NEW 9th CIRCUIT CASE: Can Officers Use Deadly Force In a Vehicle Full of Passengers?

This post is only offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers that the law requires.

During a high-speed chase of a vehicle containing one driver and two passengers, the suspect's vehicle gets stuck in the mud. When officers break the window and begin to put a police K9 inside the car, the driver opens fire, killing the K9 and wounding the handler. The passengers, though, are cooperative the entire time, keeping their hands raised and not challenging the police.

Can you return fire on the driver, since there are passengers in the vehicle who are not only not using deadly force, but they are fully compliant with police commands?

That was the question in the 2024 9th Circuit Case, Cuevas v. City of Tulare where officers did open fire and one passenger was hit and wounded by police bullets. The court said, "While some bullets hit (one of the passengers), the officers were not firing indiscriminately into the car but were instead aiming—as best they could—at (the driver) as he moved from the front driver's seat to the right passenger side during the gunfight. This is apparent because (the other passenger) left the encounter unharmed despite being in the car with (the injured passenger) and (the driver)."

The people suing the officers, their sergeant and the police chief claimed that the constitutional violation of shooting the cooperative passenger was obvious and didn't need to be clearly established in a prior case. Again, the 9th Circuit was not convinced. They said, "...the officers' returning fire was not obviously unconstitutional—even though they collaterally hit (the passenger). 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."

And, if all you've ever heard is the 9th Circuit being referred to as the "9th Circus", here they are defending the actions of the officers against the claims made by the people suing them.