Fuhr v. City of Seattle

FUHR V. CITY OF SEATTLE 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON FUHR, individually, and as No. 24-5618

Executor of estate of Shaun Fuhr;

D.C. No.

DAVONTA TANIYA FUHR,

2:23-cv-00600-

BJR

Plaintiffs - Appellants,

v. OPINION

CITY OF SEATTLE; NOAH ZECH,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted November 19, 2025

Seattle, Washington

Filed May 7, 2026

Before: M. Margaret McKeown, William A. Fletcher, and

Roopali H. Desai, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge W. Fletcher

2 FUHR V. CITY OF SEATTLE

SUMMARY*

Qualified Immunity

The panel affirmed the district court’s summary

judgment in favor of Noah Zech, a Seattle Police Department

officer, in a 42 U.S.C. § 1983 action alleging that Zech used

excessive force when he shot and killed Shaun Fuhr, who

was fleeing police while holding his infant daughter.

Fuhr threatened the mother of his infant daughter, fired

his handgun in a public park, and then grabbed his daughter

and fled on foot. He dodged authorities for over thirty

minutes, and the search grew to encompass a helicopter and

Special Weapons and Tactics (“SWAT”) officers, including

Zech. Despite warnings to stop, Fuhr continued to evade the

officers while holding the child. Eventually, Zech and

another SWAT officer encountered Fuhr in a residential

alley. As Fuhr appeared from behind a bush and proceeded

toward the officers with the baby in his arms, Zech fired,

killing Fuhr.

The panel agreed with the district court’s dismissal of the

excessive force claim on qualified immunity grounds. The

panel did not decide whether, viewing the facts in the light

most favorable to Fuhr, a Fourth Amendment violation

occurred. Instead, the panel held only that Zech’s conduct

did not violate clearly established law. Fuhr’s continued

possession of the baby after firing a gun, fleeing from law

enforcement, and ignoring commands to stop are factors

that, when combined, distinguish this case from clearly

*

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

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

FUHR V. CITY OF SEATTLE 3

established law that sets out a constitutional violation.

Because no case clearly established a Fourth Amendment

right violated by Zech, he was entitled to qualified

immunity.

The panel further held that plaintiffs’ remaining claims

failed.

Dissenting, Judge W. Fletcher wrote that the undisputed

facts make clear that Fuhr was shot in violation of clearly

established law where he presented no immediate threat to

either the officers or his daughter at the time of the shooting.

He was walking slowly, holding his daughter tightly against

his chest, and could not have used a firearm to harm the

officers even if he had one. Moreover, Fuhr was never

warned that deadly force would be used, and the officer who

yelled for him to stop testified that he was not given adequate

time to comply before being killed.

COUNSEL

Jesse Valdez (argued), James Bible Jr., and Errin Loyal,

James Bible Law Group, Bellevue, Washington, for

Plaintiffs-Appellants.

Rebecca S. Widen (argued), Catherine E. Riedo, Carson W.

Canonie, and Alexandra Nica, Assistant City Attorneys; Ann

Davidson, Seattle City Attorney; Seattle City Attorney's

Office, Seattle, Washington; for Defendants-Appellees.

4 FUHR V. CITY OF SEATTLE

OPINION

McKEOWN, Circuit Judge:

Noah Zech, a Seattle Police Department officer, shot and

killed Shaun Fuhr with a single bullet. The scene arose out

of chaos generated by Fuhr’s dangerous actions and flight

from police. After threatening the mother of his infant

daughter and firing his handgun in a public park, Fuhr

grabbed the baby and fled on foot. For over thirty minutes,

Fuhr dodged authorities, with the search swelling to

encompass a helicopter and Special Weapons and Tactics

(“SWAT”) officers, including Zech. Despite warnings to

stop, Fuhr continued to evade the officers whilst haphazardly

dangling the baby. Eventually, Zech and another SWAT

officer encountered Fuhr in a residential alley. As Fuhr

appeared from behind a bush and proceeded toward the

officers with the baby in his arms, Zech fired.

We affirm the district court’s grant of qualified immunity

because Zech’s actions within the unique facts of this case

were not so beyond the bounds of permissible as “to make it

obvious to all reasonable government actors, in [Zech’s]

place, that what he [was] doing violate[d]” a clearly

established right. Shafer v. County of Santa Barbara, 868

F.3d 1110, 1117 (9th Cir. 2017).

Background

At 2:13 PM on April 29, 2020, the mother of Fuhr’s one-

year-old daughter (referred to here as “AT” to protect her

privacy and that of the child) called 911 from a public

playfield in south Seattle. AT told dispatch that the father of

her child—against whom she had a no-contact order and

who had beaten her up the day before—was in the park and

FUHR V. CITY OF SEATTLE 5

had just fired a gun. She had run away in fear, and he had

left the park with their one-year-old daughter. AT was

frantic and begged the dispatcher for help:

Dispatcher: Did he have any weapons?

AT: He has a gun. I know he has it, he just

shot it in the park, my ear is ringing. He just

shot it in Skyway, today, he shot it in

Skyway.

Dispatcher: Ok, ok, we have a call in—

AT: Please help! Please not fast enough,

please not fast enough, please. My baby—

Dispatcher: What’s his name?

AT: His name is Shaun Fuhr. We already

have a no-contact order, please, I want my

daughter, please! She’s only one. Please,

I’m scared for her!

Two minutes earlier, a witness had called to report a man

and woman arguing. According to the caller, a Black male

had pulled out a gun, told the woman to run, and then taken

the child. The caller said the man had placed the handgun in

the back of his pants and left the area.

Seattle Police Department officers arrived at the park by

2:17 PM. AT was upset and had visible bruises. An officer

radioed to dispatch that Fuhr had fired a gun and that he had

located a shell casing. The officer further informed dispatch

that Fuhr was “incredibly intoxicated” and had the child with

him, and that the child’s mother “believe[d] the child [was]

in grave danger.” AT emphasized to the officer that her

daughter was “in danger, like danger.”

6 FUHR V. CITY OF SEATTLE

Various police units responded, including a helicopter,

canine tracking unit, and SWAT team. Among the SWAT

officers was Officer Noah Zech, who integrated with the

canine tracking team’s search. Dispatch advised that

someone was breaking into a nearby building that was under

construction. Zech twice spotted Fuhr fleeing. During the

second sighting, Zech observed that Fuhr was “carrying a

small baby on his right side down near his hip,” gripping the

child’s torso. He recalled that the infant’s “head and arms

[were] flopping around pretty violently.” When the search

team spotted Fuhr, multiple officers repeatedly yelled at him

to stop, but he continued to flee and disappeared from view.

The pursuit ended seconds later, at 2:49 PM, when Zech

and another SWAT officer encountered Fuhr in an alley

beside a multi-story townhome. As captured on bodycam,

as Zech and the other officer ran into the alleyway, Fuhr

emerged from behind bushes and advanced down a slope

towards them. There was a wooden fence of varying height

to one side and behind Fuhr, and the officers did not know

what lay beyond the bushes from where Fuhr had emerged.

Fuhr held his daughter in front of his chest. Less than two

seconds after entering the alley and encountering Fuhr, Zech

fired a single round, which struck Fuhr in the face.

Zech testified in his deposition that, when he fired, he

believed Fuhr was still armed, although he did not see the

weapon. Zech recalled knowing Fuhr “was now cornered”

but “believ[ing] that [Fuhr] was using this child as a hostage

to gain whatever it was he was after that day.” In Zech’s

view, Fuhr presented a grave and immediate threat to the life

of the baby, who was at risk as a human shield, bargaining

chip, or shooting victim. As a SWAT officer, Zech was

trained to intervene when given a window of opportunity and

saw the baby’s life and safety as his priority. To protect the

FUHR V. CITY OF SEATTLE 7

baby, Zech’s target was Fuhr’s forehead, a precision shot

that Zech was trained to make. When Fuhr fell to the ground,

officers retrieved the baby, who was uninjured. Although

Fuhr did not have a firearm on him when he was shot, the

gun was recovered in the vicinity.

Fuhr’s estate sued Zech and the Seattle Police

Department on multiple grounds.1 The district court granted

Zech’s summary judgment motion in full.

Analysis

Reviewing de novo both the district court’s qualified

immunity decision and its grant of summary judgment,

Vazquez v. County of Kern, 949 F.3d 1153, 1159 (9th Cir.

2020), we affirm.

I. Qualified Immunity

We agree with the district court’s dismissal of the

excessive force claim on qualified immunity grounds. Our

qualified immunity inquiry has two prongs, which can be

addressed in either order. Pearson v. Callahan, 555 U.S.

223, 236 (2009). Under the first prong, the court must

consider whether the facts demonstrate violation of a

constitutional right. Id. at 232. The second prong asks

whether that right was “clearly established” at the time of

Zech’s conduct. Id.

We do not decide whether, viewing the facts in the light

most favorable to Fuhr, a Fourth Amendment violation

occurred. Instead, we hold only that Fuhr’s conduct did not

violate clearly established law. See Kisela v. Hughes, 584

1

We refer collectively to the plaintiffs as “Fuhr” and the defendants as

“Zech.”

8 FUHR V. CITY OF SEATTLE

U.S. 100, 103–04 (2018) (per curiam). Fuhr’s claim under

42 U.S.C. § 1983 thus fails.

In undertaking a qualified immunity analysis, we must

grapple with the level of generality that defines the claimed

constitutional right. The Supreme Court has emphasized

that a clearly established right “should not be defined ‘at a

high level of generality’” and must be “‘particularized’ to the

facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017)

(per curiam) (first quoting Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011); and then quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). Most recently the Supreme Court

reiterated that, in defining a clearly established right,

“[p]rinciples stated generally, such as that ‘an officer may

not use unreasonable and excessive force’ do not suffice.”

Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam)

(quoting Kisela, 584 U.S. at 105). In order “[t]o find that a

right is clearly established,” we must “‘identify a case where

an officer acting under similar circumstances was held to

have violated’ the Constitution.” Id. (citation modified)

(quoting City of Escondido v. Emmons, 586 U.S. 38, 43

(2019) (per curiam)).

Accordingly, we look for precedent that encompasses a

noncompliant, fleeing, potentially armed suspect holding a

child or potential hostage, and we find none. Fuhr’s

continued possession of the baby after firing a gun, fleeing

from law enforcement, and ignoring commands to stop are

factors that, when combined, distinguish this case from

clearly established law that sets out a constitutional

violation.

Fuhr urges us to draw upon Harris v. Roderick, 126 F.3d

1189 (9th Cir. 1997). But the rule pronounced in Harris that

“officers may not shoot to kill” includes an exception for

FUHR V. CITY OF SEATTLE 9

when “the suspect presents an immediate threat to the officer

or others.” Id. at 1201. Indeed, “[t]he ‘most important’

factor” in the excessive force context “is whether the suspect

posed an ‘immediate threat’” to officers or third parties.

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)

(quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.

2005) (en banc)).

In Harris, officers were instructed to shoot any armed

suspects on sight, without evaluating whether they posed

harm to others, and they did so without a warning to the

suspect. 126 F.3d at 1202–04. Here, not only do we have

an immediate threat to the baby, but we also have a suspect

who ignored warnings. That Zech did not give a final

warning does not bring this case within the ambit of Harris.

Additionally, there are no allegations regarding a shoot-on-

sight or similarly unconstitutional policy in this case.

Viewed “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight,”

Graham v. Connor, 490 U.S. 386, 396 (1989), it was

reasonable for Zech to believe that Fuhr posed an immediate

threat to his baby daughter based on his threatening of AT,

firing of his gun, lack of compliance with repeated warnings,

and prolonged flight throughout which he endangered his

child.

The other case relied upon by Fuhr, George v. Morris,

stresses that the Fourth Amendment does not always require

officers to hold their fire until a suspect points his weapon at

them or others. 736 F.3d 829, 838 (9th Cir. 2013); see also

Napouk v. L.V. Metro. Police Dep’t, 123 F.4th 906, 917–18

(9th Cir. 2024) (highlighting that George does not stand for

the proposition that a subject must threateningly wield a

weapon to pose an immediate threat). And the

circumstances in George could not be more different from

10 FUHR V. CITY OF SEATTLE

our case—George was a sixty-four-year-old man with

terminal cancer whose wife called 911 because she had seen

him load a pistol with ammunition. 736 F.3d at 832, 839.

When law enforcement arrived, George was on the balcony

with a walker, and his gun was aimed at the ground. Id. at

832–33. He had committed no crime, engaged in no flight,

and posed no immediate threat to officers or others. Id. at

838.

In George, we clearly established that it is a

constitutional violation to use deadly force on an armed

person when that person did not “objectively threaten[]” law

enforcement officers or others. 736 F.3d at 838. But that

right is not at issue in this case. Unlike in George, where the

husband had not taken any “objective[ly] provocati[ve]”

actions, id. at 839, Fuhr had posed a threat to others

throughout the thirty-eight-minute saga, beginning in the

park, where he fired a gun near AT and the baby, and

continuing until Zech shot him. Zech did not know that Fuhr

no longer possessed the firearm, and thirteen seconds before

the shooting, several officers encountered Fuhr and ordered

him to stop, a command he ignored. Throughout the pursuit,

Fuhr showed no intentions of complying with multiple

orders, and he continued carrying the baby with little

apparent regard for her safety. Confronted with this situation

and Fuhr’s sudden appearance coming toward the officers,

Zech made a split-second decision to fire. These facts place

this case about as far as possible from George, and we are

aware of no case clearly establishing a suspect’s right to be

free of excessive force in the face of these facts and when his

FUHR V. CITY OF SEATTLE 11

actions are “objectively threatening” to others.2 736 F.3d at

838.

Because no case clearly established a Fourth

Amendment right violated by Zech, he is entitled to qualified

immunity.

II. Other Claims

Fuhr’s other claims also fail. To begin, Fuhr does not

directly challenge the dismissal of his stand-alone Fourth

Amendment claim (Claim I), wrongful death and survival

claim (Claim III), and claim under Monell v. New York City

Dept. of Social Servs., 436 U.S. 658 (1978) (Claim VIII).

Regarding the negligence claim (Claim II), we agree with

the district court that the complaint’s allegations as well as

Fuhr’s summary judgment opposition were impermissibly

conclusory as to breach and causation. Fuhr’s claim under

the Washington Law Against Discrimination (Claim VI)

fails for lack of any evidentiary support.3 The outrage claim

(Claim V) fails because it depends on the Section 1983

2

At oral argument, Fuhr also cited to Estate of Aguirre v. County of

Riverside, 131 F.4th 702 (9th Cir. 2025). The opinion in Aguirre,

however, was not published until five years after the shooting at issue

occurred, and thus could not have put Zech on notice that his actions

would violate Fuhr’s rights. Apart from the timing issue, Aguirre’s

immediate threat analysis is inapposite here because it recognized a

clearly established right in a situation in which the threat posed “was

certainly no greater than that posed by the suspect with a gun in

[George].” Id. at 709.

3

Fuhr argues for the first time on appeal that implicit bias supports

revival of Claim VI under the Washington Law Against Discrimination.

But this argument was not raised in the district court, and we see no

reason to make an exception to our general rule barring parties from

raising an argument for the first time on appeal. See Momox-Caselis v.

Donohue, 987 F.3d 835, 841–42 (9th Cir. 2021).

12 FUHR V. CITY OF SEATTLE

claim. Finally, the respondeat superior and indemnification

claim (Claim IV) must be dismissed because all other claims

fail.

AFFIRMED

W. FLETCHER Dissent

Shaun Fuhr, a 24-year-old Black man, was shot and

killed by a Seattle police officer while holding his infant

daughter in his arms. My colleagues conclude that Fuhr

posed such a danger to his daughter when the officer shot

him that the officer is protected from suit by qualified

immunity. My colleagues describe in detail the events that

preceded the shooting, but provide only an abbreviated

account of the shooting itself. The lead-up to the shooting,

and the shooting itself, were clearly captured on several

video cameras worn by the officers.

Thirteen or fourteen seconds before the shooting,

officers standing at the edge of a residential sidewalk saw

Fuhr on the other side of a low-rise apartment building,

moving toward their right and disappearing from view

behind another building. They yelled at him to stop. The

officers ran to their right, entering an area between that

building and a wooden fence. Fuhr emerged onto a narrow,

gently sloping path ahead of them, walking slowly down the

path toward the officers. Fuhr was surrounded on all sides.

On his immediate left and behind him was a high wooden

fence. On his immediate right was a rockery with plantings.

Fuhr was holding his daughter tightly against his chest. Both

of his hands were clearly visible. His right hand held his

daughter’s back from beneath. His left hand held his

FUHR V. CITY OF SEATTLE 13

daughter’s right leg, reaching over her leg from above. The

video clearly shows that neither hand held a weapon.

Fuhr was about fifteen feet away from the officers. One

of the officers yelled, “You better stop right now.” While

that officer was speaking and before Fuhr had a chance to

comply, Officer Zech shot Fuhr in the head. About two

seconds had passed since Fuhr had come into view. He had

taken only three steps down the path. Fuhr slumped to the

ground, releasing his baby daughter, unharmed, as he did so.

The officer who yelled for Fuhr to stop testified in a sworn

deposition that Fuhr had not been given adequate time to

comply before being killed.

When he was shot, Fuhr posed no immediate threat to the

officers. Though the officers did not know it at the time,

Fuhr did not have a firearm. When he emerged on the

narrow path carrying his daughter, Officer Zech already had

his assault rifle at his shoulder, trained on the path. If Fuhr

had had a firearm and had tried to use it, he would have had

to release his daughter with one of his hands, reach for the

firearm, pull it out, and aim it at the officers. If Fuhr had

taken any of these steps, Officer Zech, whose rifle was

already pointed at Fuhr, would have had ample time to

respond. But Fuhr took none of those steps. Officer Zech

acknowledged under oath in his deposition that both of

Fuhr’s hands were visible in the footage taken by his own

body camera. A reasonable fact finder could conclude not

only that Fuhr posed no immediate threat to the officers, but

also that he was giving up and attempting to surrender as he

walked slowly toward them.

Fuhr also posed no immediate threat to his daughter. He

had been carrying her for approximately forty minutes.

When he was shot, Fuhr was holding her close to his chest

14 FUHR V. CITY OF SEATTLE

and walking slowly toward the officers. Officer Zech

testified in his deposition that when he shot Fuhr, “I knew

that he was now cornered, and I believed that he was using

this child as a hostage to gain whatever it was he was after

that day.” There is no evidence to support Officer Zech’s

belief that Fuhr was holding his daughter as a “hostage.” A

hostage is a person taken and held to extract a ransom in

return for the person’s release. Fuhr had taken his daughter

and had sought to escape with her. He sought no ransom.

To use Officer Zech’s words, “whatever [Fuhr] was after that

day” was not a ransom but rather his own daughter.

Even if Fuhr had been holding his daughter as a hostage

(which, to be clear, he was not), that would not have justified

his killing. A hostage taker has a strong interest in keeping

his hostage alive and well, in order successfully to extract a

ransom. If (counterfactually) Fuhr had been holding his

daughter as a hostage, there is nothing in the record to

suggest that she was in imminent danger because she was a

hostage.

Twenty-nine years ago in Harris v. Roderick, 126 F.3d

1189, 1201 (9th Cir. 1997), we held, “Certain principles are

clearly established”—among them, that “[l]aw enforcement

officers may not shoot to kill unless, at a minimum, the

suspect presents an immediate threat to the officer or others.”

We reaffirmed in Cruz v. City of Anaheim, 765 F.3d 1076,

1079 (9th Cir. 2014), that “deadly force is not justified”

where “the suspect no longer poses an immediate threat to

the police or the public.” See also Calonge v. City of San

Jose, 104 F.4th 39, 46 (9th Cir. 2024) (quoting Harris, 126

F.3d at 1204). We have moreover held it “clearly

established” that “whenever practicable, a warning must be

given before deadly force is employed.” Harris, 126 F.3d at

1201 (citing Tennessee v. Garner, 471 U.S. 1, 11–12

FUHR V. CITY OF SEATTLE 15

(1985)); see also Gonzalez v. City of Anaheim, 747 F.3d 789,

794 (9th Cir. 2014) (quoting Harris, 126 F.3d at 1201). With

respect to such clearly established rights, “[w]e do not

require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond

debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per

curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)).

The undisputed facts make clear that when he was shot

Fuhr presented no immediate threat to either the officers or

his daughter. To use Officer Zech’s words, he was

“cornered” and could not escape. Even if he had had a

firearm, he could not have used it to harm the officers. He

was walking slowly, holding his daughter tightly against his

chest. He was never warned that deadly force would be used,

and the officer who yelled for him to stop testified that he

was not given adequate time to comply before being killed.

I respectfully but strongly dissent.