has ruled that officers cannot kill a man who is not a threat, it has not ruled on whether persons can be killed if they do pose a threat.

Rather, the Supreme Court has instructed lower courts that “…reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments…about the amount of force that is necessary in a particular situation.” For this reason, he concluded that “the officers’ returning fire was not obviously unconstitutional—even though they collaterally hit Cuevas.” He continued, “The alternative would be untenable. Officers would have to either not defend themselves or risk liability if they accidentally hit a bystander when they return fire. The officers are therefore entitled to qualified immunity.”