Steven Hyer v. City and County of Honolulu

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN A. HYER, Individually and No. 23-15335

as Personal Representative of The

Estate of Steven K. Hyer, D.C. No.

1:19-cv-00586-

Plaintiff-Appellant, HG-RT

and

OPINION

THERESA L. CHANG; CASSI H.

HYER,

Plaintiffs,

v.

CITY AND COUNTY OF

HONOLULU; PAUL V. NOBRIGA,

in his individual capacity; WAYNE

SILVA, in his individual capacity;

MALO B. TORRES, in his individual

capacity,

Defendants-Appellees,

and

JOHN DOES, 4-10; JANE DOES, 1-

10; DOE CORPORATIONS, 1-10;

2 HYER V. CITY AND COUNTY OF HONOLULU

DOE PARTNERSHIPS, 1-10; DOE

UNINCORPORATED

ORGANIZATIONS, 1-10,

Defendants.

Appeal from the United States District Court

for the District of Hawaii

Helen W. Gillmor, District Judge, Presiding

Argued and Submitted February 14, 2024

University of Hawaii Manoa

Filed September 23, 2024

Before: Richard A. Paez, Milan D. Smith, Jr., and Lucy H.

Koh, Circuit Judges.

Opinion by Judge Paez

HYER V. CITY AND COUNTY OF HONOLULU 3

SUMMARY*

Expert Testimony / Qualified Immunity

The panel reversed in part and affirmed in part the

district court’s summary judgment in favor of defendants,

the City and County of Honolulu and several officers of the

Hawai’i Police Department (“HPD”), in plaintiffs’ action

alleging claims of excessive force in violation of the Fourth

Amendment, violations of Title II of the Americans with

Disabilities Act (“ADA”), and various state law claims

arising out of an encounter between HPD and Steven Hyer

that resulted in Hyer’s death.

The panel held that the district court’s decision to

exclude the entirety of plaintiffs’ expert reports was

erroneous because (1) to the extent the district court

suggested that experts can rely only on evidence in the

record, that was a misstatement of law; (2) the district court

misapprehended the relevant legal standard and

mischaracterized the content of the reports; (3) the district

court erred in ruling that the expert reports were speculative

and unreliable; and (4) the district court’s conclusory

statement that the expert reports attempted to introduce legal

conclusions that would usurp the role of the court in

instructing the jury did not support exclusion of all three

reports in their entirety. The panel did not hold that all three

reports should be admitted in their entirety, and rather

concluded simply that the district court abused its discretion

by excluding all the expert reports in their entirety.

*

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

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

4 HYER V. CITY AND COUNTY OF HONOLULU

The panel held that the district court’s decision to

exclude the entirety of plaintiffs’ expert reports was also

prejudicial because (1) the expert reports help create genuine

disputes of material fact over whether the use of deadly force

against Hyer was objectively reasonable; (2) the expert

reports help create genuine disputes of material fact as to

whether the use of chemical munitions was objectively

reasonable; (3) the expert reports raise genuine disputes of

material fact as to whether the City and County of Honolulu

violated Hyer’s rights under the ADA, except that the district

court properly granted summary judgment to defendants on

plaintiffs’ ADA disparate treatment claim; and (4) with

respect to plaintiffs’ state law claims, the expert reports aid

in establishing genuine disputes of material fact as to

whether defendants are entitled to conditional privilege

under state law.

Addressing the district court’s grant of qualified

immunity to the defendant officers with respect to plaintiffs’

excessive force claims, the panel held that the district court

erred in granting qualified immunity with respect to the use

of deadly force and chemical munitions because (1) viewing

the evidence in the light most favorable to plaintiffs, the use

of deadly force and chemical munitions was not objectively

reasonable, and (2) the law was clearly established. The

panel affirmed the district court’s grant of qualified

immunity with respect to the use of a police dog because the

law was not clearly established.

HYER V. CITY AND COUNTY OF HONOLULU 5

COUNSEL

Mateo Caballero (argued), Caballero Law LLLC, Honolulu,

Hawaii, for Plaintiff-Appellant.

William R.K. Awong (argued), Paul S. Aoki, and Nicolette

Winter, Deputies Corporation Counsel, Department of the

Corporation Counsel, City and County of Honolulu,

Honolulu, Hawai‘i, for Defendants-Appellees.

OPINION

PAEZ, Circuit Judge:

Plaintiffs-Appellants Steven A. Hyer, Theresa S. Chang,

and Cassi H. Hyer (collectively, “Plaintiffs”) sued the City

and County of Honolulu as well as several officers of the

Hawai‘i Police Department (“HPD”) (collectively,

“Defendants”), bringing federal and state law claims arising

out of an encounter between HPD and Steven K. Hyer that

resulted in Hyer’s death.1 The district court both granted

summary judgment in favor of Defendants on all claims and

determined that the defendant officers were entitled to

qualified immunity against Plaintiffs’ constitutional claims.

Plaintiffs appeal, arguing that the district court abused its

discretion in excluding the entirety of the expert reports they

submitted in opposition to Defendants’ motion for summary

judgment. We reverse in part and affirm in part.

1

We refer to Plaintiffs as a collective throughout this opinion, and we

refer to Steven K. Hyer—the decedent—as “Hyer.”

6 HYER V. CITY AND COUNTY OF HONOLULU

I. Background

On June 22, 2018, Hyer was in his residence, a small

studio apartment located on the ground floor at the rear of a

multilevel shared house in Haleiwa, Hawai‘i. Hyer’s room

contained a sliding glass door opening onto a deck, which

was its only means of egress.

Around 5:30 PM, Hyer was involved in a confrontation

with another tenant. An argument ensued, and Hyer became

angry, ultimately breaking a window screen to gain entry to

the tenant’s living area. The other tenant called HPD. Two

HPD officers responded to the call, reporting that Hyer was

rambling about devil worshippers and bodies in the wall but

left without arresting him.

Around 7:55 PM, another one of Hyer’s co-tenants

called HPD, reporting that Hyer had attempted to break into

their bedroom. This time, four HPD officers responded to

the call. They found Hyer more agitated than before, pacing

back and forth in his room and speaking incoherently.

Around 8:45 PM, one of the officers—Officer Frances

Bolibol—contacted a police psychologist to obtain approval

for an “MH-1,” an application for emergency examination

and hospitalization. Haw. Rev. Stat. § 334-59. The

psychologist approved the MH-1 based on Officer Bolibol’s

description of Hyer’s behavior and directed that Hyer be

taken into protective custody.

The responding officers, however, were unable to do so.

After approaching Hyer and requesting he leave with them,

Hyer refused and became confrontational. When officers

ordered Hyer to open the gate to his deck, he obeyed. He

then retreated into his room.

HYER V. CITY AND COUNTY OF HONOLULU 7

A few moments later, Hyer returned to the sliding glass

door and started pounding it with a knife, telling the police

to “go ahead just kill me.” Around 9:01 PM, Hyer again

approached and slid open the door, holding a knife. Officer

Bolibol ordered Hyer to drop the knife. When Hyer refused

to comply, Officer Bolibol shot him with a Taser. Hyer fell

back but quickly got up and locked the sliding door. Hyer

was then seen yelling and babbling as he paced around the

room.

Around 9:12 PM, Hyer called 911 and told the dispatcher

that he had been shot with a Taser, that the officers were

offending him, and that he wanted them to leave. Around

9:15 PM, another officer—Lieutenant Darin Evangelista—

activated the Specialized Services Division (“SSD”).2

Around 9:30 PM, Lieutenant Evangelista informed

Major Darren Chun, another arriving officer, that Hyer was

suspected of having post-traumatic stress disorder,3

appeared agitated, was suicidal, and was armed with a knife.

Major Chun then activated the SWAT Team and made a

“callout” for all available officers to come to the scene.

2

According to HPD’s website, the SSD is a division that “performs a

number of diverse functions that require unique skills.” Specialized

Services, Haw. Police Dep’t, https://perma.cc/GJ7U-VM8J (last

accessed Aug. 27, 2024). For example, the SSD includes the SWAT

Team, the Bomb Squad, and the Canine Unit. Id.

3

During his military service in the Air Force, Hyer sustained a traumatic

brain injury. He suffered from chronic headaches and was diagnosed

with atypical psychosis, depressive disorder, anxiety disorder, and

substance abuse disorder.

8 HYER V. CITY AND COUNTY OF HONOLULU

Major Chun also decided not to utilize the Crisis Negotiation

Team (“CNT”).4

Around 10:00 PM, Sergeant Paul Nobriga was

designated to act as the leader of the react team, a tactical

response SWAT team, to handle the developing situation

and take Hyer into custody. A different officer was selected

to act as the leader for the SSD perimeter team. The SSD

perimeter team secured all other areas of the residence,

evacuating all occupants, and ensuring the only entrance and

exit to Hyer’s room was through the sliding glass door.

Around 11:00 PM, Sergeant Nobriga arrived at the scene

and was briefed that Hyer had barricaded himself in his room

and had brandished knives and a compound bow at patrol

officers.

Around 12:48 AM, Sergeant Nobriga started making

announcements to Hyer and asking him to come outside. At

some point following the announcements, Hyer moved a

curtain so that he could be seen, “sticking [his] middle

finger” out at the officers. Hyer also showed himself a

second time but would not exit the residence.

Around 1:15 AM, officers breached Hyer’s bathroom

window to gain visual advantage and deny Hyer access to

the room and water in the event chemical munitions were

used. Hyer then closed the bathroom door and attempted to

further barricade it.

Around 1:20 AM, Sergeant Nobriga issued an order to

clear the trees that separated the house from the lane behind

4

According to Plaintiffs’ expert Scott A. DeFoe, “[a] Crisis Negotiation

Team provides specialized support in handling critical field operations

where intense negotiations and/or special tactical deployment methods

beyond the capacity of field officers appear to be necessary.”

HYER V. CITY AND COUNTY OF HONOLULU 9

it and position an armored vehicle in that opening with a

sniper. Additional announcements were made using the

vehicle’s loudspeaker, but Sergeant Nobriga could not hear

Hyer’s responses.

Around 2:20 AM, Sergeant Nobriga ordered his team to

shatter the sliding door and deploy chemical munitions into

the bedroom. Officers ultimately fired nine rounds of

chemical munitions.5 Hyer became very agitated, but he did

not surrender.

At some point after the chemical munitions were fired,

Hyer showed himself again holding what the perimeter team

thought was a crossbow but what others perceived as a stick.

The perimeter team suggested that he was pointing the item

at the officers, while other officers suggested he was using

the item to clear off the remaining glass from the sliding

door. One officer also conversed with Hyer, but Hyer would

not surrender.

Around 2:50 AM, Major Chun and Sergeant Nobriga

decided to send in a police dog to “control” Hyer outside the

apartment once he showed himself again so that Hyer could

not retreat back into the apartment and potentially arm

himself. At that time, Corporal Wayne Silva announced:

“This is the Police, give yourself up now or I’m sending in

my dog and he will bite!” At some point after this

announcement, Hyer came to the doorway, leaned outside

5

Officers deployed eight “CS ferret barricade penetrating projectiles”

and one “OC instantaneous blast hand deployed canister” into Hyer’s

residence. Plaintiffs argue “some of these rounds may have even hit

Hyer.” No warning appears to have been given before the munitions

were deployed.

10 HYER V. CITY AND COUNTY OF HONOLULU

the broken sliding door, and began yelling. Corporal Silva,

the police dog’s handler, then deployed the dog.

A group of four SWAT react team members—Officers

Otto and Nomura, and Corporals Torres and Silva—

followed the dog into the room, where it was biting Hyer on

his left arm. Hyer was hitting the dog with a compound bow,

which was in his left hand, and stabbing the dog multiple

times with an arrow, which was in his right hand. Corporal

Silva told Hyer to stop fighting the dog. Corporal Torres

then shot at Hyer three times, killing him.

In the aftermath of the shooting, Sergeant Nobriga

interviewed Corporal Torres about the shooting. In his

police report submitted later that day, Corporal Torres

justified the shooting on the basis that Hyer “began to load

the arrow into the bow and to pull the arrow to the rear,

getting ready to fire the arrow, toward[] [Torres] and the

other officers.”

II. Procedural History

In October 2019, Plaintiffs filed a complaint in the

district court, alleging various constitutional, statutory, and

common-law claims. After several motions to dismiss,

Plaintiffs filed a Second Amended Complaint (“SAC”)

against Defendants.

In February 2021, Defendants filed a motion to partially

dismiss the SAC. In May 2021, the district court granted in

part and denied in part Defendants’ motion. The following

counts remained: (1) excessive force in violation of the

Fourth Amendment pursuant to 42 U.S.C. § 1983 against the

defendant officers, (2) violations of Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,

HYER V. CITY AND COUNTY OF HONOLULU 11

against the City and County of Honolulu, and (3) various

state law claims against all Defendants.

In April 2022, the defendant officers and the City and

County of Honolulu each filed a motion for summary

judgment. In support of their opposition memorandum,

Plaintiffs filed an opposing statement of facts, to which they

attached three expert declarations together with expert

reports by (1) Dr. A. E. Daniel, M.D., a forensic psychiatrist

opining on Hyer’s disability and mental state at the time of

the incident, (2) Scott A. DeFoe, a policing practices expert

opining on the reasonableness of HPD’s actions, and (3) Dr.

Kris Sperry, M.D., a forensic pathologist opining on the

gunshot wounds that killed Hyer. The defendant officers and

the City and County of Honolulu each filed a reply.

The district court ultimately granted Defendants’

motions for summary judgment. Hyer v. City & Cnty. of

Honolulu, 654 F. Supp. 3d 1111, 1118–19 (D. Haw. 2023).

The court first determined that Plaintiffs’ expert reports were

inadmissible because they inappropriately attempted to

introduce facts not in the record, were speculative and

unreliable, and attempted to introduce legal conclusions. Id.

at 1119–20. The court then concluded that (1) all of the uses

of force against Hyer were objectively reasonable and

justified, (2) it was not clearly established that Defendants’

uses of force were objectively unreasonable considering all

the undisputed facts and the totality of the circumstances,

(3) the ADA claim failed because Hyer posed a direct threat

to the officers and the officers had probable cause to arrest

Hyer, and (4) Defendants were entitled to qualified privilege

against the state law claims. Id. at 1125–46.

The district court entered final judgment in favor of

Defendants in February 2023. Plaintiffs timely appealed.

12 HYER V. CITY AND COUNTY OF HONOLULU

III. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291.

A district court’s evidentiary rulings are reviewed for

abuse of discretion. See Tekoh v. County of Los Angeles, 75

F.4th 1264, 1265 (9th Cir. 2023). A district court’s order

granting summary judgment is reviewed de novo. Szajer v.

City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011).

IV. Discussion

“Rule 702 of the Federal Rules of Evidence tasks a

district judge with ‘ensuring that an expert’s testimony both

rests on a reliable foundation and is relevant to the task at

hand.’” Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024

(9th Cir. 2022) (quoting Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 597 (1993)). The district court has

“broad discretion” in rendering such evidentiary rulings.

City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065

(9th Cir. 2017) (“Pomona II”) (quoting City of Pomona v.

SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014))

(“Pomona I”). However, we may reverse “if the exercise of

discretion is both erroneous and prejudicial.” Id. In this

case, we conclude that the district court’s decision to exclude

the entirety of Plaintiffs’ expert reports was both erroneous

and prejudicial.

A. Error

“A district court abuses its discretion if it does not apply

the correct law or if it rests its decision on a clearly erroneous

finding of material fact.” Casey v. Albertson’s Inc., 362 F.3d

1254, 1257 (9th Cir. 2004). Here, the district court excluded

all three of Plaintiffs’ expert reports for three reasons: (1) the

reports “attempt to introduce facts that are not found

anywhere in the record,” (2) the reports “are speculative and

HYER V. CITY AND COUNTY OF HONOLULU 13

unreliable,” and (3) the reports “attempt to introduce legal

conclusions that would usurp the role of the Court in

instructing the jury as to the applicable law.” Hyer, 654 F.

Supp. 3d at 1120. In so doing, the district court made

“multiple ‘manifestly erroneous’ misstatements of law and

fact in [its] order.” Reed v. Lieurance, 863 F.3d 1196, 1208

(9th Cir. 2017) (citation omitted). Thus, the court’s

wholesale exclusion of all three reports constitutes an abuse

of discretion.6

1.

To begin, the district court erred in excluding the entirety

of Plaintiffs’ expert reports on the grounds that they

“inappropriately attempt to introduce facts that are not found

anywhere in the record” and that the experts “have no

personal knowledge of the events that took place and no

basis to provide testimony as to the facts here.” Hyer, 654

F. Supp. 3d at 1120 (emphasis added).

6

As an initial matter, the district court excluded all three expert reports

with little to no explanation. For example, only the court’s second reason

contained a specific reference to the reports, and even then only to one.

See Hyer, 654 F. Supp. 3d at 1120. Likewise, the court mentioned

DeFoe’s report only once with no analysis regarding its content, even

though it was excluded in its entirety. Although a district court is not

required to expound at length on the reasons for its rulings on expert

testimony, a failure to reasonably explain the rulings casts doubt on their

propriety. See United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir.

2001) (determining that the district court abused its discretion where it

excluded expert testimony and “never clearly articulated why it excluded

this evidence”); Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d

807, 814 (9th Cir. 2014) (concluding that the district court abused its

discretion where “[i]n two conclusory sentences and without analysis or

explanation, the district court held that [a proposed witness] was not a

qualified expert” and excluded the associated report).

14 HYER V. CITY AND COUNTY OF HONOLULU

First, to the extent the district court suggested that

experts can rely only on evidence in the record, that was a

misstatement of law. Rule 703 permits an expert to “base an

opinion on facts or data in the case that the expert has been

made aware of or personally observed” as long as “experts

in the particular field would reasonably rely on those kinds

of facts or data in forming an opinion on the subject.” Fed.

R. Evid. 703. This includes knowledge and experiences that

are not necessarily in the record. See Reed, 863 F.3d at 1208.

Second, to the extent the district court suggested that, as

Defendants argue, the experts’ reports should be excluded

because they “created their own facts,” which they then

relied upon to form their opinions, the court also erred. This

approach misapprehends the relevant legal standard and

mischaracterizes the content of the reports.

Rule 702 requires that expert testimony be “based on

sufficient facts or data.” Fed. R. Evid. 702. “District courts

[thus] have a longstanding responsibility to screen expert

testimony, and to prevent unfounded or unreliable opinions

from contaminating a jury trial.” Elosu, 26 F.4th at 1020.

At the same time, however, we have recognized that “Rule

702’s ‘sufficient facts or data’ element requires foundation,

not corroboration.” Id. at 1025. In other words, the key

inquiry under Rule 702 is “whether an expert had sufficient

factual grounds on which to draw conclusions,” not whether

the expert’s “hypothesis is correct” or “corroborated by

other evidence on the record.” Id. at 1025–26 (internal

quotation marks and citation omitted). A district court that

nonetheless excludes a “relevant opinion offered with

sufficient foundation by one qualified to give it,” Primiano

v. Cook, 598 F.3d 558, 568 (9th Cir. 2010), exceeds its

“limited gatekeeping function” and abuses its discretion,

Elosu, 26 F.4th at 1026.

HYER V. CITY AND COUNTY OF HONOLULU 15

Here, the district court erred in excluding expert reports

containing relevant opinions offered with sufficient

foundation to be admissible. Dr. Daniel’s report, for

example, opines that “Hyer was seriously mentally ill.” As

a psychiatrist with significant experience in forensic

psychology, Dr. Daniel is well qualified to render this

opinion based upon his review of the records pertaining to

this case. Indeed, Dr. Daniel documents in his report the

facts upon which he based his opinion. Those facts draw

from years of Hyer’s medical records and numerous HPD

reports concerning the incident.

Neither the district court nor Defendants question Dr.

Daniel’s qualifications. Instead, Defendants draw attention

to several assumptions listed in Dr. Daniel’s recitation of

factual findings that they believe are not found in or are

contradicted by the record, suggesting that Dr. Daniel’s

expert report was properly excluded because he created his

own facts. This argument fails for at least two reasons.

First, again assuming the district court excluded this

report for lacking sufficient facts or data, it overlooked the

data actually relied upon by Dr. Daniel in rendering his

opinion. This constitutes an abuse of discretion. See Elosu,

26 F.4th at 1025.

Second, none of the facts contested by Defendants have

anything to do with Dr. Daniel’s opinion that Hyer was

suffering from a mental illness. As a result, even if some of

the assumptions challenged by Defendants are incorrect,

they do not undermine Dr. Daniel’s otherwise relevant and

supported opinion regarding Hyer’s mental state at the time

of his encounter with the police. In short, there is no

“analytical gap” to justify excluding the report. Kennedy v.

Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998).

16 HYER V. CITY AND COUNTY OF HONOLULU

For similar reasons, the district court erred in excluding

DeFoe’s and Dr. Sperry’s reports for relying upon “false

statements.” As a police practices expert, DeFoe was

qualified to opine, for example, that Defendants “failed to

initially determine that Mr. Steven Hyer was mentally ill,

and[/]or experiencing a mental crisis” and “failed to utilize

defusing techniques, effect [sic] communication and

effective active listening skills.” Likewise, as a forensic

pathologist, Dr. Sperry was qualified to opine whether the

forensic evidence in the record corroborated Defendants’

description of Hyer’s posture and location in the moments

immediately preceding the shooting. Both experts specified

which records and materials they reviewed in preparation for

offering their opinions. And both described the facts that

they relied upon based on their review of these records and

materials.

As before, neither the district court nor Defendants

question DeFoe’s or Dr. Sperry’s qualifications. Rather,

Defendants again draw attention to several assumptions

relied upon by the experts that they believe “are not

supported by any evidence and are contradicted by the

record.” This argument is unavailing.

As an initial matter, Defendants appear to

mischaracterize the experts’ assumptions as contradicted by

the record when they are either corroborated or merely

disputed. With respect to DeFoe, for example, Defendants

first suggest that one of the “[f]alse statements in DeFoe’s

report” is his assertion that “Defendants failed to utilize

defusing techniques.” But DeFoe did not state that

Defendants failed to use any defusing techniques. Rather,

DeFoe’s report suggests that Defendants failed to use the

proper defusing techniques throughout the encounter, an

issue that is clearly in dispute. For instance, the officers

HYER V. CITY AND COUNTY OF HONOLULU 17

failed to use a throw phone and chose not to deploy the CNT.

This is likewise the case with the other opinions submitted

by DeFoe, including that that there was “no rush” to

apprehend Hyer and that negotiations were viable but not

attempted beyond announcements.

The same is true for Dr. Sperry. For example,

Defendants take issue with Dr. Sperry’s finding that

“[a]ccording to [Corporal] Torres, he shot Mr. Hyer when

Hyer had the bowstring pulled back with the arrow nocked.”

But this does not conflict with what Corporal Torres said in

his police report, which was that he saw “the arrow being

cocked and pointed in [the officers’] direction” before he

shot Hyer. In fact, this understanding was confirmed by

Officer Nomura, who reported that “[a]t the time the shots

were fired,” Hyer was “either nearly finished loading the

compound bow or had completely finished loading the bow

and was ready to shoot.”7

More importantly, many of these “false statements” are

simply conclusions with which Defendants disagree.

Indeed, several of the statements are clearly the opinions the

experts formed and that followed naturally from their

uncontested expertise.

This is especially clear with respect to Dr. Sperry’s

report, which Defendants suggest is based on “flights of

fancy and speculation” because it surmises the locations and

positions of the individuals involved in the shooting when

there “are no exact locations of individuals at the time of the

shooting” and “there is only the trajectory for one of the

7

Defendants also contend that Dr. Sperry’s report suggests that Hyer

himself claimed to have been in a certain position but, as Plaintiffs

correctly argue, Dr. Sperry never suggested as much.

18 HYER V. CITY AND COUNTY OF HONOLULU

bullets in the record.” However, as a forensic pathologist

who studied the record evidence, including photographs of

the autopsy, the autopsy report, and official investigative

reports, Dr. Sperry was qualified to render an opinion on

these matters. Indeed, reliance on such circumstantial

evidence is common in cases involving police shootings.

See, e.g., Ting v. United States, 927 F.2d 1504, 1510 (9th

Cir. 1991).

To be sure, the experts’ opinions are contested, and a jury

may well reject them. See United States v. Finley, 301 F.3d

1000, 1015–16 (9th Cir. 2002). However, while a district

court may conclude that “there is simply too great an

analytical gap between the data and the opinion proffered,

Rule 702 does not license a court to engage in freeform

factfinding, to select between competing versions of the

evidence, or to determine the veracity of the expert’s

conclusions at the admissibility stage.” Elosu, 26 F.4th at

1026 (internal quotation marks and citation omitted). Thus,

to the extent the district court “fixat[ed] on evidence not

offered in support of [the experts’] opinion[s] while

simultaneously ignoring the evidence advanced on [their]

behalf” and decided for itself whether the experts’

conclusions were right or wrong, the court’s analysis

“exceeded the scope of the Rule 702 inquiry.” Id. at 1027

(first alteration in original). Indeed, the district court and

Defendants’ concerns sound in weight, not foundation.

Thus, the proper venue for airing out these challenges is

cross-examination at trial. See Primiano, 598 F.3d at 564–

65.

2.

In granting summary judgment to Defendants, the

district court also determined that “the expert reports are

HYER V. CITY AND COUNTY OF HONOLULU 19

speculative and unreliable.” Hyer, 654 F. Supp. 3d at 1120.

The district court’s ruling, however, does not support

exclusion of all three reports in their entirety. First, to the

extent the district court concluded that the “expert reports

attempt to offer opinions based on their own speculation and

assumptions about the facts rather than the actual evidence,”

id., this argument fails for the reasons discussed above.

Second, the district court and Defendants’ other

arguments for finding the experts’ opinions “unreliable” are

unpersuasive.8 “To evaluate reliability, the district court

‘must assess the expert’s reasoning or methodology, using

as appropriate criteria such as testability, publication in peer-

reviewed literature, known or potential error rate, and

general acceptance.’” Elosu, 26 F.4th at 1024 (quoting

Pomona I, 750 F.3d at 1044). This assessment is flexible

and can be molded to fit “the particular circumstances of the

particular case.” Id. (quoting same).

Here, the district court only provided insight into how

Dr. Sperry’s report “lacks reliability,” concluding that it

contains “conclusory opinions” and “no methodology.”

Hyer, 654 F. Supp. 3d at 1120. This conclusion is erroneous.

Contrary to the district court’s ruling, and as explained

above, Dr. Sperry does provide the factual foundation for his

opinions, detailing how the forensic evidence he reviewed

supports his hypotheses regarding Hyer’s position at the time

of the shooting. His report is analogous to the extrapolations

of ballistics experts (among other forensic practitioners)

who, as mentioned before, commonly testify in excessive

8

For their part, Defendants simply continue to list “deficiencies” in the

reports. As in the previous section, these perceived deficiencies are

generally either mere disagreements, mischaracterizations of the reports,

or are immaterial to the experts’ conclusions.

20 HYER V. CITY AND COUNTY OF HONOLULU

force cases. E.g., Ting, 927 F.2d at 1510. The district court

provided no reason why Dr. Sperry’s methodology is

deficient.

Instead, the district court merely specified that Dr.

Sperry’s description of the “conventional position” assumed

by an individual shooting a longbow or compound bow is

speculative. Hyer, 654 F. Supp. 3d at 1120. But, as

Plaintiffs argue, such a position is “generally common

knowledge,” and Dr. Sperry was not required to be an

archery expert to opine that the gunshot wounds are

inconsistent with Hyer being in the “conventional” shooting

position. Moreover, even if this portion of Dr. Sperry’s

opinion had been properly excluded, it would not justify

excluding his remaining conclusions regarding the other

inconsistencies between Defendants’ eyewitness accounts

and the forensic evidence from the scene because those

conclusions do not require Hyer to have adopted the

“conventional position.” In short, the district court’s

reasoning does not support the wholesale exclusion of Dr.

Sperry’s report on the basis that it was “speculative and

unreliable.”

3.

Finally, the district court’s conclusory statement that

“the expert reports attempt to introduce legal conclusions

that would usurp the role of the Court in instructing the jury

as to the applicable law” does not support exclusion of all

three reports in their entirety. Id. at 1120. To be sure, a

district court need not permit an expert witness to testify to

legal opinions. See Reed, 863 F.3d at 1209. Here, however,

Plaintiffs’ proposed experts—a forensic psychologist, a

police practices expert, and a forensic pathologist—“may

HYER V. CITY AND COUNTY OF HONOLULU 21

provide helpful testimony . . . without veering into improper

legal opinions.” Id.

With respect to inadmissible legal opinions, the question

is whether the terms used by the expert witness “have a

specialized meaning in law” or “represent an attempt to

instruct the jury on the law, or how to apply the law to the

facts of the case . . . .” United States v. Diaz, 876 F.3d 1194,

1199 (9th Cir. 2017) (quoting United States v. McIver, 470

F.3d 550, 562 (4th Cir. 2006)). If not, “the testimony is not

an impermissible legal conclusion.” Id.

In this case, each expert could provide relevant opinions

and conclusions without “veering into improper legal

opinions.” Reed, 863 F.3d at 1209. For example, Dr. Daniel

could provide insight into whether Hyer was experiencing

mental illness at the time of the incident. See Crawford v.

City of Bakersfield, 944 F.3d 1070, 1080 (9th Cir. 2019). Dr.

Sperry could provide insight into whether the forensic

evidence supports that Hyer was in a threatening posture at

the time of the incident. See Ting, 927 F.2d at 1510. And

DeFoe could help a jury understand the options available to

officers in similar situations to aid them in deciding whether

the defendant officers’ use of force was reasonable or

excessive. See Smith v. City of Hemet, 394 F.3d 689, 703

(9th Cir. 2005) (en banc). The district court’s contrary

determination was thus erroneous.

To be clear, we do not hold or imply that all three expert

reports should be admitted in their entirety, or that all three

experts should be free to testify on all topics or issues

discussed in their reports. Indeed, we have “little doubt” that

some of the experts’ statements and opinions would be

inadmissible. United States v. Cohen, 510 F.3d 1114, 1126

(9th Cir. 2007). Rather, we simply conclude that the district

22 HYER V. CITY AND COUNTY OF HONOLULU

court abused its discretion by excluding the expert reports in

their entirety. See id. (citing Finley, 301 F.3d at 1005).

B. Prejudice

In addition to a showing of manifest error, “a showing of

prejudice is required for reversal.” Ollier v. Sweetwater

Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014). In

conducting this analysis, we begin “with a presumption of

prejudice.” Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.

2005). This presumption “can be rebutted by a showing that

it is more probable than not that the [court would have

reached the same result] even if the evidence had been

admitted.” Id. We must therefore determine whether the

expert reports, if admitted, would help create genuine

disputes of material fact sufficient to defeat summary

judgment when viewed alongside the other evidence in the

record. See, e.g., Pyramid Techs., 752 F.3d at 815–17. An

expert opinion does not need to decide the matter for certain,

nor “establish every element of [a] claim[,] in order for it to

be admissible in evidence.” Id. at 816. Finally, this

determination must be made by viewing the evidence in the

light most favorable to Plaintiffs (as the nonmoving parties).

See id.

The district court granted Defendants’ motion for

summary judgment on all claims, reasoning that there were

no genuine disputes of material fact as to whether

Defendants engaged in excessive force. See Hyer, 654 F.

Supp. 3d at 1137–41, 1143. As we explain below, however,

a substantive analysis of the majority of Plaintiffs’ claims

demonstrates that the expert reports, if admitted and when

viewed alongside Plaintiffs’ other evidence, would have

helped raise genuine disputes of material fact sufficient to

defeat summary judgment. See Crawford, 944 F.3d at 1079–

HYER V. CITY AND COUNTY OF HONOLULU 23

81. Thus, the district court’s exclusion of the expert reports

with respect to these claims was prejudicial.

1. Plaintiffs’ Deadly Force Claim9

A police officer’s use of excessive force on a person

constitutes a seizure subject to the Fourth Amendment.

Graham v. Connor, 490 U.S. 386, 388 (1989). We

determine whether the force used was reasonable according

to an “‘objective reasonableness standard,’ which requires a

‘careful balancing of the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Est. of

Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir.

2017) (quoting Graham, 490 U.S. at 388, 396). As a general

matter, the strength of the government’s interests is based on

a number of factors, three of which are primary: “(1) the

severity of the crime at issue, (2) whether the suspect poses

an immediate threat to the safety of the officers or others,

and (3) whether the suspect is actively resisting arrest or

attempting to evade arrest by flight.” Id. (cleaned up). Of

these, the second factor is the most important under Graham.

Id.

Here, Corporal Torres used deadly force against Hyer.

The “intrusiveness of a seizure by means of deadly force is

unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). For

this reason, “[a]n officer’s use of deadly force is reasonable

9

We note that Plaintiffs also brought an excessive force claim arising

out of Defendants’ use of the police dog. However, we do not reach the

question of whether the exclusion of the expert reports prejudiced

Plaintiffs with respect to this claim. As we discuss later, even assuming

the district court’s error prejudiced Plaintiffs as to this claim, Defendants

are entitled to qualified immunity given that the use of the police dog did

not violate Hyer’s clearly established rights. See infra pp. 39–40.

24 HYER V. CITY AND COUNTY OF HONOLULU

only if the officer has probable cause to believe that the

suspect poses a significant threat of death or serious physical

injury to the officer or others.” Gonzalez v. City of Anaheim,

747 F.3d 789, 793 (9th Cir. 2014) (internal quotation marks

and citations omitted). Again, “[t]he immediacy of the threat

posed by the suspect is the most important factor.” Id.

In addition, where deadly force is used, we “must

carefully examine all the evidence in the record, such

as . . . contemporaneous statements by the officer and the

available physical evidence, . . . to determine whether the

officer’s story is internally consistent and consistent with

other known facts.” Id. at 795 (internal quotation marks and

citation omitted). This examination is especially demanding

where, as here, the victim is dead and there are no other non-

officer witnesses. Consequently, the principle that

“summary judgment should be granted sparingly in

excessive force cases . . . applies with particular force.” Id.

We conclude that the expert reports help create genuine

disputes of material fact as to whether Corporal Torres’s use

of deadly force against Hyer was objectively reasonable. In

particular, the expert reports, when viewed in the light most

favorable to Plaintiffs and alongside the other evidence in

the record, could lead a reasonable factfinder to conclude

that Hyer was not in a threatening position at the time he was

shot, and that the government’s interest in using deadly force

was otherwise not sufficient to justify its use. Thus, the

exclusion of the reports was prejudicial to Plaintiffs.

With respect to the severity of the crime, the district

court found that “it is clear that the patrol officers at the

scene had probable cause to arrest Hyer for burglary,

terroristic threatening, and harassment.” Hyer, 654 F. Supp.

3d at 1128. It then observed that because we have explained

HYER V. CITY AND COUNTY OF HONOLULU 25

that burglary “carr[ies] an inherent risk of violence,” the

severity of the crimes weighs in favor of the use of force. Id.

Under this factor, however, we look not simply to the

kind of offense at issue, but to the circumstances of the case

to determine whether they “warrant the conclusion that [the

suspect] was a particularly dangerous criminal or that his

offense was especially egregious.” Smith, 394 F.3d at 702.

Here, even if burglary in the abstract were a crime that

carries an inherent risk of violence, a trier of fact could

conclude that the circumstances of this case weigh against

the use of deadly force.

First, a significant period of time had elapsed between

the commission or attempted commission of these crimes

and the point at which deadly force was used. In other

contexts, the fact that even a violent crime, such as a physical

domestic dispute, had ended by the time police became

involved has counseled against the use of “intermediate let

alone deadly force.” A.K.H. ex rel. Landeros v. City of

Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016). Here, by the

time the officers had arrived at the scene, Hyer had

barricaded and isolated himself in his own residence.

Second, these crimes were not the reason for which the

police initially sought to apprehend Hyer. Rather, the police

intended to detain Hyer to place him in protective custody

for a psychiatric evaluation. This too shows that the “‘crime

at issue’ in this case was not ‘sever[e]’ by any measure.”

Glenn v. Washington Cnty., 673 F.3d 864, 874 (9th Cir.

2011) (alteration in original) (quoting Graham, 490 U.S. at

396). In short, even if the first “primary” Graham factor

weighs in favor of some use of force, there is a dispute of

fact as to whether it counsels in favor of deadly force.

26 HYER V. CITY AND COUNTY OF HONOLULU

Likewise, a trier of fact could find that the third

“primary” Graham factor does not weigh strongly in

Defendants’ favor. Although Hyer resisted apprehension, a

trier of fact could also find that he did not engage in

“sufficient active resistance” to warrant the use of deadly

force. Id. at 875 (citing Deorle v. Rutherford, 272 F.3d 1272,

1276–77, 1282–85 (9th Cir. 2001)).

In light of the above, the second Graham factor appears

key. In other words, “[t]he most important question . . . is

whether [Corporal Torres] reasonably perceived that [Hyer]

assumed a threatening or ‘shooter’s stance.’” Longoria v.

Pinal Cnty., 873 F.3d 699, 706 (9th Cir. 2017). This is

because our precedent is clear that an individual’s mere

possession or believed possession of a weapon is insufficient

to justify deadly force. See Est. of Lopez, 871 F.3d at 1019–

20. Rather, a greater showing—for instance, that the suspect

used a threatening gesture—is needed. See Cruz v. City of

Anaheim, 765 F.3d 1076, 1078–79 (9th Cir. 2014).

On this question, the relevant evidence includes the

eyewitness accounts of the four officers present at the time

of the shooting, the forensic evidence—such as Hyer’s

autopsy report—and Dr. Sperry’s expert opinion and report.

Viewing this evidence in the light most favorable to

Plaintiffs, a genuine factual dispute exists over whether Hyer

posed an immediate threat to the officers. Id. For example,

the forensic evidence, at least as interpreted by Dr. Sperry in

his report, could suggest that “it is impossible for Mr. Hyer

HYER V. CITY AND COUNTY OF HONOLULU 27

to have been in any threatening posture with the compound

bow at the moment he was shot.”10

By contrast, two of the four eyewitness accounts—those

of Corporal Torres and Officer Nomura—suggest that Hyer

was loading his compound bow. Yet Plaintiffs point to

evidence in the record that, when viewed in the light most

favorable to them, calls into question the credibility of

Corporal Torres’s and Officer Nomura’s accounts regarding

Hyer’s location and posture. Cf. Newmaker v. City of

Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). For example,

and most blatantly, Dr. Sperry’s report directly contradicts

the above accounts.

Moreover, Plaintiffs point out internal inconsistencies

with the defendant officers’ statements and deposition

testimony. Indeed, Plaintiffs note that Corporal Torres did

not mention that Hyer had loaded his compound bow in the

interview immediately following the shooting, only to

describe such activity in his police report hours later.

Likewise, while Officer Nomura also alleged in his report

that Hyer was loading the bow at the time of the shooting,

Officer Otto’s and Corporal Silva’s reports do not. And

while Corporal Silva (like Officer Otto) recalled being

variably distracted, he both was in the immediate vicinity of

10

The district court suggested that “[e]ven if the Court credited the

Sperry Report, the report does not create a genuine issue of material fact”

because Defendants “did not have to wait until Hyer fully loaded the

arrow and pulled back the bow, or successfully shot them, before using

deadly force.” Hyer, 654 F. Supp. 3d at 1139. Although the court’s

assessment of our precedents is generally correct, the court did not

consider the evidence in the light most favorable to Plaintiffs. Indeed,

because Dr. Sperry’s report suggests that Hyer was not in a threatening

position at all, a trier of fact could reasonably conclude that deadly force

was not objectively reasonable.

28 HYER V. CITY AND COUNTY OF HONOLULU

Corporal Torres and Officer Nomura and stated he was

“sure” he saw Hyer never “completely knock [sic] the arrow

on the bow.”

Faced with this conflicting evidence, a reasonable trier

of fact could find that Hyer was not wielding his weapon in

a threatening manner. Relatedly, a reasonable trier of fact

could also find that Hyer did not pose an “immediate threat”

and that the use of deadly force against Hyer was not

objectively reasonable. See Cruz, 765 F.3d at 1078–79.

Thus, summary judgment was not appropriate.

If the above were not enough, Dr. Daniel and DeFoe’s

expert reports further call into question whether Corporal

Torres’s use of deadly force was objectively reasonable in

light of the governmental interests at stake. For example, the

fact that Hyer was suffering from mental illness—as opined

by Dr. Daniel—suggests that the governmental interest in

using deadly force was diminished. See Glenn, 673 F.3d at

876. Relatedly, DeFoe’s report could help a trier of fact infer

that the defendant officers should have known about Hyer’s

disability and failed to act accordingly. See Crawford, 944

F.3d at 1080. And more broadly still, DeFoe could attest to

the existence of feasible alternatives to the methods used by

the police officers on the night of Hyer’s shooting, another

factor we have considered. See Glenn, 673 F.3d at 876–77;

Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010).11

11

At no point did the district court analyze these factors even though

they might have “appeared in a list of nine nonexclusive factors for

determining whether [Defendants’] use of force was reasonable.”

Crawford, 944 F.3d at 1079. That the expert reports could create genuine

disputes of material fact on these issues counsels in favor of finding

prejudice.

HYER V. CITY AND COUNTY OF HONOLULU 29

In sum, given that the expert reports help create genuine

disputes of material fact over whether the use of deadly force

against Hyer was objectively reasonable, Defendants have

failed to show that “it is more probable than not” that the

court would have reached the same result even if the

evidence had been admitted. Obrey, 400 F.3d at 701. The

district court’s exclusion of the expert reports was therefore

prejudicial with respect to Plaintiffs’ deadly force claim.

2. Plaintiffs’ Chemical Munitions Claim

The district court determined that the defendant officers’

use of chemical munitions was objectively reasonable. We

conclude that the expert reports help create genuine disputes

of material fact as to whether the use of chemical munitions

was objectively reasonable. The district court’s exclusion of

the expert reports was therefore prejudicial with respect to

Plaintiffs’ excessive force claim arising out of Defendants’

use of chemical munitions.

To begin, the defendant officers’ use of chemical

munitions qualifies as an intermediate use of force. See

Nelson v. City of Davis, 685 F.3d 867, 878–89 (9th Cir.

2012) (use of chemical munitions that hit plaintiff in the eye

must have been “justified by substantial government

interests”). Thus, Defendants must show that they possessed

more than a “minimal interest in the use of force” against

Hyer. Bryan, 630 F.3d at 831. As with the analysis

regarding use of deadly force, this excessive force analysis

is guided primarily by the three “primary” factors identified

in Graham. See Nelson, 685 F.3d at 879.

In this case, the Graham analysis with respect to the first

and third factors is largely the same as the deadly force

analysis above. As a result, these factors do not weigh

heavily in favor of the use of force, if at all. The key

30 HYER V. CITY AND COUNTY OF HONOLULU

questions therefore become (1) whether the intermediate use

of force here—that is, the use of nine rounds of chemical

munitions—is sufficiently justified by the fact that Hyer was

an “immediate threat” to the defendant officers; and (2)

whether any other factors justify or diminish the justification

for the use of force.

On the first question, Plaintiffs have presented sufficient

evidence to create genuine disputes of material fact as to

whether Hyer posed an immediate threat. The district court

suggested that Hyer posed an immediate threat because he

had given “officers the middle finger and brandish[ed] a

compound bow.” Hyer, 654 F. Supp. 3d at 1134. But our

precedent establishes that we must instead engage in a

“context-specific analysis,” Glenn, 673 F.3d at 873,

examining the inherent danger of the weapon, the manner in

which the suspect wielded the weapon, and the suspect’s

actions prior to the use of force, see id. (examining police

officers’ deadly use of force against an “emotionally

disturbed” and suicidal “teenage son” and contrasting with

other allowable uses of force involving threatening

suspects).

Even agreeing with the district court that a compound

bow and arrow constituted a “powerful” weapon, Hyer, 654

F. Supp. 3d at 1132, and even if Hyer had brandished the

compound bow and arrow in the manner suggested by

Defendants, we find it significant that he had not done so for

at least three hours prior to the use of chemical munitions.

Only after this period elapsed did the officers act by using

the chemical munitions to “attempt to flush Hyer from the

studio.” Id. at 1134. Further, there were no bystanders at

risk of harm following the defendant officers’ evacuation of

the house and area, and Hyer was overwhelmingly

surrounded. Together, these circumstances do not

HYER V. CITY AND COUNTY OF HONOLULU 31

dispositively indicate that Hyer was an immediate threat to

the officers, and instead raise important questions for a trier

of fact to decide.

Other evidence likewise suggests that genuine disputes

of material fact exist as to whether the government’s interest

in using intermediate force was sufficient to render it

objectively reasonable. Here, the expert reports, when

viewed in the light most favorable to Plaintiffs and alongside

Plaintiffs’ other evidence, are useful on largely the same

bases as those discussed in the deadly force analysis.

First, Dr. Daniel’s report concludes that Hyer was

suffering from a severe mental illness on the night of the

incident. Although this fact is disputed by Defendants, when

viewed in the light most favorable to Plaintiffs, this evidence

could lead a trier of fact to determine that the government

had a diminished interest in the use of force against him. See

Glenn, 673 F.3d at 875–76.

Second, DeFoe’s report concludes that the defendant

officers should have known that Hyer was experiencing a

mental health crisis, and that they failed to employ a series

of alternative measures that might have de-escalated the

situation. Such evidence could allow a trier of fact to infer

that the government’s interest in using intermediate force

was not sufficient to justify its use. See Crawford, 944 F.3d

at 1080 (discussing relevance of evidence that officer should

have known the decedent was suffering from mental illness);

Smith, 394 F.3d at 703 (considering “alternative methods of

capturing or subduing a suspect” in the Graham analysis).

Finally, there is no evidence that the officers warned

Hyer prior to the use of chemical munitions. This is yet

another factor which we have previously found to diminish

32 HYER V. CITY AND COUNTY OF HONOLULU

the reasonableness of a particular use of force. See, e.g.,

Nelson, 685 F.3d at 882.

As with the deadly force claim, Defendants offer

important evidence that may lead a trier of fact to agree with

Defendants’ articulation of the events in question. For

example, Defendants note the important considerations that

arise out of protracted standoffs with armed plaintiffs.

Nonetheless, we have consistently observed that the “desire

to resolve quickly a potentially dangerous situation is not the

type of governmental interest that, standing alone, justifies

the use of force that may cause serious injury.” Deorle, 272

F.3d at 1281. Rather, even when standoffs take a significant

amount of time, courts must consider all the circumstances.

Indeed, in Deorle v. Rutherford, we held that “the

governmental interest in using force capable of causing

serious injury was clearly not substantial” during a standoff

where the officers had been at the scene “for over half an

hour,” the suspect had not attacked or harmed anyone, the

suspect had not attempted to escape, no bystanders were

near, the officers had a “clear line of escape” from their

position, and where trained de-escalators were called and on

their way. Id. at 1281–83. In short, Defendants’ evidence

about the challenges associated with long standoffs, though

important, is insufficient to settle the genuine disputes of

material fact noted above.

In sum, Defendants have not shown that, had all

evidence—including the expert reports—been properly

considered and viewed in the light most favorable to

Plaintiffs, a different outcome would not have resulted.

Thus, the district court’s evidentiary ruling excluding the

expert reports was prejudicial with respect to this claim as

well.

HYER V. CITY AND COUNTY OF HONOLULU 33

3. Plaintiffs’ ADA Claim

Plaintiffs argued that the City and County of Honolulu

violated the ADA by “fail[ing] to reasonably accommodate

[Hyer’s] disability in the course of investigation or arrest,

causing [him] to suffer greater injury or indignity in that

process than other arrestees.” Sheehan v. City & Cnty. of

San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d

in part on other grounds, 575 U.S. 600 (2015). The district

court determined that Plaintiffs had “failed to show that

officers here discriminated against Hyer or failed to

accommodate Hyer solely because of his disability.” Hyer,

654 F. Supp. 3d at 1145. Once again, the expert reports,

when viewed alongside other record evidence, raise genuine

disputes of material fact as to whether the City and County

of Honolulu violated Hyer’s rights under the ADA.12

As we have previously concluded, “Title II [of the ADA]

applies to arrests.” Sheehan, 743 F.3d at 1232. “To state a

claim under Title II of the ADA, a plaintiff generally must

show: (1) she is an individual with a disability; (2) she is

otherwise qualified to participate in or receive the benefit of

a public entity’s services, programs or activities; (3) she was

either excluded from participation in or denied the benefits

of the public entity’s services, programs or activities or was

otherwise discriminated against by the public entity; and

12

Plaintiffs also contend that Defendants’ conduct was motivated by

discrimination against individuals with disabilities. Summary judgment

was appropriate as to this theory. Even assuming that such a disparate

treatment claim is cognizable under the ADA, Plaintiffs have not

produced sufficient evidence to create a genuine dispute of fact as to

whether any of the officers were motivated by discriminatory intent. See,

e.g., Anthony v. City of New York, 339 F.3d 129, 141 (2d Cir. 2003).

34 HYER V. CITY AND COUNTY OF HONOLULU

(4) such exclusion, denial of benefits or discrimination was

by reason of her disability.” Id.

Here, as discussed above, Dr. Daniel’s report raises

genuine disputes of material fact as to whether Hyer was a

qualifying individual with a disability. In addition, Plaintiffs

presented evidence that HPD knew or should have known

that this disability existed before any use of force was

authorized, including the police reports and DeFoe’s report.

Thus, as in Sheehan, the key question is “whether the city

discriminated against [Hyer] by failing to provide a

reasonable accommodation during the” attempted arrest. Id.

at 1233. On this point, DeFoe’s report could certainly help

a trier of fact determine whether the “officers [had] an

opportunity to wait for backup and to employ less

confrontational tactics, including the accommodations that

[Hyer] asserts were necessary.” Id.

In response, Defendants argue that Plaintiffs have not

met their burden of producing evidence of the existence of

reasonable accommodations. This is simply not true:

Plaintiffs have raised a number of possible accommodations,

such as the use of throw phone or the CNT. Thus, “[f]or the

reasons stated here, and because the reasonableness of an

accommodation is ordinarily a question of fact,” id.,

summary judgment was not appropriate on Plaintiffs’ ADA

claims, and the exclusion of the expert reports was

prejudicial.

4. Plaintiffs’ State Law Claims

For many of the same reasons discussed above, the

expert reports are relevant and aid in establishing genuine

disputes of material fact as to whether Defendants are

entitled to conditional privilege under state law. In Hawai‘i,

a public official is granted a qualified or conditional

HYER V. CITY AND COUNTY OF HONOLULU 35

privilege from civil actions unless they acted out of malice.

Towse v. State, 647 P.2d 696, 702 (Haw. 1982). The Hawai‘i

Supreme Court has further ruled that, outside defamation

cases, malice is defined in its “ordinary and usual sense”—

that is, “the intent, without justification or excuse, to commit

a wrongful act,” “reckless disregard of the law or of a

person’s legal rights,” and “ill will; wickedness of heart.”

Awakuni v. Awana, 165 P.3d 1027, 1042 (Haw. 2007)

(cleaned up). Only one of these definitions needs to be

satisfied. See id. at 1043.

The expert reports here raise important questions of fact

as to whether Defendants acted with reckless disregard of

Hyer’s rights. Hawaiian state courts have held that

conditional privilege is not appropriate where such disputes

remain in excessive force cases. See, e.g., Sanchez v. County

of Kaua’i, No. CAAP-XX-XXXXXXX, 2015 WL 4546861, at *4

(Haw. Ct. App. July 28, 2015).13 Thus, Defendants are not

entitled to conditional privilege as to their state law claims

at this stage of the litigation, and the district court’s

wholesale exclusion of Plaintiffs’ expert reports was

prejudicial.

C. Qualified Immunity

Finally, the district court also granted the defendant

officers’ motion for summary judgment with respect to

Plaintiffs’ excessive force claims. “A court’s order granting

qualified immunity at the summary judgment stage is

improper only if the facts, viewed in the light most favorable

to the plaintiff, show that a defendant’s conduct violated a

13

We can consider unpublished opinions in predicting how a Hawai‘i

state court would interpret Hawai‘i law. See Emps. Ins. of Wausau v.

Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003).

36 HYER V. CITY AND COUNTY OF HONOLULU

constitutional right and that right was ‘clearly established’ at

the time of the defendant’s action.” Sabbe v. Wash. Cnty.

Bd. of Comm’rs, 84 F.4th 807, 819 (9th Cir. 2023) (emphasis

added). Indeed, “[e]ven if a government official violates a

constitutional right, the official is entitled to qualified

immunity unless the violated right was clearly established at

the time of the incident.” Andrews v. City of Henderson, 35

F.4th 710, 718 (9th Cir. 2022). “The Supreme Court has

increasingly reiterated that to meet this standard a right

‘must be defined with specificity’ rather than ‘at a high level

of generality.’” Id. (quoting City of Escondido v. Emmons,

586 U.S. 38, 42 (2019) (per curiam)). A “case directly on

point,” however, is not required. Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 4–5 (2021) (citation omitted).

Rather, “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. (quoting

White v. Pauly, 580 U.S. 73, 79 (2017)). That is,

“[p]recedent involving similar facts can help move a case

beyond the otherwise ‘hazy border between excessive and

acceptable force’ and thereby provide an officer notice that

a specific use of force is unlawful.” Kisela v. Hughes, 584

U.S. 100, 105 (2018) (quoting Mullenix v. Luna, 577 U.S. 7,

18 (2015)).14 Finally, “summary judgment in favor of

moving defendants is inappropriate where a genuine issue of

material fact prevents a determination of qualified immunity

14

The Supreme Court has articulated at least two other ways to

demonstrate that a right was clearly established. First, in an “obvious

case, [the standard in Graham] can ‘clearly establish’ the answer, even

without a body of relevant case law.” Rivas-Villegas, 595 U.S. at 4–6

(quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). Second, “‘a

general constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question.’” Taylor

v. Riojas, 592 U.S. 7, 9 (2020) (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)).

HYER V. CITY AND COUNTY OF HONOLULU 37

until after trial on the merits.” Est. of Lopez, 871 F.3d at

1021 (quoting Liston v. County of Riverside, 120 F.3d 965,

975 (9th Cir. 1997)).

For the reasons discussed in the previous section, we

conclude that the record evidence, when viewed in the light

most favorable to Plaintiffs, would permit a trier of fact to

find that Defendants’ use of deadly force and chemical

munitions was not objectively reasonable and thus violated

Hyer’s constitutional rights. The remaining question is thus

whether Hyer’s constitutional rights as discussed above were

clearly established. Ultimately, how the jury resolves the

relevant factual disputes will determine whether the law was

clearly established. Morales v. Fry, 873 F.3d 817, 823 (9th

Cir. 2017). In other words, if the trier of fact finds that Hyer

posed an immediate threat to the officers, the court could

then determine that the law was not clearly

established. Id. But taking the facts as we must regard them

at this stage of the proceedings, we conclude that, with

exception of the police dog claim, the law was clearly

established. Est. of Lopez, 871 F.3d at 1006–07, 1021. As

to that claim, we conclude that Hyer’s constitutional right to

be free from excessive force was not clearly established. We

thus affirm the district court’s grant of qualified immunity

on that claim alone.

1. Plaintiffs’ Deadly Force Claim

To begin, “taking the facts as we must regard them at this

stage of the proceedings,” we conclude that Hyer’s rights

were clearly established at the time of his encounter with

HPD. Id. at 1020. Specifically, it was clearly established by

June 22, 2018, that “the use of deadly force is unreasonable

where the victim does not directly threaten the officer with”

a weapon, even if the officers know the victim is armed. Id.

38 HYER V. CITY AND COUNTY OF HONOLULU

Here, viewing the evidence in the light most favorable to

Plaintiffs, Hyer was not in a threatening position at the time

he was shot. The defendant officers are thus not entitled to

summary judgment on the basis of qualified immunity with

respect to the use of deadly force.

2. Plaintiffs’ Chemical Munitions Claim

We turn to Plaintiffs’ claims regarding the defendant

officers’ use of chemical munitions. We conclude that

Hyer’s right to be free from that use of force was clearly

established on June 22, 2018. In Nelson v. City of Davis, we

held it was clearly established that “a reasonable officer

would have known that firing projectiles, including

pepperballs, in the direction of individuals suspected of, at

most, minor crimes, who posed no threat to the officers or

others, and who engaged in only passive resistance, was

unreasonable.” 685 F.3d at 886. Similarly, in Young v.

County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011), we

held that it was clearly established that it was “unreasonable

to use significant force [through the use of pepper spray]

against a suspect who was suspected of a minor crime, posed

no apparent threat to officer safety, and could be found not

to have resisted arrest . . . .” Id. at 1168. At the present stage

of the proceedings, we conclude that these decisions—both

decided before the encounter between Hyer and HPD—were

sufficient to give fair notice to Defendants that their use of

chemical munitions against Hyer would violate his clearly

established rights.15

15

In addition, we note that this conclusion is bolstered by our precedents

involving intermediate uses of force and individuals suffering from

mental illness. See, e.g., Vos, 892 F.3d at 1034 n.9 (“[O]ur precedent

HYER V. CITY AND COUNTY OF HONOLULU 39

3. Plaintiffs’ Police Dog Claim

Finally, with respect to the defendant officers’ use of the

police dog, we conclude that Hyer’s constitutional right to

be free from such force was not clearly established at the

time of his encounter with HPD, even assuming that this

particular use of force was not objectively reasonable.

Our court has considered whether it was clearly

established that police officers violate a suspect’s Fourth

Amendment rights by “using minimal force at the beginning

of an encounter and escalating the level of force employed,

ultimately deciding to use a police dog when other methods

were unsuccessful.” Hernandez v. Town of Gilbert, 989 F.3d

739, 745 (9th Cir. 2021). In Hernandez—which considered

law established as of May 5, 2016—we compared the facts

of the immediate case to our precedents involving police

dogs, observing that the suspect in Hernandez had been

warned several times about the police dog, was not known

to be armed or unarmed, and was evading arrest for a DUI.

Id. at 744–45. On these facts, we concluded that our

precedents did “not place ‘beyond debate’ whether [the] use

of a police dog to facilitate [the suspect’s] arrest under the

circumstances of this case violated the Fourth Amendment.”

Id. at 745.

Here, Plaintiffs have pointed us to no precedent

published since May 5, 2016, that supports their claim, nor

establishes that if officers believe a suspect is mentally ill, they should

. . . ma[k]e a greater effort to take control of the situation through less

intrusive means.” (second alteration in original) (internal quotation

marks and citation omitted)). “This conclusion is [even] further

buttressed by our precedent clearly establishing that a suspect’s previous

violent conduct does not justify non-trivial force where the suspect poses

no immediate safety threat.” Andrews, 35 F.4th at 719.

40 HYER V. CITY AND COUNTY OF HONOLULU

have they identified a general constitutional rule in our

caselaw that “may apply with obvious clarity to the specific

conduct in question.” Taylor, 592 U.S. at 9 (quoting Hope,

536 U.S. at 741). Moreover, Plaintiffs provide no argument

that this is an “obvious case.” Rivas-Villegas, 595 U.S. at 6.

We therefore conclude that the defendant officers did not

have fair notice that their use of the police dog would be

unconstitutional, and they are entitled to qualified immunity

on this claim.

V. Conclusion

For the foregoing reasons, we conclude that the district

court abused its discretion in excluding the entirety of

Plaintiffs’ expert reports with respect to each of their claims,

except for Plaintiffs’ claim based on the defendant officers’

use of the police dog and Plaintiffs’ ADA disparate

treatment claim. The defendant officers are not entitled to

qualified immunity with respect to their use of deadly force

and chemical munitions, but they are entitled to qualified

immunity with respect to their use of the police dog.

Summary judgment was therefore appropriate as to

Plaintiffs’ excessive force claim regarding the police dog

and Plaintiffs’ ADA disparate treatment claim. We thus

reverse the district court in part, affirm the district court in

part, and remand for further proceedings consistent with this

opinion.

REVERSED in part, AFFIRMED in part, and

REMANDED.

Appellants shall recover their costs on appeal.