The opinion
FILED
NOT FOR PUBLICATION
OCT 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAKINA ORTEGA, individually, and as No. 14-56824
successor of interest of Victor Ortega,
deceased; et al., D.C. No.
3:13-cv-00087-LAB-JMA
Plaintiffs-Appellees,
v. MEMORANDUM*
SAN DIEGO POLICE DEPARTMENT, a
public entity,
Defendant,
CITY OF SAN DIEGO, a public entity
and DOES, 1-10,
Defendants,
and
JONATHAN MCCARTHY, an individual,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry Alan Burns, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted October 19, 2016
Pasadena, California
Before: TALLMAN, PARKER,** and CHRISTEN, Circuit Judges.
On the morning of June 4, 2012, Officer Jonathan McCarthy shot and killed
Victor Ortega while attempting to take Ortega into custody. Ortega’s surviving
family members brought a lawsuit against McCarthy, asserting violations of
Ortega’s Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983.
McCarthy moved for summary judgment based on qualified immunity. The
district court denied qualified immunity for both the Fourth and Fourteenth
Amendment claims, and McCarthy appeals. We have jurisdiction to decide the
questions of law, including the materiality of disputed facts, presented by this
appeal. See 28 U.S.C. § 1291; Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996);
George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). We review questions of law
de novo. Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009).
For the following reasons, we affirm.
1. The district court correctly applied Cruz v. City of Anaheim, 765 F.3d 1076
(9th Cir. 2014). In cases of officer-involved deadly shootings in which the officer
**
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
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and decedent are the only witnesses, courts must “carefully examine all the
evidence in the record . . . to determine whether the officer’s story is internally
consistent and consistent with other known facts.” Id. at 1079 (alteration in
original) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). The district
court examined McCarthy’s account of events for material inconsistencies and
compared his version of the shooting with other evidence. The district court
properly concluded that there were material inconsistencies that could lead a
reasonable jury to find in favor of the plaintiffs. See Cruz, 765 F.3d at 1080.
2. The district court correctly found that the disputed facts are material to
whether a violation of a clearly established right occurred. Depending on how a
jury resolves the disputed facts, a jury could conclude that: (1) McCarthy shot
Ortega while he posed no threat to the officer; and/or (2) McCarthy acted with “a
purpose to cause harm unrelated to the legitimate object of arrest.” Cty. of
Sacramento v. Lewis, 523 U.S. 833, 836 (1998). Either scenario would constitute
violation of a right “that is ‘sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.’” Mullenix v.Luna, 136
S. Ct. 305, 308 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
A jury could also find to the contrary and determine the use of deadly force was
permissible. Therefore, McCarthy is not entitled to qualified immunity for the
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alleged Fourth Amendment and Fourteenth Amendment violations at this stage of
litigation.
AFFIRMED.
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