The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. K. B., a minor, by and through his No. 24-3667
Guardian Ad Litem Nakisha Mitchell; D.C. No.
NAKISHA MITCHELL, Individually and 2:23-cv-01067-KK-JDE
as Administrator of the Estate of Jerome
Rory Barber,
MEMORANDUM*
Plaintiffs - Appellants,
v.
CITY OF AZUSA, a public entity;
MICHAEL BERTELSON, a public
employee; DAVID AGUILAR, a public
employee previously known as Doe 1;
RICHARD MARTINEZ, a public employee
previously known as Doe 2; MICHAEL
DEANDA, a public employee previously
known as Doe 3; THOMAS AVILA,
Lieutenant, previously known as Doe 4;
DOES, 5-10, Inclusive,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Kenly Kiya Kato, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted July 18, 2025**
Pasadena, California
Before: WARDLAW, MENDOZA, and JOHNSTONE, Circuit Judges.
E.K.B. and Nakisha Mitchell appeal the district court’s grant of summary
judgment on their claims arising under 42 U.S.C. § 1983 in favor of police officers
and the City of Azusa (“City”), which concern the death of their father and partner
Jerome Barber. We have jurisdiction under 28 U.S.C. § 1291. We review a district
court’s order granting summary judgment de novo. Frlekin v. Apple, Inc., 979 F.3d
639, 643 (9th Cir. 2020). We affirm.
1. “A claim that a law enforcement officer used excessive force during a
stop or arrest is ‘analyzed under the Fourth Amendment.’” Barnes v. Felix, 145 S.
Ct. 1353, 1357 (2025) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
“Unless the officer ‘violate[d] clearly established statutory or constitutional rights
of which a reasonable person would have known,’ she is entitled to qualified
immunity.” Hernandez v. City of Los Angeles, 139 F.4th 790, 802 (9th Cir. 2025)
(en banc) (alteration in original) (quoting City of Escondido v. Emmons, 586 U.S.
38, 42 (2019) (per curiam)).
It is undisputed that Barber was armed with a knife, moving rapidly toward
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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the officers, and the officers attempted to use less-than-lethal force before Officer
Aguilar fired his gun. See id. at 799. Although special considerations arise where
law enforcement is confronted with mentally unstable individuals, see Deorle v.
Rutherford, 272 F.3d 1272, 1280–81 (9th Cir. 2001), those considerations wane
when the circumstances are dangerous and urgent. Hernandez, 139 F.4th at 799–
800. Plaintiffs offer no authority that would place the officers on notice that their
actions with regard to Barber would violate his constitutional rights; therefore, the
officers did not violate clearly established law and are entitled to qualified immunity.
See id. at 802.
2. “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.” Hardwick v. County of Orange, 980
F.3d 733, 740 (9th Cir. 2020) (quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th
Cir. 2000)). “Official conduct that ‘shocks the conscience’ in depriving” individuals
“of that interest is cognizable as a violation of due process.” Wilkinson v. Torres,
610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1137
(9th Cir. 2008)). Where an officer had opportunity to deliberate before undertaking
the conduct at issue, “deliberate indifference” is the standard; but if the conduct
resulted from a snap judgment, an officer is liable only where they acted with a
“purpose to harm.” Id.
The undisputed record indicates that officers exhibited neither deliberate
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indifference nor a purpose to harm Barber. The officers attempted to reason with
Barber, were attentive to the risk of him harming others, deployed less-than-lethal
means, and used lethal force only at the last moment. Plaintiffs offer no
contravening facts or authority preventing the conclusion that the officers are
entitled to judgment as a matter of law on this record.
3. Third parties may not be held liable for a violation of the constitution
merely because they were present for it, but may “be liable for the constitutional
violations of others under Section 1983 if they are a supervisor, and ‘(1) [they were]
personally involved in the constitutional deprivation, or (2) a sufficient causal
connection exists between the supervisor’s wrongful conduct and the constitutional
violation.’” Olson v. County of Grant, 127 F.4th 1193, 1197 (9th Cir. 2025)
(alteration in original) (quoting Felarca v. Birgeneau, 891 F.3d 809, 819–820 (9th
Cir. 2018) (internal quotation marks omitted)).
To the extent that Plaintiffs attempt to parse out “supervisory liability” claims
against Martinez and Avila for their “tactical decisions” leading up to the shooting—
i.e., deciding not to call mental health providers to the scene—they must demonstrate
that Martinez and Avila “knew or reasonably should have known” that those
decisions would “inflict a constitutional injury.” Felarca, 891 F.3d at 820. Plaintiffs
offer no evidence in support of this notion; Avila testified that he did not
immediately call mental health providers because the officers were confronted with
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an immediate problem, and the situation came to a close within minutes. Therefore,
there is no record support indicating that Martinez and Avila’s “tactical decisions”
caused Barber’s death, and all available evidence points to the contrary.
4. To establish municipal liability for a § 1983 violation, “a plaintiff must
show that a ‘policy or custom’ led to the plaintiff’s injury.” Castro v. County of Los
Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978)). A Monell claim has four elements: “(1) that
the plaintiff possessed a constitutional right of which she was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to deliberate indifference to
the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind
the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th
Cir. 2011) (cleaned up).
Plaintiffs argue that the City 1 failed to train its officers and failed to have
mental health crisis response personnel available on weekends, and that each failure
caused Barber’s death. But there is no evidence that the City’s lack of staffing a
mental health crisis specialist on weekends caused Barber’s death, because Avila
1
Plaintiffs suggest that Defendant Bertelson is liable under this theory as well.
Although Monell claims are circumscribed to entity defendants, we have observed
that a Monell “[f]ailure to train” theory is “[s]imilar[]” to a “failure to supervise”
theory. Dougherty, 654 F.3d at 900. To whatever extent a supervisory liability claim
against Bertelson is preserved in the opening brief, we hold that it fails for the same
reasons as Plaintiffs’ Monell claim against the City.
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testified that he would not have called such a specialist to the scene if one had been
available.
AFFIRMED.
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