Irma Woodward v. City of Tucson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRMA WOODWARD, a single woman, No. 16-15784

individually, as Statutory Wrongful

Death trustee of Michael Duncklee D.C. No.

and personal representative of Estate 4:15-cv-00077-

of Michael Duncklee, RM

Plaintiff-Appellee,

v. OPINION

CITY OF TUCSON, a political

subdivision of the state of Arizona;

Robert Soeder, an individual; and

Allan Meyer, an individual,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Rosemary Marquez, District Judge, Presiding

Argued and Submitted July 13, 2017

San Francisco, California

Filed September 15, 2017

2 WOODWARD V. CITY OF TUCSON

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,

and Eduardo C. Robreno, * District Judge.

Opinion by Judge Robreno

SUMMARY **

Qualified Immunity

The panel reversed the district court’s denial of qualified

immunity to defendant Tucson police officers from

plaintiff’s claims under 42 U.S.C. § 1983 for

unconstitutional seizures and use of excessive force.

Plaintiff’s claims stemmed from the officers’ warrantless

entry into a vacant apartment and use of deadly force on

Michael Duncklee, who aggressively attacked them while

growling and brandishing a broken hockey stick inside the

apartment. Plaintiff is the representative of the Estate of

Michael Duncklee.

The panel held that plaintiff had standing to assert Fourth

Amendment violations as to Duncklee’s seizure and the use

of force against him. The panel also held, however, that

plaintiff lacked standing to assert a Fourth Amendment

violation for the warrantless entry and seizure of the vacant

apartment. The panel held that the district court appeared to

*

The Honorable Eduardo C. Robreno, United States District Judge

for the Eastern District of Pennsylvania, 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.

WOODWARD V. CITY OF TUCSON 3

erroneously view the case through a landlord/tenant lens.

Although plaintiff described Duncklee as an overnight guest

of Amber Watts, the former tenant who was in the apartment

with Duncklee, the panel held that Watts had no privacy

rights to assign to Duncklee because she had been formally

evicted and Watts was aware of this eviction.

Addressing qualified immunity regarding the seizure of

the apartment, the panel held that because Duncklee had no

reasonable expectation of privacy in the apartment, plaintiff

could not establish that the officers violated Duncklee’s

Fourth Amendment rights by entering the apartment without

a warrant. The panel concluded that the district court erred

in denying qualified immunity regarding this claim.

Addressing qualified immunity regarding the seizure of

and use of force on Duncklee, the panel held that reasonable

officers in the defendant officers’ positions would not have

known that shooting Duncklee violated a clearly established

right; and that the use of deadly force could be acceptable in

such a situation. The panel concluded that the district court

erred in denying defendants qualified immunity regarding

this claim.

4 WOODWARD V. CITY OF TUCSON

COUNSEL

Michael W.L. McCrory (argued), Principal Assistant City

Attorney; Michael G. Rankin, City Attorney; City

Attorney’s Office, Tucson, Arizona; for Defendants-

Appellants.

Matthew F. Schmidt (argued) and Ted A. Schmidt, Kinerk

Schmidt & Sethi PLLC, Tucson, Arizona; Scott E. Boehm,

Law Office of Scott E. Boehm PC, Phoenix, Arizona; for

Plaintiff-Appellee.

OPINION

ROBRENO, District Judge:

This interlocutory appeal arises from the district court’s

denial of qualified immunity for Tucson police officers

Allan Meyer and Robert Soeder (“Defendants”) from

Plaintiff’s claims under 42 U.S.C. § 1983 for

unconstitutional seizures and use of excessive force. The

claims stem from the officers’ warrantless entry into a vacant

apartment and use of deadly force on Michael Duncklee,

who aggressively attacked them while growling and

brandishing a broken hockey stick inside the apartment.

Because the district court erroneously denied Defendants

qualified immunity regarding both the warrantless entry into

the apartment and the use of force on Duncklee, we reverse

and remand.

I. FACTUAL AND PROCEDURAL HISTORY

As stated by the district court, “[t]his case presents an

unusual circumstance in which the facts are largely

WOODWARD V. CITY OF TUCSON 5

undisputed,” and as acknowledged by Plaintiff, “[v]ery little

is disputed, and certainly nothing that is significant.”

Answering Brief at 2 (ECF No. 21). 1 The district court

summarized the facts of the case as follows: 2

At 8:58 p.m. on May 21, 2014, the

Tucson Police Department (“TPD”) received

a call from “Zee.” Zee reported she was

employed by an apartment complex landlord,

and former tenants were inside an apartment

that was supposed to be empty. Zee stated she

did not know how the tenants got inside. She

also stated she was not on the scene and had

learned of the former tenants’ presence from

a neighbor who called her, but did not want

to leave their name.

When the call was first received, the

dispatch operator categorized it as a trespass

with a priority level three. On a range of one

to four, level one has the highest priority for

1

At oral argument, upon questioning, Plaintiff’s counsel similarly

answered that the facts were “largely undisputed.” Later, counsel did

state that, “I believe the final confrontation – there are disputable facts

about exactly what happened.” However, counsel noted no factual

disputes and subsequently acknowledged that there is no contradictory

evidence in the record. Likewise, we have found no evidence that

counters the statements of Defendants.

2

The district court stated that the facts presented were those

available to Soeder and Meyer at the time of their encounter with

Duncklee, as those are the facts relevant to whether the seizures violated

Duncklee’s Fourth Amendment rights.

All footnotes in the quotation are original to it, but are renumbered

for use in this opinion.

6 WOODWARD V. CITY OF TUCSON

the most pressing situations, and level four

has the lowest priority. At 9:20 p.m., the lead

police officer in the area updated the call to

note that it could be downgraded to a level

four and placed on hold. The officer did so

because the property was a vacant location,

the person who witnessed the reported

activity did not want to be a part of the

investigation, there was no one on the scene

to verify the allegations, and the owner was

not on the scene.

Nearly two hours later, at 11:14 p.m., the

operator dispatched the call. Officer Meyer

responded and arrived at the apartment at

11:22 p.m. In his deposition, Officer Meyer

testified that the metal security door was

closed when he arrived. He turned the

doorknob of the security door and learned

that it was unlocked. He thereafter opened the

security door, turned the doorknob of the

front door and opened it enough to learn that

it was also unlocked, and then closed the

front door. Officer Meyer left the security

door open. He then radioed for backup on the

grounds that he had an apartment with an

open door. Officer Soeder responded and

arrived on the scene at 11:32 p.m. The

officers both stated they did not see any sign

of forced entry, although Officer Soeder

noted that the security door was swung wide

open when he arrived.

At this point, both officers drew their

guns, knocked on the door, and announced

WOODWARD V. CITY OF TUCSON 7

that they were police. When no one answered

the officers’ call, they opened the door and

entered the apartment. They did not have a

warrant. Upon entering the apartment, neither

officer called for radio silence. Radio silence

is requested when officers encounter a scene

that they believe is likely to create an

emergency such that they need the radio

channels to be clear in case they need to radio

for assistance.

Once in the apartment, the officers

realized that space in the room was limited

because there were numerous belongings

stacked against the wall and taking up

approximately half of the room. The officers

cleared the front living room and determined

that no one else was present. They saw a

closed door to what is the apartment’s only

bedroom and could hear a radio playing

inside the enclosed room. 3 The officers

approached the closed door and arranged

themselves such that Officer Soeder was to

the left of the door and Officer Meyer was to

the right. Officer Meyer then knocked on the

door and announced their presence, at a

volume he believed was loud enough to be

heard over the radio playing in the room. No

one responded.

3

Officer Soeder testified in his deposition that he

believed he could hear the music from outside the

apartment. In his affidavit, he stated that they did not

hear the “faint” radio until he was in the apartment.

8 WOODWARD V. CITY OF TUCSON

Officer Soeder then opened the door.

Because of his position he could not see into

the bedroom. Officer Meyer, however, stated

that he saw Mr. Duncklee holding “a large

stick,” with a woman behind him. Officer

Meyer stated that Mr. Duncklee was holding

the stick in a way that would allow him to

strike at Officer Meyer’s head. Officer Meyer

stated the following in his affidavit:

As soon as the door swung

open enough to see Duncklee,

he started charging 4 at me

with the stick raised where it

could strike at my head, chest

or arms. As Duncklee charged

he was also yelling something

like “aaahh”. [sic] From the

instant I first saw Duncklee, I

perceived that he was a

serious and potentially deadly

threat to me. He came at me in

an aggressive manner with a

scream and the stick raised

over his shoulder. He was

initially about five to six feet

from me. Duncklee came

4

Hours after the shooting, TPD officials

interviewed both Officers Meyer and Soeder. Officer

Meyer stated in his interview that Mr. Duncklee was

approaching him “faster than a walk slower than a run

a brisk um . . . uh a, hard to describe brisk walk um,

not a run not a slow walk but he’s advancing towards

me um, I would say in an aggressive manner with a

scream.” (Doc. 33-1 at 201.)

WOODWARD V. CITY OF TUCSON 9

through the door frame

holding the stick in a swinging

position with the end above

his shoulder. I immediately

started backing up, but knew

that I couldn’t back up very

far because of the small size

of the room and the clutter in

it. I yelled “Police, stop” at

Duncklee, Duncklee kept

coming at me. I fired at

Duncklee’s chest.

Officer Soeder had a different

perspective. He stated in his affidavit that

when he first opened the door to the closed

room,

I heard a growling noise as if

it were an animal.

Immediately after that, [Mr.

Duncklee] burst through the

door into the front room

where we were. He was

charging at me in a very

aggressive manner holding a

big, huge stick that appeared

to be a hockey stick which he

was starting to bring towards

my head in a downward

motion . . . . Duncklee had the

hockey stick up and I

remember seeing about 2 feet

of the stick raised and coming

down to hit my head. I heard a

10 WOODWARD V. CITY OF TUCSON

gunshot. There wasn’t room

to back up because of the

clutter and because Duncklee

was charging so fast. I tried

taking a step or two

backwards and hit something

behind me which made me

start leaning backwards as I

shot at Duncklee. I believe

that my shot hit Duncklee’s

head because I was starting to

lean backwards at that point

from whatever was behind

me. Duncklee was only about

the distance I could reach if I

stretched my arms straight out

when I shot him. He was close

enough at that point where he

could hit me with the hockey

stick.

Once shot, Mr. Duncklee fell to the floor

and did not move. Officer Soeder believed

that he had shot Mr. Duncklee in the head and

Officer Meyer could see the head wound. The

woman, Amber Watts, screamed and was

subsequently ordered to come out of the

room. When she responded that she could not

because she had been shot, Officer Soeder

went to her. He cleared the room and

determined that no one was present. He then

holstered his weapon and began applying

first aid to her gunshot wounds.

WOODWARD V. CITY OF TUCSON 11

Officer Meyer stayed in the front room

with his gun drawn. He stated in his affidavit

that he did not provide any assistance to Mr.

Duncklee because he was not sure if Mr.

Duncklee had any other weapons, and needed

to be prepared in case someone else was in

the apartment. In his deposition, Officer

Meyer also stated that he did not have any

first aid materials on him. Officer Meyer

radioed that there had been a shooting and

officers soon arrived on the scene. Officers

thereafter relieved Officers Meyer and

Soeder and sought a search warrant for the

apartment.

Mr. Duncklee died from his gunshot

wounds. Ms. Watts, who was shot twice in

the leg, recovered. The stick Mr. Duncklee

was holding was part of a hockey stick,

measuring shortly over two feet.

Order, Woodward v. City of Tucson, No. 15-00077, at 2–5

(D. Ariz. Mar. 31, 2016) (alterations in original).

Duncklee’s mother, Irma Woodward (“Plaintiff”),

brought this action under 42 U.S.C. § 1983 against Officer

Meyer, Officer Soeder, and the City of Tucson. In her

amended complaint, Plaintiff alleged, inter alia, that

Defendants violated the Fourth Amendment by unlawfully

entering the apartment and using excessive force against

Duncklee. Defendants asserted that they were entitled to

qualified immunity. The parties filed cross-motions for

summary judgment.

12 WOODWARD V. CITY OF TUCSON

The district court denied Defendants’ motion and

granted Plaintiff’s motion in part. First, the district court

found that while Duncklee likely did not have standing to

challenge the seizure of the apartment, he did have standing

to challenge the seizure of his person and, thus, could “allege

that Officers Meyer and Soeder violated [his] Fourth

Amendment rights by entering the apartment.”

Next, the court denied Defendants’ motion for summary

judgment, finding that Meyer and Soeder were not entitled

to qualified immunity for either their warrantless seizure of

the apartment or their use of force on Duncklee. As to the

warrantless seizure claim, the district court concluded that

Defendants’ warrantless entry into the apartment violated

the Fourth Amendment and that Defendants had failed to

show the entry was reasonable in light of exigent

circumstances or consent to enter. As a result, the court

determined that Meyer and Soeder were not entitled to

qualified immunity on this claim. The district court did not

address whether Duncklee or Watts had standing to raise a

Fourth Amendment privacy violation regarding the

warrantless entry and seizure of the apartment.

Relying upon the since-abrogated provocation theory

from Alexander v. City and County of San Francisco,

29 F.3d 1355 (9th Cir. 1994), abrogated by County of Los

Angeles v. Mendez, 137 S. Ct. 1539 (2017), the district court

also determined that Plaintiff’s excessive force claim turned

on the force Defendants used in entering the apartment and

concluded that “it was clearly established as a matter of law

that drawing their guns and letting themselves into the

apartment violated a constitutional right to be free from

excessive force.” Thus, the court found that Defendants were

also not entitled to qualified immunity for this claim.

WOODWARD V. CITY OF TUCSON 13

The district court next granted in part and denied in part

Plaintiff’s motion for summary judgment. As with its

qualified immunity analysis, the court found that the

warrantless seizure of the apartment was a Fourth

Amendment violation since there were neither exigent

circumstances nor proper consent to enter. Thus, the court

granted Plaintiff’s motion on this issue. However, the court

denied the motion as to the excessive force claim, finding

that there were outstanding factual issues. In considering the

facts relevant to the excessive force claim, the district court

again focused on Defendants’ actions relating to the

warrantless entry.

Defendants appeal the district court’s denial of qualified

immunity for both the warrantless entry into the apartment

and the use of force against Duncklee. They also appeal the

district court’s grant of partial summary judgment for

Plaintiff as to the unreasonableness of the warrantless entry.

II. JURISDICTION AND STANDARD OF REVIEW

Under the collateral order doctrine, this court has

jurisdiction to review the district court’s denial of qualified

immunity under 28 U.S.C. § 1291. See Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). Moreover, on an interlocutory

appeal such as this one, we may exercise “[p]endent

appellate jurisdiction . . . over issues that ordinarily may not

be reviewed on interlocutory appeal” so long as those issues

are “inextricably intertwined” with “other issues properly

before the court.” Cunningham v. Gates, 229 F.3d 1271,

1284 (9th Cir. 2000). Because the district court’s grant of

partial summary judgment for Plaintiff as to the

unreasonableness of the Defendants’ entry into the

apartment is “inextricably intertwined” with its denial of

qualified immunity for that entry, we have jurisdiction to

review the grant of summary judgment.

14 WOODWARD V. CITY OF TUCSON

A district court’s decision to grant or deny summary

judgment on the ground of qualified immunity is reviewed

de novo. See Garcia v. Cty. of Merced, 639 F.3d 1206, 1208

(9th Cir. 2011); Davis v. City of Las Vegas, 478 F.3d 1048,

1053 (9th Cir. 2007). So is a district court’s decision to grant

in part a party’s motion for summary judgment. White v. City

of Sparks, 500 F.3d 953, 955 (9th Cir. 2007). Viewing the

facts in the light most favorable to the non-moving party, this

court must determine whether there are any genuine disputes

as to any material facts and whether the district court

correctly applied the relevant substantive law. See Mueller

v. Auker, 576 F.3d 979, 991 (9th Cir. 2009).

III. DISCUSSION

All of the district court’s conclusions rest on the premise

that Duncklee deserved constitutional protections because of

his presence within the vacant apartment. Because Duncklee

had no reasonable expectation of privacy while trespassing

in the apartment, we reverse its denial of qualified immunity

regarding the warrantless entry and seizure of the apartment.

We also reverse the district court’s denial of qualified

immunity regarding the seizure of and use of force on

Duncklee, as it was not clearly established that the

Defendants’ actions violated a constitutional right. Finally,

we reverse the district court’s partial grant of summary

judgment in favor of Plaintiff.

A. Plaintiff’s/Duncklee’s Fourth Amendment

Standing

Plaintiff obviously has standing to assert Fourth

Amendment violations as to Duncklee’s seizure and the use

of force against him. However, Plaintiff lacks standing to

assert a Fourth Amendment violation for the warrantless

entry and seizure of the vacant apartment. See Lyall v. City

WOODWARD V. CITY OF TUCSON 15

of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015) (noting

that Fourth Amendment rights are personal rights that cannot

be asserted vicariously and remarking that “when police

trespass on property to carry out a search, a defendant has

standing to raise the Fourth Amendment only if it was his

person, house, paper, or effect searched”). Although the

district court acknowledged that “because Mr. Duncklee is

not alleged to have any sufficient ownership or possessory

rights in the apartment, he may not have standing to

challenge the search of the apartment,” it nevertheless found

that Duncklee could assert rights regarding the apartment.

Plaintiff recognizes that any privacy rights Duncklee had

in the apartment must stem from his relationship with Watts,

the former tenant who was in the apartment with him.

Plaintiff describes Duncklee as an overnight guest of Watts,

who Plaintiff assumes retained her rights as a tenant. If

Duncklee was an overnight guest, and if Watts retained

tenant rights, then Plaintiff would have standing to pursue a

violation of Duncklee’s Fourth Amendment privacy rights

as a result of Defendants’ warrantless entry into the

apartment. See Espinosa v. City & Cty. of San Francisco,

598 F.3d 528, 533 (9th Cir. 2010) (“An overnight guest in a

home staying with the permission of the host has a

reasonable expectation of privacy under the Fourth

Amendment.”).

However, Watts had no privacy rights to assign to

Duncklee. Zimmerman v. Bishop Estate, 25 F.3d 784, 787–

88 (9th Cir. 1994) (holding that a house guest of a squatter

has no greater right to be on the property than does the

squatter), superseded on other grounds as recognized by

Margolis v. Ryan, 140 F.3d 850, 854–55 (9th Cir. 1998).

Although Plaintiff couches the case as being of a civil

16 WOODWARD V. CITY OF TUCSON

landlord/tenant nature, the reality is that Watts was a

trespasser, as she had been evicted from the property.

One who has been formally evicted has no reasonable

expectation of privacy in his or her previous residence.

United States v. Struckman, 603 F.3d 731, 747 (9th Cir.

2010) (providing that a trespasser cannot claim Fourth

Amendment protections); United States v. Young, 573 F.3d

711, 713, 716 (9th Cir. 2009) (holding that “because the

hotel did not actually evict [the defendant], he maintained a

reasonable expectation of privacy in his hotel room,” and

explaining that “[b]eing arrested is different from being

evicted, and being arrested does not automatically destroy

[a] person’s reasonable expectation of privacy in his home”);

United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004)

(providing that “unless his occupancy had been lawfully

terminated when the police conducted their search, [the

defendant] retained a reasonable expectation of privacy in

the room”); Zimmerman, 25 F.3d at 787 (concluding that

squatters have no reasonable expectation of privacy); Klee v.

United States, 53 F.2d 58, 59 (9th Cir. 1931) (providing that

trespassers “cannot claim the benefit of the Fourth

Amendment”). Even though Watts had not removed all of

her personal property from the apartment, she had no

reasonable expectation of privacy in the apartment on the

night of May 21, 2014. Indeed, as Plaintiff acknowledged in

her answering brief, Watts had been formally evicted, her

key had been taken away, and she had made an appointment

for several days later to re-enter the apartment to obtain her

property.

Because the undisputed evidence shows that Watts was

aware of her eviction, this case differs from situations where

the individuals claiming privacy rights either did not know

they had been evicted or claimed that they still had tenancy

WOODWARD V. CITY OF TUCSON 17

rights. See Young, 573 F.3d at 716–17; King v. Massarweh,

782 F.2d 825, 826, 828 (9th Cir. 1986) (providing that

individuals who had been paying rent and were claiming

tenancy rights during a landlord/tenant dispute had Fourth

Amendment protections in connection with a warrantless

search of their apartment, the seizure of their personal

property, and their warrantless arrests). In that she had been

evicted and locked out, Watts had no reasonable expectation

of privacy in the apartment.

Like Plaintiff, the district court appears to have

erroneously viewed this case through a landlord/tenant lens.

All of the cases relied upon by the court involve situations

where the aggrieved individuals resided in the domiciles at

issue and had reasonable expectations of privacy. For

example, the district court asserted that “[t]he facts of this

case are substantively indistinguishable from those in King

and Frunz [v. City of Tacoma, 468 F.3d 1141 (9th Cir.

2006)].” Both of these cases involve warrantless searches,

lack of the residents’ consent to search, and their Fourth

Amendment rights arising from the searches. As stated, King

involved a landlord/tenant dispute in which the tenants had

been paying rent and were claiming tenant rights. 782 F.2d

at 826, 828. In Frunz, the plaintiff owned the home that was

searched. 468 F.3d at 1142. Thus, both of these cases are

distinguishable from the present case in that the plaintiffs in

those two cases either had property rights or at least made

claims, supported by evidence, that they had such rights.

In conclusion, the district court’s analysis of this case

rests on a faulty premise, as Duncklee had no reasonable

expectation of privacy in the apartment on the night he was

shot by Defendants. Minnesota v. Carter, 525 U.S. 83, 88

(1998) (explaining that the aggrieved “must demonstrate that

he personally has an expectation of privacy in the place

18 WOODWARD V. CITY OF TUCSON

searched, and that his expectation is reasonable”). Thus,

Plaintiff has no standing to assert a Fourth Amendment

claim on this basis.

B. Qualified Immunity Regarding the Seizure of the

Apartment

The district court began its analysis of Defendants’

qualified immunity claim regarding the seizure of the

apartment by stating that “[o]fficers Meyer and Soeder did

not have a warrant when they opened the door to and entered

the apartment.” It then explained that “‘[i]t is axiomatic that

the physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.’” Id.

(quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)). The

court simply assumed that the apartment was “home” for

Watts and, presumably by her permission, for Duncklee. As

discussed above, under the uncontested facts of this case,

this conclusion is legally untenable.

Whether qualified immunity is warranted involves a two

part inquiry: (1) whether the facts alleged by the plaintiff

make out a violation of a constitutional right and (2) if so,

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

defendant’s alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009). In that Duncklee had no

reasonable expectation of privacy in the apartment, Plaintiff

cannot establish that Defendants violated Duncklee’s Fourth

Amendment rights by entering the apartment without a

warrant. Thus, the first inquiry of the qualified immunity test

is not satisfied and the district court’s decision to deny

qualified immunity regarding this claim must be reversed.

WOODWARD V. CITY OF TUCSON 19

C. Qualified Immunity Regarding the Seizure of

and Use of Force on Duncklee

The district court, in denying qualified immunity to

Defendants as to the seizure of and use of force on Duncklee,

relied on its previous conclusion that the warrantless entry

violated Duncklee’s constitutional rights and, thus,

everything that occurred thereafter was part of that initial

violation. Citing the provocation theory from Alexander, the

court remarked that Plaintiff’s “‘excessive force claim turns

on the force the officers used in entering the [apartment],’”

(alteration in original) (quoting Alexander, 29 F.3d at 1366

n.12), and concluded that “it was clearly established as a

matter of law that drawing their guns and letting themselves

into the apartment violated a constitutional right to be free

from excessive force.” 5

The provocation theory was succinctly recited in

Billington v. Smith, which held that under Alexander,

if the police committed an independent

Fourth Amendment violation by using

unreasonable force to enter the house, then

they could be held liable for shooting [a] man

– even though they reasonably shot him at the

moment of the shooting – because they “used

excessive force in creating the situation

5

As stated, the district court also accepted Plaintiff’s argument that

the case involved “a landlord-tenant dispute, a matter governed by civil

and not criminal laws.” ER019. In light of Watts’ formal eviction and

acceptance thereof, we disagree. Under any view of the facts, the case

involved a criminal trespass. See, e.g., ER060 (April 25, 2014 Civil

Minute Entry authorizing the order of eviction and noting that once

served with the order, an individual who returns to the property without

permission commits criminal trespass in the third degree).

20 WOODWARD V. CITY OF TUCSON

which caused the man to take the actions he

did.”

292 F.3d 1177, 1188 (9th Cir. 2002) (alterations omitted)

(quoting Alexander, 29 F.3d at 1366). However, in County

of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), decided

after the district court’s opinion in this case, the Supreme

Court abrogated Billington and the provocation theory. The

Supreme Court concluded that the provocation theory was

incompatible with established federal excessive force

jurisprudence and held that an earlier “Fourth Amendment

violation cannot transform a later, reasonable use of force

into an unreasonable seizure.” Id. at 1544. The Court

recognized that the provocation theory conflated distinct

Fourth Amendment violations and held that the objective

reasonableness of each search or seizure must be analyzed

separately. Id. at 1547. In light of Mendez, the district court

erred in relying on the provocation theory.

The question before this court, then, is whether the

officers are entitled to qualified immunity as to their seizure

of and use of deadly force on Duncklee. As we have said, the

qualified immunity analysis has two prongs: (1) whether the

facts alleged by the plaintiff establish that a constitutional

right of his was violated; and (2) whether that right was

“clearly established” at the time of the alleged violation. We

may consider these two prongs in either order. Pearson,

555 U.S. at 234.

We shall begin with the second prong: was it “clearly

established” under the undisputed facts of this case that

Defendants should not have used deadly force on Duncklee?

These facts, as summarized in declarations made by Meyer

and Soeder, are that upon opening the bedroom door with

guns drawn, Duncklee immediately advanced towards the

WOODWARD V. CITY OF TUCSON 21

officers, yelling or growling, with a two-foot length of

broken hockey stick raised in a threatening manner. The

apartment was small and cluttered, making it difficult for the

officers to retreat. Before firing, Officer Meyer yelled

“police, stop” at Duncklee.

We conclude that reasonable officers in Defendants’

positions would not have known that shooting Duncklee

violated a clearly established right. Indeed, the case law

makes clear that the use of deadly force can be acceptable in

such a situation. See Tennessee v. Garner, 471 U.S. 1, 11–

12 (1985) (“[I]f the suspect threatens the officer with a

weapon . . . , deadly force may be used if necessary to

prevent escape, and if, where feasible, some warning has

been given.”); Blanford v. Sacramento Cty., 406 F.3d 1110,

1111–13, 1117–19 (9th Cir. 2005) (holding that deputies

were entitled to qualified immunity for shooting a suspect

wandering around a neighborhood with a raised sword,

making growling noises, and ignoring commands to drop the

weapon). Thus, even assuming that a constitutional violation

occurred, the district court erred by denying Defendants

qualified immunity from this claim.

IV. CONCLUSION

The district court erred in denying qualified immunity to

Defendants for their entry into the apartment and use of force

on Duncklee. Moreover, because Defendants are entitled to

qualified immunity on Plaintiff’s claim arising out of their

entry into the apartment, the district court erred by granting

partial summary judgment for Plaintiff as to that claim.

REVERSED and REMANDED.