There are crazy neighbors, and then there’s Jason Neo Bourne,* who for reasons unknown decided he was angry with his neighbors in their Henderson, Nevada, apartment complex. So after a relatively mundane disagreement, decided to kick down the door and start shooting.

Dianne Hawatmeh and her daughter Yasmeen had just returned to their apartment complex when their neighbor, Jason Neo Bourne, confronted them in the parking lot about a noise complaint Dianne had made about him. The conversation ended without incident, and Bourne walked away. But as Dianne and Yasmeen continued to their apartment, Bourne came running after them, causing them to rush to the apartment in fear. Joseph was already inside the apartment. Two housekeepers, Veronica Muniz and a second woman, were also inside the apartment. Dianne and Yasmeen entered the apartment and closed the door but were unable to latch the deadbolt because Bourne was trying to force his way inside. Bourne ultimately kicked the door open, shot Dianne and Muniz to death, and shot and severely wounded Yasmeen.

Bourne then turned to Joseph. He demanded that Joseph tell him the location of the keys to the family’s Cadillac Escalade. When neither Joseph nor Yasmeen—then lying on the floor, bleeding—could tell him where the keys were, Bourne again shot Yasmeen multiple times.

There was little doubt that Bourne was inclined to shoot and kill. Joseph managed to call 911 and alert them about Bourne. When Bourne finally found the car keys, Bourne took the 12-year-old hostage. They went into the Escalade, with Bourne in the driver’s seat and Joseph in the passenger seat, where Bourne had a lengthy conversation with the 911 dispatcher making clear that he was crazy and inclined to kill. Eventually, Henderson police showed up and took positions around the car.

The HPD dispatcher told Sergeant Jaime Smith that Joseph “is saying that this man will kill him.” Sergeant Smith shouted at the Escalade, “Let me see your hands, both of you. Put your hands up, exit the vehicle.” Sergeant Smith announced over the radio that she saw a gun, and that “the child has his hands up.” Sergeant Smith yelled, “Sir, step out of the vehicle, let’s just talk. Let me see your hands sir.”

Bourne neither raised his hands nor exited the vehicle.

At 11:23:42 a.m., a female voice over the police radio stated, “[H]e’s saying open your mouth to the 12-year-old.” Sergeant Smith asked the HPD dispatcher to talk to Bourne and see if he would roll down the window, but the dispatcher did not communicate that request to Bourne.

At 11:24:31 a.m., Sergeant Smith told Officer James Pendleton to “[t]ake the shot if you have it.”

At 11:24:36 a.m., Officer Pendleton fired a single gunshot that killed Bourne.

Had it ended there, the police would have been heroes. But it didn’t end there.

Two seconds later, at 11:24:38 a.m., the other HPD officers fired at the vehicle, during which Sergeant Smith repeatedly yelled “[s]top” and “ceasefire.” It was this second round of shots that killed Joseph.

The family and Joseph’s estate sued the Henderson police under § 1983 and Monell for killing the hostage. The Ninth Circuit affirmed the grant of qualified immunity. The court initially held that the police hadn’t seized Joseph when he was held by Bourne and surrounded by HPD officers. It then held that Joseph wasn’t “seized” by shooting and killing him.

Joseph was also not seized by the HPD officers when they used force to shoot him. While “an officer seizes a person when he uses force to apprehend her,” neither “[a]ccidental force” nor “force intentionally applied for some other purpose” constitutes a seizure. Id. at 309, 317. A “seizure requires the use of force with intent to restrain.” Id. at 317 (emphasis in original). That intent was lacking here.

But even if shooting and killing the hostage was sufficient to establish a seizure, the court held that there was no clearly established right of a hostage to not be shot and killed.

Even had Plaintiffs plausibly alleged a constitutional violation, the HPD officers would be entitled to qualified immunity because Joseph’s right to be free of excessive force during an active hostage situation was not clearly established at the time of the violation.

Here, Plaintiffs have not cited any decision addressing the right to be free of excessive force in a hostage situation, much less establishing that it is possible for police to conduct a seizure in a two-second window between the time a hostage-taker is incapacitated and the time of the hostage’s own death. Nor have we identified any analogous cases. Plaintiffs have therefore failed to plausibly allege that Joseph’s Fourth Amendment right to be free of excessive force was clearly established at the time of the alleged violation.

Of course, an alternative to the “clearly established right” prong of a § 1983 violation is that it’s so obvious as to not require an analogous case because any cop should know that he can’t shoot and kill a hostage. The circuit didn’t go there.

The decision appears to hinge on the “fact” that only two seconds elapsed between the time when Officer Henderson took his shot and killed Bourne and the other officers peppered the car with bullets, knowing full well that there was a 12-year-old boy inside who would almost certainly be killed by their actions.

“Where actual deliberation is practical, then an officer’s ‘deliberate indifference’ may suffice to shock the conscience.” Id. (quoting Porter, 546 F.3d at 1137). But where “a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.”

Underlying the grant of qualified immunity appears to be the belief that expecting police to exercise the minimal discretion needed to not kill the hostage is too much to ask. Notably, the court calls this a “snap judgment,” whereas the officers surrounding the vehicle had ample time to consider that there was a boy held hostage in the car and an officer charged with taking the shot.

While it may be true that the officers didn’t intend to kill Joseph, it’s inconceivable that they didn’t realize that would be the outcome when they fired after Henderson had taken his shot. After all, one would have thought the purpose of this interaction wasn’t merely to kill the perpetrator, but to not kill the 12-year-old hostage. The Ninth Circuit, however, thought otherwise.

*Per the opinion, this was the shooter/kidnapper’s name. I have my doubts.