Estate of Clemente Najera Aguirre v. County of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF CLEMENTE NAJERA No. 23-55718

AGUIRRE; J.S.; A.S.; Y.S.,

D.C. No. 5:18-cv-

Plaintiffs-Appellees, 00762-DMG-SP

v.

OPINION

COUNTY OF RIVERSIDE; DAN

PONDER,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted September 17, 2024

Seattle, Washington

Filed March 11, 2025

Before: M. Margaret McKeown, Ronald M. Gould,

Circuit Judges, and Jane A. Restani *, Judge.

Opinion by Judge McKeown

*

The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.

2 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

SUMMARY **

Excessive Force

The panel affirmed the district court’s order denying

Riverside County Sergeant Dan Ponder’s renewed motion,

following a jury verdict, for judgment as a matter of law

based on qualified immunity in a 42 U.S.C. § 1983 action

alleging that Ponder used excessive force when he shot and

killed Clemente Najera-Aguirre.

Ponder arrived at the scene after responding to a call

about someone destroying property with a bat or club-like

object. He commanded Najera, who matched the suspect

description, to drop the bat he was holding. Najera refused

and approached Ponder. When he was approximately 10-15

feet away, Ponder pepper sprayed Najera twice, but the

pepper spray blew away and was ineffective. Ponder then

fired six shots in three successive volleys. An autopsy

suggested Najera was turned away when he was struck by

the final two bullets, which were the fatal shots. Following

a five-day trial, a jury returned a verdict for plaintiffs and

awarded $10 million in damages.

The panel first held that Ponder did not waive his

qualified immunity defense. His post-judgment claim to

qualified immunity, made in his motion for judgment as a

matter of law pursuant to Federal Rule of Civil Procedure

50(b), was based on the same underlying factual arguments

**

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

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

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 3

regarding the reasonableness of his use of force raised in his

Rule 50(a) motion at the conclusion of trial.

The panel held that Ponder was not entitled to qualified

immunity on the merits. The jury unanimously found for

plaintiffs on their claim for excessive force in violation of

the Fourth Amendment. Drawing all inferences in favor of

plaintiffs, the facts at trial showed that Ponder violated

clearly established law that deadly force is not justified

where the suspect poses no immediate threat. The evidence

demonstrated that Najera was not an immediate threat to

Ponder or to others.

COUNSEL

Dale K. Galipo (argued) and Hang D. Le, Law Offices of

Dale K. Galipo, Woodland Hills, California; Ian A.

Cuthbertson and Christian F. Pereira, Briana Kim PC, Long

Beach, California; for Plaintiffs-Appellees.

Lann G. McIntyre (argued) and Daniel R. Velladao, Lewis

Brisbois Bisgaard & Smith LLP, San Diego, California;

Tony M. Sain (argued) and Abigail J.R. McLaughlin, Lewis

Brisbois Bisgaard & Smith LLP, Los Angeles, California;

for Defendants-Appellants.

4 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

OPINION

McKEOWN, Circuit Judge:

It is well settled that deadly force is not justified “[w]here

the suspect poses no immediate threat to the officer and no

threat to others.” Tennessee v. Garner, 471 U.S. 1, 11

(1985). Here, Sergeant Dan Ponder shot at Clemente

Najera-Aguirre (“Najera”) six times without warning and

killed him. The fatal shots, that struck Najera in the back,

were fired when he was turned away from the officer. As

we wrote in the first appeal in this case, in which we affirmed

the district court’s denial of qualified immunity on summary

judgment, “[i]n dispute is the level of threat Najera posed

immediately before he died. That quintessential question of

fact is reserved for the jury . . . .” Estate of Aguirre v. Cnty.

of Riverside (“Aguirre I”), 29 F.4th 624, 626 (9th Cir. 2022).

The jury has now spoken. After a five-day trial, the jury

unanimously found Ponder liable under Section 1983 for

excessive force in violation of the Fourth Amendment and

awarded $10 million in compensatory damages. The district

court denied qualified immunity as raised in a renewed

motion for judgment as a matter of law. We affirm.

Factual Background

On April 15, 2016, Sergeant Dan Ponder of the Riverside

County Sheriff’s Department responded to a call in Lake

Elsinore, California, about someone destroying property

with a bat or club-like object. When he arrived on scene,

Ponder observed that Najera, who was standing in the

driveway of a house near the sidewalk, matched the suspect

description. Ponder also noticed shattered glass around the

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 5

house and people standing approximately 15–20 feet from

Najera.

Ponder began issuing commands for Najera to drop the

bat—which an eyewitness testified was resting on Najera’s

shoulders—and get on the ground; Najera turned his

attention to Ponder but did not comply with his instructions.

Najera then exited the gate of the house and moved toward

the street where Ponder stood. Despite Ponder’s repeated

orders, Najera did not drop the bat.

When Najera was approximately 10–15 feet away,

Ponder pepper sprayed Najera twice, but the pepper spray

blew away and was ineffective. Najera then turned toward

Ponder, still holding the bat. Ponder and Najera stood face-

to-face, where they remained roughly 10–15 feet apart, with

Ponder now pointing his gun at Najera.

Within seconds of facing each other, Ponder began

shooting Najera without warning. Ponder fired six shots.

Ponder fired the shots in two volleys; there was a pause

between five and thirty seconds between Ponder’s initial

shots and the next round of shots that took Najera down.

Witnesses stated that Najera collapsed face down—falling

“like a tree” where he had been shot—with his feet closer to

and his head farther from Ponder. Najera was killed. His

body was found on the sidewalk approximately ten feet from

where Ponder had been standing.

An autopsy showed that four bullets struck Najera: one

in the right upper chest, one in the left elbow, and two in the

back, which were the fatal shots. The bullet paths of the shot

to the elbow and the two fatal shots to the back suggested

Najera was turned away, with his back to Ponder, when he

was struck.

6 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

Procedural Background

Najera’s children (“the Najeras”) sued Ponder and his

employer, Riverside County, under 42 U.S.C. § 1983,

alleging that Ponder violated Najera’s Fourth and Fourteenth

Amendment rights. Ponder and Riverside County moved for

summary judgment. The district court granted summary

judgment on all claims except for the Fourth Amendment

claim against Ponder, thus denying him qualified immunity.

Ponder sought reversal of the district court but we affirmed

on interlocutory appeal. Aguirre I, 29 F.4th at 624. We held

that it was clearly established law that killing a suspect who

poses no immediate threat to an officer or others violates the

suspect’s Fourth Amendment rights. Id. at 626. Because

factual disputes remained as to “the level of threat Najera

posed immediately before his death,” that dispute needed to

go to the jury, thus precluding summary judgment. Id. at

628.

After a five-day trial in which multiple eyewitnesses and

expert witnesses testified, the district court denied Ponder’s

motion for judgment as a matter of law (“JMOL”) brought

under Federal Rule of Civil Procedure 50(a) regarding

sufficiency of the evidence. The jury returned a verdict in

one day, finding for the Najeras and awarding $10 million in

damages.

After the entry of judgment following trial, Ponder filed

a renewed motion for JMOL under Federal Rule of Civil

Procedure 50(b) in which he also argued that he was entitled

to qualified immunity. The district court denied Ponder’s

Rule 50(b) motion on the merits. We review Ponder’s timely

appeal of that decision.

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 7

Analysis

I. Qualified Immunity Was Not Waived

The Najeras contend that Ponder waived his qualified

immunity defense. In his Rule 50(a) motion, Ponder argued

that the Najeras “failed to present any evidence that [his]

actions . . . constituted excessive” force. Ponder repeated

this argument in his Rule 50(b) motion but added that, even

if there were sufficient evidence, he “was entitled to

qualified immunity based on” the trial evidence as it was not

“clearly established” at the time of the incident that Ponder’s

conduct violated Najera’s Fourth Amendment rights. The

Najeras argue that Ponder waived the qualified immunity

defense by failing to raise it explicitly in his Rule 50(a)

motion, while Ponder claims that his Rule 50(a) motion

avoided waiver by addressing “the essential underpinnings

of a qualified immunity defense.”

In Tan Lam v. City of Los Banos, 976 F.3d 986, 997 n.4

(9th Cir. 2020), we rejected the plaintiff’s contention that the

defendant “waived the issue of qualified immunity by failing

to raise it in his 50(a) motion” where the “factual arguments”

made in support of that motion were the same as those

underlying the “asserted claim to qualified immunity” made

in the defendant’s Rule 50(b) motion. So too here. Ponder’s

claim to qualified immunity made in his Rule 50(b) motion

was based on the same underlying factual arguments

regarding the reasonableness of his use of force raised in his

Rule 50(a) motion. Ponder did not waive his qualified

immunity defense.

This outcome is further supported by Dupree v. Younger,

598 U.S. 729 (2023). In Dupree, the Supreme Court held

that “[w]hile factual issues addressed in summary-judgment

denials are unreviewable on appeal . . . a post-trial motion

8 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

under Rule 50 is not required to preserve for appellate review

a purely legal issue resolved at summary judgment.” Id. at

735–36. We have held “that the ‘clearly established’ prong

of the qualified immunity analysis is a matter of law to be

decided by a judge.” Reese v. Cnty. of Sacramento, 888 F.3d

1030, 1037 (9th Cir. 2018) (quoting Morales v. Fry, 873

F.3d 817, 824–25 (9th Cir. 2017)). As Ponder’s Rule 50(b)

motion added an argument only as to the clearly established

prong of qualified immunity, he did not need to preserve that

purely legal issue, which had been expressly raised at

summary judgment.

II. Qualified Immunity Was Properly Denied

Although we review de novo the district court’s denial

of qualified immunity as raised in a renewed motion for

JMOL, we “give significant deference to the jury’s verdict

and to the nonmoving parties (here, Plaintiffs) when

deciding whether that decision was correct.” A.D. v. Cal.

Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013). We

“draw all reasonable inferences in” the nonmoving party’s

favor, Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir.

2006), and we “must disregard all evidence favorable to the

moving party that the jury is not required to believe.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151

(2000). This is a highly deferential standard.

Ponder is not entitled to qualified immunity on the

merits. The jury unanimously found for the Najeras on their

“section 1983 claim for excessive force in violation of the

Fourth Amendment.” Drawing all inferences in favor of the

Najeras, the facts at trial show Ponder violated clearly

established law that holds deadly force is not justified where

the suspect poses no immediate threat. See Garner, 471 U.S.

at 11.

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 9

A. Constitutional Violation

A police officer “will receive qualified immunity from

suit under 42 U.S.C. § 1983 . . . if the plaintiff has not

‘alleged’ or ‘shown’ facts that would make out a

constitutional violation,” or a violation is shown but “the

constitutional right allegedly violated was not ‘clearly

established’ at the time of defendant’s alleged misconduct.”

A.D., 712 F.3d at 450, 453–54 (quoting Pearson v. Callahan,

555 U.S. 223, 232 (2009)). When, as here, “a jury has found

(with reasonable support in the evidence)” a constitutional

violation by a police officer, we view the jury’s verdict as

“sufficient to deny him qualified immunity” on the first

prong of the analysis. Id. at 450, 456; see also Reese, 888

F.3d at 1037. The jury’s finding in favor of the Najeras

establishes that Ponder violated Najera’s Fourth

Amendment right to be free from excessive force.

B. Clearly Established Law

Assessing qualified immunity after a jury verdict turns

on the second, “clearly established” prong, which requires

deference to the jury’s view of the facts. See A.D., 712 F.3d

at 456. “Conduct violates a clearly established right if the

unlawfulness of the action in question [is] apparent in light

of some pre-existing law.” Ballou v. McElvain, 29 F.4th

413, 421 (9th Cir. 2022) (alteration in original) (internal

quotations omitted).

As we held on interlocutory appeal, caselaw from this

circuit and the Supreme Court, published before the incident,

clearly establishes that “[d]eadly force is not justified

‘[w]here the suspect poses no immediate threat to the officer

and no threat to others.’” Aguirre I, 29 F.4th at 629 (quoting

Garner, 471 U.S. at 11).

10 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

1. Threat to Officer

The trial evidence demonstrated that Najera was not an

immediate threat to Ponder justifying the use of deadly force,

especially given several cases with decidedly analogous

facts in our circuit. Our precedent clearly establishes the

illegality of Ponder’s actions. We have held that police used

excessive force when officers, “without warning,” “shot and

killed” an individual who was holding a knife but not

threatening the deputies and standing “roughly six to eight

feet away” from them. Hayes v. Cnty. of San Diego, 736

F.3d 1223, 1227–28, 1235 (9th Cir. 2013). That use of

deadly force was unreasonable because the evidence did not

“clearly establish that Hayes was threatening the deputies

with the knife” because he was “walking towards the

deputies . . . not ‘charging’ at them” and “was not . . .

attempting to evade” arrest. Id. at 1233 & n.4, 1234. When

we view the facts at trial in the light most favorable to the

Najeras and defer to the jury’s verdict, Hayes is highly

analogous and put Ponder on notice that his actions would

violate Najera’s rights.

Though there was conflicting testimony regarding the

period before Ponder’s first volley of shots, Ponder was the

only eyewitness to the moments immediately before his

second volley of shots at Najera. And while Ponder testified

that Najera posed a threat, the jury had good reason to doubt

his testimony. Again and again, Ponder’s credibility was

challenged at trial. For example, Ponder claimed he was

aware when responding to the call that the suspect had

threatened a woman and her baby, but that information was

not audibly broadcast over the dispatch radio. Ponder was

recalled and impeached concerning his knowledge before

arriving on scene, and the district court judge issued a

curative instruction to the jury on this issue. Ponder also

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 11

claimed that Najera charged him, but the trajectory of the

shot to Najera’s chest suggested he was not tilted or canted

forward at the time the first bullet struck but rather was

“virtually straight up and down.” This suggested a slower

advance akin to Hayes “walking towards the deputies.” Id.

at 1233.

Further, in his own statement made the night of the

shooting, Ponder reported he “fired three times, and []

moved to the left” and that Najera “kind of turned, like, away

from me momentarily.” Ponder’s acknowledgment that

Najera turned away from him—especially coupled with

eyewitness testimony that Ponder paused for as long as thirty

seconds between volleys of shots and forensic evidence that

bullets struck Najera while he was facing away—could lead

the jury to determine that Najera did not pose a threat right

before Ponder shot him and underscores why we give

deference to the jury’s view of the facts. See A.D., 712 F.3d

at 456. Ponder’s own police practices expert agreed that

“[t]here were two shots that struck Mr. Najera in the back,”

and at one point Ponder “believed that Mr. Najera

momentarily [] faced away, turned away, stopped

advancing.”

Witnesses also testified that Najera was over ten feet

from Ponder when Ponder opened fire, and Najera fell where

he stood (rather than stumbling several feet further backward

after being shot, as Ponder had claimed). Ponder himself

estimated Najera was ten feet away at the time of the shots.

Najera was several feet further away from Ponder than

Hayes was from the deputies who were denied qualified

immunity. Hayes, 736 F.3d at 1227–28. This factual

scenario also undercuts Ponder’s attempted reliance on Lal

v. California, 746 F.3d 1112 (9th Cir. 2014), where qualified

immunity was granted when officers used deadly force

12 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

against a suspect who was standing one yard away, and only

after the suspect: led a high-speed chase; threw “several soft-

ball sized rocks at” the officers; walked towards them

carrying a “football-sized rock over his head”; and received

a warning from the officers that they would shoot. Id. at

1114–15, 1117. In further contrast to Lal, the trial evidence

confirmed Ponder failed to warn Najera before deploying

deadly force, which was also “significant” in Hayes,

especially since “Hayes was still at least six feet away” from

the deputies and it was therefore not shown that a warning

“was unfeasible.” Hayes, 736 F.3d at 1234–35. Here, the

jury was instructed to consider “whether it was practical for

the officer to give warning of the imminent use of force and

whether such warning was given” in determining whether

excessive force was used, and the jury unanimously found

Ponder used excessive force.

Like in Hayes, 736 F.3d at 1234, the jury further could

have concluded that Najera wielded the bat in a non-

threatening manner, as no witness saw Najera swing, throw,

or wind up the bat at anyone before Ponder shot him, and

one witness affirmed Najera did not look like he was about

to strike someone with the bat. Ponder himself

acknowledged that he never saw Najera swing, throw, or

even wind up to throw a bat at him or anyone else. These

facts do not warrant deadly force under our precedent, as

long before Ponder shot Najera “[i]t was specifically

established that where an officer had reason to believe that a

suspect was only holding a knife, not a gun, and the suspect

was not charging the officer and had made no slicing or

stabbing motions toward him, that it was unreasonable for

the officer to use deadly force against the suspect.” Walker

v. City of Orem, 451 F.3d 1139, 1160 (9th Cir. 2006).

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 13

2. Threat to Others

Virtually no evidence suggested that Najera presented

any threat to others at the time of the shooting. At that point,

Najera was even further away from the bystanders than he

was from Ponder. Because Najera did not pose an

immediate threat to bystanders, the use of deadly force was

not justified. Garner, 471 U.S. at 11; Glenn v. Wash. Cnty.,

673 F.3d 864, 878–80 (9th Cir. 2011) (reversing grant of

summary judgment to officers on Fourth Amendment claim

after they used deadly force against a suspect who was not

in close proximity to bystanders at the time of shooting).

It is also clearly established law that a volatile situation

does not, on its own, warrant deadly force. In George v.

Morris, 736 F.3d 829 (9th Cir. 2013), we held that officers

used excessive force when they shot a domestic violence

suspect “without objective provocation” when the suspect’s

“gun [was] trained on the ground” even though the situation

was “potentially volatile and dangerous.” Id. at 832–33,

838–39. The unpredictability and danger posed by Najera,

who held a bat-like object, was certainly no greater than that

posed by the suspect with a gun in Morris, thus clearly

establishing that Ponder’s actions violated Najera’s rights.

C. Reasonable Mistake

Ponder attempts to narrow the basis for his Rule 50(b)

motion by arguing that the motion turned on the question of

“reasonable mistake” that did not reach the jury. Ponder

posits that, even if he was mistaken as to the level of threat

that Najera posed, that mistake was reasonable.

But the jury was explicitly instructed to evaluate the

reasonableness of Ponder’s use of force, including the

reasonableness of a potential mistake, and the jury

14 ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE

definitively ruled against Ponder. The jury was told to

evaluate the reasonableness of Ponder’s use of force “from

the perspective of a reasonable officer on the scene and not

with the 20/20 vision of hindsight.” It was instructed to

consider “all of the circumstances known to the officer on

the scene, including,” inter alia: whether “Najera posed any

threat to the officers or others,” or “posed an immediate

threat of death or of serious bodily injury to the officer or to

others”; “whether [] Najera was actively resisting arrest or

attempting to evade arrest by flight”; “the amount of time the

officer had to determine the type and amount of force that

reasonably appeared necessary and any changing

circumstances during that period”; “the type and amount of

force used”; and “whether a reasonable officer would have

or should have accurately perceived a mistaken fact.” The

jury considered Ponder’s argument that any mistake was

reasonable and roundly rejected it in delivering the verdict.

Further, as discussed supra, Ponder’s own statement the

night of the shooting was that he “fired three times, and []

moved to the left” and that Najera “kind of turned, like, away

from me momentarily.” Ponder’s police practices expert

testified Ponder paused after the first volley of shots because

he perceived Najera possibly turning away from him and

thus believed he had ceased to be a threat. These statements,

especially coupled with the two fatal shots to the back, are

enough for the jury to have concluded that Ponder was not

“reasonably mistaken” as to the level of threat Najera posed,

but rather properly assessed that he was not an immediate

threat—and fired anyway.

We recognize that law enforcement must make quick

decisions regarding threats and act in volatile situations. But

they are also trained to make ongoing threat assessments and

are on clear notice that deadly force is not permitted where

ESTATE OF NAJERA-AGUIRRE V. CITY OF RIVERSIDE 15

there is no immediate threat. Foundational cases like Garner

have put this principle beyond debate, and our holdings in

Hayes, Walker, and Morris provide even more texture.

Shooting Najera in the back when he posed no immediate

threat does not entitle Ponder to qualified immunity.

We affirm the district court’s denial of qualified

immunity to Ponder.

AFFIRMED.