Rosa Cuevas v. City of Tulare

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSA CUEVAS, No. 23-15953

Plaintiff-Appellant, D.C. No.

1:19-cv-01525-

and JLT-SAB

LETITIA TUGGLE, as Representative

of The Estate of Quinntin Castro; OPINION

CAMERON WARE,

Plaintiffs,

v.

CITY OF TULARE; MATT

MACHADO, Police Chief; RYAN

GARCIA; ANDY GARCIA;

EDWARD PUENTE, Officer;

DANIEL BRADLEY, Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, District Judge, Presiding

Argued and Submitted June 13, 2024

2 CUEVAS V. CITY OF TULARE

San Francisco, California

Filed July 10, 2024

Before: Ronald M. Gould, Richard C. Tallman, and Ryan

D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

SUMMARY *

Excessive Force/Qualified Immunity

The panel affirmed on qualified immunity grounds the

district court’s summary judgment in favor of police officers

in an action brought pursuant to 42 U.S.C. § 1983 and

California law alleging that the officers used excessive force

by shooting into a vehicle following a high-speed felony

chase, seriously injuring passenger Rosa Cuevas.

Quinntin Castro led police on a high-speed chase and

kept trying to flee after he got stuck in mud. A responding

officer broke his car window to order him to stop and another

officer put his police dog through the window. Castro

responded by shooting—and killing—the dog, hitting the

dog’s handler in the process. The remaining officers

returned fire in defense of themselves and the fallen officer,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CUEVAS V. CITY OF TULARE 3

ultimately killing Castro. During the gunfight, they

accidentally hit Cuevas multiple times.

The panel held that under clearly established Fourth

Amendment law, Cuevas was seized. It was not clearly

established, however, that the force the officers used was

excessive. None of Cuevas’s cited cases clearly establish

that officers violated her rights when they shot her while

defensively returning fire during an active shooting. Nor

was it obvious that the officers could not return fire after

Castro killed their police dog and shot an officer. In

excessive-force cases where police officers face a threat, the

obviousness principle will rarely—if ever—be available as

an end-run to the requirement that law must be clearly

established.

COUNSEL

Michael J. Haddad (argued), Julia Sherwin, and Teresa

Allen, Haddad & Sherwin LLP, Oakland, California, for

Plaintiffs-Appellants.

Bruce D. Praet (argued), Ferguson Praet & Sherman APC,

Santa Ana, California; for Defendants-Appellees.

4 CUEVAS V. CITY OF TULARE

OPINION

R. NELSON, Circuit Judge:

Quinntin Castro led police on a high-speed felony chase.

Although Castro got stuck in mud, he kept trying to flee. A

responding officer broke the car window to order him to stop

and another officer put his police dog through the car’s

window. Castro responded by shooting—and killing—the

dog, hitting the dog’s handler in the process. The remaining

officers returned fire in defense of themselves and the fallen

officer, ultimately killing Castro. During the gunfight, they

accidentally hit Rosa Cuevas, a passenger in the front seat,

multiple times. She survived, but she was severely injured.

She sued under 42 U.S.C. § 1983 and California law. The

district court granted summary judgment to defendants

based on an erroneous finding that Cuevas was not seized for

Fourth Amendment purposes, and alternatively, that even if

she were seized the officers are entitled to qualified

immunity. Because we find that the officers are entitled to

qualified immunity, we affirm.

I

We begin by reviewing the facts in the light most

favorable to Rosa Cuevas. A few weeks after Cuevas

befriended Quinntin Castro in 2018, she met up with him and

his friend, Cameron Ware. They gave Ware a ride in

Cuevas’s car. Castro drove, Cuevas sat in the front

passenger seat, and Ware sat in the back.

Officer Daniel Bradley observed their car as Castro

rolled through several intersections without stopping.

Officer Bradley decided not to pull him over for the first

infraction, but he started a stop after Castro turned left

CUEVAS V. CITY OF TULARE 5

without using a blinker and rolled through another stop sign.

Officer Bradley told dispatch that two other people were

with Castro.

Rather than stopping, Castro fled, driving over several

residential lawns. This was only a misdemeanor. But as

officers pursued him for the next four to ten miles, he drove

recklessly, resulting in multiple near collisions with other

drivers. Because of this, the officers intended to perform a

typical felony stop. 1 Although the police were pursuing

Castro, no one had any reason to suspect either Cuevas or

Ware of any wrongdoing.

The chase ended after Castro got stuck in mud on the

roadside. Officer Bradley’s vehicle also got stuck in the

mud. Soon after, K-9 Officer Ryan Garcia and Officer

Edward Puente arrived with Sergeant Andy Garcia. The

officers surrounded Cuevas’s car as Castro kept trying to

escape. 2 But the more Castro revved the engine, the more

Cuevas’s car sank into the mud. As this happened, Cuevas

sat terrified in the front seat with her hands up, waiting for

orders.

Castro continued hitting the gas, and the officers

repeatedly shouted at him to stop. The engine, however, was

so loud that the officers did not believe Castro could hear

their orders. Sergeant Garcia broke the driver’s side window

and quickly retreated to continue ordering Castro to turn off

the car. Once Sergeant Garcia broke the window, Castro

1

California Vehicular Code § 2800.2, which criminalizes driving in

wanton or willful disregard for public safety while fleeing an officer, can

be charged as a misdemeanor or a felony.

2

The officers offer inconsistent testimony about whether Castro was in

drive, which would have propelled him into a wheat field, or whether he

was in reverse, which would have thrown the car into the officers.

6 CUEVAS V. CITY OF TULARE

stopped revving the engine. Without warning, K-9 Officer

Garcia threw his police dog, Bane, through the window with

a command to bite Castro.

Castro grabbed a gun from the car’s center console and

fired at least five shots. Two hit and killed Bane. Another

two hit K-9 Officer Garcia. Throughout the encounter,

Cuevas sat in the front passenger seat with her hands raised.

The officers—without warning that they would shoot

back—returned thirty-four shots into the vehicle. Although

they aimed for Castro, the officers hit Cuevas several times.

Once the shooting stopped, Castro climbed out of the car’s

passenger side, firing two additional shots. These last shots

did not hit an officer, but one did hit Officer Bradley’s patrol

car. Castro died at the scene.

Cuevas sued the City of Tulare, its Police Chief Matt

Machado, Sergeant Garcia, and Officers Garcia (who

survived the encounter), Puente, and Bradley under 42

U.S.C. § 1983. 3 Cuevas alleged that the officers violated her

Fourth Amendment right to be free from excessive force,

that the city was liable under Monell v. Department of Social

Services of New York, 436 U.S. 658 (1978), and that Chief

Machado was liable as the officers’ supervisor. She also

raised a bevy of state-law claims. Tuggle v. City of Tulare,

No. 1:19-cv-01525-JLT-SAB, 2023 WL 4273900, at *3

(E.D. Cal. June 29, 2023). K-9 Officer Garcia and the City

of Tulare counterclaimed against Cuevas and the other

plaintiffs. Id.

Cuevas and the defendants cross-moved for summary

judgment. Id. at *1. The district court granted summary

3

Castro’s executor and Ware were also plaintiffs, but this appeal deals

only with Cuevas’s claims.

CUEVAS V. CITY OF TULARE 7

judgment to the defendants on the federal claims. Id. It first

held that Cuevas’s excessive-force claim failed because

Cuevas was never seized. Id. at *16. It then held that, even

if the officers had seized Cuevas, it was not clearly

established that the officers’ use of force was constitutionally

excessive. Id. at *16–17. The district court thus concluded

that they were entitled to qualified immunity.

Having rejected the federal claims, the district court

declined to exercise supplemental jurisdiction over either the

state claims or the defendants’ counterclaims. It denied

Cuevas’s motion for summary judgment as moot. Id. at *19.

This appeal followed.

II

We review a grant of summary judgment de novo. Waid

v. County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023). “In

qualified immunity cases, as in other cases, we view the facts

in the light most favorable to the nonmoving party.” Id.

(internal quotation marks and citations omitted).

III

Qualified immunity protects government officials from

liability under § 1983 “unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was clearly established at the time.” Id.

(internal quotation marks and citations omitted). “A

[g]overnment official’s conduct violates clearly established

law when, at the time of the challenged conduct, ‘[t]he

contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would [have understood] that what he is

doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (alteration in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). A case need not be

8 CUEVAS V. CITY OF TULARE

“directly on point, but existing precedent must have placed

the . . . constitutional question beyond debate.” Id.

“The dispositive question is therefore ‘whether the

violative nature of particular conduct is clearly established’

in the specific context of the case.” Vos v. City of Newport

Beach, 892 F.3d 1024, 1035 (9th Cir. 2018) (quoting

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The Supreme

Court has “repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” al-Kidd, 563 U.S. at 742 (internal

citation omitted). The “specificity” of clearly established

law “is especially important in the Fourth Amendment

context, where the Court has recognized that ‘[i]t is

sometimes difficult for an officer to determine how the

relevant legal doctrine . . . will apply to the factual situation

the officer confronts.’” Mullenix, 577 U.S. at 12 (alteration

in original) (quoting Saucier v. Katz, 533 U.S. 194, 205

(2001)).

A

Cuevas argues that the district court erred in granting

qualified immunity to the officers on her excessive-force

claim. The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S.

CONST. amend. IV. The Supreme Court has interpreted that

amendment to prevent excessive force. Scott v. Harris, 550

U.S. 372, 381 (2007). Excessive force claims require (1) a

seizure and (2) excessive force. See id. We first hold that,

under clearly established law, Cuevas was seized. We then

hold that it was not clearly established that the force the

officers used was excessive.

CUEVAS V. CITY OF TULARE 9

1

The district court held that Cuevas was not seized. We

disagree.

There are two types of Fourth Amendment seizures.

“[A]n officer seizes a person when he uses force to

apprehend her.” Torres v. Madrid, 592 U.S. 306, 309 (2021).

An officer can also seize a person through a “show of

authority” that “in some way restrain[s] the liberty” of a

person. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). For this

latter type of stop, “there is no seizure without actual

submission.” Brendlin v. California, 551 U.S. 249, 254

(2007); accord California v. Hodari D., 499 U.S. 621, 626

(1991) (“An arrest requires either physical force . . . or,

where that is absent, submission to the assertion of

authority.”). “Attempted seizures . . . are beyond the scope

of the Fourth Amendment.” County of Sacramento v. Lewis,

523 U.S. 833, 845 n.7 (1998) (discussing Hodari D., 499

U.S. at 626 n.2). Without actual force, an officer’s pursuit

of a fleeing felon or misdemeanant, though a “show of

authority,” is not a seizure if the person does not “comply

with” commands to halt. Hodari D., 499 U.S. at 629.

Thus, when a person is pulled over by the police, that

person is seized because she complied with a show of

authority. Passengers in the car are seized together with the

driver. Brendlin, 551 U.S. at 251. In 2021, we held that, as

of 2016, it was established “that a passenger struck by a

bullet intended to stop the driver of a vehicle” has been

seized. Villanueva v. California, 986 F.3d 1158, 1165 (9th

Cir. 2021).

Under these clearly established principles, the officers

seized Castro. True, Castro was not seized when he first got

stuck in the mud. His repeated attempts to flee suggest that

10 CUEVAS V. CITY OF TULARE

he did not consider himself restrained and belie that he

submitted to the officers. But there are multiple points at

which Castro—and therefore Cuevas—was seized after he

became stuck in the mud. The exact point at which the

seizure occurred is less important.

Castro was seized, at the very least, when K-9 Officer

Garcia put Bane through the broken window instructing him

to bite Castro. This was a use of force. So too were the shots

that the officers fired at Castro after he shot Bane and his

handler. See id.at 1165. Since Cuevas was Castro’s

passenger, she too was seized. The district court’s contrary

conclusion was incorrect.

2

Because Cuevas was seized, we next turn to the

excessive-force prong. The district court held that no case

clearly established that the officers could not return fire at

Castro, collaterally hitting Cuevas. We agree. And because

“we find the clearly established prong dispositive,” we

“exercise our discretion to resolve [the] case only on” that

ground. Waid, 87 F.4th at 387 (internal citation omitted).

Cuevas relies on several cases to argue that her rights

were established when the officers, returning fire at Castro,

also shot her. None of them have facts similar enough to

“clearly establish” that the officers used excessive force.

The first case is Boyd v. Benton County, 374 F.3d 773

(9th Cir. 2004). There, officers executed a search warrant on

an apartment where they believed “five to eight people,”

including “an armed robbery suspect,” may have been

located. Id. at 777. They used “a flash-bang device . . . to

gain entry and secure the premises.” Id. To minimize the

risk to “someone sleeping,” the officers “determined that the

CUEVAS V. CITY OF TULARE 11

flash-bang should be deployed against the apartment’s front

wall and near the door.” Id. They did just that. Boyd, who

was sleeping on the floor, “suffered burns on her forearm”

from the flash bang. Id. at 778. We held that this violated

Boyd’s right to be free from excessive force because, given

the time available, they did not “consider[] alternatives such

as a controlled evacuation followed by a search.” Id. at 779.

But we recognized that there may be “circumstances in

which a risk to officers’ safety would make the use of a flash-

bang device appropriate.” Id. Boyd thus established that a

flash bang cannot be blindly thrown into a room with

innocent bystanders “absent a strong governmental interest,

careful consideration of alternatives and appropriate

measures to reduce the risk of injury.” Id.

The material facts here differ from those in Boyd.

Although Boyd involved a high-risk raid with armed

suspects, the Boyd suspect was neither trying to escape nor

shooting at the officers when Boyd herself was injured.

Further, the officers in Boyd had the benefit of time to decide

how to proceed—they had a plan before they deployed the

flash bang. The officers devised that plan recognizing the

risk that the flash bang could hurt someone in the apartment.

And even with the benefit of time and a plan, the Boyd

officers deployed the flash bang indiscriminately by

throwing it into a building, meaning that they did not know

whether they would be affecting the suspect they were

seeking to arrest.

By contrast, the officers here did not use force until

Castro killed Bane and shot K-9 Officer Garcia. Boyd’s facts

differ enough from this case that it cannot have clearly

established that officers returning fire aimed at an armed

suspect who has shot an officer and killed a police dog

violates the Fourth Amendment. The officers had a

12 CUEVAS V. CITY OF TULARE

compelling interest in ensuring that Castro did not harm

themselves or others. And they did not have time to come

up with a better plan—they needed to act to prevent further

harm to themselves, Cuevas, or Ware. While some bullets

hit Cuevas, the officers were not firing indiscriminately into

the car but were instead aiming—as best they could—at

Castro as he moved from the front driver’s seat to the right

passenger side during the gunfight. This is apparent because

Ware left the encounter unharmed despite being in the car

with Castro and Cuevas. Boyd does not establish Cuevas’s

rights.

Cuevas next cites Nelson v. City of Davis, 685 F.3d 867

(9th Cir. 2012). There, we considered whether officers used

excessive force against Nelson, a university student, when

they fired a pepperball into a crowd to “clear an apartment

complex of partying students,” including a group of

“individuals hurling both bottles and expletives at officers.”

Id. at 872, 883. Nelson was not in that group, and the officers

“did not see anyone in Nelson’s group throwing bottles or

engaging in any other threatening or dangerous behavior.”

Id. at 880. Still, the officers shot “projectiles in the direction

of Nelson” as he “stood in the breezeway of the apartment

complex, attempting to leave the party and awaiting

instruction from the officers.” Id. at 872. On these facts, we

held that the officers violated Nelson’s right to be free from

excessive force because the application of force was not

“justified by the government’s interest in stopping any and

all disorderly behavior,” particularly when the rowdy

students could have been “dispersed by less forceful means.”

Id. at 883.

Nelson is also distinguishable. There, while some

students were engaged in the dangerous activity of throwing

bottles at the police, others—including Nelson’s group—

CUEVAS V. CITY OF TULARE 13

were not. They were partying. Worse, Nelson was trying to

leave the party when he was hit. He thus posed no risk to

the responding officers. And while the evidence shows that,

like Nelson, Cuevas was submitting to police orders, no one

around Nelson had done anything to harm the police that

would have warranted a violent response. Once more,

Castro’s firing at the officers before they returned fire in

Cuevas’s direction is a material fact—indeed, the material

fact—that hinders Nelson’s ability to establish Cuevas’s

rights.

Cuevas’s final case is Villanueva, 986 F.3d 1158. That

case, which was decided after the shooting here, held that it

was “clearly established that an officer who shoots at a slow-

moving car when he can easily step out of the way violates

the Fourth Amendment” as of 2016. Id. at 1171 (citations

omitted). We are bound by that conclusion. But that

established rule does not control here. The car was stuck in

the mud, and unlike in Villanueva, Castro was shooting at

the officers. And there is no evidence that, in this intense

scenario, any of the officers could have safely moved out of

the way. Bullets, unlike slow-moving cars, are not so easy

to dodge—K-9 Officer Garcia had already been hit.

In short, none of Cuevas’s cases clearly establish that

officers violated her rights when they shot her while

defensively returning fire during an active shooting. Cuevas

has not carried her burden. See Romero v. Kitsap County,

931 F.2d 624, 627 (9th Cir. 1991). 4

4

The number of shots fired does not alter our conclusion. “[I]f police

officers are justified in firing at a suspect in order to end a severe threat

to public safety, the officers need not stop shooting until the threat has

14 CUEVAS V. CITY OF TULARE

B

Although it was not clearly established that the officers’

force was excessive, that does not end our analysis. Cuevas

also argues that the constitutional violation was obvious. We

are not persuaded.

Although the Supreme Court has recognized that some

constitutional violations are so obvious that qualified

immunity is inappropriate, it has only done so in Eighth

Amendment cases. See generally Hope v. Pelzer, 536 U.S.

730, 734–38 (2002); Taylor v. Riojas, 592 U.S. 7 (2020) (per

curiam). And while our court has found an obvious

constitutional violation in an excessive-force case, it did so

only where officers killed a man who posed “no immediate

threat.” Est. of Aguirre v. County of Riverside, 29 F.4th 624,

626–27, 629 (9th Cir. 2022). As we have already explained,

the officer in Estate of Aguirre obviously violated the

Constitution when he “shot and killed a suspect holding a

baseball bat because the suspect was not facing the officer,

was holding the bat pointed downwards, and was not

threatening anyone else when he was shot.” Waid, 87 F.4th

at 389 (discussing Est. of Aguirre, 29 F.4th at 626–27, 629).

But the fact that officers cannot kill a man who is not a

threat says little about what they can do in the myriad cases

where a suspect does pose a threat. The Supreme Court has

instructed us that “[t]he calculus of reasonableness must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

ended.” Plumhoff v. Rickard, 572 U.S. 765, 777 (2014). That Castro

continued firing shots even after he was hit makes clear that the threat

had not ended.

CUEVAS V. CITY OF TULARE 15

amount of force that is necessary in a particular

situation.” Graham v. Connor, 490 U.S. 386, 396–97

(1989). Indeed, “[w]e have noted that ‘this obviousness

principle, an exception to the specific-case requirement, is

especially problematic in the Fourth-Amendment context.’”

Waid, 87 F.4th at 388 (quoting Sharp v. County of Orange,

871 F.3d 901, 912 (9th Cir. 2017)). A categorical statement

that conduct obviously violates the Fourth Amendment “is

particularly hard to make when officers encounter suspects

every day in never-before-seen ways,” including “countless

confrontations . . . that yield endless permutations of

outcomes and responses.” Sharp, 871 F.3d at 912. For this

reason, in excessive-force cases where police officers face a

threat, the obviousness principle will rarely—if ever—be

available as an end-run to the requirement that law must be

clearly established.

With this understanding in mind, the officers’ returning

fire was not obviously unconstitutional—even though they

collaterally hit Cuevas. 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.

IV

No case clearly established, and it was not obvious, that

the officers could not return fire after Castro killed their

police dog and shot K-9 Officer Garcia. Accordingly, the

officers are entitled to qualified immunity.

AFFIRMED.