The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IEHAB HAWATMEH, as No. 24-6146
Administrator of the Estate of Joseph
D.C. No.
Hawatmeh; YASMEEN
2:22-cv-01786-
HAWATMEH; LAYTH
APG-DJA
HAWATMEH,
Plaintiffs - Appellants,
OPINION
v.
CITY OF HENDERSON;
HENDERSON POLICE
DEPARTMENT; THOMAS
CHIELLO; JAIME SMITH, FKA
Jaime Clear; SETH VAN
BEVEREN; BRETT ANDERSON;
JESSE HEHN; JESSE LUJAN;
JAMES PENDLETON; LUIS
AMEZCUA; PHILIP DUFFY; SETH
PRICE; THEDRICK ANDRES,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, Chief District Judge, Presiding
2 HAWATMEH V. CITYOF HENDERSON
Argued and Submitted October 8, 2025
Las Vegas, Nevada
Filed November 7, 2025
Before: Mark J. Bennett, Gabriel P. Sanchez, and Holly A.
Thomas, Circuit Judges.
Opinion by Judge H.A. Thomas
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of a 42
U.S.C. § 1983 action against the City of Henderson, its
police department, and several police officers arising from
the shooting death of 12-year-old Joseph Hawatmeh, who
officers attempted to rescue from a man who had killed
Joseph’s mother and housekeeper, gravely wounded his
sister, and was holding him hostage.
The panel held that the officers did not violate Joseph’s
Fourth Amendment right to be free of excessive force. The
officers did not seize Joseph for Fourth Amendment
purposes when they employed control tactics or force in an
attempt to rescue him from an active hostage
situation. Moreover, even had plaintiffs plausibly alleged a
constitutional violation, the officers would be entitled to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HAWATMEH V. CITYOF HENDERSON 3
qualified immunity because Joseph’s right to be free of
excessive force during an active hostage situation was not
clearly established at the time of the violation.
The panel held that officers did not violate Iehab
Hawatmeh’s Fourteenth Amendment liberty interest in the
companionship and society of his son. The officers were
forced to make “a split-second decision” in a rapidly
evolving situation, and therefore, the deliberate indifference
standard did not apply. And no factual allegation indicated
that the officers had anything but legitimate law enforcement
objectives in mind when they fired their guns. Moreover,
even if the deliberate indifference standard applied, officers
were entitled to qualified immunity because plaintiffs failed
to plausibly allege that Iehab’s Fourteenth Amendment right
was clearly established at the time of the alleged violation.
Plaintiffs’ Monell claim failed in the absence of any
plausible allegation of a constitutional violation.
COUNSEL
Roger P. Croteau (argued) and Timothy E. Rhoda, Roger P.
Croteau & Associates Ltd., Las Vegas, California, for
Plaintiffs-Appellants.
Craig R. Anderson (argued) and Harry Arnold, Marquis
Aurbach, Las Vegas, Nevada, for Defendants-Appellees.
4 HAWATMEH V. CITYOF HENDERSON
OPINION
H.A. THOMAS, Circuit Judge:
On November 3, 2020, 12-year-old Joseph Hawatmeh
was tragically shot and killed by Henderson Police
Department (“HPD”) officers as they attempted to rescue
him from the man who had killed his mother and his
housekeeper, gravely wounded his sister, and who then held
him hostage. Plaintiff Iehab Hawatmeh is Joseph’s father.
Plaintiffs Yasmeen and Layth Hawatmeh are Joseph’s
siblings. 1 After his death, they—along with Joseph’s
estate—sued the City of Henderson, HPD, and several HPD
officers, alleging a Fourth Amendment excessive force claim
under 42 U.S.C. § 1983; a Fourteenth Amendment
substantive due process claim under 42 U.S.C. § 1983; a
failure to train claim pursuant to Monell v. Department of
Social Services, 436 U.S. 658 (1978); and several state law
claims. The district court dismissed Plaintiffs’ federal claims
with prejudice. We affirm.
I.
A.
Dianne Hawatmeh and her daughter Yasmeen had just
returned to their apartment complex when their neighbor,
Jason Neo Bourne, confronted them in the parking lot about
a noise complaint Dianne had made about him. 2 The
1
For clarity, all members of the Hawatmeh family are referred to by their
first names in this opinion, while all other individuals are referred to by
their last names. No disrespect is meant by these designations.
2
“At the motion to dismiss stage, we must accept all allegations of
material fact as true and construe them in the light most favorable to the
HAWATMEH V. CITYOF HENDERSON 5
conversation ended without incident, and Bourne walked
away. But as Dianne and Yasmeen continued to their
apartment, Bourne came running after them, causing them to
rush to the apartment in fear. Joseph was already inside the
apartment. Two housekeepers, Veronica Muniz and a second
woman, were also inside the apartment. Dianne and
Yasmeen entered the apartment and closed the door but were
unable to latch the deadbolt because Bourne was trying to
force his way inside. Bourne ultimately kicked the door
open, shot Dianne and Muniz to death, and shot and severely
wounded Yasmeen.
Bourne then turned to Joseph. He demanded that Joseph
tell him the location of the keys to the family’s Cadillac
Escalade. When neither Joseph nor Yasmeen—then lying on
the floor, bleeding—could tell him where the keys were,
Bourne again shot Yasmeen multiple times.
At 10:58 a.m., while still inside the Hawatmeh family’s
apartment, Joseph called 911. Joseph told the HPD operator
that “somebody’s in [his] apartment with a gun” and gave
the operator the name of the apartment complex. During that
phone call, Bourne fired his gun twice in the background and
told Joseph that he “ha[d] 10 seconds to find the keys.”
Bourne eventually found the car keys, took Joseph as a
hostage, and left the apartment. He dragged Joseph to the
Escalade, forced him into the front passenger seat, and sat in
the driver’s seat.
At or around the same time, HPD received phone calls
from Yasmeen, the second housekeeper, and a neighbor.
During Yasmeen’s 911 call, the HPD dispatcher heard what
nonmoving party . . . .” Salas v. United States, 116 F.4th 830, 845 (9th
Cir. 2024).
6 HAWATMEH V. CITYOF HENDERSON
might have been crying in the background for a few seconds,
but the line went quiet shortly thereafter. During the second
housekeeper’s 911 call, the housekeeper explained that
Bourne had kicked in the door to the apartment, and she
described him as carrying a gun. During the neighbor’s 911
call, the neighbor told the HPD dispatcher that Dianne was
bleeding in the doorway of the Hawatmeh apartment and that
another neighbor had seen Bourne leave the apartment with
a child.
At 11:07 a.m., Bourne called 911 using Joseph’s cell
phone. Bourne introduced himself as Jason, although he said
that he “sometimes think[s] [his] name is XM Satellite
Radio” and that he was “Gotham’s reckoning, also known as
Bane.” Bourne explained that he was “from the future.” He
stated that he and Joseph were “doing a movie,” and he
introduced his “friend” Joseph to the HPD dispatcher. 3
Bourne informed the dispatcher that he wanted a helicopter,
that he had a gun, and that he had taken a hostage.
The HPD dispatcher asked Bourne for his address.
Bourne then turned to Joseph for the address and told him,
I’m not going to hurt you as long as you don’t
get you[r] address wrong. If you get your
address wrong, I have to kill you. You keep
looking over your shoulder. You’re making
me nervous. Is there a cop over there? . . . If
3
Bourne, Joseph, and the HPD dispatcher referred to Joseph as “Jordan”
throughout the call.
HAWATMEH V. CITYOF HENDERSON 7
you look over that way again, I might have to
hurt you.
The dispatcher asked to speak with Joseph, at which point
Joseph got on the phone and answered a few of the
dispatcher’s questions. Bourne told the dispatcher not to ask
Joseph any more questions but also instructed Joseph to
answer the dispatcher’s questions. Bourne then demanded a
“helicopter here in 10 minutes or someone dies.”
After Joseph and Bourne gave the HPD dispatcher the
name of the apartment complex, the dispatcher asked for the
apartment number. Bourne stated, “13-301 is the guy I
killed, if that helps you. So, maybe I should kill this guy.”
Bourne told Joseph to “do your fake cry,” and Joseph said,
“Please don’t kill me. Please don’t kill me. No. He’s got a
gun.” Bourne replied,
Oh. Okay. Okay. You gotta act for real
though, dude. This is Vegas. This is the land
of, like, is this a real gun?
...
Oh, my god. What a rush.
...
I thought killing a baby would be hard.
...
So, you guys got 10 minutes to bring my
helicopter now or I’ll (incomprehensible.).
When Joseph told the HPD dispatcher that they “have four
minutes now to get the helicopter,” the dispatcher told
Joseph and Bourne that HPD would need more time to obtain
a helicopter. Bourne then replied, “Well, I’m gonna shoot I
have to, but—.” Bourne explained that he and Joseph “gotta
8 HAWATMEH V. CITYOF HENDERSON
rehearse,” muted the phone, unmuted the phone, and stated,
“[H]old on. Let—let me get my scripts. Hold on. And it says
.40 caliber Smith and Wesson armor-piercing rounds—.”
The call between Bourne and the HPD dispatcher lasted
roughly 17 minutes. Much of the call was incomprehensible.
Bourne warned the dispatcher that “[t]he only thing I want
to hear from you is . . . one-word responses from here on
out” or else “the kid dies.” Bourne stated, “[T]ake control of
your city, and Jordan will not die[.]” Bourne told the HPD
dispatcher, “I’m sorry to say, I already—stop fucking—you
say one more word, I’mma shoot him in the leg. I swear to
god.” Joseph repeatedly screamed during the call and asked
Bourne not to hurt or shoot him. Bourne told the HPD
dispatcher that he had “nano explosives inside of [him].”
Bourne also stated that “if any American person dies . . . in
the next 24 hours . . . I shoot him like a game.” Bourne said
that “someone’s getting fucking shot” and “I already shot,
like, a baby, bro.” Bourne asked Joseph, “Who’s the finest
girl in the world? And if you get it wrong, I have to shoot
you.” Joseph repeatedly asked Bourne if Bourne could stop
pointing the gun at him. Bourne responded, “Nope. Sorry.
These are my rules. I don’t go by rules.” At least twice
during the phone call, Bourne indicated that he had not taken
his medications. He requested that HPD bring him various
celebrities. He threatened Joseph with sexual assault.
In response to multiple 911 calls, HPD officers soon
arrived at the apartment complex. The Escalade was parked
in front of a wall, and a police officer stationed himself on
the opposite side of that wall. At least 16 other HPD officers
circled the vehicle, ensuring that the vehicle could not leave
the scene. Police vehicles also blocked the parking lot road
and the entrance to the apartment complex, preventing all
access in or out of the parking lot. Having received
HAWATMEH V. CITYOF HENDERSON 9
information that a suspect was inside a vehicle threatening
to kill a 12-year-old child, Special Weapons and Tactics
(SWAT) personnel were activated and began traveling to the
address. Bourne did not move the Escalade from the parking
lot at any point and did not attempt to flee.
The HPD dispatcher told Sergeant Jaime Smith that
Joseph “is saying that this man will kill him.” Sergeant
Smith shouted at the Escalade, “Let me see your hands, both
of you. Put your hands up, exit the vehicle.” Sergeant Smith
announced over the radio that she saw a gun, and that “the
child has his hands up.” Sergeant Smith yelled, “Sir, step out
of the vehicle, let’s just talk. Let me see your hands sir.”
Bourne muted and unmuted the phone again. He told
Joseph, “I have to shoot you . . . .” Bourne and Joseph
continued speaking:
Bourne: Okay. I need you to open your
mouth.
Joseph: No, sir.
Bourne: Is this gun loaded?
Joseph: Yeah.
Bourne: Do you think it is or should we test
it out?
Joseph: No. We shouldn’t test it out.
Bourne told Joseph that “[t]his gun’s loaded,” asked Joseph
if he wanted to die, and announced that he was going to
“shoot [Joseph] in the brain.”
At 11:23:42 a.m., a female voice over the police radio
stated, “[H]e’s saying open your mouth to the 12-year-old.”
Sergeant Smith asked the HPD dispatcher to talk to Bourne
10 HAWATMEH V. CITYOF HENDERSON
and see if he would roll down the window, but the dispatcher
did not communicate that request to Bourne.
At 11:24:31 a.m., Sergeant Smith told Officer James
Pendleton to “[t]ake the shot if you have it.”
At 11:24:36 a.m., Officer Pendleton fired a single
gunshot that killed Bourne.
Two seconds later, at 11:24:38 a.m., the other HPD
officers fired at the vehicle, during which Sergeant Smith
repeatedly yelled “[s]top” and “ceasefire.” It was this second
round of shots that killed Joseph.
B.
In October 2022, Plaintiffs filed a federal complaint,
alleging several constitutional violations under 42 U.S.C.
§ 1983 and several state law claims. In September 2023, the
district court dismissed Plaintiffs’ federal claims with leave
to amend. In January 2024, Plaintiffs filed a First Amended
Complaint, alleging a Fourth Amendment excessive force
claim under 42 U.S.C. § 1983; a Fourteenth Amendment
substantive due process claim under 42 U.S.C. § 1983; a
Monell claim based on a failure-to-train theory; and several
state law claims.
In September 2024, the district court dismissed
Plaintiffs’ federal claims with prejudice and dismissed the
state law claims without prejudice to reasserting them in
state court. As to the Fourth Amendment excessive force
claim, the district court determined that Plaintiffs had not
plausibly alleged a constitutional violation because: (1) the
HPD officers did not seize Joseph at any point, as he was
Bourne’s hostage; (2) Sergeant Smith did not seize Joseph
when she ordered him to put his hands up; and (3) the HPD
officers did not seize Joseph when they fired at Bourne and
HAWATMEH V. CITYOF HENDERSON 11
unintentionally shot Joseph. The district court also “rejected
[Plaintiffs’] theory that Joseph went from being a hostage to
a passenger in the two seconds between Pendleton’s initial
shot and the volley of shots from the other officers.”
Alternatively, the district court determined that even if
Joseph were seized, “[t]he unsettled nature of the law on
seizures in hostage-taking cases . . . demonstrates that the
law is not so clearly established that every reasonable
official in these officers’ shoes would know their conduct
violated the Fourth Amendment.”
As to the Fourteenth Amendment substantive due
process claim, the district court determined that:
(1) Plaintiffs had not plausibly alleged a constitutional
violation because no facts suggest that the HPD officers
acted with an intent to harm Joseph unrelated to legitimate
law enforcement objectives; and (2) even if the HPD officers
acted with deliberate indifference, they are entitled to
qualified immunity. The district court dismissed Plaintiffs’
Monell claim because Plaintiffs had failed to plausibly allege
any constitutional violation. Plaintiffs timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s dismissal of a complaint for failure
to state a claim, a district court’s decision on qualified
immunity, and a district court’s decision on Monell liability.
Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th
Cir. 2021).
III.
“The doctrine of qualified immunity shields officers
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which
12 HAWATMEH V. CITYOF HENDERSON
a reasonable person would have known.’” City of Tahlequah
v. Bond, 595 U.S. 9, 12 (2021) (per curiam) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “To
determine whether qualified immunity applies in a given
case, we must determine: (1) whether a public official has
violated a plaintiff’s constitutionally protected right; and
(2) whether the particular right that the official has violated
was clearly established at the time of the violation.” Shafer
v. County of Santa Barbara, 868 F.3d 1110, 1115 (9th Cir.
2017). “[B]oth prongs must be satisfied for a plaintiff to
overcome a qualified immunity defense.” Id.
A.
1.
We first consider whether the HPD officers violated
Joseph’s Fourth Amendment right to be free of excessive
force. “Excessive force claims require (1) a seizure and
(2) excessive force.” Cuevas v. City of Tulare, 107 F.4th
894, 898 (9th Cir. 2024). A police officer can seize a person
either through a show of authority that in some way restrains
the person’s liberty or by using force to apprehend the
person. Id. at 899. Plaintiffs argue that they have plausibly
alleged Joseph was seized: (1) when the HPD officers
surrounded the Escalade and blocked the parking lot exits
with their vehicles; (2) when Sergeant Smith ordered Bourne
and Joseph to raise their hands; and (3) when the HPD
officers shot Joseph. For the reasons explained below, we
conclude that officers do not seize an individual for Fourth
Amendment purposes when they employ control tactics or
force in an attempt to rescue him from an active hostage
situation. Under the circumstances of this case, there
therefore was no seizure.
HAWATMEH V. CITYOF HENDERSON 13
The Supreme Court has explained that the hallmark of a
seizure is “actual submission.” Brendlin v. California, 551
U.S. 249, 254 (2007). “[A] seizure by acquisition of control
involves either voluntary submission to a show of authority
or the termination of freedom of movement,” and requires
that “‘a person be stopped by the very instrumentality set in
motion or put in place in order to achieve that result.’”
Torres v. Madrid, 592 U.S. 306, 322 (2021) (quoting Brower
v. County of Inyo, 489 U.S. 593, 599 (1989)).
Plaintiffs analogize the events of this case to the context
of a traffic stop. During a traffic stop, passengers are seized
along with the driver even if they are not the target of the
stop because a “passenger will expect to be subject to some
scrutiny, and his attempt to leave the scene would be so
obviously likely to prompt an objection from the officer that
no passenger would feel free to leave in the first place.”
Brendlin, 551 U.S. at 257. The question during such a stop
is “whether a reasonable person in [the passenger’s] position
when the car stopped would have believed himself free to
‘terminate the encounter’ between the police and himself.”
Id. at 256–57 (quoting Florida v. Bostick, 501 U.S. 429, 436
(1991)).
Plaintiffs argue that, as during a traffic stop, Joseph
would not have felt free to leave without the permission of
the HPD officers. They point out that the officers had their
weapons drawn and had instructed both Joseph and Bourne
to put their hands up and exit the vehicle. They argue that
Joseph would not have felt at liberty to disobey these
instructions. Missing in this argument, however, is a “view
of all of the circumstances surrounding the incident.” Id. at
255 (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980) (principal opinion)). There is no doubt that a
reasonable person in Joseph’s position would not have
14 HAWATMEH V. CITYOF HENDERSON
believed himself free to terminate the encounter. But this
was due to the hostage-taker, Bourne’s, actions, not the HPD
officers’ conduct.
Unlike the passenger of a car during a traffic stop, who
can submit to police officers by obeying their instructions or
otherwise indicating assent to their control, see id. at 262, a
hostage under a hostage-taker’s active control has no
effective way to signal submission to the police. Here,
Joseph was never able to submit to the HPD officers.
Although Joseph raised his hands in response to Sergeant
Smith’s commands, and officers had their guns drawn at the
vehicle, Bourne was at that moment still continuing to point
a gun at Joseph and threatening to kill him. Joseph’s freedom
of movement was constrained not by the HPD officers’
actions outside the Escalade, but by Bourne holding him
hostage. We decline to establish a rule that, for Fourth
Amendment purposes, a hostage may at once demonstrate
submission to police and remain under the control of a
hostage-taker. Such a rule does not fit with Brendlin’s
requirement of “actual submission” to law enforcement. Id.
at 254.
Plaintiffs’ arguments also overlook the reality that the
entire sequence of events surrounding Joseph’s death was
initiated by Bourne and not by the HPD officers. See Torres,
592 U.S. at 322. The facts Plaintiffs reference to establish a
seizure—that officers had encircled the vehicle, blocked the
roads leading into the parking lot, and pointed their guns at
Bourne and Joseph—came about precisely because Bourne
had taken Joseph hostage. Bourne operated as the
“instrumentality” that set the events into motion. See id.
(quoting Brower, 489 U.S. at 599).
HAWATMEH V. CITYOF HENDERSON 15
Joseph was also not seized by the HPD officers when
they used force to shoot him. While “an officer seizes a
person when he uses force to apprehend her,” neither
“[a]ccidental force” nor “force intentionally applied for
some other purpose” constitutes a seizure. Id. at 309, 317. A
“seizure requires the use of force with intent to restrain.” Id.
at 317 (emphasis in original). That intent was lacking here.
Plaintiffs emphasize that the HPD officers intended to
shoot the Escalade while knowing that Joseph was inside the
vehicle. It is true that, in Villanueva v. California, we
determined that because a passenger’s “freedom of
movement was terminated when the Officers intentionally
shot at the [vehicle] in which he was a passenger to stop its
movement, [the passenger] was seized within the meaning
of the Fourth Amendment.” 986 F.3d 1158, 1168 (9th Cir.
2021). We explained that “[i]t matters not whether the
Officers intended to shoot [the passenger] or whether they
even knew he was present as a passenger.” Id. Our holding
in Villanueva, however, distinguished several out-of-circuit
decisions that “address the very different situation where the
passenger was also a hostage and the officers were trying to
rescue the passenger, not arrest him.” Id. at 1167. 4 Here, the
HPD officers were attempting to rescue Joseph from a
hostage situation at the time of the shooting. Far from
“objectively manifest[ing] an intent to restrain” him as
Torres requires, 592 U.S. at 317, they were attempting to
save his life. Cf. Villanueva, 986 F.3d at 1165–69.
The conclusions reached above hold true even
considering that Bourne was shot and incapacitated two
4
See, e.g., Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir.
2000); Medeiros v. O’Connell, 150 F.3d 164, 168 (2d Cir. 1998);
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990).
16 HAWATMEH V. CITYOF HENDERSON
seconds before the volley of shots that killed Joseph. We do
not go so far as to conclude that a separate causal chain of
events could not give rise to a Fourth Amendment claim after
a hostage-taker has been incapacitated. But we do conclude
that, as a matter of law, a two-second window is insufficient
to transform a situation from one initiated and controlled by
a hostage-taker to one initiated and controlled by police.
2.
Even had Plaintiffs plausibly alleged a constitutional
violation, the HPD officers would be entitled to qualified
immunity because Joseph’s right to be free of excessive
force during an active hostage situation was not clearly
established at the time of the violation.
For a right to be clearly established, it must be
“sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)
(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
“This demanding standard protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). There
does not need to be “a case directly on point, but existing
precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 577 U.S. at 12 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also
Wesby, 583 U.S. at 63 (“The precedent must be clear enough
that every reasonable official would interpret it to establish
the particular rule the plaintiff seeks to apply.”). The plaintiff
“bears the burden of showing that the rights allegedly
violated were ‘clearly established.’” Shafer, 868 F.3d at
HAWATMEH V. CITYOF HENDERSON 17
1118 (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th
Cir. 2000)).
Plaintiffs argue that the HPD officers are not entitled to
qualified immunity because “it is well established that the
police may not simply shoot innocent individuals.” But this
is too general a proposition. The Supreme Court has
“repeatedly stressed that courts must not ‘define clearly
established law at a high level of generality, since doing so
avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced.’” Wesby, 583 U.S. at 63–64 (quoting Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014)). “[T]he clearly
established law must be ‘particularized’ to the facts of the
case.” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Here, Plaintiffs have not cited any decision addressing
the right to be free of excessive force in a hostage situation,
much less establishing that it is possible for police to conduct
a seizure in a two-second window between the time a
hostage-taker is incapacitated and the time of the hostage’s
own death. Nor have we identified any analogous cases.
Plaintiffs have therefore failed to plausibly allege that
Joseph’s Fourth Amendment right to be free of excessive
force was clearly established at the time of the alleged
violation.
B.
1.
We next consider whether the HPD officers violated
Iehab’s “Fourteenth Amendment liberty interest in the
companionship and society” of his son. Wilkinson v. Torres,
18 HAWATMEH V. CITYOF HENDERSON
610 F.3d 546, 554 (9th Cir. 2010). We conclude that they did
not.
We have recognized that “[o]fficial conduct that ‘shocks
the conscience’ in depriving parents of [this Fourteenth
Amendment liberty] interest is cognizable as a violation of
due process.” Id. (quoting Porter v. Osborn, 546 F.3d 1131,
1137 (9th Cir. 2008)). “Where actual deliberation is
practical, then an officer’s ‘deliberate indifference’ may
suffice to shock the conscience.” Id. (quoting Porter, 546
F.3d at 1137). But where “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.
Plaintiffs argue that the deliberate indifference test
should apply because the HPD officers had enough time to
deliberate before shooting Bourne and Joseph. But
Plaintiffs’ factual allegations demonstrate that the hostage
situation was “in constant flux.” Porter, 546 F.3d at 1140.
By the time Bourne and Joseph were inside the Escalade,
Bourne had already forced his way into an apartment and
shot three people, one of whom, like Joseph, was just a child.
While on the phone with the HPD dispatcher, Bourne
repeatedly threatened to kill Joseph and indicated more than
once that he had not taken his medications. Sergeant Smith
saw Bourne holding a gun. The HPD officers were told that
Bourne was “saying that [he] will kill” Joseph, who they
knew to be a 12-year-old child. That the officers shot Bourne
and Joseph less than a minute after hearing that Bourne told
Joseph to “open your mouth” underscores that they were
forced to make “a split-second decision” in a rapidly
evolving situation. See Wilkinson, 610 F.3d at 554. And no
factual allegation indicates that the officers had anything but
HAWATMEH V. CITYOF HENDERSON 19
legitimate law enforcement objectives in mind when they
fired their guns. Plaintiffs do not argue that the officers
intended to do Joseph harm.
Again, our conclusion does not foreclose the possibility
that other hostage situations may give rise to Fourteenth
Amendment liberty concerns if police conduct manifests the
type of “shocking” deliberate indifference that is
constitutionally actionable. See Porter, 546 F.3d at 1139
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 853
(1998)). But there was no such egregious conduct here and
hence there was no Fourteenth Amendment violation.
2.
Even had the HPD officers acted with deliberate
indifference, they would be entitled to qualified immunity.
Plaintiffs argue that the district court’s qualified
immunity determination was “erroneous” because the HPD
officers “shot Joseph at a time when he was no longer a
hostage and when he was simply an unarmed citizen who
presented no danger whatsoever to either them or the
public.” But Plaintiffs cite no case law in support of their
argument. And, as discussed above, there are in fact no cases
addressing hostage situations like that presented in this case.
As such, Plaintiffs have failed to plausibly allege that Iehab’s
Fourteenth Amendment right was clearly established at the
time of the alleged violation.
IV.
Plaintiffs’ Monell claim fails in the absence of any
plausible allegation of a constitutional violation. See City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)
(“If a person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the
20 HAWATMEH V. CITYOF HENDERSON
departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.”);
see also Benavidez, 993 F.3d at 1153–54 (requiring a
plaintiff to “include sufficient facts to support a reasonable
inference . . . of a constitutional violation” to support a
failure-to-train Monell theory).
V.
For the reasons discussed above, Plaintiffs have failed to
plausibly allege any violation of their constitutional rights by
the HPD officers or that their rights were clearly established
at the time of the alleged violations. The district court’s
judgment is therefore AFFIRMED.