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Isayeva v. Sacramento Sheriff's Department

United States Court of Appeals, Ninth Circuit

October 2, 2017

Diana Isayeva, Plaintiff-Appellee,
Sacramento Sheriff's Department, Unknown Deputies; County of Sacramento, Defendants, and Sean Barry, Deputy Officer, Sacramento County Sheriff's Department, Defendant-Appellant.

          Argued and Submitted September 12, 2016 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California D.C. No. 2:13-cv-02015-KJM-KJN Kimberly J. Mueller, District Judge, Presiding


          Wendy Motooka (argued) and Robert L. Chalfant, Cregger & Chalfant LLP, Sacramento, California, for Defendants-Appellants.

          Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California; Peter Goldstein, Law Office of Peter Goldstein, Culver City, California; for Plaintiff-Appellee.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William K. Sessions III, [*] District Judge.


         Civil Rights

         The panel reversed the district court's order denying qualified immunity and remanded in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that Sacramento Sheriff's officer Sean Barry used excessive force when he tased and then fatally shot Paul Tereschenko.

         The panel first held that it had jurisdiction over the interlocutory appeal to determine whether, assuming the facts most favorable to the plaintiff (Tereschenko's wife), Deputy Barry violated clearly established law when he tased and then fatally shot Tereschenko.

         The panel held that viewing the facts in the light most favorable to the plaintiff, Tereschenko did not have a clearly established right violated by Deputy Barry's use of the taser. Deputy Barry was therefore entitled to qualified immunity for the tasing. The panel noted that Tereschenko, at more than six-feet-tall and 250-plus-pounds was a very big man who also was likely under the influence of drugs and was violently resisting arrest. The panel further noted that the Deputy Barry only tased Tereschenko once in the less-incapacitating drive-stun mode.

         The panel held that there were no existing precedents suggesting that Deputy Barry's use of deadly force violated any clearly established right held by Tereschenko, and therefore Deputy Barry was entitled to qualified immunity for the fatal shooting. Construing the facts in plaintiff's favor, the panel determined that there were strong reasons to believe that Tereschenko posed a risk of death or serious injury to the officers or to the family members in the home. Tereschenko clearly had the upper hand in a hand fight with the officers. After being tased-which failed to immobilize him-Tereschenko had succeeded in freeing both of his arms, in pushing a deputy and, and in pummeling Deputy Barry to the point that he began to pass out. The panel held that even under the view of the facts most favorable to plaintiff, Tereschenko was winning the fight with the deputies, and was doing so quickly, highlighting the risks to Deputy Barry. Under the circumstances, Tereschenko held no clearly established right not to be shot by Deputy Barry. The panel remanded for consideration of state law claims.


          GOULD, Circuit Judge:

         On February 18, 2013, Sacramento County Sheriff's Deputy Sean Barry tased and fatally shot Paul Tereschenko inside the home of Tereschenko's father-in-law. Tereschenko's wife, Diana Isayeva, brought this action under 42 U.S.C. § 1983 alleging, among other claims, excessive force in violation of the Fourth Amendment. The district court denied summary judgment for Deputy Barry. We reverse and remand, holding that Deputy Barry is entitled to qualified immunity.


         The facts of this case are tragic. They involve a combination of mental illness, drug abuse, and domestic conflict that led to a loss of life in a confrontation between Tereschenko and police officers. They also show the dangers that arise when resistance and a brawl require officers to make split-second decisions.

         On February 18, 2013, Deputy Barry and Sacramento County Sherriff's Deputy Corbin Gray responded to two family disturbance calls from the same address in Sacramento, California. The first call came from Tereschenko's brother-in-law, who explained that Tereschenko had moved into the home about a month earlier, that he suffered from mental-health issues including hearing voices in his head, and that he was now refusing the family's requests to move out. The second call came from Tereschenko himself, who complained about being told to leave the house. The deputies' dispatch readout described Tereschenko as "rambling" and "talking about random things, " but stated that no weapons were involved in the dispute. The deputies each carried a taser and a firearm, and Deputy Barry also carried pepper spray.

         Upon arrival, the deputies met two family members outside the home, one of whom was Tereschenko's brother-in-law, the person who first called 911. The family members told the deputies that Tereschenko was rambling and speaking nonsense; that he was mentally ill or possibly was mentally ill; that they believed he was under the influence of methamphetamine; and that they did not think that he had any weapons. They requested that the deputies remove Tereschenko from the house. At his deposition, Deputy Barry recalled that the family members told him Tereschenko had asked them to kill his wife, Isayeva. But during an interview on the day of the incident, Deputy Barry explained it differently: He said that the family members outside the house said Tereschenko had told them about hearing voices in his head, and that the voices talked about family members killing Isayeva-not that Tereschenko urged the family members to kill his wife.

         The deputies entered the house, and, once inside, spoke with Isayeva's father. According to Deputy Barry, the father said something along the lines that Tereschenko "had stated he wanted to kill [Isayeva]."

         The deputies went into a nearby bedroom, where they found Tereschenko and Isayeva. Tereschenko was large, standing over 6 feet tall and weighing more than 250 pounds. His skin was pockmarked, he was sweating profusely, he spoke quickly, and he moved his hands rapidly. The deputies testified that these physiological symptoms indicated drug use, particularly methamphetamine.

         The deputies spoke with Tereschenko for about seven to ten minutes. During the conversation, Tereschenko told the deputies that he was schizophrenic and had been in a mental institution. Rambling, he talked about Ukrainian money and asked that he be taken to an embassy or consulate. He asked the deputies to "[p]lease help [him], " and said "I don't know what to do." The deputies repeatedly told Tereschenko to sit down and to calm down. In response, he would sit but then stand back up again. Eventually, Tereschenko stayed seated while the deputies questioned him.

         Deputy Barry asked Isayeva whether Tereschenko used any drugs or was diagnosed with any mental illnesses. She said no and shook her head. Deputy Gray left the room briefly to ask a family member when Tereschenko made his comments about hearing voices and killing Isayeva, and confirmed that it was earlier that same day. While Deputy Gray was out of the room, Tereschenko began speaking again and, in Deputy Barry's words, "started to become agitated a little bit." At Deputy Barry's request, Isayeva stepped out of the room, though she remained by a partially open door where she could still hear and to some extent see what was happening inside the bedroom. Once Isayeva left, Tereschenko got down on his knees and, according to Deputy Barry, said "you're gonna have to shoot or kill me."

         The deputies decided to detain Tereschenko pursuant to California Welfare Institutions Code § 5150. This statute allows peace officers in California upon probable cause to take into custody for evaluation or treatment, for up to 72 hours, a person who is a danger to himself or others due to a mental health disorder. See Cal. Welf. & Inst. Code § 5150(a).

         Deputy Barry told Tereschenko that he was not being arrested, only detained to be taken to a hospital. He then asked Tereschenko to turn around and face the wall. According to Deputy Barry, Tereschenko said "no, no, " and stepped forward towards a wall off to the side. Deputy Gray recounted that Tereschenko at first complied by turning around and facing the wall behind him, but then kept turning back around, so Deputy Barry had to give his order to face the wall five times.

         Deputy Barry grabbed Tereschenko's left arm. Deputy Gray explained that this move was in response to Tereschenko suddenly reaching for something past Deputy Barry, though Deputy Gray did not think the reach was a violent gesture. Deputy Gray then grabbed Tereschenko's right arm and tried to put it in a control hold by locking Tereschenko's wrist. Tereschenko stiffened both arms and resisted the attempts to move them. Both deputies told Tereschenko to "stop resisting." With Deputy Barry at 5 foot 7 inches and 185 pounds and Deputy Gray between 5 foot 10 and 5 foot 11 inches and 195 pounds, Tereschenko was considerably larger than each of the deputies. Deputy Barry described the moment: "we were just being tossed around while still hanging onto [Tereschenko]." Through the open doorway, Isayeva saw Tereschenko "push[] a little bit the officers" while trying to "get his hands free or something." Deputy Barry said the struggle lasted "a few seconds, " while Deputy Gray remembered it going on for about fifteen seconds.

         Deputy Barry next tased Tereschenko between his shoulder blades in "drive-stun mode"[1] for a five-second cycle. Deputy Gray and Isayeva remember Deputy Barry warning Tereschenko that he was going to tase ...

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