S. B. v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

S. B., a minor, individually and as No. 15-56848

Successor in Interest to David Lee

Brown, deceased, by and through his D.C. No.

Guardian Ad Litem, Angela Caruso; 3:14-cv-00072-

M. B., a minor, individually, by and JAH-WVG

through her Guardian Ad Litem,

Angela Caruso; ANGELA CARUSO,

Plaintiffs-Appellees, OPINION

v.

COUNTY OF SAN DIEGO, a municipal

entity; ADRIAN MOSES, Deputy,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted February 17, 2017

Pasadena, California

Filed May 12, 2017

2 S.B. V. COUNTY OF SAN DIEGO

Before: Milan D. Smith, Jr. and John B. Owens, Circuit

Judges, and Edward R. Korman, * District Judge.

Opinion by Judge Owens

SUMMARY **

Civil Rights

The panel reversed the district court’s order, on summary

judgment, denying qualified immunity to a San Diego

Sheriff’s deputy, and remanded, in an action brought under

42 U.S.C. § 1983 alleging that the deputy used excessive

force when he shot and killed David Brown in his home.

The panel agreed with the district court that, reviewing

the facts in the light most favorable to plaintiffs, a reasonable

juror could find that the deputy’s use of deadly force was not

objectively reasonable, and therefore that he violated

Brown’s Fourth Amendment right against excessive force.

The panel disagreed, however, with the district court that it

was clearly established on August 24, 2013, that using

deadly force under the circumstances, even viewed in the

light most favorable to plaintiffs, would constitute excessive

force under the Fourth Amendment. The panel held that the

district court did not have the benefit of White v. Pauly, 137

S. Ct. 548, 551 (2017), and the cases that plaintiffs cited did

*

The Honorable Edward R. Korman, United States District Judge

for the Eastern District of New York, sitting by designation.

**

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

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

S.B. V. COUNTY OF SAN DIEGO 3

not satisfy White’s exacting standard. Nor did the present

case involve an “obvious” or “run-of-the-mill” violation of

the Fourth Amendment under Graham v. Connor, 490 U.S.

386, 396–97 (1989), and Tennessee v. Garner, 471 U.S. 1

(1985). The panel therefore held that the deputy was

immune from liability under section 1983 for his use of

deadly force.

Because this was an interlocutory appeal, the panel did

not address plaintiffs’ claim for wrongful death under

California law, but noted that its conclusion that deadly force

was not objectively reasonable as a matter of law supported

the district court’s denial of summary judgment on plaintiffs’

state law claim.

COUNSEL

James Chapin (argued), Senior Deputy County Counsel;

Thomas E. Montgomery, County Counsel; Office of County

Counsel, San Diego, California; for Defendants-Appellants.

Megan R. Gyongyos (argued) and Bryan T. Dunn, The

Cochran Firm California, Los Angeles, California, for

Plaintiffs-Appellees.

4 S.B. V. COUNTY OF SAN DIEGO

OPINION

OWENS, Circuit Judge:

Defendants San Diego Sheriff’s Deputy Adrian Moses

and the County of San Diego (defendants) appeal

interlocutorily from the district court’s denial of qualified

immunity. The heirs of David Brown (plaintiffs) sued

defendants for shooting and killing Brown in his home.

While we agree with the district court that plaintiffs

established a triable issue as to the reasonableness of the

shooting, we disagree about the application of qualified

immunity. We therefore reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

A. The Death of David Brown

On the early evening of August 24, 2013, Deputies

Moses and Vories each overheard a “5150” radio call for a

house in San Marcos, California. 1 The radio call stated that

family members were concerned about their safety because

an individual (Brown), who had mental health issues and

was intoxicated, had been acting aggressively. The family

members had left the house for a nearby fire station to report

the situation.

At the fire station, the family told Moses and Vories that

Brown was bipolar, schizophrenic, diabetic, and under the

influence of Valium and alcohol. Brown had been “acting

aggressively” all day, and had warned that “someone was

1

5150 is a well-recognized code for a person who is potentially a

danger to themselves or others due to mental illness and/or being under

the influence of alcohol or drugs.

S.B. V. COUNTY OF SAN DIEGO 5

gonna get hurt” if he did not get alcohol. Other than typical

kitchen knives, Brown did not have access to any weapons

(though in the past he had carried a pocket knife). The

family did not know if Brown had any knives on his person

that day.

Moses and Vories went to Brown’s house, and Deputy

Billieux met them there. 2 One of Brown’s relatives, working

on a car in the driveway, told the officers that Brown was

inside the house, had been drinking and taking medications

all day, and had been “acting strangely all day,” “ranting and

raving,” and not making “sense.” And, Brown “wouldn’t be

happy” if he knew the officers were there.

Moses and Vories then entered the front door of the

house, and Billieux covered the door leading from the garage

into the house. Moses had his gun drawn, and Vories had

his Taser ready to go, so the officers had both non-lethal and

lethal force options. The officers did not see Brown

immediately, but heard cabinets or drawers opening and

closing in the kitchen area. Moses then announced

“Sheriff’s Department” and called for Brown by name. A

small wall separated the kitchen and living room, with open

entryways on either side. Moses and Vories entered the

kitchen from different sides of the wall. Moses told Brown

that he wanted to speak with him.

After Moses and Vories rounded the dividing wall, they

saw that Brown had kitchen knives sticking out of his

pockets. Vories yelled “knife,” radioed the same, drew his

gun, and holstered his Taser. Appearing under the influence,

Brown was staggering and stumbling over his words, had

2

Billieux previously had worked with the Sheriff’s Psychiatric

Emergency Response Team, which responded to 5150 calls like this one.

6 S.B. V. COUNTY OF SAN DIEGO

difficulty standing up straight, was swaying side to side, and

had a glassy eyed stare and could not focus on Moses.

Moses pointed his gun at Brown and ordered him to raise

his hands, but Brown initially did not do so. Moses repeated

the order, and Brown raised his hands to his shoulders.

Brown asked Moses why he was pointing his gun at him, and

Moses replied that Brown had knives on his person. Brown

said he would put the knives on the table, but Moses told him

not to do so. Brown was rambling a lot, repeating things like

“Just shoot me” and “I can’t bring him back. He’s gone.”

Moses continued talking to Brown, and when Brown would

drop his hands, Moses would tell Brown to raise them again.

Vories heard Moses saying that “If you go for the knife, you

will be shot.” The officers ordered Brown to drop to his

knees, and Brown complied.

The three officers’ deposition testimony regarding the

next moments before the shooting, summarized below, was

consistent in many respects, but different in others.

Moses: Moses saw Vories standing to his left, about

three to five feet from Brown. Once Brown was on his

knees, Vories moved towards Brown to handcuff him.

Brown looked at Vories, lowered his arm and pointed it at

Vories, and said “Get the fuck away from me.” Vories

stepped back.

Brown then looked at Vories, “reached back with his

right hand and produced a knife” with a six-to-eight-inch

blade. Brown moved as if he were going to get up, and

pointed the knife at Vories. Moses could see Vories clearly

in his peripheral vision. Believing that Vories was in

imminent danger, Moses shot Brown three or four times, less

than one second after Brown grabbed the knife. About five

S.B. V. COUNTY OF SAN DIEGO 7

minutes elapsed between when Moses first saw the knife in

Brown’s pocket and the shooting.

Vories: After Brown kneeled, Vories holstered his gun

and drew his Taser. Brown saw the Taser’s red light on his

body and said “I’ve been tased before. Just tase me.” Vories

stepped closer, and Brown began screaming and grabbing

his face, and yelled something like “I can’t handle it

anymore.” Brown then reached for the knife in his right back

pocket. Moses said “Don’t do it. Don’t do it.”

As Brown started to rise with the knife “in one fluid

motion,” Vories heard three to six shots come from Moses.

Brown’s knees were about an inch off the ground when he

was shot, with his left hand on the floor and the knife in his

right hand. Brown had made eye contact with Vories, and

was in the process of standing up from his kneeling position.

Moses shot Brown “almost instantaneous[ly]” as Brown

grabbed the knife. “When his hand touched the knife, the

first round came out.”

When the shots were fired, Vories was switching from

his Taser to his gun. Vories could not see Moses, and

believed that the wall prevented Moses from seeing him.

Brown was closer to Vories than Billieux when the shots

were fired.

Billieux: After Brown got down on his knees, Billieux

joined Vories so they could handcuff Brown while Moses

kept his gun on Brown. Billieux told Brown to put his hands

on his head, and he did.

When Billieux and Vories took a step closer to Brown,

Brown “got quiet[,] . . . unclasped his fingers from his

head[,] and started to slowly bring his hands back down.”

Billieux again told Brown to keep his hands on his head, and

8 S.B. V. COUNTY OF SAN DIEGO

she pulled Vories back to give Brown room. Vories was now

six to eight feet from Brown.

Brown slowly lowered his hands about halfway, and then

extremely quickly grabbed a knife from his right back pocket

and held it in front of him. Brown was still on his knees, but

started to move as if he were going to stand, and then

Billieux heard three to six shots. She opined that Brown was

trying to stab Vories, was close enough to do so, and that

either she or Vories would have been stabbed had Moses not

fired. She said that Vories was three to four feet away from

Brown when Moses fired (though she did not know if Vories

moved closer to Brown after she pulled him away). She

could not see Moses when he fired the fatal shots.

B. District Court Proceedings

In January 2014, plaintiffs filed this action against

defendants, which alleged: (1) a 42 U.S.C. § 1983 claim for

excessive force in violation of the Fourth Amendment; and

(2) wrongful death under California law. In August 2015,

the district court held a hearing on defendants’ motion for

summary judgment. During the hearing, counsel for

plaintiffs twice acknowledged that the case was “close,” but

urged the court to permit a jury to decide whether the officers

were liable due to the inconsistencies in the officers’

testimony.

The district court agreed, and specifically found three

material inconsistencies that required a jury trial:

(1) whether Brown was on his knees or attempting to stand

when he grabbed the knife and was shot; (2) whether Moses

could see the other officers clearly when he fired his weapon;

and (3) the distance between Brown and Vories when Brown

grabbed the knife. These same inconsistencies also created

a triable dispute over whether Moses’s conduct violated

S.B. V. COUNTY OF SAN DIEGO 9

clearly established law, so qualified immunity was not

appropriate. The district court did not identify what clear

precedent barred Moses from using deadly force under the

circumstances, and did not discuss the standards set out in

City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,

1774–76 (2015).

Defendants then filed this timely interlocutory appeal

over the denial of qualified immunity to Moses.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. Glenn v. Washington County, 673 F.3d 864, 870

(9th Cir. 2011). We also review de novo a defendant

officer’s entitlement to qualified immunity. Id.

III. ANALYSIS

“In determining whether an officer is entitled to qualified

immunity, we consider (1) whether there has been a violation

of a constitutional right; and (2) whether that right was

clearly established at the time of the officer’s alleged

misconduct.” C.V. by & through Villegas v. City of

Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal

v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)). “While

we have discretion to decide which prong to address first,

here we address both.” Id.

A. Whether A Constitutional Right Was Violated

The Fourth Amendment permits law enforcement to use

“objectively reasonable” force. Graham v. Connor,

490 U.S. 386, 396–97 (1989). Factors for evaluating

reasonableness include, but are not limited to: (1) the

severity of the crime at issue; (2) whether the suspect posed

10 S.B. V. COUNTY OF SAN DIEGO

an immediate threat to the safety of the officers or others;

and (3) whether the suspect actively resisted arrest or

attempted to escape. Id. at 396; see also George v. Morris,

736 F.3d 829, 837–38 (9th Cir. 2013) (discussing Graham

and Tennessee v. Garner, 471 U.S. 1 (1985)). “Other

relevant factors include the availability of less intrusive

alternatives to the force employed, whether proper warnings

were given and whether it should have been apparent to

officers that the person they used force against was

emotionally disturbed.” 3 Glenn, 673 F.3d at 872. Of all

these factors, the “most important” one is “whether the

suspect posed an immediate threat to the safety of the

officers or others.” George, 736 F.3d at 838 (quoting Bryan

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

quotations omitted)).

We must judge the reasonableness of a particular use of

force “from the perspective of a reasonable officer on the

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

allow “for the fact that police officers are often forced to

make split-second judgments – in circumstances that are

tense, uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.” Graham,

490 U.S. at 396–97. Nonetheless, summary judgment

should be granted “sparingly” in excessive force cases,

particularly “where the only witness other than the officers

was killed during the encounter.” Gonzalez v. City of

Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc)

3

“Even when an emotionally disturbed individual is ‘acting out’ and

inviting officers to use deadly force to subdue him, the governmental

interest in using such force is diminished by the fact that the officers are

confronted, not with a person who has committed a serious crime against

others, but with a mentally ill individual.” Deorle v. Rutherford,

272 F.3d 1272, 1283 (9th Cir. 2001).

S.B. V. COUNTY OF SAN DIEGO 11

(citation omitted). “Because the person most likely to rebut

the officers’ version of events – the one killed – can’t testify,

[t]he judge 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.”

Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014)

(citation and internal quotation marks omitted).

Reviewing the facts in the light most favorable to

plaintiffs, Glenn, 673 F.3d at 870, we agree with the district

court that a reasonable juror could find a Fourth Amendment

violation. While the officers’ testimony is consistent on

many key points – Brown grabbed his knife despite orders

to place his hands on his head – the officers’ sworn

testimony differs on other important facts. As the district

court noted, there were discrepancies regarding: (1) whether

Brown was on his knees or attempting to stand when he

grabbed the knife and was shot; (2) whether Moses could see

the other officers clearly when he fired his weapon; and

(3) the distance between Brown and Vories when Brown

grabbed the knife. The scope of our review on an

interlocutory appeal from the denial of qualified immunity is

limited to questions of law, and “[a]ny decision by the

district court that the parties’ evidence presents genuine

issues of material fact is categorically unreviewable.”

George, 736 F.3d at 834 (citation and internal quotation

marks omitted). Moreover, defendants ignore testimony in

plaintiffs’ favor in arguing that there were no discrepancies.

At this stage, “all justifiable inferences are to be drawn

in [the plaintiffs’] favor.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). Here, a reasonable jury could

conclude that: (1) the three officers, responding to a call

about a mentally ill and intoxicated individual “acting

aggressively,” entered Brown’s house and saw that he had

12 S.B. V. COUNTY OF SAN DIEGO

knives in his pockets; (2) after Brown complied with the

officers’ orders to kneel, Brown grabbed a knife with a six-

to-eight-inch blade from his back pocket; (3) Moses shot

Brown as soon as his hand touched the knife; (4) Brown was

on his knees when he was shot; (5) when he grabbed the

knife, Brown was approximately six to eight feet away from

Vories; (6) Moses could not see the other officers at the time

Brown grabbed the knife; (7) after Brown went for the knife,

the officers did not order him to drop the knife or warn that

he was about to be shot; and (8) Vories had a non-lethal

option – a Taser gun. Viewing the facts in this light, Moses’s

use of deadly force was not objectively reasonable, and

therefore violated Brown’s Fourth Amendment right against

excessive force. Our holding mirrors those in similar cases. 4

B. Whether The Constitutional Right Was Clearly

Established

But that is not all. Under the second prong of the

qualified immunity test, we decide if the alleged violation of

Brown’s Fourth Amendment right against excessive force

4

See, e.g., Hughes v. Kisela, 841 F.3d 1081, 1085–87 (9th Cir. 2016)

(reversing grant of summary judgment on excessive force claim where

an officer shot, but did not kill, an emotionally disturbed individual

holding a large kitchen knife in her driveway after she walked toward

another woman and did not comply with orders to drop the knife); Glenn,

673 F.3d at 871–78 (reversing grant of summary judgment on excessive

force claim where officers shot and killed an emotionally disturbed and

intoxicated individual who did not comply with orders to put down a

pocketknife for approximately three minutes); see also Hayes v. County

of San Diego, 736 F.3d 1223, 1227–28, 1233–35 (9th Cir. 2013)

(reversing grant of summary judgment on California wrongful death

claim, which uses same standard as Fourth Amendment, where officers

shot and killed an emotionally disturbed individual inside his home who

held a large knife pointed downward and took one to two steps toward

an officer but was still six to eight feet away).

S.B. V. COUNTY OF SAN DIEGO 13

“was clearly established at the time of the officer’s alleged

misconduct.” C.V., 823 F.3d at 1255 (quoting Lal, 746 F.3d

at 1116). If not, the officer receives qualified immunity. To

be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what [the official] is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “We do

not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011)). Further, the clearly established inquiry

“must be undertaken in light of the specific context of the

case, not as a broad general proposition,” especially in the

Fourth Amendment context, where “[i]t is sometimes

difficult for an officer to determine how the relevant legal

doctrine, here excessive force, will apply to the factual

situation the officer confronts.” Id. (citations and internal

quotation marks omitted). Put another way, only the

“plainly incompetent” officer will not enjoy qualified

immunity. Id. (citation omitted).

In analyzing this question, we acknowledge the Supreme

Court’s recent frustration with failures to heed its holdings.

The Supreme Court has “repeatedly told courts – and the

Ninth Circuit in particular – not to define clearly established

law at a high level of generality.” Sheehan, 135 S. Ct. at

1775–76 (citation omitted). Our court lacks a monopoly

over such immunity missteps. When recently reversing the

Tenth Circuit, the Supreme Court wrote: “In the last five

years, [the Supreme Court] has issued a number of opinions

reversing federal courts in qualified immunity cases.” White

v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (citing

Sheehan, 135 S. Ct. at 1774 n.3 (collecting cases)). “The

Court has found this necessary both because qualified

14 S.B. V. COUNTY OF SAN DIEGO

immunity is important to ‘society as a whole,’ and because

as ‘an immunity from suit,’ qualified immunity ‘is

effectively lost if a case is erroneously permitted to go to

trial.’” Id. (citations omitted).

We hear the Supreme Court loud and clear. Before a

court can impose liability on Moses, we must identify

precedent as of August 24, 2013 – the night of the shooting

– that put Moses on clear notice that using deadly force in

these particular circumstances would be excessive. General

excessive force principles, as set forth in Graham and

Garner, are “not inherently incapable of giving fair and clear

warning to officers,” but they “do not by themselves create

clearly established law outside an obvious case.” Id. at 552

(citations and internal quotation marks omitted). Instead, we

must “identify a case where an officer acting under similar

circumstances as [Moses] was held to have violated the

Fourth Amendment.” Id. We cannot locate any such

precedent.

Our most similar case which pre-dates Moses’s use of

deadly force is Glenn, where officers fatally shot a suicidal

and intoxicated individual in his driveway who did not

comply with orders to put down a pocketknife. See 673 F.3d

at 867–69. But in Glenn, the individual “did not brandish

[the pocketknife] at anyone, but rather held [it] to his own

neck.” Id. at 873. Brown’s grabbing the knife from his

pocket despite orders to place his hands on his head was

more threatening. See George, 736 F.3d at 838 (stating that

while “the fact that the suspect was armed with a deadly

weapon does not render the officers’ response per se

reasonable under the Fourth Amendment, . . . [i]f the person

is armed . . . [then] a furtive movement, harrowing gesture,

or serious verbal threat might create an immediate threat”

(citation and internal quotation marks omitted)). As such,

S.B. V. COUNTY OF SAN DIEGO 15

the facts of Glenn are not sufficiently analogous to give

Moses fair notice that it was objectively unreasonable to use

lethal force against Brown. 5

Plaintiffs argue that two district court decisions (within

the Ninth Circuit but outside of California) provided clear

warning to Moses. However, “district court decisions –

unlike those from the courts of appeals – do not necessarily

settle constitutional standards or prevent repeated claims of

qualified immunity.” Hamby v. Hammond, 821 F.3d 1085,

1095 (9th Cir. 2016) (quoting Camreta v. Greene, 563 U.S.

692, 709 n.7 (2011)). Moreover, even if district court

decisions could clearly establish the law for purposes of

qualified immunity, the cases on which plaintiffs rely are

insufficient. Herrera is distinguishable because, viewing the

evidence in the plaintiffs’ favor, officers fatally shot an

emotionally disturbed individual who “was merely standing

with the knife pointed skyward, stunned, for nearly a full

minute.” Herrera v. Las Vegas Metro. Police Dep’t, 298 F.

Supp. 2d 1043, 1050 (D. Nev. 2004). And Davis is

distinguishable because, viewing the evidence in the

plaintiff’s favor, the emotionally disturbed plaintiff was

5

Our decision in Deorle is also not sufficiently analogous because

that emotionally disturbed individual was unarmed at the time an officer

shot him in the face with a beanbag gun. See 272 F.3d at 1275; see also

Sheehan, 135 S. Ct. at 1776 (stating that Deorle was distinguishable

because, among other reasons, it involved an unarmed individual). We

recognize that in Hughes, which like here involved an emotionally

disturbed individual with a kitchen knife, we relied on Deorle as

supporting a clearly established right. See Hughes, 841 F.3d at 1089–

90. However, unlike here, in Hughes it was disputed whether the officer

“was reasonable in believing that the kitchen knife,” – “which has a

perfectly benign primary use” and was being held “down at her side” –

“was a weapon.” Id. at 1089–90.

16 S.B. V. COUNTY OF SAN DIEGO

holding the knife downward when he was shot, and the

officer shot him in the back after he had fallen to the ground.

Davis v. Clark, No. CV07-435-S-EJL, 2010 WL 679037, at

*9 (D. Idaho Feb. 23, 2010). Here, as noted, Brown’s

actions were more threatening because he grabbed a knife

from his pocket.

We disagree with the district court that it was clearly

established on August 24, 2013, that using deadly force in

this situation, even viewed in the light most favorable to

plaintiffs, would constitute excessive force under the Fourth

Amendment. 6 The district court did not have the benefit of

White, and the cases that plaintiffs cite do not satisfy White’s

exacting standard. Nor does this case involve an “obvious”

or “run-of-the-mill” violation of the Fourth Amendment

under Graham and Garner. White, 137 S. Ct. at 552. Moses

is therefore immune from liability under section 1983 for his

6

Cf. Brosseau v. Haugen, 543 U.S. 194, 200–01 (2004) (per curiam)

(holding that officer was entitled to qualified immunity where the cases

relied on by plaintiffs did not “squarely govern[]” the constitutionality

of shooting a “disturbed felon, set on avoiding capture through vehicular

flight, when persons in the immediate area [were] at risk from that

flight”); C.V., 823 F.3d at 1257 (holding that officer was entitled to

qualified immunity because it was not “clearly established” that use of

deadly force violated the Fourth Amendment, even though there was a

triable dispute whether the deadly force in fact violated the Fourth

Amendment); Blanford v. Sacramento County, 406 F.3d 1110, 1119 (9th

Cir. 2005) (holding that officers were entitled to qualified immunity

because they “would not have found fair warning in Garner, Graham, or

any other Supreme Court or circuit precedent at the time that they could

not use deadly force to prevent someone with an edged sword, which

they had repeatedly commanded him to drop and whom they had

repeatedly warned would otherwise be shot, from accessing a private

residence where they or people in the house or yard might be seriously

harmed”).

S.B. V. COUNTY OF SAN DIEGO 17

use of deadly force, so we reverse the denial of summary

judgment on the Fourth Amendment claim. 7

REVERSED AND REMANDED.

The parties shall bear their own costs on appeal.

7

Because this interlocutory appeal concerns only the denial of

qualified immunity on plaintiffs’ Fourth Amendment claim, we do not

address plaintiffs’ claim for wrongful death under California law.

However, our conclusion that deadly force was not objectively

reasonable as a matter of law supports the district court’s denial of

summary judgment on plaintiffs’ state law claim. See Hayes, 736 F.3d

at 1232, 1235–36 (stating that “[c]laims of excessive force under

California law are analyzed under the same standard of objective

reasonableness used in Fourth Amendment claims,” but noting that

under California law an officer’s duty of reasonable care extends to his

pre-shooting conduct); see also Johnson v. Bay Area Rapid Transit Dist.,

724 F.3d 1159, 1171 (9th Cir. 2013) (“[T]he doctrine of qualified

immunity does not shield defendants from state law claims.”).