Gerald Napouk v. Lvmpd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD ELMER NAPOUK, No. 23-15726

individually, and as Co-Special

Administrator of the Estate of Lloyd D.C. No. 2:20-cv-

Gerald Napouk; MARY NAPOUK, 01859-JCM-BNW

individually, and as Co-Special

Administrator of the Estate of Lloyd

Gerald Napouk; FREDRICK WAID, OPINION

as Co-Special Administrator of the

Estate of Lloyd Gerald Napouk,

Plaintiffs-Appellants,

v.

LAS VEGAS METROPOLITAN

POLICE DEPARTMENT; BUFORD

KENTON; CAMERAN GUNN,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted April 2, 2024

Pasadena, California

Filed December 10, 2024

2 NAPOUK V. LVMPD

Before: Ryan D. Nelson, Lawrence VanDyke, and Gabriel

P. Sanchez, Circuit Judges.

Opinion by Judge VanDyke;

Concurrence by Judge R. Nelson;

Dissent by Judge Sanchez

SUMMARY *

Qualified Immunity/Deadly Force

The panel affirmed the district court’s summary

judgment for two Las Vegas Metropolitan Police

Department officers in an action arising from the fatal

shooting of Lloyd Gerald Napouk.

The officers responded to reports of a man walking

around a residential neighborhood in the middle of the night

with a “machete” or a “slim jim,” behaving suspiciously and

walking up to cars and houses. When they arrived, they

attempted to engage Napouk for several minutes, but he

refused to follow their commands and repeatedly advanced

toward them with what the officers believed was a long,

bladed weapon. When Napouk advanced upon the officers

a final time with the weapon, coming within nine feet of

Sergeant Kenton, both officers fired their weapons, killing

him. Napouk’s weapon turned out to be a plastic toy

fashioned to appear as a blade.

*

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

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

NAPOUK V. LVMPD 3

Napouk’s parents and estate sued, alleging excessive

force in violation of the Fourth Amendment, deprivation of

familial relations in violation of the Fourteenth Amendment,

municipal liability based on Monell v. Department of Social

Services, 436 U.S. 658 (1978), and Nevada state law claims.

The panel held that the officers were entitled to qualified

immunity from the Fourth Amendment excessive force

claim. First, the totality of the circumstances based on the

undisputed facts shows that Napouk posed an immediate

threat to the officers at the moment they fired. No rational

jury could find that the officers’ mistake of fact as to

Napouk’s weapon, which objectively looked like a machete,

was unreasonable. Second, as the district court determined,

Napouk may have committed assault with a deadly weapon

as the event unfolded by brandishing the object and refusing

to respond to the officers’ orders. Third, Napouk repeatedly

failed to comply with the officers’ orders to drop his weapon

and to stop moving, and advanced toward the officers with

the weapon. Accordingly, the officers’ conduct did not

violate the Fourth Amendment, but even if it did, they would

still be entitled to qualified immunity because they did not

violate clearly established law.

The panel held that plaintiffs’ Fourteenth Amendment

deprivation of a familial relationship claim failed because

there was no evidence that the officers acted with anything

other than the legitimate law enforcement objectives of self-

defense and defense of each other.

Finally, plaintiffs’ Monell claims failed because there

was no constitutional violation and plaintiffs’ state law

claims failed because the officers were entitled to

discretionary-function immunity under Nevada state law.

4 NAPOUK V. LVMPD

Judge R. Nelson concurred in the majority opinion and

the conclusion to affirm the district court’s dismissal of

plaintiffs’ Fourteenth Amendment substantive due process

claim for deprivation of a familial relationship. In his view,

substantive due process does not extend to the Napouks’

relationship with their forty-four-year-old son.

Dissenting, Judge Sanchez stated that majority erred by

failing to evaluate the evidence in the light most favorable to

the nonmoving party and by minimizing evidence that, when

properly credited, created genuine disputes of material

fact. A rational trier of fact could find that the officers’ use

of deadly force was objectively unreasonable because

Napouk did not pose an imminent threat to the safety of the

officers, he was not committing a crime or resisting arrest,

and several non-lethal alternatives were available to contain

the slowly unfolding encounter. And Ninth Circuit caselaw

clearly establishes that police officers may not kill a suspect

who does not pose an imminent threat to the safety of

officers or bystanders, is not committing any crime or

actively resisting arrest, and in which non-lethal alternatives

are available to the officers.

COUNSEL

Peter Goldstein (argued), Peter Goldstein Law Corp, Las

Vegas, Nevada, for Plaintiffs-Appellants.

Craig R. Anderson (argued) and Marquis Aurbach, Marquis

Aurbach Coffing, Las Vegas, Nevada, for Defendants-

Appellees.

NAPOUK V. LVMPD 5

OPINION

VANDYKE, Circuit Judge:

Sergeant Buford Kenton and Officer Cameran Gunn

responded to reports of a man walking around a residential

neighborhood in the middle of the night with a “machete” or

a “slim jim,” behaving suspiciously and walking up to cars

and houses. When they arrived, they attempted to engage

Lloyd Gerald Napouk for several minutes, but he refused to

follow their commands and repeatedly advanced towards

them with what they believed was a long, bladed weapon.

When he advanced upon them a final time with the weapon,

coming within nine feet of Sergeant Kenton, both officers

fired their weapons, killing him. Napouk’s parents and

administrators of his estate sued Kenton and Gunn and the

Las Vegas Metropolitan Police Department (LVMPD),

alleging constitutional and state law claims. Defendants

moved for summary judgment, and the district court granted

their motion, determining that the officers’ use of force was

reasonable as a matter of law. We affirm.

I.

At around midnight on October 27, 2018, a bystander

called the LVMPD nonemergency line to report that a white

adult male was walking down Floating Flower Avenue with

a “slim jim” or a “long stick,” peering into cars, talking to

himself, and raising his fist at the cars. Three minutes later,

another bystander called 911 to report that an African

American adult male 1 with a “machete,” “big tool,” or “piece

of metal” was going door-to-door looking into houses,

1

The callers made differing reports as to the man’s race. In actuality,

Napouk was Innuit.

6 NAPOUK V. LVMPD

talking to himself, and pointing the object at the houses. A

few minutes later, the first bystander called again to report

that the man had moved to Tender Tulip Avenue and was

going into people’s backyards and looking into windows.

The bystander told the operator that he was armed and would

shoot the man if he came into his yard.

A few minutes after the first call, Seargent Kenton and

Officer Gunn, riding in separate patrol cars, assigned

themselves to the call. According to the information they

received from dispatch, a male wearing a baseball cap and

camo backpack was walking around with a “slim jim,” a

“long stick,” or “possibly a … machete,” going door to door

and peering into windows. A police helicopter was also

dispatched.

When the officers arrived in the neighborhood, Gunn

briefly spoke with the second bystander, who told him that

Napouk was one street over and wearing sunglasses. The

officers did not preplan or communicate before they

interacted with Napouk. Both officers drove over to the next

street, where Napouk came out from between two houses.

Both officers thought Napouk was holding a machete. Gunn

activated his patrol car lights and parked his car right in front

of Napouk, and Kenton parked behind Gunn. Gunn exited

his car with his gun drawn and stood near the driver side

door, immediately telling Napouk to “put it on the ground,”

and drop it. He asked Napouk what was in his hand and

repeated his command to drop it.

Kenton also exited his car, moved towards Napouk with

his gun drawn, repeatedly asked Napouk what was in his

hand, and told him to put it on the ground. Kenton also

repeatedly commanded Napouk to remove the headphones

from his ears while pointing to his own ears. Napouk stood

NAPOUK V. LVMPD 7

still for several seconds to the right of Gunn’s patrol car,

holding the long, black object at his side. Gunn reported that

Napouk was not following commands and “saying we’re

gonna have to shoot him.”

Napouk then walked slowly in front of and around to the

driver side of Gunn’s patrol car, where Gunn was standing,

failing to follow the officers’ commands to put the object

down. Gunn retreated to stand behind the back of his patrol

car, and both officers continued to repeat commands to “drop

the knife.” Napouk stood next to the driver side door of

Gunn’s patrol car and smoked a cigarette for over a minute,

with Gunn positioned at the driver side bumper and Kenton

on the passenger side at the hood of the car. The officers

repeatedly told Napouk that “it’s not worth it,” that “it’s all

good, man. We can talk,” and that “you’re not in any

trouble,” and Kenton also tried asking his name. Kenton

radioed during this time to request a beanbag shotgun and a

canine unit and asked that medical be standing by. Napouk

stayed in the same place and moved the long object in

different positions, pointing it outward, up in the air, and

straight out next to him.

After around two minutes standing in one place and

failing to abide by the officers’ commands, Napouk moved

more quickly along the side of the car toward Gunn, telling

the officers twice to “get out of here.” Gunn retreated around

the other side of the car, repeating his command to drop the

weapon. Kenton followed Napouk around the car repeating

commands to drop it. Napouk then turned and walked at

Kenton, who retreated back to stand with Gunn at the

passenger side near the hood of the car. Both officers said

“I’m gonna shoot you,” and Napouk responded “you have

to.” Gunn told Napouk if he took one more step towards

them, “I will shoot you,” and Napouk said, “I know.”

8 NAPOUK V. LVMPD

Kenton told him again to drop it and “it’s not worth it man,”

and again tried to ask his name and talk to him.

Napouk stopped at the front driver side of Gunn’s patrol

car for another minute, moving his hat around on his head

and telling the officers to “get out of here,” while the officers

stood on the passenger side, continuing to repeat commands

to drop it and attempting to ask his name. Eventually, he

began slowly moving again, across the front of the car

toward them. They again retreated, Gunn behind a parked

car on the side of the road next to his patrol car, and Kenton

to the back of Gunn’s patrol car. Kenton again radioed to

request that someone with a beanbag shotgun come in

behind him.

Napouk continued to move slowly in their direction,

changing his grip on the object a few times. The officers

continued instructing him to put it down, and Kenton told

him “I don’t want to shoot you today.” Napouk continued

to move along the passenger side of Gunn’s patrol car

towards Kenton, positioning himself between the two

officers. Gunn told Kenton to “watch your crossfire.”

Kenton told Napouk “one more step and you’re dead,” to

which Napouk responded, “I know” and continued

advancing. When Napouk was about nine feet away, the

officers both shot him multiple times.

Other officers put a handcuff on Napouk and performed

first aid and CPR immediately following the shooting, but

Napouk was pronounced dead at the scene. After the

shooting, it was discovered that the object was a plastic toy

fashioned to appear as a blade. Napouk’s toxicology report

revealed that he had been high on methamphetamine.

Napouk’s parents, individually and as representatives of

his estate, sued LVMPD, Gunn, and Kenton. They allege

NAPOUK V. LVMPD 9

excessive force in violation of the Fourth Amendment,

deprivation of familial relations in violation of the

Fourteenth Amendment, several municipal liability claims

based on Monell v. Department of Social Services, 436 U.S.

658 (1978), and battery/wrongful death and

negligence/wrongful death under Nevada law. The district

court granted summary judgment for Defendants,

determining primarily that the officers’ use of force was

reasonable as a matter of law. Plaintiffs appeal the district

court’s judgment on all except their municipal liability for

failure to train claim.

II.

“We review the grant of summary judgment de novo,

viewing the evidence and drawing all reasonable inferences

in the light most favorable to the non-moving party.”

Edwards v. Wells Fargo & Co., 606 F.3d 555, 557 (9th Cir.

2010). We similarly review “the district court’s conclusions

regarding qualified immunity de novo” and consider

“disputed facts in the light most favorable to the nonmoving

party.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938,

946 (9th Cir. 2017); Scott v. Harris, 550 U.S. 372, 377

(2007).

III.

Plaintiffs appeal the district court’s grant of summary

judgment on their claims of (1) Fourth Amendment

excessive force; (2) Fourteenth Amendment deprivation of a

familial relationship; (3) municipal liability for an

unconstitutional custom, practice, or policy; (4) municipal

liability based on ratification; (5) battery/wrongful death

under Nevada law; and (6) negligence/wrongful death under

Nevada law. We address these claims in turn.

10 NAPOUK V. LVMPD

A.

Both officers are entitled to qualified immunity from the

excessive force claim. Qualified immunity protects

government officials from suit unless “(1) they violated a

federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

time.’” District of Columbia v. Wesby, 583 U.S. 48, 62–63

(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). Here, neither prong is satisfied.

1.

Under the first prong, we must determine whether “the

use of force is contrary to the Fourth Amendment’s

prohibition against unreasonable seizures.” Wilkins v. City of

Oakland, 350 F.3d 949, 954 (9th Cir. 2003). We look at

“whether it would be objectively reasonable for the officer to

believe that the amount of force employed was required by

the situation he confronted.” Id. “Determining whether the

force used to effect a particular seizure is reasonable under

the Fourth Amendment 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.” Graham v. Connor, 490

U.S. 386, 396 (1989) (internal quotation marks omitted)

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

The Supreme Court has emphasized that “[t]he

‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. And

“[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,

NAPOUK V. LVMPD 11

uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” Id. at 396–97.

Here, Kenton and Gunn each shot Napouk several times.

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

unmatched.” Garner, 471 U.S. at 9. Where, as here, deadly

force, which “‘implicates the highest level of Fourth

Amendment interests,’” is used, “the issue is determining

whether the governmental interests at stake were sufficient to

justify it.” Vos v. City of Newport Beach, 892 F.3d 1024,

1031 (9th Cir. 2018) (quoting A.K.H. ex rel. Landeros v. City

of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016)).

The Supreme Court has provided three factors for

determining the strength of the government’s interest:

“[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 he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at

396. The “most important” of these factors is “whether the

suspect posed an immediate threat to the safety of the

officers or others.” Lal v. California, 746 F.3d 1112, 1117

(9th Cir. 2014).

a.

Addressing the second and “most important” factor first,

Napouk posed an immediate threat to the safety of the

officers. See id.

i.

We first address Plaintiffs’ contention that the district

court erred in failing to conclude that a rational jury could

find the officers’ mistake of fact as to the machete

unreasonable. Plaintiffs argue that there was a genuine

factual dispute as to whether the officers’ belief that Napouk

12 NAPOUK V. LVMPD

was holding a bladed weapon was reasonable. But no

rational jury could find the officers’ mistake unreasonable.

“Officers can have reasonable, but mistaken, beliefs as

to the facts establishing the existence of an immediate threat,

and in those situations courts will not hold that they have

violated the Constitution.” Est. of Strickland v. Nevada

County, 69 F.4th 614, 621 (9th Cir. 2023) (quotation marks

and citations omitted) (holding that officers’ perception that

a plastic, airsoft replica gun was a real firearm was not

unreasonable). “When an officer’s use of force is based on

a mistake of fact, we ask whether a reasonable officer would

have or should have accurately perceived that fact.” Id.

(quotation marks omitted) (citing Torres v. City of Madera,

648 F.3d 1119, 1124 (9th Cir. 2011)). “Whether the mistake

was an honest one is not the concern, only whether it was a

reasonable one.” S.R. Nehad v. Browder, 929 F.3d 1125,

1133 (9th Cir. 2019) (alteration marks and quotation marks

omitted) (quoting Torres, 648 F.3d at 1127).

Here, witnesses gave several different descriptions of the

object Napouk held, which highlights that others were at

least confused as to what the object was. The officers were

told that Napouk had either a slim jim, long stick, or

machete. When they arrived on the scene just after midnight,

both officers asked Napouk what was in his hand, and he

failed to respond. Kenton told him at various points to drop

“the knife” and “the weapon,” while Gunn testified at a

deposition that he perceived the object to have a metal blade

because of the way light reflected off of it. Pictures and

reports of the object confirm that at twenty-two inches long,

made of layers of dark gray plastic adhered together and

square at the end, and with a handle made of wire and yellow

rope covered in black tape, the object was a “homemade

plastic sword.” Even Plaintiffs describe the object in their

NAPOUK V. LVMPD 13

complaint as a “toy sword wrapped in duct tape” and a

“machete shaped instrument.” Put simply, the item

objectively looked like a machete, and no rational jury could

find Kenton or Gunn’s mistake unreasonable. See S.R.

Nehad, 929 F.3d at 1134.

Plaintiffs’ cases to the contrary are unavailing. First, in

Torres v. City of Madera, an officer mistook her own pistol

for her taser and shot a suspect—obviously a different

situation from here. 648 F.3d at 1120. In S.R. Nehad v.

Browder, an officer shot a suspect who he thought was

approaching him with a knife, even though he never saw a

knife and the suspect turned out to have only a blue metallic

pen. 929 F.3d at 1131. In Wilkins v. City of Oakland,

officers mistook an undercover officer arresting a suspect for

“a civilian threatening another civilian with a gun.” 350 F.3d

at 955. In each of these cases, certain circumstances, such

as special training or warnings from others on the scene, put

the officer “on notice” that their belief might be mistaken,

such that they “should have known.” Torres, 648 F.3d at

1125, 1127. Here, no such facts alleged by Plaintiffs suggest

circumstances by which the officers should have known the

object, which was obviously made to look like a knife, was

not actually a knife. Therefore, no rational jury could find

the officers’ mistake unreasonable.

ii.

With the mistake of fact addressed, this becomes a

straightforward case. As already explained, we assess

reasonableness “from the perspective of a reasonable officer

on the scene.” Graham, 490 U.S. at 396. As the officers

reasonably perceived it, Napouk was holding a long, bladed

weapon, walking toward one of them and failing to follow

commands to stop or to drop the weapon. At the moment

14 NAPOUK V. LVMPD

they fired, Napouk was within ten feet of them, had ignored

their commands for more than five minutes, and had moved

at them several times, causing them to retreat with increasing

frequency as the encounter went on. See Smith v. City of

Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (noting that

“where a suspect threatens an officer with a weapon such as

a gun or a knife, the officer is justified in using deadly

force”).

Our court has previously found it objectively reasonable

to view an individual as an immediate threat in similar

situations. In Blanford v. Sacramento County, our court

addressed a case similar to this one. 406 F.3d 1110 (9th Cir.

2005). Officers responded to reports of a man wandering

through a suburban neighborhood carrying a sword and

“behaving erratically.” Id. at 1112. The court determined

that it was objectively reasonable for officers to view him as

an immediate threat when he was attempting to enter a home

and failed to comply with verbal commands to stop and to

drop the sword. Id. at 1116. Here, Napouk similarly was

found wandering streets and behaving erratically while

carrying what appeared to be a long, bladed object, and

similarly failed to comply with verbal commands to stop and

drop the object. And in Lal v. California, officers were

approached by a suspect holding a “football-sized rock” over

his head. 746 F.3d at 1112, 1115, 1117. This court held that

the officers were justified in their belief that he posed an

immediate threat when he advanced on them. Id. Here,

Napouk approaching the officers with what they reasonably

perceived to be a long, bladed weapon was reasonably

perceived as posing an even greater threat than a suspect

with a rock.

Plaintiffs make several arguments as to why Napouk did

not present an immediate threat, but none are convincing.

NAPOUK V. LVMPD 15

First, they argue that Napouk did not pose an immediate

threat because he did not wave the object in a “threatening

manner.” For this they cite Hayes v. County of San Diego,

736 F.3d 1223 (9th Cir. 2013), Glenn v. Washington County,

673 F.3d 864 (9th Cir. 2011), and George v. Morris, 736

F.3d 829 (9th Cir. 2013). But none stands for the broad,

sweeping proposition for which Plaintiffs cite them, and

each is distinguishable. In Hayes, officers encountered a

suspect in his kitchen. 736 F.3d at 1227. When he complied

with an officer’s command to show his hands, revealing that

he was holding a knife, pointed tip down, they immediately

shot him. Id. at 1228. In Glenn, officers responded to

reports of a suicidal and intoxicated man holding a

pocketknife. 673 F.3d at 873. When the officers arrived,

they positioned themselves a few feet from him and made

sure all other bystanders were out of the way. Id. at 874.

Though he did not respond to their commands to drop the

pocketknife, he stayed in the same position, holding the

pocketknife to his own neck, and made no sign of moving

until the officers fired upon him. Id. at 873–74. And in

Morris, police responded to a report of a man with a gun at

his house. Morris, 736 F.3d at 832. When they arrived, the

officers spotted the man, who had terminal brain cancer,

using a walker on his balcony and holding a gun in his hand

with the barrel pointed down. Id. at 832–33. There was a

dispute of fact as to whether the man lifted the gun and

whether he was even physically capable of wielding it. Id.

at 833, 835.

Those cases stand for the proposition that the mere fact

alone “that the suspect was armed with a deadly weapon

does not render the officers’ response per se reasonable

under the Fourth Amendment.” Id. at 838 (internal quotation

marks omitted). That makes imminent sense. Many law-

16 NAPOUK V. LVMPD

abiding individuals possess weapons for a variety of

legitimate purposes, and such mere possession has never

alone justified the use of deadly force by law enforcement.

But none of those cases supports Plaintiffs’ very different

proposition that an armed individual can pose a threat only

when that person brandishes the weapon in a “threatening

manner.” Courts have repeatedly rejected that unreasonable

argument. “If the person is armed—or reasonably suspected

of being armed—a furtive movement, harrowing gesture, or

serious verbal threat might create an immediate threat.”

George, 736 F.3d at 838; see also Shaw v. City of Selma, 884

F.3d 1093, 1100 (11th Cir. 2018) (The court determined that

even if the suspect had not raised his hatchet before he was

shot, he posed an immediate threat because he was close to

and approaching the officers and “could have raised the

hatchet in another second or two and struck [the officer] with

it. Whether the hatchet was at [his] side, behind his back, or

above his head doesn’t change that fact.”). Instead, the cases

simply look at the totality of the circumstances to determine

whether each individual who was holding a weapon was

reasonably perceived as posing a threat at the moment the

officer acted. Glenn, 673 F.3d at 872; Hayes, 736 F.3d at

1233–1234; George, 736 F.3d at 838. Unlike Glenn, Hayes,

and George, the undisputed facts here show that Napouk had

repeatedly disobeyed commands to stop moving toward the

officers and to drop the weapon. By telling him that they

would shoot him if he took another step, the officers clearly

indicated to him their reasonable perception that they saw

further deliberate movement toward them with the weapon

as a threat. Rather than comply with their repeated

commands, Napouk continued to hold the object, moving it

around and pointing it in various directions, and continued

to deliberately advance toward them.

NAPOUK V. LVMPD 17

Second, Plaintiffs argue that there was at least a dispute

of fact as to Napouk’s pace when he advanced towards the

officers. They claim that while the district court’s order

describes Napouk as walking at “variable paces,” the

officers described Napouk’s pace as “slow” and said that it

did not change. But whether his pace was the same during

his final approach as it was throughout the entire encounter

is a red herring obscuring the facts that actually matter.

What matters is that regardless of whether Napouk’s pace

was “slow” as a subjective matter, and regardless of whether

Napouk varied his pace at some point, Plaintiffs do not—and

cannot—dispute that when the officers fired, Napouk was

within nine feet and deliberately advancing on the officers

with what they reasonably perceived to be a long, bladed

weapon in his hand.

Third, Plaintiffs assert that Napouk did not make

“indirect verbal threats,” or “becom[e] increasingly

irritated” as the district court’s order described. But again,

even accepting Plaintiffs’ view in this regard does not

change the calculus. Napouk was behaving erratically,

holding what the officers reasonably perceived to be a lethal

weapon, repeatedly ignoring their commands to stop and to

drop it, and repeatedly deliberately advancing toward them

with the weapon in his hand. Those facts and circumstances,

regardless of whether he verbally threatened them or became

increasingly irritated, show an immediate threat.

Fourth, Plaintiffs claim that the officers “created their

own sense of urgency and unnecessary haste.” Of course,

“an officer’s poor judgment or lack of preparedness [can]

cause[] him or her to act unreasonably, with undue haste.”

S.R. Nehad, 929 F.3d at 1135 (quotations omitted). But the

undisputed facts clearly show that is not this case. The

officers laudably responded quickly to reports of an armed

18 NAPOUK V. LVMPD

individual walking around a neighborhood, looking in cars

and going up to houses. After they found him, they spent

more than five minutes attempting to engage with him and

convince him to drop his weapon. Only when he

deliberately advanced on them a final time, putting himself

in a position where the officers were concerned about

crossfire, did they finally engage.

Finally, the Plaintiffs claim that the officers had “ample

opportunity to reposition [or] withdraw,” and therefore they

should have again retreated instead of shooting. For this

proposition, Plaintiffs again cite Glenn. But in that case, the

suspect “stayed in the same position from the moment

officers arrived and showed no signs of attempting to move

until after he was fired upon.” 673 F.3d at 874. So Glenn

does not involve a situation like this one where officers

repeatedly retreated (at least four times) and attempted to

engage and reason with Napouk, who continually advanced

upon them. And Deorle v. Rutherford, the other case

Plaintiffs cite, similarly does not stand for the obviously

wrong proposition that officers must indefinitely retreat if

able. 272 F.3d 1272 (9th Cir. 2001). In Doerle, the suspect

“had not harmed or attempted to harm anyone” in the time

the officer observed him, had dropped his crossbow as the

officer instructed, and was walking with only a can or bottle

in his hand. Id. at 1281–82. Based on all the facts and

circumstances, there was “no immediate need to subdue” the

suspect at the moment the officer used force against him. Id.

at 1282. So again, the situation was substantially different

from the one Kenton and Gunn faced. 2 Officers “need not

2

The dissent mistakenly characterizes our analysis as relying on factual

distinctions between this case and certain other cases—namely Glenn,

NAPOUK V. LVMPD 19

avail themselves of the least intrusive means of responding

to an exigent situation,” Scott v. Henrich, 39 F.3d 912, 915

(9th Cir. 1994), and we decline to create a rule by which

officers have a duty to indefinitely retreat when faced with

an immediate threat. Cf. Reed v. Hoy, 909 F.2d 324, 331

(9th Cir. 1989) (“[S]uch a duty may be inconsistent with

police officers’ duty to the public[.]”), overruling on other

grounds recognized by Edgerly v. City & County of San

Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010).

In sum, the totality of the circumstances based on the

undisputed facts in this case shows that Napouk posed an

immediate threat to the officers at the moment they fired.

b.

Next, we address the severity of the crime at issue. This

court often has “used the severity of the crime at issue as a

proxy for the danger a suspect poses at the time force is

applied.” S.R. Nehad, 929 F.3d at 1136 (citing Lowry v. City

of San Diego, 858 F.3d 1248, 1257 (9th Cir. 2017)). As the

district court determined, Napouk may have committed

assault with a deadly weapon as the event unfolded by

brandishing the object and refusing to respond to the

officers’ orders. Nev. Rev. Stat. § 200.471(1)(a), (2)(b)

(“Assault means: (1) Unlawfully attempting to use physical

Hayes, and George—to “reject[] Plaintiffs’ evidence” in this case. But

we do not “reject” Plaintiffs’ evidence. Indeed, this opinion repeatedly

cites Plaintiffs’ evidence as true. Rather, we merely explain that

Plaintiffs’ evidence fails to create any dispute of material fact about

whether Napouk was an imminent threat—he clearly was. We

distinguish the facts of other cases simply to demonstrate why this case

does not warrant the same legal conclusion reached in those cases, and

why the different facts in those cases failed to demonstrate the presence

of an “imminent threat” while the dissimilar facts of this case do rise to

that level.

20 NAPOUK V. LVMPD

force against another person; or (2) [i]ntentionally placing

another person in reasonable apprehension of immediate

bodily harm.”). This is a sufficiently serious and dangerous

crime. As explained above, that the weapon turned out to be

plastic has no bearing on the severity of the crime because

the officers on the scene reasonably believed it was real. See

Graham, 490 U.S. at 396.

c.

The final Graham factor asks whether the suspect is

“actively resisting arrest or attempting to evade arrest by

flight.” Id. As discussed above, Napouk repeatedly failed

to comply with the officers’ orders to drop his weapon and

to stop moving, and advanced toward the officers with the

weapon.

Plaintiffs cite Young v. County of Los Angeles, arguing

that because the officers never explicitly told Napouk that he

was under arrest, he could not have resisted arrest. 655 F.3d

1156 (9th Cir. 2011). But the circumstances of this case are

unlike Young, where an officer pepper sprayed and hit a

suspect with a baton who was sitting on a curb and “eating

his broccoli.” Id. at 1159. The subject there had been pulled

over for a seatbelt violation and while the officer wrote his

citation, he exited his truck to give the officer his

registration. Id. Rather than “just hav[ing] a seat in the

truck” as the officer instructed, he sat down on the sidewalk.

Id. The officer never warned him that failure to comply

would result in force or arrest, id. at 1165, whereas Kenton

and Gunn warned Napouk that further noncompliance with

their orders would necessitate use of force. And unlike this

case, where Napouk was actively resisting orders and

deliberately moving toward the officers with a bladed

weapon, “Young was not being placed under arrest nor

NAPOUK V. LVMPD 21

attempting to flee when [the officer] began to pepper spray

him.” Id.

This case is also unlike Glenn, where the court

determined that the suspect did not actively resist arrest

because he “stayed in the same position from the time

officers arrived and took no threatening actions (other than

noncompliance with shouted orders).” 673 F.3d at 874–75.

Napouk refused to follow the officers’ orders to stop moving

towards them and to drop the weapon. And unlike Glenn,

where there was genuine dispute over whether the suspect

“heard or understood those orders” to drop his pocketknife,

id. at 875, here, Napouk is heard on the body camera footage

from both officers responding to their commands. For

example, when Kenton told Napouk “one more step and

you’re dead,” Napouk responded, “I know.” Therefore,

Napouk actively resisted the officers’ orders, satisfying

Graham’s final factor.

d.

Plaintiffs nevertheless argue that other factors suggest

the officers’ use of force was unreasonable, including

Napouk’s mental state, the availability of less lethal means,

and the lack of an effective warning. To start, while we have

recognized that these other factors are relevant when

evaluating the totality of the circumstances, Glenn, 673 F.3d

at 872, they do not overcome the Graham factors to prove a

constitutional violation where all three Graham factors favor

the officers’ use of force. But even if they could, each

weighs in the officers’ favor in this case.

First, though “whether the officers were or should have

been aware that [the suspect] was emotionally disturbed” is

a relevant consideration, Glenn, 673 F.3d at 875, we do not

have “two tracks of excessive force analysis, one for the

22 NAPOUK V. LVMPD

mentally ill and one for serious criminals,” Bryan v.

MacPherson, 630 F.3d 805, 829 (9th Cir. 2010). Plaintiffs

are correct that this court has said that “when an emotionally

disturbed individual is ‘acting out’ and inviting officers to

use deadly force to subdue him, the governmental interest in

using such force is diminished by the fact that the officers

are confronted, not with a person who has committed a

serious crime against others, but with a mentally ill

individual.” Deorle, 272 F.3d at 1283. But that is true only

“where such an individual is neither a threat to himself nor

to anyone else.” Bryan, 630 F.3d at 829; see also Glenn, 673

F.3d at 875–76 (emphasizing that the suspect was not

“brandishing [his pocketknife] at his parents or friends”).

For example, in Bryan, the suspect had no weapon, “never

addressed” the officer, and “remained stationary at a

distance of approximately twenty feet.” 630 F.3d at 828.

That he was also “yelling gibberish and hitting his thighs”

such that the officer believed he “may have been mentally

ill” did not increase the government interest in using force

against him. Id. at 822, 829.

In a case like this one, on the other hand, where the

suspect is brandishing what is reasonably understood to be a

lethal weapon and advancing towards the officers, that he

was emotionally disturbed does not negate the serious threat

he exhibited. If anything, his mental state and erratic

behavior made Napouk more of a threat to the officers

because he clearly was not behaving rationally or in a

predictable manner when he repeatedly approached them

with a bladed weapon. Therefore, under these

circumstances, Napouk’s mental state does not lessen the

government interest in the use of force.

Second, Plaintiffs relatedly contend that because of

Napouk’s mental state, the officers should have made a

NAPOUK V. LVMPD 23

“greater effort to take control of the situation through less

intrusive means.” But as we have repeatedly stated, officers

“need not avail themselves of the least intrusive means of

responding to an exigent situation; they need only act within

that range of conduct we identify as reasonable.” Scott, 39

F.3d at 915.

Here, the officers made a concerted effort to deescalate

the situation and use alternative means. The officers tried to

engage and reason with Napouk for more than five minutes,

and they repeatedly retreated as Napouk deliberately

advanced toward them. They tried to deescalate by saying

things like “it’s all good, man. We can talk,” and “you’re not

in any trouble,” and Kenton tried several times to ask

Napouk’s name. Kenton also radioed to request a beanbag

shotgun and a canine unit, and then followed up shortly

before the situation escalated to request them a second time.

Only when Napouk advanced upon them a fifth time

with what they reasonably believed was a long, bladed

weapon, putting himself on a path where he could end up

between Kenton and Gunn such that they were concerned

about crossfire, failed to follow commands to drop it and

stop, and came within nine feet of Kenton did the officers

use deadly force. That the officers did not retreat another

time to wait for the less lethal means they requested does not

make their actions unreasonable. Nor does the mere fact that

tasers were available make the officers’ use of a gun to

protect themselves from a perceived deadly threat

unreasonable. Glenn, 673 F.3d at 876.

Finally, Plaintiffs argue that the officers failed to give

effective warnings. “In general, we have recognized that an

officer must give a warning before using deadly force

‘whenever practicable.’” Gonzalez v. City of Anaheim, 747

24 NAPOUK V. LVMPD

F.3d 789, 794 (9th Cir. 2014). Plaintiffs do not dispute that

the officers repeatedly warned Napouk that they would shoot

him if he came closer, but they argue that Napouk was

wearing headphones, so the warnings may not have been

effective. This is refuted by the record. When the officers

warned Napouk that they would shoot, Napouk responded

by saying “you have to” and “I know.” Plaintiffs also point

out that Kenton and Gunn failed to identify themselves as

officers. While they are correct that this may be a

consideration, see S.R. Nehad, 929 F.3d at 1138, here, the

officers were uniformed, and both pulled up right in front of

Napouk in their patrol vehicles with the lights on. No

rational juror would believe he did not know they were

officers. Based on these facts, no rational jury could

determine that the officers failed to give effective warnings.

***

For these reasons, the totality of the circumstances leads

us to conclude that the officers’ use of force was reasonable.

Glenn, 673 F.3d at 872 (“We examine the totality of the

circumstances and consider whatever specific factors may be

appropriate in a particular case ….” (quotations omitted)).

Napouk may not have been a threat if he simply possessed

what they believed was a bladed weapon, or stood in one

place, or merely failed to comply with their commands to

drop the weapon. But he deliberately advanced toward the

officers with what they believed was a long, bladed weapon

and repeatedly ignored their commands to drop it and to stop

moving. Viewed holistically, these facts justified the

officers’ use of force.

2.

The officers’ conduct did not violate the Fourth

Amendment, but even if it did, they would still be entitled to

NAPOUK V. LVMPD 25

qualified immunity because they did not violate clearly

established law. To be clearly established, there need not be

“a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

While in the “rare” case a clearly established right may be

obvious, clearly establishing a right usually requires

“‘controlling authority’ or a robust ‘consensus of cases of

persuasive authority.’” Wesby, 583 U.S. at 63, 64 (quoting

al-Kidd, 563 U.S. at 741–42). The burden is on Plaintiffs,

Isayeva, 872 F.3d at 946, to show that “the right’s contours

were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it,” Kisela v. Hughes, 584 U.S. 100, 105 (2018)

(citation omitted).

According to Plaintiffs, “Bryan, Drummond, Deorle,

Gonzalez, Harris, Young, and Glenn … clearly established

the principles that render the deadly force unreasonable.”

But as discussed above, Bryan, Deorle, Young, and Glenn

are distinguishable. In Bryan, Young, and Glenn, none of the

suspects advanced towards the officers. Bryan, 630 F.3d at

828 (noting that the suspect “remained stationary at a

distance of approximately twenty feet”); Young, 655 F.3d at

1164 (noting that suspect was “sitting on the sidewalk”);

Glenn, 673 F.3d at 874 (noting that the suspect “stayed in

the same position from the moment officers arrived and

showed no signs of attempting to move until after he was

fired upon”). And in Bryan, Young, and Deorle, the suspect

did not have a weapon. Bryan, 630 F.3d at 826 (“It is

undisputed that Bryan was unarmed, and, as Bryan was only

dressed in tennis shoes and boxer shorts, it should have been

apparent that he was unarmed.”); Young, 655 F.3d at 1166

(noting suspect was “armed only with broccoli and a

26 NAPOUK V. LVMPD

tomato”); Deorle, 272 F.3d at 1281 (“Deorle had discarded

his crossbow following Rutherford’s instructions to do so,

and carried only a bottle or a can with him.”).

Drummond, Gonzalez, and Harris are similarly

distinguishable. In Drummond ex rel. Drummond v. City of

Anaheim, officers “allegedly crushed Drummond against the

ground by pressing their weight on his neck and torso, and

continuing to do so despite his repeated cries for air, and

despite the fact that his hands were cuffed behind his back

and he was offering no resistance.” 343 F.3d 1052, 1061

(9th Cir. 2003). In Gonzalez v. City of Anaheim, after a

skirmish during a traffic stop, an officer ended up inside a

car with a suspect, who was unarmed. 747 F.3d at 792. The

suspect shifted the car into drive and attempted to flee, with

the officer in the passenger seat, and the officer shot the

suspect in the head. Id. at 792–93. There was a genuine

dispute of fact as to how quickly the car took off, and

therefore whether the officer or anyone else was in danger.

Id. at 796. And Harris v. Roderick concerns the FBI’s

actions at Ruby Ridge. 126 F.3d 1189, 1192 (9th Cir. 1997).

There, the court denied qualified immunity to an agent who

shot without warning or opportunity to surrender a suspect

who “made no aggressive move of any kind,” and was

running back to the safety of his cabin. Id. at 1203. In none

of these cases did the undisputed facts show an armed man

deliberately advancing upon officers. Therefore, none of the

cases clearly establish that the officers would violate

Napouk’s constitutional rights by firing at him as he

intentionally approached with a weapon and refused to drop

it.

Finally, at argument, Plaintiffs discussed Hayes. But as

already discussed, the suspect in Hayes revealed the knife by

complying with the officers’ commands to show his hands,

NAPOUK V. LVMPD 27

and the officers immediately shot him without giving him a

warning to stop or to drop the knife. 736 F.3d at 1227–28.

So again, Hayes is factually dissimilar to this case, where the

officers repeatedly ordered Napouk to stop and to drop his

weapon and acted with deadly force only when he refused

and deliberately approached within a few feet of them.

Therefore, the officers here are entitled to qualified

immunity.

B.

Plaintiffs’ Fourteenth Amendment deprivation of a

familial relationship claim also fails. In the Ninth Circuit,

an adult decedent’s parents have the right to assert a

substantive due process claim for the deprivation of the

companionship of their child. Sinclair v. City of Seattle, 61

F.4th 674, 678–79 (9th Cir. 2023). Even assuming arguendo

that such a claim exists based on these facts, where Napouk

was an adult in his forties, id. at 685–86 (Nelson, J.,

concurring), only “[o]fficial conduct that ‘shocks the

conscience’ in depriving parents of that interest is cognizable

as a violation of due process.” Jones v. Las Vegas Metro.

Police Dep’t, 873 F.3d 1123, 1132–33 (9th Cir. 2017)

(alterations in original) (quoting Wilkinson v. Torres, 610

F.3d 546, 554 (9th Cir. 2010)). “Where actual deliberation

[by the officers] is practical, then an officer’s ‘deliberate

indifference’ may suffice to shock the conscience.”

Wilkinson, 610 F.3d at 554. But where, as here, “a law

enforcement officer makes a snap judgment because of an

escalating situation, his conduct may only be found to shock

the conscience if he acts with a purpose to harm unrelated to

legitimate law enforcement objectives.” Id.; see also Porter

v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008) (applying

the second standard to a “five-minute altercation” between

the suspect and the officer that was “quickly evolving and

28 NAPOUK V. LVMPD

escalating, prompting repeated split-second decisions”

(internal quotations omitted)).

Here, assuming Plaintiffs could assert a substantive due

process claim based on the death of their forty-four-year-old

son, and that they could succeed in making out an excessive

force claim, there is no evidence that the officers acted with

anything other than the legitimate law enforcement

objectives of self-defense and defense of each other. Id. at

1140 (to shock the conscience, the officer’s purpose must be

“to cause harm unrelated to the legitimate object of arrest”

(quotation omitted)). Thus, the Fourteenth Amendment

claim fails.

C.

Plaintiffs also appeal dismissal of their Monell claims

alleging municipal liability for an unconstitutional custom,

practice, or policy and municipal liability based on

ratification. Under Monell, a municipality is liable for

constitutional torts committed by its employees only if those

torts were committed pursuant to the municipality’s policies

or customs. Henry v. County of Shasta, 132 F.3d 512, 517

(9th Cir. 1997). A municipality is liable only if (1) “the

[plaintiff] possessed a constitutional right of which he was

deprived;” (2) “the municipality had a policy;” (3) “this

policy ‘amounts to deliberate indifference’ to the plaintiff's

constitutional right;” and (4) “the policy is the ‘moving force

behind the constitutional violation.’” Van Ort v. Est. of

Stanewich, 92 F.3d 831, 835 (9th Cir 1996). Here, because

we have found no constitutional violation, we also affirm the

district court’s grant of summary judgment on the Monell

claims. See Hayes, 736 F.3d at 1231 (noting that a

constitutional violation is required for Monell liability).

NAPOUK V. LVMPD 29

D.

Plaintiffs also bring battery and negligence claims under

Nevada law. Nevada’s discretionary immunity statute

“precludes claims against state officers based on acts or

omissions relating to a ‘discretionary function,’ even if that

discretion is abused.” Jones, 873 F.3d at 1133. Under

Nevada law, state actors are entitled to discretionary-

function immunity if their decision “(1) involves an element

of individual judgment or choice and (2) is based on

considerations of social, economic, or political policy.”

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,

1168 (9th Cir. 2014) (cleaned up) (quoting Martinez v.

Maruszczak, 168 P.3d 720, 729 (Nev. 2007)). “But

decisions made in bad faith, such as ‘abusive’ conduct

resulting from ‘hostility’ or ‘willful or deliberate disregard’

for a citizen’s rights, aren’t protected under the immunity

statute even if they arise out of a discretionary function.”

Jones, 873 F.3d at 1133.

Here, the officers’ actions fell within the discretionary

function as it has been applied by Nevada’s courts. See

Sandoval, 756 F.3d at 1169 (applying discretionary

immunity to most police actions during an interaction with

three suspects); see also Gonzalez v. Las Vegas Metro.

Police Dep’t, No. 61120, 2013 WL 7158415 (Nev. 2013)

(applying discretionary immunity to police actions in

detaining and arresting a suspect). And because we have

already determined that the officers acted reasonably and

there is no evidence that they acted with bad faith, that

immunity applies. See Jones, 873 F.3d at 1133. Therefore,

the district court properly granted summary judgment on the

state law claims.

30 NAPOUK V. LVMPD

IV.

Plaintiffs have not shown that Kenton’s or Gunn’s

actions were objectively unreasonable in violation of

Napouk’s Fourth Amendment rights or that such rights were

clearly established. Therefore, the district court properly

granted summary judgment on the Fourth Amendment

claim. And because the officers acted reasonably, the

district court also properly granted summary judgment on

the Fourteenth Amendment, Monell, and state tort claims.

AFFIRMED.

R. Nelson, J., concurring:

I concur in the majority opinion and the conclusion to

affirm the district court’s dismissal of Plaintiffs’ substantive

due process claim. In my view, however, substantive due

process does not extend to the Napouks’ relationship with

their forty-four-year-old son. Our circuit has recognized a

substantive due process right to the companionship of one’s

adult children in limited circumstances. See, e.g., Sinclair v.

City of Seattle, 61 F.4th 674, 679 (9th Cir. 2023). In doing

so, we have created a split with other circuits. 1 And our

holding that plaintiffs have such a right finds no basis in the

text, history, or tradition of the Fourteenth Amendment. Our

1

Compare Valdivieso-Ortiz v. Burgos, 807 F.2d 6, 8–9 (1st Cir. 1986),

McCurdy v. Dodd, 352 F.3d 820, 829 (3d Cir. 2003), Russ v. Watts, 414

F.3d 783, 791 (7th Cir. 2005), Robertson v. Hecksel, 420 F.3d 1254,

1259–60 (11th Cir. 2005), and Butera v. District of Columbia, 235 F.3d

637, 656 (D.C. Cir. 2001) (all finding no such substantive due process

right), with Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe. Cnty., 768 F.2d

1186, 1188–89 (10th Cir. 1985) (finding right to familial relations under

the First, not the Fourteenth, Amendment).

NAPOUK V. LVMPD 31

ahistorical precedent should not be extended beyond the

narrow circumstances in those prior cases.

The Supreme Court has recognized that states may not

unjustifiably interfere with the “formation and preservation

of certain kinds of highly personal relationships.” Roberts

v. U.S. Jaycees, 468 U.S. 609, 618 (1984). These include

those that “attend the creation and sustenance of a family,”

including the rearing of children. Id. at 619; accord Meyer

v. Nebraska, 262 U.S. 390, 399 (1923); May v. Anderson,

345 U.S. 528, 533 (1953). That interest protects a parent’s

autonomy to decide questions related to the “custody, care

and nurture of the child.” Stanley v. Illinois, 405 U.S. 645,

651 (1972) (quoting Prince v. Massachusetts, 321 U.S. 158,

166 (1944)); see also Santosky v. Kramer, 455 U.S. 745, 753

(1982) (same).

Following these principles, we first held in Morrison v.

Jones, 607 F.2d 1269, 1275 (9th Cir. 1979) (per curiam), that

a parent’s relationship with her child is constitutionally

protected. There, county officials deported the plaintiff’s

minor son, a German ward of the state, on the grounds that

the plaintiff could not adequately care for her child. Id. at

1272. The plaintiff brought a § 1983 action alleging

deprivation of her parental rights without due process of law.

Id. at 1271. We held that the plaintiff had a constitutional

interest in “preserv[ing] her access to [her] child.” Id. at

1275. Morrison was rooted in the same basic principle that

a parent has a protected custodial interest in her child.

We have affirmed Morrison’s holding that parents have

a protected custodial interest in the companionship and

society of their minor children. See, e.g., Kelson v. City of

Springfield, 767 F.2d 651, 653 (9th Cir. 1985); Wallis v.

Spencer, 202 F.3d 1126, 1131–36 (9th Cir. 2000). But we

32 NAPOUK V. LVMPD

did not stop there. Breaking from most of our sister circuits,

we extended this right to reach a parent’s relationship with

an adult child. See, e.g., Strandberg v. City of Helena, 791

F.2d 744, 748 (9th Cir. 1986); Moreland v. Las Vegas Metro.

Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998); Porter v.

Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). In these three

cases, we simply accepted that the plaintiff parents had a

constitutionally protected right to their relationship with

their adult children. But we cited no special reason why. We

took no pains to explain how the parents’ relationship with

their adult child bears on the custody, care, and nurture of

that child. Cf. Stanley, 405 U.S. at 651. For example, we

did not discuss that special circumstances, such as the adult

child’s age or living arrangements, may allow his parents to

assert a constitutional right to a familial relationship. Nor

did we ground such a conclusion in the Constitution’s text or

our Nation’s history and tradition. These cases are pure

judicial ipse dixit.

I have already explained why trying to ground this

constitutional right in the Constitution’s text or our Nation’s

history and tradition would be a losing enterprise. Sinclair,

61 F.4th at 684–86 (R. Nelson, J., concurring). “The

Supreme Court has admonished that we must be wary of

recognizing new substantive due process rights ‘lest the

liberty protected by the Due Process Clause be subtly

transformed into the policy preferences’ of judges.” Id. at

685 (quoting Washington v. Glucksberg, 521 U.S. 702, 720

(1997)). “Before recognizing a substantive due process

right, the Court requires ‘a careful description’ of the

asserted right and then a determination that it is ‘deeply

rooted in this Nation’s history and tradition.’” Id. (quoting

Glucksberg, 521 U.S. at 720–21).

NAPOUK V. LVMPD 33

Even so, we were bound in Sinclair by precedent to hold

that the plaintiff had a valid liberty interest in her

relationship with her nineteen-year-old son. 61 F.4th at 679.

We reiterated, however, that Strandberg, Moreland, and

Porter were not well-reasoned, suggesting that we would not

be bound by them in a later case with fewer factual

“similarities” to them. Id.

This is such a case. George Lloyd Napouk was forty-

four years old when he died. His parents live thousands of

miles from where Napouk resided. Thus, while their grief is

justifiably still great, they lack the custodial parent-child

relationship that we held in Sinclair was constitutionally

protected. I would not extend Sinclair to these

circumstances. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 318 (2000) (Rehnquist, C.J., dissenting) (we

should not “distort[] existing precedent” where it would be

“[un]faithful to the meaning” of the Constitutional text). We

may be bound by ahistorical precedent. But we should not

extend ahistorical precedent when it otherwise violates our

Nation’s history and tradition. See, e.g., Kennedy v.

Bremerton Sch. Dist., 4 F.4th 910, 945–46 (9th Cir. 2021)

(R. Nelson, J., dissenting from denial of rehearing en banc)

(precedent should not be extended when it is “ahistorical

[and] atextual”); see also Murguia v. Langdon, 73 F.4th

1103, 1108–18 (9th Cir. 2023) (Bumatay, J., dissenting from

denial of rehearing en banc) (we should follow “Supreme

Court precedent and our Constitution’s text” rather than

extend “atextual and ahistorical expansion[s] of substantive

due process rights”); Texas v. Rettig, 993 F.3d 408, 417 (5th

Cir. 2021) (Ho, J., dissenting from denial of rehearing en

banc) (“[O]ur duty [is] to apply the Constitution—not extend

precedent.”).

34 NAPOUK V. LVMPD

As part of our Nation’s history and tradition, the right to

“establish a home and bring up children” was “recognized at

common law as essential to the orderly pursuit of happiness

by free men.” Meyer, 262 U.S. at 399. Given this, the

Supreme Court has held that the Constitution protects the

relationships that “attend the creation and sustenance of a

family,” such as “the raising and education of children,” and

“cohabitation with one’s relatives.” Roberts, 468 U.S. at

619.

But that history and tradition does not extend to the

circumstances here. The Napouks had long ago raised their

son. And they were not cohabitating with him—they were

thousands of miles away. Nor do the Napouks identify any

other special reason that their parent-child relationship is of

a custodial nature warranting constitutional protection.

Nothing in our Nation’s “history and tradition” recognizes a

constitutionally protected liberty interest in this type of

relationship with a forty-four-year-old son. We should

decline to recognize one here, particularly since it reflects an

extension of our atextual and ahistorical precedent. Cf.

Glucksberg, 521 U.S. at 720.

For these reasons, the Napouks have no substantive due

process claim for familial relations. Sinclair—while faithful

to our precedent—was wrongly decided as a matter of first

principles. See Sinclair, 61 F.4th at 684–86 (R. Nelson, J.,

concurring). But even under Sinclair, there is no substantive

due process right here. We should correct our prior

erroneous precedent, including Sinclair, en banc in the

appropriate case. See id. at 686.

NAPOUK V. LVMPD 35

SANCHEZ, Circuit Judge, dissenting:

Shortly after midnight on October 27, 2018, Las Vegas

police Sergeant Buford Kenton and Officer Cameran Gunn

fired their service weapons at Lloyd Gerald Napouk, a

mentally impaired man holding a homemade plastic sword

on an empty residential street. As video evidence and the

officers’ own description of the five-minute encounter

established, Napouk never verbally threatened the officers,

rushed at them, or brandished or pointed the object in their

direction. Napouk’s demeanor was calm, his gait and

movements were slow and deliberate, and he was

unresponsive to the officers’ repeated commands that he put

the object down. When Napouk approached within ten feet

of Sergeant Kenton, both officers fired seven rounds from

their Glock semiautomatic pistols, striking and killing him.

Napouk was a Las Vegas resident and a U.S. Navy veteran.

Following his death, Napouk’s parents brought claims under

42 U.S.C. § 1983 against the Las Vegas Metropolitan Police

Department (“LVMPD”), Sergeant Kenton, and Officer

Gunn, alleging excessive force and other constitutional and

state law claims.

Because the reasonableness of a law enforcement

officer’s use of deadly force “‘nearly always requires a jury

to sift through disputed factual contentions, and to draw

inferences therefrom, we have held on many occasions that

summary judgment or judgment as a matter of law in

excessive force cases should be granted sparingly.’” Torres

v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011)

(quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).

This case is no different. A rational trier of fact could find

that the officers’ use of deadly force was objectively

unreasonable because Napouk did not pose an imminent

36 NAPOUK V. LVMPD

threat to the safety of the officers, he was not committing a

crime or resisting arrest, and because several non-lethal

alternatives were available to contain the slowly unfolding

encounter. The majority errs by failing to evaluate the

evidence in the light most favorable to the nonmoving party

and by minimizing evidence that, when properly credited,

create genuine disputes of material fact. This is a matter that

should be decided by a Las Vegas jury.

These errors also infected the second step of the

majority’s qualified immunity analysis. In defining the

“clearly established” right at issue in an excessive force case,

“courts must take care not to define a case’s ‘context’ in a

manner that imports genuinely disputed factual

propositions.” Tolan v. Cotton, 572 U.S. 650, 657 (2014)

(per curiam). Set in its proper context, our caselaw clearly

establishes that police officers may not kill a suspect who

does not pose an imminent threat to the safety of officers or

bystanders, is not committing any crime or actively resisting

arrest, and in which non-lethal alternatives are available to

the officers—even when the suspect is armed with a bladed

weapon and ignores officer commands or advances upon

them. I respectfully dissent.

I.

A.

When resolving questions of qualified immunity at

summary judgment, courts engage in a two-prong inquiry.

First, a court “must decide whether the facts that a plaintiff

has alleged . . . or shown . . . make out a violation of a

constitutional right.” Pearson v. Callahan, 555 U.S. 223,

232 (2009) (internal citations omitted). Second, a court must

determine whether the right at issue was “clearly

NAPOUK V. LVMPD 37

established” at the time of the violation. Hope v. Pelzer, 536

U.S. 730, 739 (2002).

In determining whether a police officer’s use of force

against a person is objectively unreasonable in violation of

the Fourth Amendment, the trier of fact must give “careful

attention to the facts and circumstances of each particular

case,” including “the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Graham v. Connor,

490 U.S. 386, 396 (1989). The Graham factors are non-

exhaustive, see Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th

Cir. 1994), and we have considered other relevant factors

such as “whether officers gave a warning before employing

the force,” whether “there were less intrusive means of force

that might have been used,” and whether it should have been

apparent to the officers that the person they used force

against was emotionally disturbed. Glenn v. Wash. Cnty.,

673 F.3d 864, 875-76 (9th Cir. 2011).

As the Supreme Court explains, while courts have the

discretion to decide the order in which to address the two

qualified immunity prongs, “under either prong, courts may

not resolve genuine disputes of fact in favor of the party

seeking summary judgment.” Tolan, 572 U.S. at 656. This

is not unique to qualified immunity analysis; rather, “it is

simply an application of the more general rule that a ‘judge’s

function’ at summary judgment is not ‘to weigh the evidence

and determine the truth of the matter but to determine

whether there is a genuine issue for trial.’” Id. (citation

omitted). At summary judgment, we must “view the facts in

the light most favorable to the nonmoving party and draw all

reasonable inferences in that party’s favor.” S.R. Nehad v.

Browder, 929 F.3d 1125, 1132 (9th Cir. 2019) (citing

38 NAPOUK V. LVMPD

Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.

2007)). “Where a police officer has used deadly force, it is

especially important that we adhere to that approach . . .

[b]ecause the person most likely to rebut the officers’

version of events—the one killed—cannot testify.” Calonge

v. City of San Jose, 104 F.4th 39, 44 (9th Cir. 2024) (cleaned

up).

Thus, where the objective reasonableness of an officer’s

conduct turns on disputed issues of material fact, that is “a

question of fact best resolved by a jury.” Wilkins v. City of

Oakland, 350 F.3d 949, 955 (9th Cir. 2003). Summary

judgment is appropriate only when, after crediting the

nonmovant’s evidence and drawing all reasonable

inferences in their favor, “a verdict in favor of the defendants

on the claim for excessive force is the only conclusion that a

reasonable jury could reach.” Gonzalez v. City of Anaheim,

747 F.3d 789, 795 (9th Cir. 2014) (en banc) (emphasis

added).

In Tolan, for example, the Supreme Court vacated the

Fifth Circuit’s grant of qualified immunity in an excessive

force case because the court “failed to view the evidence at

summary judgment in the light most favorable to [the

plaintiff] with respect to the central facts of this case,” failed

to “credit evidence that contradicted some of its key factual

conclusions,” and “improperly ‘weigh[ed] the evidence’ and

resolved disputed issues in favor of the moving party.” 572

U.S. at 657 (citation omitted). That the Fifth Circuit granted

qualified immunity under the second prong did not alter the

Court’s conclusion. “Our qualified-immunity cases

illustrate the importance of drawing inferences in favor of

the nonmovant, even when, as here, a court decides only the

clearly-established prong of the standard.” Id. “[W]e have

instructed that courts should define the ‘clearly established’

NAPOUK V. LVMPD 39

right at issue on the basis of the ‘specific context of the

case,’” and therefore “courts must take care not to define a

case’s ‘context’ in a manner that imports genuinely disputed

factual propositions.” Id. (internal citations omitted).

While the majority correctly recites the applicable

summary judgment standard, see Maj. Op. at 9, at every turn

the majority fails to apply it. Its errors permeate both prongs

of its qualified immunity analysis, as I explain next.

B.

In determining whether Plaintiffs have sufficiently

alleged a constitutional violation, the district court and the

majority repeatedly erred by weighing the evidence in

Defendants’ favor and failing to credit competent evidence

from Plaintiffs that create genuine issues of material fact.

When viewing the evidence in the light most favorable to

Plaintiffs, the evidence establishes that (1) Napouk did not

pose an imminent threat to the safety of the officers or

bystanders, (2) Napouk did not commit a severe crime and

was not actively resisting arrest, and (3) the officers could

have strategically repositioned and employed less lethal

alternatives to contain a fraught situation with a mentally

impaired individual. Based on the evidence presented in the

record, a reasonable factfinder could conclude that

Defendants’ use of deadly force was objectively

unreasonable under the circumstances.

i.

As a preliminary matter, I agree with my colleagues that

Defendants had a reasonable, but mistaken, belief that

Napouk was holding a bladed weapon. See Maj. Op. at 11-

13. When “‘an officer’s particular use of force is based on a

mistake of fact, we ask whether a reasonable officer would

40 NAPOUK V. LVMPD

have or should have accurately perceived that fact.’” S.R.

Nehad, 929 F.3d at 1133 (quoting Torres, 648 F.3d at 1124).

On this record, no reasonable officer should have accurately

perceived at nighttime that Napouk’s “sword” was in fact a

homemade plastic toy.

The majority jumps to the conclusion, however, that

“[w]ith the mistake of fact addressed, this becomes a

straightforward case.” Maj. Op. at 13. Not so. Even

assuming Napouk’s plastic object had been a bladed weapon

and he was “behaving erratically,” that does not establish

that Napouk posed an imminent threat to the safety of the

officers as a matter of law. An officer’s reasonable use of

deadly force still requires “that the suspect pose[] a

significant threat of death or serious physical injury to the

officer or others.” Gonzalez, 747 F.3d at 793 (citation

omitted). “[O]fficers may not kill suspects simply because

they are behaving erratically, nor may they ‘kill suspects

who do not pose an immediate threat to their safety or to the

safety of others simply because they are armed.’” Peck v.

Montoya, 51 F.4th 877, 887-888 (9th Cir. 2022) (quoting

Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997)).

Rather, “courts must consider ‘the totality of the facts and

circumstances in the particular case’; otherwise, that a

person was armed would always end the inquiry.” Glenn,

673 F.3d at 872 (citation omitted).

Viewing the evidence in the light most favorable to

Plaintiffs, Napouk displayed none of the characteristics that

would suggest to a reasonable officer that he was an

immediate threat to others. To begin with, the encounter

occurred in the middle of an empty residential street shortly

after midnight, with no bystanders present. Both officers

described Napouk’s general gait as “slow” and “deliberate.”

The record is undisputed that Napouk made no “furtive

NAPOUK V. LVMPD 41

movement[s]” or “harrowing gesture[s]” such as running,

swinging, or lunging at Defendants. George v. Morris, 736

F.3d 829, 838 (9th Cir. 2013). Sergeant Kenton

acknowledged that Napouk did not “wav[e]” the object at

them and appeared “calm” as he smoked a cigarette through

much of the encounter. Plaintiffs’ expert also testified that

Napouk gripped the object’s handle without his index finger,

which would not “have allowed for a quick attack.”

Indeed, the district court acknowledged that Plaintiffs’

evidence of Napouk’s “slow pace, non-threatening grip on

the object, calm demeanor, lack of verbal threats, and the

officers’ protection behind certain vehicles” would

“contradict a finding of immediate threat” if taken as true.

But rather than credit Plaintiffs’ evidence that Napouk posed

no immediate threat to anyone, the district court determined

that Plaintiffs’ evidence was “not indicative of the actual

incident.” The district court erred by “substituting [its]

judgment concerning the weight of the evidence for the

jury’s.” Torres, 648 F.3d at 1125 (cleaned up).

The district court also failed to credit video evidence that

Napouk had not threatened the officers, construing the

evidence instead to find that Napouk made “indirect verbal

threats” against Defendants. The bodyworn video footage

reflects that when Napouk approached the officers, Sergeant

Kenton warned, “I’m gonna shoot you, motherfucker,” to

which Napouk responded, “You have to.” Officer Gunn also

warned Napouk, “If you take one more step, I will shoot

you,” and Napouk replied, “I know.” After Sergeant Kenton

warned again, “I’m going to shoot you. You come one more

step, you’re dead,” Napouk proceeded forward and

responded, “I know,” before being shot by the officers.

42 NAPOUK V. LVMPD

Viewing the evidence in the light most favorable to

Plaintiffs, Napouk’s statements constituted expressions of

self harm, not “indirect verbal threats.” In Glenn, we

reversed the district court, finding triable issues of material

fact concerning the reasonableness of the officers’ use of

lethal force against a suicidal teenage suspect who held a

knife to his own throat. 673 F.3d at 872. Although the

suspect “did not respond to officers’ orders to put the knife

down” for several minutes, “a number of other

circumstances weigh[ed] against deeming him an immediate

threat to the safety of the officers or others,” including that

his threats of violence “focused on harming himself rather

than other people” and that he had not attacked or threatened

to attack the officers. Id. at 873 (internal citation and

quotation marks omitted).

The majority makes the same summary judgment errors

on appeal. My colleagues conclude, “Napouk was behaving

erratically, holding what the officers reasonably perceived to

be a lethal weapon, repeatedly ignoring their commands to

stop and to drop it, and repeatedly deliberately advancing

towards them with the weapon in his hand. Those facts and

circumstances . . . show an immediate threat.” See Maj. Op.

at 17. While a jury could view the evidence in this light, our

task on summary judgment is not “to weigh the evidence and

determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).

The majority ignores conflicting testimony and video

evidence establishing that Napouk never verbally threatened

the officers, brandished or waved the object at them, lunged

or charged at them, or made any sudden movements

throughout the five-minute encounter. Although Defendants

testified that Napouk’s pace was “slow” and did not change

NAPOUK V. LVMPD 43

as he approached the officers, the majority asserts that this

evidence does not “actually matter” because Napouk

advanced to within nine feet of them at the time of the

shooting, holding what they perceived was a sword. See

Maj. Op. at 17. This is quintessential evidence-weighing. In

S.R. Nehad, we refused to hold that an officer’s use of lethal

force was reasonable as a matter of law based on evidence

that the decedent did not “make any sudden movements, or

move the supposed knife in any way,” and was moving at a

“relatively slow pace” toward the officer. 929 F.3d at 1134.

Here, a reasonable jury could weigh the significance of

Napouk’s slow pace and deliberate movements differently

than the majority and conclude that Defendants had adequate

time to respond to a slowly advancing Napouk with other

non-lethal alternatives. 1 Taken together, Plaintiffs’ evidence

creates genuine issues of material fact as to whether Napouk

posed an immediate threat to the safety of the officers.

ii.

As for the other two Graham factors, the “severity of the

crime” and “actively resisting or evading arrest,” the district

court and majority improperly weigh the evidence in the

moving party’s favor to find Defendants’ actions objectively

reasonable. 490 U.S. at 396. The district court

1

That Napouk was nine or ten feet away at the time of the shooting does

not place the reasonableness of the officers’ actions beyond debate.

Officer Gunn testified that Napouk was 25 feet away when they first

approached him, while Sergeant Kenton estimated a 15-foot gap.

Bodycam video shows that the distance varied throughout the encounter

as Napouk approached and Defendants retreated and repositioned behind

Officer Gunn’s patrol vehicle three times. The distance between Napouk

and the officers, the pace of his approach, and whether the officers could

have withdrawn to a safer distance before the fatal shooting are material

factual questions that cannot be resolved on summary judgment.

44 NAPOUK V. LVMPD

acknowledged that “[i]nitially, Napouk’s behavior, albeit

suspicious, did not constitute a crime.” However, according

to the district court, this factor favored the officers, because

there was “probable cause” to arrest Napouk for assault with

a deadly weapon as he “was brandishing the object and

refusing to respond appropriately to the officers’ orders.”

The majority accepts the district court’s determination.

This Graham factor plainly supports Plaintiffs.

Defendants were called to the scene based on a report made

on the “non-emergency” line about a suspicious person

“talking to himself” and carrying a “slim jim” or tool or

machete. There were no reports of a crime, much less a

felony in progress. See S.R. Nehad, 929 F.3d at 1136 (“[A]

particular use of force would be more reasonable, all other

things being equal, when applied against a felony suspect

than when applied against a person suspected of only a

misdemeanor.”).

The majority concludes that Defendants had “probable

cause” to arrest Napouk because he was ignoring the

officers’ orders but overlooks Plaintiffs’ evidence that

Defendants had no intention of arresting him. Sergeant

Kenton testified that Napouk “was not wanted for a crime,”

and Officer Gunn told Napouk, “We just want to talk, you’re

not in trouble.” The majority also ignores Plaintiffs’

conflicting evidence that Napouk was not brandishing the

object or threatening the officers in any way. At a minimum,

there is a genuine dispute whether Napouk’s actions gave

Defendants probable cause to arrest him based on his failure

to follow orders, as well as whether Defendants intended to

perform an arrest in the first place.

The majority’s analysis with respect to the third Graham

factor, actively resisting or fleeing arrest, suffers from the

NAPOUK V. LVMPD 45

same evidence-weighing errors. The district court

concluded that “officers gave several warnings to Napouk

that they would use deadly force if he continued to resist”

and found these warnings objectively sufficient as a matter

of law. The majority similarly concludes that there is no

genuine dispute that Napouk heard the officers’ commands.

The majority fails to credit evidence in the record that

Napouk may not have heard or understood the officers’

orders or warnings. See Glenn, 673 F.3d at 876 (finding a

disputed issue of material fact where the suspect “‘may not

have heard or understood [officers’] warnings’ because he

was intoxicated and there were other people yelling”).

Napouk wore a tan baseball cap, sunglasses, backpack,

and corded headphones in both ears, and he did not respond

when Sergeant Kenton ordered him to remove his

headphones or drop the object, making it unclear what orders

Napouk was able to hear. A postmortem toxicology report

indicated that Napouk was intoxicated on

methamphetamine. Video evidence shows that throughout

the encounter, Napouk was largely non-responsive or

incoherent—at one point telling the officers that he gave

birth to them. There was also significant noise from the

overhead police helicopter and frequent miscommunication

between the parties. LVMPD policy expressly

acknowledges that a “subject may be non-compliant due to

a . . . mental, physical or hearing impairment, . . . drug

interaction or emotional crisis.” Jury questions exist

regarding whether similar impairments prevented Napouk

from understanding the officers’ warnings or complying

with their instructions.

To be sure, there is also evidence that Napouk was able

to hear Defendants, such as when he responded to their

warnings that they would shoot him by saying, “you have to”

46 NAPOUK V. LVMPD

or “I know.” But the summary judgment standard does not

permit us to pick and choose which evidence should be

credited or discounted. The record discloses a genuine

dispute as to whether Napouk was able to hear or

comprehend the officers’ commands given the noise, his

intoxicated state, and his mental state, and therefore whether

he was actively resisting arrest.

iii.

Perhaps the most glaring example of the majority’s

misapplication of the summary judgment standard is its

analysis of the availability of non-lethal alternatives to

contain this slowly unfolding situation. “The availability of

alternative methods . . . is a relevant factor in determining

whether the amount of force used in a particular instance

was, in fact, reasonable.” Nelson v. City of Davis, 685 F.3d

867, 882 (9th Cir. 2012) (cleaned up); see also Glenn, 673

F.3d at 876.

Both officers carried taser guns. Officer Gunn stated that

using a taser could have been effective and that he believed

Sergeant Kenton was transitioning to a taser while he

provided firearm coverage because he “heard plastic

shifting.” Indeed, at one point Sergeant Kenton drew and

then holstered his taser, and Officer Gunn asked, “What do

you have, Sarge?”—which was Officer Gunn’s “attempt to

ask him if he was transitioning” to a taser. Sergeant Kenton

did not respond, and Officer Gunn “didn’t press the issue any

further.” 2

LVMPD policy provides that even “where deadly force

is clearly justifiable,” using a taser is appropriate if “another

2

The following statements came from LVMPD’s Critical Incident

Review Report.

NAPOUK V. LVMPD 47

officer is present and capable of providing deadly force to

protect the officers and/or others as necessary.” LVMPD’s

investigation of the incident concluded that there had been a

breakdown in communication between Sergeant Kenton and

Officer Gunn. Had the officers adequately communicated to

allow Sergeant Kenton to transition to a taser, Officer Gunn

could have maintained firearm coverage while Sergeant

Kenton subdued Napouk with his taser.

Beyond the use of tasers, Plaintiffs presented evidence

that Defendants had other non-lethal alternatives available to

them. For example, Officer Gunn had a beanbag shotgun in

his police vehicle and did not use it. A police helicopter

provided continuous air support, which allowed the officers

to reposition again without fear of losing Napouk. Both

officers had pepper spray, and Sergeant Kenton had

requested a unit with a beanbag shotgun and K-9 police dog.

LVMPD Sergeant Dawid Chudoba had also arrived on the

scene with a “low lethal shotgun” prior to Napouk being

shot.

Finally, there was substantial evidence that Defendants

could have strategically repositioned or withdrawn to a safer

distance before the shooting. Plaintiffs’ expert witness

testified that, at the time of the shooting, Sergeant Kenton

“could have moved behind his police vehicle, moved behind

Gunn’s police vehicle, or could have withdrawn further

away from Napouk, instead of firing shots.” LVMPD

Undersheriff Christopher Darcy testified that at the time

Sergeant Kenton fired at Napouk, he could have instead

walked backward or used either his car or Officer Gunn’s car

as cover—but chose not to. Plaintiffs point out that strategic

repositioning is LVMPD policy and Defendants had already

repositioned behind Officer Gunn’s car several times.

48 NAPOUK V. LVMPD

The district court made no mention of Plaintiffs’

conflicting evidence, concluding instead that Defendants

had already “repositioned several times to create more

distance between themselves and Napouk” and that “[i]t was

only when they had no more options to reposition or retreat

that the situation got dangerous enough to use deadly force.”

The majority takes the same view, stating that “[o]nly when

Napouk advanced upon them a fifth time with what they

reasonably believed was a long, bladed weapon, putting

himself on a path where he could end up between Kenton

and Gunn such that they were concerned about crossfire,

failed to follow commands to drop it and stop, and came

within nine feet of Kenton did the officers use deadly force.

That the officers did not retreat another time to wait for the

less lethal means they requested does not make their actions

unreasonable.” Maj. Op. at 23.

It is clear that the majority has improperly adopted the

movants’ view of the evidence, crediting Defendants’

testimony that Napouk’s failure to follow commands, his

repeated advancements, and the potential for crossfire did

not permit them to take any action other than to use deadly

force. In discounting Plaintiffs’ contrary evidence in its

analysis, the majority repeatedly “neglected to adhere to the

fundamental principle that at the summary judgment stage,

reasonable inferences should be drawn in favor of the

nonmoving party.” Tolan, 572 U.S. at 660. 3

3

The majority also rejects Plaintiffs’ evidence because, in its view, the

factual circumstances here are “substantially different” from other cases

such as Glenn, 673 F.3d 864 and Deorle v. Rutherford, 272 F.3d 1272

(9th Cir. 2001). See Maj. Op. at 18. This turns the summary judgment

standard on its head. In determining whether Plaintiffs have sufficiently

NAPOUK V. LVMPD 49

When viewing the evidence in the light most favorable

to the nonmoving party, the evidence would permit a jury to

conclude that Defendants were not facing an imminent threat

of serious harm by a stationary or slowly advancing Napouk

who never threatened them, or lunged or charged or waved

the plastic object at them. A jury could reasonably find that

Defendants had time to strategically reposition or withdraw

to a safer distance, as there were no bystanders in the

vicinity, there was continuous air support, and other backup

had arrived or was nearby. A jury could also find that

Defendants could have deployed less lethal alternatives such

as a taser or pepper spray and that it was the officers’

miscommunications and lack of coordination that caused

them to act with undue haste, with lethal consequences. 4 In

alleged a constitutional violation, Plaintiffs are not required to allege

facts that are similar enough to other cases where we found genuine

disputes of material fact. On summary judgment, we must determine

whether a rational trier of fact might resolve the issue in favor of the

nonmoving party, by crediting the nonmovant’s evidence and drawing

all reasonable inferences in that party’s favor. S.R. Nehad, 929 F.3d at

1132.

4

Napouk’s obvious mental instability is also a relevant factor in the

jury’s consideration of the reasonableness of the officers’ actions. See

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1058

(9th Cir. 2003) (“[W]here it is or should be apparent to the officers that

the individual involved is emotionally disturbed, that is a factor that must

be considered in determining, under Graham, the reasonableness of the

force employed.”); see also Crawford v. City of Bakersfield, 944 F.3d

1070, 1078 (9th Cir. 2019) (“Although we have refused to create two

tracks of excessive force analysis, one for the mentally ill and one for

serious criminals, our precedent establishes that if officers believe a

suspect is mentally ill, they should make a greater effort to take control

of the situation through less intrusive means.”) (cleaned up). Whether

Defendants should have exercised greater caution and restraint in view

of Napouk’s mental state is a genuine dispute of material fact.

50 NAPOUK V. LVMPD

short, the evidence permitted a reasonable jury to find that

Defendants’ use of deadly force was objectively

unreasonable under the circumstances.

C.

The majority also errs under the second prong of the

qualified immunity analysis by defining the “clearly

established” right at issue in a context “that imports

genuinely disputed factual propositions.” Id. at 657. When

the clearly established right is framed in the specific context

of this case and, importantly, in the light most favorable to

the nonmoving party, our circuit precedent clearly

establishes that Defendants’ deadly force was objectively

unreasonable under the circumstances.

A police officer “cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently

definite that any reasonable official in the defendant’s shoes

would have understood that he was violating it.” Plumhoff

v. Rickard, 572 U.S. 765, 778-79 (2014). As the Supreme

Court recently reiterated, “this Court’s case law does not

require a case directly on point for a right to be clearly

established,” but existing precedent must “place[] the

statutory or constitutional question beyond debate.” Rivas-

Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (quoting White

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

Two cases in particular define the clearly established

right in question: Glenn v. Washington, 673 F.3d 864 and

Hayes v. County of San Diego, 736 F.3d 1223 (9th Cir.

2013). These cases clearly establish that law enforcement

may not use deadly force against a person with a bladed

weapon who does not pose an imminent threat to the safety

of officers or bystanders, is not committing any crime or

actively resisting arrest, and in which non-lethal alternatives

NAPOUK V. LVMPD 51

are available to manage a situation involving a suicidal or

mentally unstable individual. Contrary to the majority’s

position, these cases establish that lethal force is objectively

unreasonable even when the suspect ignores officer orders

or warnings or is advancing on law enforcement while

armed.

In Glenn v. Washington, a mother called 911 around 3:00

a.m. when her intoxicated adult son, Lukus Glenn, held a

“pocketknife to his neck and threatened to kill himself.” 673

F.3d at 866-67. She told the 911 dispatcher that her son was

“out of control, busting our windows, and has a knife and is

threatening us,” later adding that he stated he was “not

leaving until the cops shoot him and kill him.” Id. at 867.

The arriving police officer positioned himself eight to twelve

feet from Lukus, who stood outside near the garage, and

shouted commands at Lukus to “drop the knife or I’m going

to kill you.” Id. at 868. A second officer arrived and took

position six to twelve feet from Lukus, yelling “drop the

knife or you’re going to die” and “drop the fucking knife.”

Id. Neither officer had a taser gun, but a third arriving officer

shot Lukus with a beanbag shotgun. Id. at 869. Lukus

seemed to “retreat” after being struck by the beanbag but

moved toward the house where his parents were located, and

the other officers opened fire with their Glock pistols, killing

Lukus. Id. We held that the district court “erred in granting

summary judgment on the constitutionality of the officers’

use of force.” Id. at 878.

Glenn is similar to this appeal in all material respects.

Glenn involved the unreasonable use of deadly force on a

mentally unstable suspect who had a bladed weapon and

presented an apparent threat to himself. See id. at 879.

Although Glenn “did not respond to officers’ orders to put

the knife down” for several minutes, other circumstances

52 NAPOUK V. LVMPD

“weigh[ed] against deeming him ‘an immediate threat to the

safety of the officers or others,’” including that his threats

“focused on harming himself rather than other people” and

that he had not attacked or threatened to attack the officers

themselves. Id. at 873 (internal citation omitted).

We also concluded that the officers “could easily have

positioned” the parents behind them or “the officers could

have positioned themselves between [Glenn] and the front

door.” Id. at 879. Because of conflicting evidence in the

record, we assumed at summary judgment that a taser was a

feasible alternative. Id. at 878. We observed that the Lukus

family had not called the police to report a crime, and

viewing the evidence in plaintiff’s favor, concluded that

Lukus’s conduct was not “active resistance” because he had

only ignored officer commands. Id. at 874-75. Finally, we

concluded that Lukus “was ‘obviously emotionally

disturbed,’ a factor to which the officers should have

assigned greater weight.’” Id. at 875.

Glenn provides clear notice that law enforcement’s use

of deadly force can be objectively unreasonable when a

mentally unstable suspect armed with a knife does not pose

an imminent threat to the safety of officers or bystanders, has

not committed any crime, is not actively resisting arrest

simply by ignoring officer commands, and whose mental

instability warrants greater caution and restraint, particularly

where non-lethal alternatives exist such as repositioning,

beanbag shotguns, and tasers. 5

5

The majority attempts to distinguish Glenn on the basis that Lukus was

stationary and never advanced on the officers, see Maj. Op. at 18, but

Supreme Court precedent makes clear that a case does not need to be

NAPOUK V. LVMPD 53

In Hayes v. County of San Diego, officers arrived at

Hayes’s residence shortly after 9:00 p.m. in response to a

neighbor’s domestic disturbance call. 736 F.3d at 1227.

Upon the first officer’s arrival, Hayes’s girlfriend told the

sheriff’s deputy that Hayes had attempted suicide that night

by inhaling exhaust fumes from his car. Two deputies

entered the home and encountered Hayes in an adjacent

room eight feet away and ordered Hayes to “show [them] his

hands” because his right hand was behind his back. Id.

Hayes “[took] one or two steps toward[]” a deputy while

“rais[ing] both his hands to approximately shoulder level,

revealing a large knife pointed tip down in his right hand.”

Id. at 1227-28. The deputy believed that “Hayes represented

a threat to his safety” and both deputies drew their weapons

and shot a total of four rounds at Hayes from a distance of

“six to eight feet away,” killing him. Id. at 1228. Hayes’s

girlfriend testified that “Hayes was not ‘charging’ at the

deputies and had a ‘clueless’ expression on his face at the

time, which she described as ‘like nothing’s working

upstairs.’” Id.

The district court granted summary judgment based on

the undisputed fact that Hayes was moving toward the

deputies with a knife raised, causing the deputies to believe

that Hayes was an immediate threat. Id. at 1233. We

reversed, holding that there were genuine disputes of

“directly on point for a right to be clearly established.” Rivas-Villegas,

595 U.S. at 5; Hope, 536 U.S. at 741 (“[A] general constitutional rule

already identified in the decisional law may apply with obvious clarity

to the specific conduct in question.”); see also Mattos v. Agarano, 661

F.3d 433, 442 (9th Cir. 2011) (en banc). Even if Glenn did not involve

a suspect armed with a knife advancing on officers, other cases like

Hayes and S.R. Nehad make clear that this does not render the officers’

actions reasonable as a matter of law.

54 NAPOUK V. LVMPD

material fact concerning the objective reasonableness of the

officers’ use of deadly force. Id. at 1234 n. 6. We observed

that Hayes had committed no crime and there was no

evidence he was “actively resisting arrest.” Id. at 1233.

Although Hayes was “walking towards the deputies,” we

noted that “he was not charging them.” Id. In addition,

Hayes “did not swing the knife at [a deputy]” and “[t]here

[was] no clear evidence . . . that Hayes was threatening the

officers with the knife here.” Id. at 1234, 1234 n.6. We

reiterated that the “mere fact that a suspect possesses a

weapon does not justify deadly force.” Id. at 1233 (citation

omitted).

Hayes differs from this appeal in one respect: the

deputies did not warn Hayes before shooting him because

they “didn’t believe [they] had any time.” Id. at 1228. But

this factor cuts in Plaintiffs’ favor because the shooting in

Hayes occurred within four seconds of the deputies ordering

him to show his hands, see id., and at a distance of only six

to eight feet in “a dimly lit, confined space,” id. at 1234 n.6.

Here, Defendants shot Napouk when he was nine feet away

from Sergeant Kenton on a well-lit, open street after

Defendants interacted with him for over five minutes. Our

observation in Hayes applies with equal force here:

The circumstances of this case can be viewed

in multiple ways: as “suicide by cop,” as

officers suddenly threatened with a deadly

weapon, or as a depressed man simply

holding a knife when confronted by law

enforcement. As with most excessive force

claims, the correct determination of the

circumstances here will require a careful

NAPOUK V. LVMPD 55

balancing of the evidence and the inferences

that can be made therefrom.

Id. at 1236.

Glenn and Hayes “‘squarely govern[]’ the specific facts

at issue,” Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(citation omitted), and would make “clear to a reasonable

officer that [fatally shooting Napouk] was unlawful in the

situation he confronted,” Saucier v. Katz, 533 U.S. 194, 202

(2001). 6 Napouk’s Fourth Amendment right to be free from

deadly force under these circumstances was clearly

established in 2011 under Glenn and 2013 under

Hayes. Accordingly, I would conclude that Defendants are

not entitled to qualified immunity as a matter of law.

II.

Plaintiffs asserted several other federal and state law

claims that were adjudicated by the district court in

Defendants’ favor: (1) municipal liability claims under

Monell v. Department of Social Services, 436 U.S. 658

6

A third case, S.R. Nehad, also bears similarity to this appeal in several

material ways. A police officer received reports of a man threatening

people with a knife and encountered Nehad in an alleyway shortly after

midnight. 929 F.3d 1130-31. Nehad matched the suspect’s description

and approached the officer at a “steady pace” or “a relatively slow pace”

as the officer exited his vehicle. Id. at 1131, 1134. The officer ordered

Nehad to “Stop, drop it,” before shooting Nehad at a range of seventeen

feet. Id. at 1131. While S.R. Nehad supports Plaintiffs’ argument that

even a suspect armed with a knife and advancing on a police officer

“does not end the reasonableness inquiry,” id. at 1134, the opinion was

published in 2019 and cannot serve as “clearly established law” at the

time of Napouk’s death in 2018. See Kisela, 584 U.S. at 104

(“[R]easonableness is judged against the backdrop of the law at the time

of the conduct.”) (citation omitted).

56 NAPOUK V. LVMPD

(1978); (2) deprivation of familial relations without

substantive due process in violation of the Fourteenth

Amendment, and (3) state law claims for battery-wrongful

death and negligence.

Once the district court found that Napouk had suffered

no constitutional violation, the court declined to evaluate

Plaintiffs’ claims of municipal liability based on an

unconstitutional custom, practice, or policy. Because a

rational juror could find that the officers used excessive

force in shooting and killing Napouk in violation of his

Fourth Amendment rights, I would remand Plaintiffs’

Monell claims to the district court for an analysis of

LVMPD’s policies and practices in the first instance.

As for Plaintiffs’ Fourteenth Amendment claim, our

precedent recognizes that parents have a liberty interest in

the companionship and society of their child. Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010); Curnow v.

Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991);

Wheeler v. City of Santa Clara, 894 F.3d 1046, 1057 (9th

Cir. 2018) (“A decedent’s parents and children generally

have the right to assert substantive due process claims under

the Fourteenth Amendment.”). A deprivation of that interest

is a constitutional violation that a plaintiff may vindicate

through a § 1983 action, even when the child is an adult. See

Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). As

parents of their deceased adult son, Plaintiffs have standing

under the law of this circuit.

Even so, I agree with the majority that Plaintiffs have

failed to demonstrate a substantive due process claim. Only

“[o]fficial conduct that ‘shocks the conscience’ in depriving

parents of that interest is cognizable as a violation of due

process.” Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d

NAPOUK V. LVMPD 57

1123, 1132-33 (9th Cir. 2017) (quoting Wilkinson, 610 F.3d

at 554) (alteration in original). “[W]here a law enforcement

officer makes a snap judgment because of an escalating

situation, his conduct may be found to shock the conscience

only if he acts with a purpose to harm unrelated to legitimate

law enforcement objectives.” Hayes, 736 F.3d at 1230

(citing Wilkinson, 610 F.3d at 554). Under this standard,

Defendants did not act with a purpose to harm Napouk

unrelated to legitimate law enforcement objectives, which

include “self-defense.” A.D. v. Cal. Highway Patrol, 712

F.3d 446, 454 (9th Cir. 2013). Plaintiffs’ allegations

therefore fail under the purpose-to-harm standard.

Finally, Plaintiffs’ battery-wrongful death claim should

survive with their Fourth Amendment claim. In Nevada, a

state law claim for battery by a police officer mirrors the

federal civil rights law standard. Williams v. City of Sparks,

112 F.4th 635, 646-647 (9th Cir. 2024) (“Liability attaches

at the point at which the level of force used by a peace officer

exceeds that which is objectively reasonable under the

circumstances.”). Because a Las Vegas jury could find that

Defendants’ use of deadly force was objectively

unreasonable, I would reverse summary judgment on

Plaintiffs’ state law claim for battery-wrongful death.

Plaintiffs also allege a negligence-wrongful death claim

under Nevada law, while Defendants assert discretionary-

function immunity. Nevada has waived its general state

immunity under Nevada Revised Statutes § 41.031. The

State retains a “discretionary function” form of immunity for

officials exercising policy-related or discretionary acts. See

Nev. Rev. Stat. § 41.032(2) (Immunity exists “[b]ased upon

the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of the

State or any of its [employees] . . . , whether or not the

58 NAPOUK V. LVMPD

discretion involved is abused.”). Defendants, as the State

employees, have “the burden of proving that the

discretionary function exception applies.” Sigman v. United

States, 217 F.3d 785, 793 (9th Cir. 2000).

Nevada’s discretionary-function immunity statute

“mirrors the Federal Tort Claims Act” and is subject to the

same two-part federal test as articulated in Berkovitz v.

United States, 486 U.S. 531, 536-37 (1988). Martinez v.

Maruszczak, 168 P.3d 720, 727 (Nev. 2007). State actors are

entitled to discretionary-function immunity under Nevada

Revised Statutes § 41.032(2) if their decision “(1) involve[s]

an element of individual judgment or choice and (2) [is]

based on considerations of social, economic, or political

policy.” Id. at 729. “[I]n a close case [the court] must favor

a waiver of immunity and accommodate the legislative

scheme.” Hagblom v. State Dir. of Motor Vehicles, 571 P.2d

1172, 1175 (Nev. 1977) (citation omitted).

The officers’ actions do not fall under the discretionary-

immunity exception, and the majority errs in holding

otherwise. Even if a split-second decision to use lethal force

were based on “social” or “political” policy so as to be a

discretionary function, Martinez, 168 P.3d at 729, decisions

made in “bad faith” or with “‘willful or deliberate disregard’

for a citizen’s rights[] [are not] protected under the immunity

statute,” Jones, 873 F.3d at 1133 (evaluating immunity

under Nev. Rev. Stat. § 41.032(2)). A rational juror could

find that the officers acted unreasonably and in “willful

disregard” for Napouk’s rights by using lethal force under

circumstances that did not require the use of lethal force. I

would therefore conclude that Defendants lack

discretionary-function immunity and reverse summary

judgment on Plaintiffs’ Nevada negligence-wrongful death

claim.

NAPOUK V. LVMPD 59

III.

On this record, “we cannot say that a verdict in favor of

the defendants on the claim for excessive force is the only

conclusion that a reasonable jury could reach.” Gonzalez,

747 F.3d at 797. This case belongs before a jury of Las

Vegas citizens to make that ultimate determination.