The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISH SINGH, No. 23-15356
Plaintiff-Appellant, D.C. No. 2:21-cv-
00099-JJT
v.
CITY OF PHOENIX; BRITTANY OPINION
SMITH-PETERSEN, Officer, Badge
No. 10529, wife; SMITH-PETERSEN,
First Name Unknown, husband;
ANNIE BATWAY, Officer, Badge
No. 9656, wife; BATWAY, First
Name Unknown, husband;
UNKNOWN PARTIES, named as
John and Jane Does I-X,
Defendants-Appellees.
KRISH SINGH, No. 23-15444
Plaintiff-Appellee, D.C. No. 2:21-cv-
00099-JJT
v.
CITY OF PHOENIX; BRITTANY
SMITH-PETERSEN, Officer, Badge
2 SINGH V. CITY OF PHOENIX
No. 10529, wife; ANNIE BATWAY,
Officer, Badge No. 9656, wife,
Defendants-Appellants,
and
SMITH-PETERSEN, First Name
Unknown, husband; BATWAY, First
Name Unknown, husband;
UNKNOWN PARTIES, named as
John and Jane Does I-X,
Defendants.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted May 17, 2024
Phoenix, Arizona
Filed December 26, 2024
Before: Susan P. Graber, Roopali H. Desai, and Ana de
Alba, Circuit Judges.
Opinion by Judge Graber
SINGH V. CITY OF PHOENIX 3
SUMMARY *
Qualified Immunity/Excessive Force
The panel (1) reversed the district court’s summary
judgment for City of Phoenix police officer Brittany Smith-
Petersen on Krish Singh’s 42 U.S.C. § 1983 excessive force
claim; (2) reversed the district court’s order remanding
Singh’s state law claims to state court; and (3) dismissed
Smith-Petersen’s cross-appeal for lack of jurisdiction.
Smith-Petersen and another police officer responded to a
report of an attempted robbery with a knife. When they
arrived, Singh held a knife to his own neck and asked the
officers to shoot and kill him. He refused to drop the knife,
and Smith-Petersen shot and seriously injured him. The
district court held that although a reasonable jury could find
that Smith-Petersen violated Singh’s constitutional right, she
was nevertheless protected by qualified immunity from
Singh’s 42 U.S.C. § 1983 suit because there was no clearly
established law that would have put her on notice that her
force was objectively unreasonable under the
circumstances. The district court remanded the state claims
to state court for resolution.
The panel agreed with the district court’s holding, not
challenged on appeal, that Singh established a plausible,
although not conclusive, constitutional violation at step one
of the qualified immunity analysis. At step two—in which
plaintiff bears the burden of showing that the rights allegedly
violated were clearly established—the panel held that Glenn
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SINGH V. CITY OF PHOENIX
v. Washington County, 673 F.3d 864 (9th Cir. 2011),
involving materially similar facts, put Smith-Petersen on
notice that her use of deadly force plausibly violated Singh’s
right to be free from excessive force. Here as in Glenn,
(1) plaintiff did not brandish a knife but rather held it to his
own neck; (2) despite failing to comply with commands to
drop the knife, a number of circumstances weighed against
deeming plaintiff an immediate threat; (3) the offense here—
attempted robbery with a knife—was less serious than in
Glenn; (4) plaintiff did not actively resist arrest; (5) officers
should have been aware that plaintiff was emotionally
disturbed; and (6) no effective warning was given. Finally,
the question of whether Smith-Petersen could have used less
intrusive means of force was better suited to resolution by
the trier of fact.
The panel held that it lacked jurisdiction over Smith-
Petersen’s cross-appeal challenging the district court’s
determination that genuine factual disputes existed as to
whether her use of deadly force was reasonable. The panel
reversed the dismissal of the state-law claims and remanded
for reconsideration of whether supplemental jurisdiction
over the claims should be exercised.
COUNSEL
David L. Abney (argued), Ahwatukee Legal Office, PC,
Phoenix, Arizona; J. Scott Halverson, Law Offices of J.
Scott Halverson PC, Tempe, Arizona; for Plaintiff-
Appellant.
Ashley Caballero-Daltrey (argued), Justin M. Ackerman,
and John T. Masterson, Jones Skelton & Hochuli PLC,
Phoenix, Arizona, for Defendants-Appellees.
SINGH V. CITY OF PHOENIX 5
OPINION
GRABER, Circuit Judge:
Plaintiff Krish Singh was shot and seriously injured by
Defendant Officer Brittany Smith-Petersen in Phoenix,
Arizona. Smith-Petersen and another Defendant, Officer
Annie Batway, had responded to a report of an attempted
robbery with a knife. When the two police officers arrived,
Plaintiff held a knife to his neck and asked the officers to
shoot and kill him. Plaintiff refused to drop the knife, and
Smith-Petersen shot him. Plaintiff sued the City of Phoenix,
Smith-Petersen, and Batway. The district court entered
summary judgment for Defendant Smith-Petersen on
Plaintiff’s claim of excessive force, brought under § 1983,
holding that she was protected by qualified immunity, and
the court remanded Plaintiff’s state claims to state court for
resolution. We reverse and remand with respect to the
appeal, and we dismiss Smith-Petersen’s cross-appeal for
lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2019, Brittany Smith-Petersen and
Annie Batway, who were police officers with the Phoenix
Police Department, responded to a report of an attempted
armed robbery at a Home Depot in Phoenix, Arizona.
Before the officers arrived at the scene, the dispatcher
informed them that the person who had reported the incident
stated that the suspect was trying to rob him with a knife. In
an updated report, the officers were told that the suspect was
chasing the victim with a knife in a parking lot. The officers
arrived at the scene at the same time, but in separate patrol
vehicles. They saw Plaintiff walking through a Carl’s Jr.’s
parking lot; he was not chasing anyone.
6 SINGH V. CITY OF PHOENIX
The officers pulled their vehicles up on both sides of
Plaintiff, forming an L-shaped configuration around him.
While still in her patrol vehicle, Smith-Petersen directed
Plaintiff to stop and to show both hands. Plaintiff was
holding a knife against his own throat. Smith-Petersen got
out of her patrol vehicle and ordered Plaintiff to “stay right
there.” She then drew her firearm, aimed it at Plaintiff, and
yelled, “If you come any closer, I’ll fucking shoot you.” She
told Batway to “get out of the way.” She then told Plaintiff
to “drop the fucking knife,” while she moved around the
back driver’s side of her patrol car—placing her vehicle
between her and Plaintiff. In response, Plaintiff said,
“What? I’m going to die anyway.” Smith-Petersen then told
Plaintiff, “if you come any closer, I will kill you. Do you
understand? Put the gun down.” Plaintiff immediately
corrected Smith-Petersen by saying something to the effect
of, “it’s a knife.” In response, Smith-Petersen stated, “I’m
sorry, you’re right,” and instructed Plaintiff to “put the knife
down.” For the remainder of the encounter, but before
Smith-Petersen shot Plaintiff, Plaintiff made several
statements, including that people thought he was “crazy” and
that he wanted Smith-Petersen to shoot him. At no point did
Plaintiff suggest that he intended to harm either of the
officers or anyone else.
Approximately two minutes into the interaction, Plaintiff
began to move slowly toward the corner of the front driver’s
side of Smith-Petersen’s vehicle, which was positioned
between the two of them. She moved backward in response,
explaining that she did not want to shoot Plaintiff. Plaintiff
said something to effect of, “I want to get shot.” As Plaintiff
slowly inched forward, Batway repeatedly told him to stop.
He persisted, “Go ahead ma’am,” and continued to move
slowly toward Smith-Petersen. As he moved toward Smith-
SINGH V. CITY OF PHOENIX 7
Petersen, she continued to move backward, and Batway
continued to tell Plaintiff to stop. Plaintiff appeared to stop
next to the front of the vehicle. Smith-Petersen then fired a
single round, striking Plaintiff in the abdomen. Plaintiff fell
to the ground and dropped the knife. He survived his
injuries.
In her deposition, Smith-Petersen testified that, at the
time she shot Plaintiff, she believed that he posed a threat to
her, to Batway, and to the public because he failed to comply
with their repeated directions to drop the knife and continued
to advance toward her. She conceded that Plaintiff “did not
make any specific sudden changes in movement to elicit
[her] to fire [her] weapon sooner.” But, she explained, she
fired her weapon “because [she] no longer had [a] barrier as
well as Officer Batway never had a barrier.” Although both
officers carried “OC spray”— akin to pepper spray—and a
taser at the time of the incident, Smith-Petersen testified that
she did not believe that it was safe to use a taser, because of
the positions she and Batway were holding and because of
“containment problems” due to the open parking lot. She
also testified that she did not feel that it would have been
effective for her to have used the pepper spray or the taser,
given the distance between her and Plaintiff.
In November 2020, Plaintiff sued Defendants in Arizona
state court. The complaint raised a single federal claim and
three state claims: (1) violation of the Fourth Amendment,
under 42 U.S.C. § 1983, against Smith-Petersen only;
(2) assault and battery, against the City and Smith-Petersen;
(3) negligence and gross negligence, against all Defendants;
and (4) negligent hiring, training, supervision, and retention,
against the City. Defendants removed the action to federal
court.
8 SINGH V. CITY OF PHOENIX
After discovery, Defendants moved for summary
judgment on each of Plaintiff’s claims. The district court
granted Defendants’ motion only as to Plaintiff’s claim
under § 1983, holding that a reasonable jury could find that
Smith-Petersen violated Plaintiff’s constitutional rights, but
she was nevertheless protected by qualified immunity. The
court also remanded the remaining claims to state court.
Plaintiff timely appeals, and Smith-Petersen timely cross-
appeals, arguing that the district court’s ruling that she
violated Plaintiff’s constitutional right will affect the
resolution of the state claims.
STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment on the basis of qualified immunity. Evans v.
Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021). Many of the
facts underlying this case are disputed. But, because we
review the district court’s grant of summary judgment to
Smith-Petersen in these circumstances, we must construe all
facts in the light most favorable to Plaintiff. Id. at 1063.
Jurisdictional questions are subject to de novo review.
United States v. Jeremiah, 493 F.3d 1042, 1044 (9th Cir.
2007).
DISCUSSION
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822,
825 (2015) (per curiam) (citation and internal quotation
marks omitted). In determining whether qualified immunity
shields a police officer or other governmental official, we
ask two questions: (1) “whether the facts that a plaintiff has
SINGH V. CITY OF PHOENIX 9
alleged . . . or shown . . . make out a violation of a
constitutional right,” and (2) if so, whether that right was
“‘clearly established’ at the time of [the] defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(citations omitted). If the answer to either question is “no,”
the officer prevails and is immune from suit. See id. at 236.
A. Qualified Immunity
The district court held, and we agree, that Plaintiff has
established a plausible, even though not conclusive,
constitutional violation at step one of the qualified-immunity
analysis. On appeal, Plaintiff challenges only the district
court’s holding at the second step of the analysis. At this
step, Plaintiff “bears the burden of showing that the rights
allegedly violated were clearly established.” Shafer v.
County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir.
2017) (citation and internal quotation marks omitted); see
Pearson, 555 U.S. at 232.
The Supreme Court has held that the law is “clearly
established” when “every reasonable official would have
understood that what he is doing violates that right.” Taylor,
575 U.S. at 825 (citation and internal quotation marks
omitted). Although a case need not be “directly on
point, . . . existing precedent must have placed the statutory
or constitutional question beyond debate.” Id. (citation and
internal quotation marks omitted). The district court held
that there was no clearly established law that would have put
Smith-Petersen on notice that her force was objectively
unreasonable in the circumstances. We disagree.
The facts in this case are closely akin to those in Glenn
v. Washington County, 673 F.3d 864 (9th Cir. 2011), which
sufficed to put Smith-Petersen on notice. In Glenn, the
officers responded to a domestic dispute involving an
10 SINGH V. CITY OF PHOENIX
intoxicated and suicidal eighteen-year-old male (“Lukus”).
Id. at 866. In a 911 call requesting officer assistance,
Lukus’s mother described her son as being “out of control,
busting [their] windows,” “intoxicated,” suicidal, and
possessing a pocketknife with which he was threatening his
parents. Id. at 867. Although the dispatcher neglected to
share with the officers that Lukus’s mother noted that Lukus
had threatened them with the knife, the dispatcher did tell the
officers that Lukus was “very intoxicated,” that he “had
broken a window and was out in the driveway,” and that
“there were hunting rifles inside the house.” Id. When one
of the officers asked whether “the Glenns could lock the
doors since he ‘[didn’t] want [Lukus] going inside if there
are guns in [the house],’” the dispatcher responded that
“Lukus had ‘busted through the front door.’” Id.
After arriving at the home and establishing a staging area
that was a short distance from the Glenn home, the first
responding officer, Deputy Mikhail Gerba, bypassed the
staging area, where he encountered a friend of Lukus’s,
whom he ordered to “[g]et on the fucking ground.” Id. at
868 (brackets in original). The friend complied, explaining
that Lukus was “by the garage” and that “[they] [had] him
calmed down.” Id. Gerba proceeded to the driveway,
positioning himself about eight to twelve feet from Lukus,
who was holding the pocketknife to his own neck and was
standing by his parents and another of his friends. Id. Gerba,
from the moment he arrived, “‘only scream[ed] commands
loudly at Lukus’ such as ‘drop the knife or I’m going to kill
you.’” Id. (brackets in original). But Lukus “may not have
heard or understood these commands because he was
intoxicated and many people were yelling at once.” Id.
Approximately four minutes after the first officer arrived
at the scene, officers fatally shot Lukus, who was acting
SINGH V. CITY OF PHOENIX 11
erratically and, according to the responding officers, did not
comply with their repeated orders to put down the
pocketknife that he possessed. Id. at 867–69. Officers
initially employed non-lethal force by shooting Lukus with
beanbag rounds when he failed to comply with their orders.
Id. at 869. But Lukus began moving toward the home in
which his parents were located, and the officers then fatally
shot him with live, lethal rounds. Id.
The district court in Glenn entered summary judgment in
the officers’ favor, concluding that they were entitled to
qualified immunity. We reversed. Id. at 866.
We concluded in Glenn that the officers’ use of force was
not undisputably reasonable because: (1) although Lukus
possessed a pocketknife, he “held [it] to his own neck” and
never brandished or threatened anyone at the scene with it,
id. at 873, 875–76; (2) even though Lukus did not respond to
the officers’ orders to put down the knife during the roughly
three minutes that elapsed before they used the beanbag
rounds, “a number of other circumstances weigh[ed] against
deeming him ‘an immediate threat to the safety of the
officers or others,’” id. at 873 (citation omitted); (3) the
“character of the offense” committed by Lukus was not
severe because “[n]either the district court nor the
defendants . . . identified any crime that Lukus committed,”
id. at 874; (4) Lukus may not have been actively resisting
arrest, despite his failing to follow the officers’ commands
to put down the pocketknife, 1 id. at 875; (5) the officers
1
Active resistance entails “pulling away from a deputy’s grasp,
attempting to escape, resisting or countering physical control or
demonstrating the willingness to engage in combat by verbal challenges,
threats, aggressive behavior, or assault.” Id. at 875 (brackets and internal
quotation marks omitted).
12 SINGH V. CITY OF PHOENIX
were, or should have been, aware that Lukus was suicidal or
otherwise mentally disturbed, which diminished the
government’s interest in using deadly force, id. at 875–76;
(6) Lukus may not have comprehended the warnings and
commands that the officers gave because he was intoxicated
and there were other people yelling, id. at 876; and (7) less
lethal alternatives, such as the use of a taser, may have been
available, id. at 876–78. Therefore, we held that “the district
court erred in granting summary judgment on the
constitutionality of the officers’ use of force.” Id. at 878.
The facts in this case are similar to the facts in Glenn in
all material respects:
First, Plaintiff and Lukus both held knives. And, at the
time of the encounter with officers, Plaintiff “did not
brandish [the knife] at anyone, but rather held [it] to his own
neck.” 2 Id. at 873.
Second, as in Glenn, despite Plaintiff’s failure to comply
with the officers’ commands to drop the knife, “a number of
2
For the first time at oral argument, Smith-Petersen argued that the
position of the knife blade was “pointed toward the officers” and not
toward Plaintiff, despite his keeping the knife at his neck during the
encounter. She argues that this factor enhanced the threat to the officers
because Plaintiff could have “easily attack[ed] [the officers] rather than
himself because the blade [was] already facing them.” The officers both
attested that Plaintiff was holding the knife to his own neck in a way that
would have made it easy for him to attack others. But, before oral
argument, neither officer detailed how the knife was positioned or held
such that it increased the perceived threat. Contrary to this newly raised
characterization, from the available video evidence it appears that the
knife blade may be pointed toward Plaintiff’s neck (inward) and not in
the direction of the officers. Regardless, this distinction is not
dispositive, in part because of the distance between Plaintiff and the
officers.
SINGH V. CITY OF PHOENIX 13
other circumstances weigh against deeming him ‘an
immediate threat to the safety of the officers or others.’” Id.
(citation omitted). In particular, the record supports findings
that Plaintiff was suicidal, that he was “not in possession of
any guns,” that he was “not in a physical altercation with
anyone,” that he did not “threaten[] anyone with the knife,
and [that] no one was trying to get away from him.” Id. As
in Glenn, Plaintiff “did not attack the officers . . . [nor] did
he even threaten to attack any of them.” Id. (citation and
internal quotation marks omitted); see also Calonge v. City
of San Jose, No. 22-16495, 2024 WL 2873371, at *8 (9th
Cir. June 7, 2024) (noting that even though the suspect
appeared to be carrying a gun, “he did not brandish his
weapon or menace the officers; and he did not attempt to
[access] . . . an area that could contain other people”). There
was no other person in the open parking lot besides Plaintiff
and the officers, “so a jury could conclude that no one was
close enough to [Plaintiff] to be harmed by him before police
could intervene.” Id. at 874. Moreover, as we noted in
Glenn and as the district court here suggested in its decision,
a jury reasonably could conclude that the officers “could
have moved farther away at any time, had they wanted to,”
undermining the notion that Plaintiff posed an immediate
threat. Id.
Third, we have established “two slightly different ways”
of assessing the seriousness of the offense in question. S.R.
Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019).
“[A] particular use of force would be more
reasonable . . . when applied against a felony suspect than
when applied against a person suspected of only a
misdemeanor.” Id.; see id. (explaining that cases involving
a misdemeanor would “provide little, if any, basis for a use
of deadly force”). Courts also may “use[] the severity of the
14 SINGH V. CITY OF PHOENIX
crime at issue as a proxy for the danger a suspect poses at
the time force is applied.” Id. (citing Smith v. City of Hemet,
394 F.3d 689, 702–03 (9th Cir. 2005) (en banc) (holding that
“the nature of the crime at issue provid[ed] little, if any,
basis” for the use of force where the suspect had physically
assaulted his wife but was standing alone on his porch when
officers arrived)). Even when a suspect has made “felonious
threats or committed a serious crime prior to [an officer’s]
arrival,” however, a jury could discount the severity of the
suspect’s purported crimes when the suspect is “indisputably
not engaged in [felonious] conduct when [the officer]
arrive[s].” Id.
The officers in Glenn were responding to a domestic
disturbance. “Domestic violence situations are particularly
dangerous because more officers are killed or injured on
domestic violence calls than on any other type of call.”
George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (quoting
Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011))
(internal quotation marks omitted). In other words, the
officers in Glenn had more reason to fear for their safety than
Smith-Petersen did here. It is true that the “legitimate
escalation of an officer’s concern about his or her safety is
less salient when the domestic dispute is seemingly over by
the time the officers begin their investigation.” Id. (quoting
Mattos, 661 F.3d at 450) (alteration adopted) (internal
quotation marks omitted). But the officers in Glenn arrived
at the scene of the incident, the Glenns’ home, where the
domestic dispute was seemingly still active—that is, a
domestic dispute involving a suicidal suspect armed with a
knife. See Glenn, 673 F.3d at 868 (noting that Gerba
approached the driveway of the home and “positioned
himself eight to twelve feet from Lukus, who was standing
SINGH V. CITY OF PHOENIX 15
by the garage near his parents” and was “holding the
pocketknife to his own neck”).
Here, the officers were responding to a report of an
attempted robbery with a knife, a felony under Arizona law.
Smith-Petersen argues that Plaintiff also violated other
criminal statutes, which supported the use of deadly force.
Those alleged violations may have been misdemeanors,
which undercuts the use of deadly force. Browder, 929 F.3d
at 1136; see also Ariz. Rev. Stat. §§ 13-1202(B) (specifying
that “[t]hreatening or intimidating pursuant to subsection A,
paragraph 1 or 2 is a class 1 misdemeanor”), 13-2508(B)
(specifying that “[r]esisting arrest pursuant to subsection A,
paragraph 3 of this section is a class 1 misdemeanor”).
Because a reasonable jury could conclude that Plaintiff’s
conduct showed an intent to harm only himself, a jury also
could find that Plaintiff’s actions at the time of the officers’
arrival did not constitute felonious conduct. In Glenn, the
officers were dispatched to a domestic disturbance involving
a “fight with a weapon” and were aware that Lukus had a
pocketknife, that he was “intoxicated,” and that he had
“busted through the front door.” Glenn, 673 F.3d at 867.
The officers also knew that there were hunting rifles inside
the house and, based on the information they were provided,
that the Glenns could not lock the doors to prevent Lukus
from going inside to retrieve the rifles. 3 Id. Even then, the
officers in Glenn first used less lethal force before eventually
shooting and killing Lukus. See id. at 869 (noting that one
of the officers shot Lukus with all six of the shotgun’s
3
When notifying the dispatcher that the Glenns owned hunting rifles,
Lukus’s mother explained that “they were locked up and Lukus could
not get to them.” Glenn, 673 F.3d at 867. But that detail—that the
hunting rifles were locked up—was not communicated to the officers
when dispatched.
16 SINGH V. CITY OF PHOENIX
beanbag rounds before the officers employed the fatal
rounds). Thus, the officers here arrived at a scene where a
less serious crime was occurring than in Glenn.
Fourth, as in Glenn, Plaintiff did not actively resist arrest,
despite his failing to comply with the officers’ commands.
Smith-Petersen does not contend that Plaintiff “tried to flee
before officers shot him”; he “‘did not attack the officers’ or
anyone else, nor did he threaten to do so at any point while
officers were on the scene.” Id. at 874–75 (distinguishing
passive resistance from more “active” or “ominous”
resistance) (quoting Smith, 394 F.3d at 703). In Smith, we
held that the plaintiff’s refusal to comply with the officers’
commands to remove his hands from his pockets and place
them on his head, his reentry into his home despite the
officers’ orders, and his brief refusal to place both hands
behind his back were “not . . . particularly bellicose.” 394
F.3d at 703. Similarly, in this case, “the crux of the
resistance was the refusal to follow officers’ commands,
rather than actively attacking or threatening officers or
others.” Glenn, 673 F.3d at 875 (citing Smith, 394 F.3d at
703). Thus, viewing the facts in the light most favorable to
Plaintiff, Plaintiff’s conduct constituted less than active
resistance, which did not warrant the use of deadly force.
See id. (noting that “the defendants’ own guidelines would
characterize Lukus’ conduct as less than active resistance,
not warranting use of a beanbag shotgun”).
Fifth, the officers “were or should have been aware that
[Plaintiff] was emotionally disturbed.” Id. at 875. The
record strongly supports that Plaintiff was suicidal. Contrary
to Smith-Petersen’s suggestion that the relevant incident did
not involve a suicidal suspect, Defendants’ own expert
concluded that Plaintiff was “threatening suicide” and
acknowledged that “he was holding the knife to his own
SINGH V. CITY OF PHOENIX 17
throat.” Moreover, when Smith-Petersen warned Plaintiff to
“[s]tay right there, stop, if you come any closer I will fucking
shoot you[,]” Plaintiff responded: “That’s what I want.”
Sixth, in Glenn we considered whether the officers had
given an effective warning to Lukus. Id. at 876. We held
that, even though the officers gave seemingly clear warnings
to Lukus, Lukus “may not have heard or understood [the
officers’] commands because he was intoxicated and many
people were yelling at once.” Id. at 868, 874 n.9. As in
Glenn, Plaintiff “did not respond to officers’ orders to put
the knife down during the approximately [two minutes and
fifteen seconds] that elapsed before he was shot.” Id. at 873;
see id. at 873–74 (noting that officers had shot Plaintiff with
beanbags approximately three minutes after arriving and that
they fatally shot Plaintiff less than four minutes after
arriving).
As in Glenn, no effective warning was given to Plaintiff.
Although Plaintiff heard and understood the officers’
warnings, they had no effect on him given his mental state.
He responded quite simply that he wanted the police to shoot
him, emphasizing his suicidal state, so no warning could
effectively convince him to change his behavior.
Threatening a suspect with something that the suspect wants,
in this case for Smith-Petersen to shoot and kill Plaintiff, is
not a sufficient warning in these circumstances. See
generally Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir.
2010) (“Although we have refused to create two tracks of
excessive force analysis, one for the mentally ill and one for
serious criminals, we have found that even 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 . . . with a mentally ill individual.”
18 SINGH V. CITY OF PHOENIX
(quoting Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir.
2001)) (internal quotation marks omitted)); see also Deorle,
272 F.3d at 1283 (noting that “a heightened use of less-than-
lethal force will usually be helpful in bringing a dangerous
situation” involving a an emotionally distraught individual
who is armed and dangerous “to a swift end”).
Finally, in considering whether less intrusive means of
force were available in this case, we agree with the district
court that genuine disputes of fact exist. Smith-Petersen
testified that she did not believe it was safe to use her taser
or spray, given the positions she and Batway occupied. On
the other hand, Plaintiff’s expert opined that Smith-Petersen
could have used less lethal options in the circumstances.
Thus, the question whether Smith-Petersen could have used
her taser, spray, or another less-lethal option before or
instead of using deadly force, is better suited to resolution by
the trier of fact. See Glenn, 673 F.3d at 878 (“[T]here was
conflicting evidence on these points, so on summary
judgment we must assume that a taser would have been a
feasible option. Although a jury could ultimately disagree
that the officers were in optimal taser range or that use of a
taser was otherwise feasible or preferable, these are disputed
questions of fact.”).
The present case is readily distinguishable from Hart v.
City of Redwood City, 99 F.4th 543 (9th Cir. 2024). The
decedent in Hart was trying to commit suicide using a knife,
and he already had cut himself by the time the police arrived
at his home after his wife called for assistance. Id. at 545–
46. During the incident, Hart “came towards [the officers]
at a slow run [or a ‘brisk walk’], holding the knife out
towards the officers,” and he moved from thirty to thirty-
seven feet away to only eight to ten feet away from the
officers in about 5.9 seconds. Id. at 546, 549. Indeed, Hart’s
SINGH V. CITY OF PHOENIX 19
own expert testified that Hart posed an imminent threat to
the officers. Id. at 551. By contrast, Plaintiff here never
threatened or ran at the officers, as they conceded in their
testimony; no less lethal methods were attempted; and
Plaintiff’s expert did not concede that Plaintiff posed an
imminent threat.
Likewise, the present case is easily distinguished from
two other recent opinions from this court. In Napouk v. Las
Vegas Metropolitan Police Department, No. 23-15726, 2024
WL 5051193 (9th Cir. Dec. 10, 2024), the decedent held a
large object that appeared to the officers to be a machete, id.
at *2, whereas here the object was a small pocketknife. In
Napouk, the decedent moved the object around and pointed
it in various directions. Id. at *2–3, *6. By contrast, here,
Plaintiff held the pocketknife only to his own throat. There,
the decedent continually advanced on the officers, id. at *3,
*6, and began to move more quickly toward them while
telling them to “get out of here,” id. at *3. In this case,
Plaintiff said nothing aggressive, never moved quickly, and
had stopped at the time he was shot.
Cuevas v. City of Tulare, 107 F.4th 894 (9th Cir. 2024),
differs from this case even more markedly. In Cuevas,
police attempted a traffic stop involving three suspects. Id.
at 896–97. The suspects led police on a high-speed felony
chase, involving an exchange of gunfire. Id. at 897. Here,
Plaintiff was alone, was on foot, had no firearm, and did not
attempt to flee. 4
4
Cuevas was argued and submitted on June 13, 2024, while this case
was submitted earlier, on May 17, 2024. Accordingly, this case has
priority under Ninth Circuit General Order 4.1(a), but we distinguish it
for the sake of clarity in our case law.
20 SINGH V. CITY OF PHOENIX
Because we hold that Glenn put Smith-Petersen on
notice that her use of deadly force plausibly violated
Plaintiff’s Fourth Amendment right to be free of excessive
force, we need not and do not reach Plaintiff’s alternative
argument that this this case falls within the “obvious case”
exception described in Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam).
B. Jurisdiction Over the Cross-Appeal
Considering our jurisdiction sua sponte, as we must,
Hajek v. Burlington N. R.R. Co., 186 F.3d 1105, 1107 (9th
Cir. 1999), we lack jurisdiction over Smith-Petersen’s cross-
appeal. At the first step of the analysis, the district court
ruled that genuine factual disputes existed, thus precluding a
determination that Smith-Petersen’s use of deadly force was
reasonable as a matter of law, “because the disputed facts
and inferences could support a verdict for either party.”
Although we have jurisdiction to resolve legal questions on
appeal, “we lack jurisdiction to review a district court’s
conclusion that genuine factual disputes exist.” Sialoi v.
City of San Diego, 823 F.3d 1223, 1230 (9th Cir. 2016); see
Johnson v. Jones, 515 U.S. 304, 313 (1995) (noting that
appellants are “explicitly limited . . . to appeals challenging,
not a district court’s determination about what factual issues
are ‘genuine,’ . . . but the purely legal issue [of] what law
was ‘clearly established’” (citations omitted)).
A party may nevertheless raise, on appeal, a legal
argument that would trigger appellate jurisdiction.
If the defendant argues only that the evidence
is insufficient to raise a genuine issue of
material fact, we lack jurisdiction. If the
defendant’s appeal raises purely legal
SINGH V. CITY OF PHOENIX 21
questions, however, . . . we may review those
issues. In other words, we have jurisdiction
to review an issue of law determining
entitlement to qualified immunity—even if
the district court’s summary judgment ruling
also contains an evidence-sufficiency
determination—but not to accede to a
defendant’s request that we review that
evidence-sufficiency determination on
appeal.
Est. of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir.
2021). Here, Smith-Petersen does not challenge a legal
conclusion that the district court made and does not argue
that there was no Fourth Amendment violation even if all
disputed facts are construed in Plaintiff’s favor. She merely
“characteriz[es] [her] arguments as legal ones directed at the
materiality of disputed facts,” which we have held does not
give rise to appellate jurisdiction. Peck v. Montoya, 51 F.4th
877, 886–87 (9th Cir. 2022).
For example, Smith-Petersen challenges the district
court’s determination that there is a genuine factual dispute
as to whether she could have continued to move back, away
from Plaintiff, as Plaintiff moved toward her and whether
Plaintiff stopped before he was shot. She argues that those
facts “are not material,” because Plaintiff’s “failure to heed
[more than a dozen] lawful commands to stop and put down
the knife made him a threat.” As another example, assessing
the severity of the crime, Smith-Petersen argues that whether
Plaintiff was actively threatening her and Batway with the
knife is immaterial because it is undisputed that they were
responding to a call of an attempted robbery with a knife.
But those arguments are “poorly disguised [efforts]” aimed
22 SINGH V. CITY OF PHOENIX
at arguing materiality—the true challenge being directed at
the sufficiency of the evidence. Id. at 886. Therefore, we
“must accept the district court’s determinations that there are
genuine disputes of fact and that a jury could find” that the
facts favor Plaintiff. Id. at 887. Accordingly, we dismiss the
cross-appeal for lack of jurisdiction.
CONCLUSION
We reverse the district court’s grant of summary
judgment to Defendant Smtih-Petersen with respect to
Plaintiff’s § 1983 claim, reverse the dismissal of the state-
law claims, and remand for further proceedings on the
§ 1983 claim and for reconsideration of whether to exercise
supplemental jurisdiction over the state-law claims. We
dismiss the cross-appeal.
No. 23-15356, REVERSED AND REMANDED. No.
23-15444, DISMISSED. Costs on appeal and cross-appeal
are awarded to Plaintiff-Appellant.