CA9: In excessive force case, those that did not shoot get QI; facts on those that did are in dispute

Officers who actually fired their weapons here do not get qualified immunity, but those who did not do. Peck v. Montoya, 2022 U.S. App. LEXIS 28822 (9th Cir. Oct. 18, 2022):

Based on those principles, we conclude that an actor may be deemed to have “cause[d] [a plaintiff] to be subjected” to a constitutional violation, 42 U.S.C. § 1983, and thus to be an integral participant in the violation, only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.

Applying that standard, we easily conclude that Frey, Lind, and Carrington were not integral participants in Mono’s shooting. The shooting was completely unplanned; there is no suggestion that Frey, Lind, and Carrington formed a plan whereby Montoya and Johnson would deploy excessive force. Nor did they have any reason to know that their actions—providing armed backup—would enable the later use of excessive force. Perhaps it was foreseeable that a shooting might take place when the deputies arrived on the scene of a 911 call about an encounter in which an individual had brandished a weapon and was behaving erratically. But Frey, Lind, and Carrington had no reason to know that an unconstitutional shooting would take place. The deputies received a report that a man was using a firearm to threaten others; it was not unreasonable—much less a constitutional violation—for them to treat the situation as a potentially hostile and dangerous encounter, justifying their decision to surround the house with weapons drawn and establish a safety perimeter.