Johnson v. Myers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSE JOHNSON, individually, and No. 24-349

as the Personal Representative of the

D.C. No.

Estate of Ryan M. Smith, and behalf

2:22-cv-00609-

of all beneficiaries; MARK SMITH;

TSZ

KAHLLENA A. SMITH; LUKE-

MICAH JOHNSON; JALONE

JOHNSON,

OPINION

Plaintiffs - Appellees,

v.

CHRISTOPHER MYERS; RYAN

BEECROFT,

Defendants - Appellants,

and

CITY OF SEATTLE, a municipal

corporation, DANIEL JOHNSON,

DOES, 1-50,

Defendants.

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

2 JOHNSON V. MYERS

Argued and Submitted September 9, 2024

Seattle, Washington

Filed March 3, 2025

Before: William A. Fletcher and Anthony D. Johnstone,

Circuit Judges, and Jed S. Rakoff, District Judge. *

Opinion by Judge W. Fletcher

SUMMARY **

Excessive Force

The panel affirmed the district court’s denial, on a

motion for partial summary judgment, of qualified immunity

to Seattle police officers in an action alleging the officers

used excessive force when they shot and killed Ryan Smith

during a response to a 911 call.

Officers Myers and Beecroft responded to a 911 call

from Smith’s girlfriend that Smith was threatening to kill

both himself and her with a knife. After demanding entry

into the apartment, Officer Beecroft kicked in the door,

revealing Smith standing in the hallway with an open

pocketknife in his right hand. The officers shouted a number

of overlapping commands and shot Smith when he raised his

*

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

**

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

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

JOHNSON V. MYERS 3

right arm across his chest and took a step forward. Between

the moment Officer Beecroft kicked in the door and the

moment Officer Myers began firing his weapon, 5.87

seconds elapsed.

The panel first held that it had jurisdiction over this

interlocutory appeal because it did not need to resolve any

disputed questions of fact in order to decide whether

summary judgment was warranted.

The panel determined that, viewing the evidence in the

light most favorable to appellees at this stage of the

litigation, Officers Myers and Beecroft were not entitled to

qualified immunity on a motion for summary judgment. It

was clearly established law that a fatal shooting under these

circumstances violated the Fourth Amendment. A

reasonable juror could conclude that Smith did not pose such

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

the use of deadly force was justified. The panel assumed at

this stage that Smith did not brandish or threaten the officers

with a knife. He was not actively resisting arrest and may

not have comprehended the officers’ commands which were

shouted at the same time and inconsistent. The officers gave

no warnings and the use of a taser might have been

available. Given this circuit’s case law, a reasonable officer

should have been on notice that it was unreasonable to use

deadly force solely because Smith was holding a knife in his

right hand and raised that hand across his chest.

4 JOHNSON V. MYERS

COUNSEL

Brian M. Sullivan (argued), Sullivan PLLC, Everett,

Washington; Joseph Rome, Law Offices of Joseph Rome

Inc. PS, Kirkland, Washington; for Plaintiffs-Appellees.

Thomas P. Miller (argued), Ann E. Trivett, and Rakiah B.

Adams, Keating Bucklin & McCormack Inc. PS, Seattle,

Washington, for Defendants-Appellants.

W. FLETCHER, Circuit Judge:

Seattle Police Officers Christopher Myers and Ryan

Beecroft bring an interlocutory appeal from the district

court’s denial of their motion for partial summary judgment

based on qualified immunity. We affirm.

I. Background

On April 14, 2019, several Seattle police officers

responded to a 911 call made by Katy Nolan. In the call,

Nolan said that her boyfriend, Ryan Smith, was being

“abusive.” When the officers arrived at the apartment

building, Nolan was outside. Smith was in an upstairs

apartment. In response to a telephone call from the officers,

he came downstairs and spoke to the officers outside the

building. He was unarmed. Officer Muoio later recalled in

a sworn declaration that Smith spoke with Officer Beecroft,

and that “Officer Beecroft built an awesome rapport with

him.” Smith told the officers that he suffered from

depression, that he took medication, and that he was not

suicidal. Nolan and Smith told the officers that there was

“just an argument.” Nolan left to spend “a few nights” at a

friend’s house. The officers did not arrest Smith.

JOHNSON V. MYERS 5

Almost four weeks later, on May 8, 2019, Nolan again

called 911, telling the operator that Smith was threatening to

kill both himself and her with a knife. She said, “Please get

him out. I’ve been trying to get him to leave and he won’t

leave.” She said that Smith said that blood was everywhere,

but that she did not know if Smith was actually hurt. She

said that she was bolting herself in the bathroom. Nolan said

that she did not need any medical attention, but that Smith

“needs help.” She reported that Smith was using his

fingernails to scrape on the bathroom door.

Daniel Johnson, a 911 Communications Dispatcher,

spoke with Nolan. He documented the call in the Computer

Aided Dispatch system that appears in officer terminals,

writing “SUSP IS SAYING THERE IS BLOOD

EVERYWHERE, RP IS INSIDE BATHROOM, HAS NO

VISUAL.” As officers were dispatched, an inaccurate

message was transmitted via radio stating, “caller is now

saying there’s blood everywhere inside the bathroom.”

Officers Christopher Myers and Brian Muoio arrived at

Smith’s apartment building at 7:22 pm. Officers Ryan

Beecroft and Joshua Knight arrived about one minute later.

All four officers wore activated body cameras. When Nolan

heard police sirens and officers outside of the apartment, she

told the dispatcher, “I can hear the cops. No, please don’t

shoot. No.”

The officers entered the building and approached

Smith’s apartment. All four officers wore protective vests.

Officers Myers, Muoio and Knight carried tasers. The

apartment was located at the end of a hallway, opening to the

left off the hallway. After demanding entry, Myers began to

kick the door. Muoio announced “Seattle Police.” Myers

directed Officer Beecroft to kick in the door. Beecroft

6 JOHNSON V. MYERS

kicked in the door, revealing Smith standing in the hallway

of the apartment. His hands were down at his side. He held

an open pocketknife in his right hand.

Over the span of approximately five seconds, the officers

shouted overlapping commands: “Put your hands up”; “Let

me see your hands”; “Get on the f***ing ground”; “Drop the

knife”; “Get on the f***ing ground”; and “Drop the knife!”

Smith was 5’7” and weighed 143 pounds. He took

several steps forward. As Smith stepped forward, Officers

Myers and Beecroft retreated down the outer hallway,

resulting in an estimated distance of 4.5 feet between

themselves and Smith. Smith never stepped through the

doorframe into the outer hallway. All of the officers

remained in the outer hallway at a right angle to Smith.

Smith raised his right arm across his chest as he took a

step forward. Appellees contend that in so doing Smith

could have been complying with the command to put his

hands up. The parties dispute whether Smith was still

moving toward the officers when he was shot. Appellees

contend Smith had come to a complete stop. None of the

officers warned Smith that they were about to shoot or to use

force against him.

Officer Myers shot first, shooting eight rounds. Officer

Beecroft began shooting after Myers began to shoot,

shooting two rounds. Between the moment Beecroft kicked

in the door and the moment Myers began firing his weapon,

5.87 seconds had elapsed. Smith died from the gunshot

wounds.

Rose Johnson, Smith’s mother, and others filed a

complaint in district court against Officers Myers and

Beecroft, dispatcher Daniel Johnson, and the City of Seattle.

JOHNSON V. MYERS 7

In their first amended complaint, Appellees allege claims

under 42 U.S.C. § 1983 and state law. Appellants, Officers

Myers and Beecroft, moved for partial summary judgment

on Appellees’ § 1983 claims on the ground of qualified

immunity.

The district court denied the motion for summary

judgment. The court wrote that “before May 8, 2019, when

Smith was fatally shot, the law has been ‘clearly established’

that law enforcement personnel ‘may not kill suspects who

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

safety of others simply because [the suspects] are armed.’”

The court found that “factual disputes exist concerning

(i) whether a reasonable officer in the same situation as

Myers and Beecroft would have believed Smith posed an

immediate threat to the safety of the officers or others at the

scene; and (ii) whether the use of less drastic measures was

feasible.”

This appeal followed. We affirm.

II. Standard of Review

We review a district court’s denial of qualified immunity

at summary judgment de novo, “viewing the evidence and

drawing all reasonable inferences in the light most favorable

to the non-moving party.” Napouk v. Las Vegas Metro.

Police Dep’t, 123 F.4th 906, 914 (9th Cir. 2024) (quoting

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

2010)).

III. Appellate Jurisdiction

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

appeals from “final decisions.” In Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949), the Supreme

Court held that “certain so-called collateral orders amount to

8 JOHNSON V. MYERS

‘final decisions’” that are immediately appealable under

§ 1291. Johnson v. Jones, 515 U.S. 304, 310 (1995) (citing

Cohen, 337 U.S. at 541). A collateral order “fall[s] in that

small class which finally determine claims of right separable

from, and collateral to, rights asserted in the action[.]”

Cohen, 337 U.S. at 546. The denial of a summary judgment

motion based on a claim of qualified immunity generally fits

within the Cohen collateral review exception. Plumhoff v.

Rickard, 572 U.S. 765, 771–72 (2014).

The Supreme Court has instructed that any “portion of a

district court’s summary judgment order that, though

entered in a ‘qualified immunity’ case, determines only a

question of ‘evidence sufficiency,’ i.e., which facts a

party may, or may not, be able to prove at trial . . . is not

appealable.” Johnson, 515 U.S. at 313. But when a

summary judgment order turns on “the application of

‘clearly established’ law to a given (for appellate purposes

undisputed) set of facts,” that portion of the order is

immediately appealable. Id. Thus, whether appellate

jurisdiction exists “ultimately turns on the nature of the

defendant’s argument on appeal.” Est. of Anderson v. Marsh,

985 F.3d 726, 731 (9th Cir. 2021). For us to have

jurisdiction over an interlocutory appeal, we must “assume[]

the version of the material facts asserted by the nonmoving

party to be correct.” Jeffers v. Gomez, 267 F.3d 895, 905 (9th

Cir. 2001) (quoting Schwenk v. Hartford, 204 F.3d 1187,

1195 (9th Cir. 2000)).

Appellants point to evidence in the record, including

body camera footage and dispatch audio recordings,

contending that we need not resolve any disputed questions

of fact in order to decide whether summary judgment is

warranted. “We are confined to the question of whether the

defendant would be entitled to qualified immunity as a

JOHNSON V. MYERS 9

matter of law, assuming all factual disputes are resolved, and

all reasonable inferences are drawn, in plaintiff’s favor.”

Est. of Anderson, 985 F.3d at 731 (cleaned up and internal

quotation marks and citations omitted). We hold that, so

confined, we have jurisdiction to hear this appeal.

IV. Discussion

An officer asserting a defense of qualified immunity

should be denied summary judgment if “(1) the [evidence],

taken in the light most favorable to the party asserting injury,

show[s] that the officer’s conduct violated a constitutional

right, and (2) the right at issue was clearly established at the

time of the incident such that a reasonable officer would

have understood [his] conduct to be unlawful in that

situation.” Torres v. City of Madera, 648 F.3d 1119, 1123

(9th Cir. 2011). We address each inquiry in turn.

A. Violation of Constitutional Right

We analyze claims of constitutionally excessive force

“under the Fourth Amendment’s ‘objective reasonableness

standard.’” Saucier v. Katz, 533 U.S. 194, 204 (quoting

Graham v. Connor, 490 U.S. 386, 388, 394 (1989)). We

judge reasonableness “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396 (citing Terry v. Ohio,

392 U.S. 1, 20-22 (1968)). The “use of deadly force is

reasonable only if ‘the officer has probable cause to believe

that the suspect poses a significant threat of death or serious

physical injury to the officer or others.’” Gonzalez v. City of

Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (cleaned up)

(quoting Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994)).

It is undisputed that Nolan had barricaded herself in the

bathroom. Thus, she was not in immediate danger. The only

10 JOHNSON V. MYERS

dispute is whether the officers were in such immediate

danger that Officers Myers and Beecroft were justified in

shooting Smith without warning within seconds of breaking

down the door.

We consider “the availability of alternative methods of

capturing or subduing a suspect” to determine whether a use

of force was objectively reasonable. Smith v. City of Hemet,

394 F.3d 689, 703 (9th Cir. 2005) (en banc) (citing Chew v.

Gates, 27 F.3d 1432, 1441 n.5 (9th Cir. 1994)).

Officers Beecroft and Muoio had encountered Smith

when they responded to the call by Nolan less than four

weeks earlier. Muoio recounted that during this encounter,

Smith had come out of the apartment, and that Beecroft had

had a peaceful conversation with him, “buil[ding] an

awesome rapport.”

This time, however, Officer Beecroft made no attempt to

establish a rapport with Smith. Instead, as soon as Beecroft

kicked down the door, all of the officers immediately

shouted overlapping commands. Viewing the evidence in

the light most favorable to Appellees, Smith stopped after

taking a few steps forward and began to comply with the

command to put his hands up. None of the officers deployed

their tasers. None of the officers warned Smith that they

were about to use deadly force. Myers began shooting a little

less than six seconds after Beecroft kicked down the door.

Viewing the evidence in the light most favorable to

Appellees, we conclude that a reasonable juror could

conclude that Smith did not pose such “an immediate threat

to the safety of the officers or others” that the use of deadly

force was justified. Lal v. California, 746 F.3d 1112, 1117

(9th Cir. 2014).

JOHNSON V. MYERS 11

B. Clearly Established Right

Appellants insist that, even if Officers Myers and

Beecroft violated Smith’s constitutional right to be free from

the use of excessive force, that right was not clearly

established in the circumstances of this case, even viewing

the evidence in the light most favorable to Appellees. We

disagree.

The law is clearly established when prior case law is

“clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply.”

D.C. v. Wesby, 583 U.S. 48, 63 (2018). The Supreme Court

has written that “[w]here the suspect poses no immediate

threat to the officer and no threat to others, the harm resulting

from failing to apprehend him does not justify the use of

deadly force to do so.” Tennessee v. Garner, 471 U.S. 1, 11

(1985). Our court has explained that when a suspect’s

resistance is not “particularly bellicose,” the use of even non-

lethal force is not reasonable. Nelson v. City of Davis, 685

F.3d 867, 882 (9th Cir. 2012) (internal citations omitted)

(quoting Smith, 394 F.3d at 703). We have reiterated that

“warnings should be given, when feasible, if the use of force

may result in serious injury[.]” Deorle v. Rutherford, 272

F.3d 1272, 1284 (9th Cir. 2001); see also Harris v. Roderick,

126 F.3d 1189, 1201 (9th Cir. 1997).

“‘[C]learly established law’ should not be defined ‘at a

high level of generality.’” White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011)). To determine whether the law is clearly

established in excessive force cases, we need to compare the

specific facts of the case before us with the specific facts of

previously decided cases. We seldom get excessive force

cases in which the facts are identical, or nearly identical, to

12 JOHNSON V. MYERS

those in previously decided cases. The best we can do is to

compare the facts of our case to facts that are sufficiently

similar to allow a meaningful comparison. In Glenn v.

Washington County, 673 F.3d 864 (9th Cir. 2011), we denied

qualified immunity to officers who fired six “beanbags,” and

then fired eleven shots from semiautomatic weapons, killing

Lukus, an intoxicated young man who was “several feet”

away from them and was “holding [a] pocketknife to his own

neck[.]” Id. at 874, 868. We concluded that the officers’ use

of force was not indisputably reasonable, in part, because

(1) Lukus never brandished or threatened the officers with

his pocketknife; (2) “Lukus may not have been actively

resisting arrest, despite his failing to follow the officers’

commands to put down the pocketknife,” Singh v. City of

Phoenix, 124 F.4th 746, 751 (9th Cir. 2024) (citing Glenn,

124 F.4th at 873-878); (3) “Lukus may not have

comprehended the warnings and commands that the officers

gave because he was intoxicated and there were other people

yelling,” id. (same); and (4) “less lethal alternatives, such as

the use of a taser, may have been available,” id. (same).

These same factors are present here: (1) it is disputed

whether Smith brandished or threatened the officers with his

knife, so we must assume at this stage that he did not;

(2) Smith may not have been actively resisting arrest;

(3) Smith may not have comprehended the officers’s

commands because they were shouted at the same time and

were inconsistent, and the officers gave no warnings; and

(4) the use of a taser might have been available. While the

facts in this case are not identical to the facts in Glenn, they

provide a meaningful comparison that should have put a

reasonable officer on notice that it is unreasonable to use

deadly force solely because Smith was holding a knife in his

right hand and raised that hand across his chest. See also

JOHNSON V. MYERS 13

Harris, 126 F.3d at 1203 (holding that an FBI agent acted

unreasonably in shooting an unarmed man who made “no

aggressive move of any kind”).

Appellants rely on several cases where officers were

granted qualified immunity after using deadly force on

people with mental illnesses. See City & Cnty. of San

Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015); Lal, 746

F.3d at 1113; Hart v. City of Redwood City, 99 F.4th 543

(9th Cir. 2024); Blanford v. Sacramento Cnty., 406 F.3d

1110 (9th Cir. 2005). But in each of those cases there were

critical factors that are absent here. Unlike Sheehan, Smith

did not verbally threaten the officers. See City & Cnty. of

San Francisco, 575 U.S. at 605. Unlike Lal, Smith did not

attack the officers. See Lal, 746 F.3d at 1114-15. Unlike

Hart, Smith did not rapidly approach the officers. See Hart,

99 F.4th at 543. And unlike Blanford, Smith was not armed

with a two-and-half-foot sword and did not make “a loud

growling” sound after being told to drop the sword. See

Blanford, 406 F.3d at 1112-13.

In summary, Officers Myers and Beecroft shot Smith

slightly less than six seconds after Beecroft kicked down the

door to his apartment. In the few seconds between kicking

down the door and shooting Smith, the officers shouted a

number of overlapping commands. The officers made no

attempt to talk to Smith or otherwise de-escalate the

situation. Viewing the evidence in the light most favorable

to Appellees, Smith had stopped after taking a few steps

forward, and was raising his right hand, holding a

pocketknife, in compliance with the officers’ command to

raise his hands. Nothing in the record suggests that Smith

ever pointed the knife at the officers or made any aggressive

moves toward them. Finally, the officers never warned

Smith that they would use deadly force before shooting him

14 JOHNSON V. MYERS

ten times, killing him in the hallway of his apartment.

Viewing the evidence in the light most favorable to

Appellees, it was clearly established law that a fatal shooting

under these circumstances violated the Fourth Amendment.

At trial, a reasonable jury could perhaps conclude that

Officers Myers and Beecroft were justified in using deadly

force. But a reasonable jury could equally well conclude that

they acted unconstitutionally in using deadly force without

warning less than six seconds after kicking down the

apartment door, when Smith was standing still in his own

hallway and raising his right hand in compliance with the

officers’ command to raise his hands.

V. Conclusion

Viewing the facts of this case in the light most favorable

to Appellees, Officers Myers and Beecroft are not entitled to

qualified immunity on a motion for summary judgment.

AFFIRMED.