Christian Longoria v. Pinal County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN LONGORIA, a single man, No. 16-15606

on behalf of himself as son of

decedent Manuel O. Longoria, on D.C. No.

behalf of all statutory beneficiaries 2:15-cv-00043-

of decedent Manuel O. Longoria; SRB

JOSHUA R. WALLACE, as the personal

representative of the Estate of

Manuel O. Longoria; MANUEL OPINION

LONGORIA, JR., a single man;

LYNNETTE LONGORIA, a single

woman; P. C. L., a minor, T. A. L., a

minor; K. R. L., a minor; SANISYA

LOTT, a single woman; T. L., a

minor; and A. L., a minor,

Plaintiffs-Appellants,

v.

PINAL COUNTY, a political

subdivision of the State of Arizona;

PAUL R. BABEU, in his official

capacity as Sheriff of Pinal County,

Arizona; and HEATH RANKIN, in his

individual capacity as a Deputy

Sheriff of Pinal County, Arizona,

Defendants-Appellees.

2 LONGORIA V. PINAL COUNTY

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted June 6, 2017

Pasadena, California

Filed October 10, 2017

Before: Stephen Reinhardt and Alex Kozinski, Circuit

Judges, and Terrence Berg, * District Judge.

Opinion by Judge Reinhardt

SUMMARY **

Civil Rights

The panel reversed the district court’s grant of qualified

immunity on summary judgment in favor of Pinal County

Deputy Sheriff Heath Rankin and affirmed the dismissal of

claims brought by family members in a 42 U.S.C. § 1983

action alleging that Rankin used excessive deadly force

when he shot Manuel Longoria in the back and killed him

following a car chase.

*

The Honorable Terrence Berg, United States District Judge for the

Eastern District of Michigan, 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.

LONGORIA V. PINAL COUNTY 3

The panel stated that it was required to assess Rankin’s

reasonableness in using deadly force against Longoria, who

was unarmed, was surrounded by law enforcement officers,

had been shot by bean bag rounds and a taser, and was in the

process of putting his hands over his head reflexively or in

an effort to surrender. Rankin alleged that when Longoria

turned to raise his hands he threatened him or his fellow

officers with a “shooter’s stance.” The panel held that

because of the many material, disputed facts in this case,

Rankin’s credibility or the accuracy of his version of the

facts was a central question that had to be answered by a jury.

Because there was a material issue of fact as to whether

Rankin violated Longoria’s clearly established

constitutional right, defendants were not entitled to qualified

immunity. The panel therefore reversed the district court’s

grant of summary judgment and remanded for a jury to

determine whether Rankin’s use of deadly force was lawful.

The panel affirmed the district court’s dismissal of

Longoria’s family-members’ § 1983 claims. The panel held

that only Longoria’s estate could bring a § 1983 for the

violation of his Fourth Amendment rights; his family

members had no standing to sue on their own behalves.

The panel reversed the district court’s grant of summary

judgment on plaintiffs’ wrongful-death claim brought under

Arizona Revised Statute § 12-611. The panel held that

summary judgment was not appropriate because there was a

material dispute of facts as to whether or not Rankin’s use of

deadly force was reasonable.

4 LONGORIA V. PINAL COUNTY

COUNSEL

Joel B. Robbins (argued), Robbins & Curtin PLLC, Phoenix,

Arizona; Joseph M. Leal III, Cole & Leal, Casa Grande,

Arizona; Darius Bursh, McCain & Bursh PLC, Scottsdale,

Arizona; for Plaintiffs-Appellants.

Nicholas D. Acedo (argued) and Kathleen L. Wieneke,

Struck Wieneke & Love P.L.C., Chandler, Arizona, for

Defendants-Appellees.

OPINION

REINHARDT, Circuit Judge:

Pinal County Deputy Sheriff Heath Rankin fired two

shots into Manuel Longoria’s back and killed him just as he

was raising his hands above his head. Rankin’s shots

followed the use of non-lethal force by police officers from

the City of Eloy who were charged with arresting Longoria.

When Longoria’s estate (hereinafter “Longoria”) sued

Rankin under § 1983, the district court held that Rankin was

entitled to qualified immunity and entered summary

judgment in his favor. We reverse and remand for further

proceedings. 1

BACKGROUND

Distraught over his relationship with the mother of three

of his children, Manuel Longoria stole his brother-in-law’s

car and began driving around the city of Eloy, Arizona. Eloy

1

We discuss infra the remainder of the action filed by Plaintiffs.

LONGORIA V. PINAL COUNTY 5

police officers saw him and initiated a traffic stop, but

Longoria fled and led officers on a chase that lasted for more

than 70 minutes.

The Eloy Police Department (“EPD”) asked the Pinal

County Sheriff’s Office (“PCSO”) to be on “standby” in case

Longoria left Eloy’s jurisdiction. PCSO informed its officers

that Longoria was driving a stolen vehicle and (mistakenly)

that he was armed. PCSO Deputy Heath Rankin and his

partner, Deputy J. Rice, joined the pursuit and participated

for more than 40 minutes.

During the chase, Longoria stopped his vehicle and

spoke with the pursuing officers several times, but continued

to ignore commands to surrender. During one of these stops,

Longoria got out of the car and was seen holding and kissing

purple or dark-colored rosary beads which he held in his

hand. During another, he got out of the car for a brief period

and held his wallet behind his back. EPD Detective Salazar

saw that Longoria was holding a wallet, not a gun, behind

his back and shouted this out to the other officers on the

scene. That information was also dispatched on an EPD

radio frequency that Rankin was monitoring. Rankin

maintains that he did not hear that part of the broadcast.

Longoria exhibited other erratic behavior. He threw

money and various objects out of the vehicle while driving

and told officers that he had nothing to live for and wanted

to die. Longoria asked officers to give his money to his

family members, and at times even joked with officers

pursuing him that they would scratch their vehicles if they

kept pulling so close to him. While driving, he waved his

hand out of the car, sometimes making a gun with his fingers

and pointing his fingers at his head as though gesturing for

officers to shoot him. EPD Officer Dean reported over the

radio that Longoria was simulating a gun with his fingers.

6 LONGORIA V. PINAL COUNTY

As Longoria continued to drive, onlookers gathered and he

laughed, pointed, waved, and even flashed a peace sign at

civilians on the streets.

Shortly before the chase ended, Pinal County Lieutenant

Villegas ordered Rankin and other Pinal County deputies to

stand down from the pursuit. Rankin heard this command

and initially followed it. Rankin’s Sergeant then directed

him to form a perimeter at the intersection of Main and

Battaglia Streets, which he did.

A few minutes later, Eloy police officers halted the chase

by disabling Longoria’s car with a PIT maneuver. 2 Rankin

was standing around the corner about a half-block away.

After hearing the crash, he abandoned the perimeter, grabbed

his assault rifle, and ran towards the scene, followed by his

partner Rice. 3

While Rankin was sprinting to the scene, Longoria got

out of his vehicle and stood facing the Eloy officers with one

hand behind his back near the car. Eight officers surrounded

him and drew their guns. Longoria initially did not comply

with police commands to show his hands. Eloy Sergeant

Tarrango shouted for officers to use “less lethal,” or less than

lethal, force at least twice. Other Eloy officers shouted that

2

A PIT (Pursuit Intervention Technique) maneuver is a method of

forcing a fleeing car to abruptly turn sideways, which causes the driver

to lose control and stop. It involves officers using a patrol car to veer into

the rear half of either the driver’s side or passenger’s side of a suspect’s

car.

3

Rankin asserts that the order to form a perimeter meant that he was

to actively assist with getting Longoria into custody if and when the

chase ended. No PCSO officers other than Rice abandoned the perimeter

and followed Rankin in his pursuit of Longoria.

LONGORIA V. PINAL COUNTY 7

Longoria had only a wallet behind his back. Still more

shouted to tase Longoria.

Rankin ran behind Longoria—across what would have

been the line of fire had the Eloy officers needed to shoot—

and joined the other officers near the point of collision.

Rankin asserts that he did not hear the commands to use less

than lethal force while he was running towards the collision.

Rankin stopped running and took up a position between

25 to 45 feet to Longoria’s right, to the side and further away

from Longoria than all of the other officers who had their

weapons drawn. Longoria was facing the other officers, and

continued to stand with one hand behind his back near his

disabled car. Shortly after Rankin stopped sprinting, some of

the other officers fired beanbag rounds at Longoria, striking

him. An officer tased him, hitting him with one dart.

Longoria flinched and moved erratically. He then turned

halfway around to his right—towards and past Rankin—to

face his car and put his empty hands up above his head, his

back to the officers and Rankin. Rankin fired two rounds

from his assault rifle into Longoria’s back, killing him.

The § 1983 suit ensued, as did the district court’s grant

of summary judgment on the ground of qualified immunity.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment

and qualified immunity de novo. Hughes v. Kisela, 862 F.3d

775, 779 (9th Cir. 2016).

8 LONGORIA V. PINAL COUNTY

DISCUSSION

I. Qualified Immunity

Longoria challenges the district court’s entry of

summary judgment in favor of Rankin on the ground of

qualified immunity. “The doctrine of qualified immunity

protects government officials from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation

marks omitted). Qualified immunity exists to shield an

officer from liability for “mere mistakes in judgment,

whether the mistake is one of fact or one of law.” Butz v.

Economou, 438 U.S. 478, 507 (1978). The doctrine’s

purpose is to strike a balance between the competing “need

to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform

their duties reasonably.” Pearson, 555 U.S. at 231. “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.” Lal v. California, 746 F.3d 1112, 1116 (9th

Cir. 2014).

“Consequently, at summary judgment, an officer may be

denied qualified immunity in a Section 1983 action ‘only if

(1) the facts alleged, taken in the light most favorable to the

party asserting injury, show that the officer’s conduct

violated a constitutional right, and (2) the right at issue was

clearly established at the time of the incident such that a

reasonable officer would have understood [his] conduct to

be unlawful in that situation.’” Hughes, 862 F.3d at 783

LONGORIA V. PINAL COUNTY 9

(quoting Torres v. City of Madera, 648 F.3d 1119, 1123 (9th

Cir. 2011)). Our analysis must be from the perspective of a

“reasonable officer on the scene” and “allo[w] 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.” Plumhoff v. Rickard,

134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor,

490 U.S. 386, 396–97 (1989)).

We acknowledge at the outset that in the last five years,

the Supreme Court has reversed a number of federal courts,

including ours, in qualified immunity cases because we

failed to abide by the longstanding principle that “‘clearly

established law’ should not be defined at a high level of

generality.” White v. Pauly, 137 S. Ct. 548, 551–552 (2017)

(per curiam). This has been a particular problem in cases

presenting novel factual circumstances involving car chases.

Here, although preceded by a car chase, the shooting

occurred after the pursuit ended and Longoria’s vehicle was

disabled, as described above. This is not one of those cases

occurring mid-pursuit against a “hazy legal backdrop.” See

Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)

(discussing the factual circumstances in Plumhoff, 134 S. Ct.

at 2012; Scott v. Harris, 550 U.S. 372 (2007); Brosseau v.

Haugen, 543 U.S. 194 (2004) (per curiam)). Nor is this like

other recent cases the Court has reversed. We do not rely on

a factor mentioned in prior case law but not clearly

established such that a reasonable officer would be on notice

to conform his conduct accordingly, see, e.g., White, 137 S.

Ct. at 552, or define a constitutional violation at too high a

level of generality to be clearly established, see, e.g.,

Mullenix, 136 S. Ct. at 308–09.

10 LONGORIA V. PINAL COUNTY

Here we must assess Rankin’s reasonableness in using

deadly force against Longoria, who was unarmed, was

surrounded by law enforcement officers, had been shot by

bean bag rounds and a taser, and was in the process of putting

his hands over his head reflexively or in an effort to

surrender. Rankin claims that when Longoria turned to raise

his hands he threatened him or his fellow officers with a

“shooter’s stance.” Because of the many material, disputed

facts in this case, Rankin’s credibility or the accuracy of his

version of the facts is a central question that must be

answered by a jury. We cannot decide as a matter of law that

qualified immunity is appropriate at the summary judgment

phase.

A. Constitutional Violation

Plaintiffs argue that Rankin violated Longoria’s Fourth

Amendment rights when he used excessive force to shoot

Longoria dead. We must evaluate such a claim through the

Fourth Amendment’s reasonableness standard, considering

“whether the officers’ actions [we]re ‘objectively

reasonable’ in light of the facts and circumstances

confronting them.” Graham, 490 U.S. at 397. In our

analysis, we weigh the “nature and quality of the intrusion”

against the “countervailing governmental interests at stake.”

Id. at 396.

“The intrusiveness of a seizure by means of deadly force

is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, (1985).

Rankin deprived Longoria of the “fundamental interest in his

own life.” Id.

“The strength of the government’s interest in the force

used is evaluated by examining three primary factors:

(1) ‘the severity of the crime at issue,’ (2) ‘whether the

suspect poses an immediate threat to the safety of the officers

LONGORIA V. PINAL COUNTY 11

or others,’ and (3) ‘whether []he is actively resisting arrest

or attempting to evade arrest by flight.’” Hughes, 862 F.3d

at 779 (quoting Graham, 490 U.S. at 396). The second factor

is the most important, but we are not limited to these three;

rather, we must consider the “totality of the circumstances.”

Id. Here the district court made impermissible factual

inferences in favor of Rankin in its analysis of the second

factor as well as other factual circumstances.

The “most important” factor is whether Longoria posed

an immediate threat. Id. Rankin shot Longoria after the car

chase had ended. Longoria’s car was fully immobilized; he

was surrounded by armed officers, and his erratic driving no

longer posed any threat to bystanders. He had been hit by

several bean bag rounds shot from close range as well as a

taser dart. Viewing the circumstances in the light most

favorable to Longoria, the inquiry is thus whether he posed

an immediate threat to Rankin or the many officers around

him, or whether a reasonable officer would have perceived

Longoria to be an immediate threat, after the non-lethal force

was used but before Rankin shot him dead.

We are aided in our reasonableness analysis by two

videos of the moments right before Longoria’s death, one

from a dashboard camera of an EPD cruiser and the other

from a bystander’s iPhone video recorded from over 200 feet

away. Viewed in real-time, as officers—including Rankin—

would have experienced the event, 4 the videos depict

4

Neither party asserts that the videos portray the events from

Rankin’s exact perspective when he fired his weapon. They were taken

from locations different from where Rankin stood. His precise position

and perspective is an additional fact that would be relevant to a rational

jury in finding the facts, but it remains unclear based on the varying

accounts from Rankin, Rice, other officers, and the location of the

casings from Rankin’s rifle precisely what Rankin saw. The one thing

12 LONGORIA V. PINAL COUNTY

Longoria flailing his arms and moving erratically before

turning around and raising his empty hands above his head

in the several seconds before Rankin shoots and kills him.

Defendants argue that Rankin reasonably perceived a black

or silver weapon in Longoria’s hands and then saw Longoria

assume a “shooter’s stance.” The district court relies on a

single frozen frame from one of the videos to find that

“uncontroverted video evidence shows that Mr. Longoria

came up with both hands in front of him facing Defendant

Rankin’s direction.” It does not mention any black or silver

weapon.

Deputy Rankin did not however see a frozen frame,

disaggregated from the context of the rest of the footage. He

watched events unfold in real-time as the two videos played

at their ordinary speed portray. These videos provide some

of the most important evidence as to what occurred before

and during the shooting and what Rankin actually saw. This

evidence alone raises material questions of fact about the

reasonableness of Rankin’s actions and the credibility of his

post-hoc justification of his conduct. See Johnson v. Bay

Area Rapid Transit Dist., 724 F.3d 1159, 1177 n.7 (9th Cir.

2013) (observing that a video, even when an imperfect

account of an officer’s perspective, is relevant to his

credibility). Viewing the two videos in the light most

favorable to Longoria, the moment Rankin describes as a

“shooter’s stance” is not perceptible. While Rankin relies on

a single frozen frame of the iPhone video to illustrate the

“shooter’s stance,” all that demonstrates is the existence of a

we do know is that he saw the events in real-time, just as the two videos

recorded them, not as they were depicted in a frozen frame.

LONGORIA V. PINAL COUNTY 13

genuine dispute of material fact. 5 The full record only

heightens this and other factual disputes.

The most important question in this case is whether

Rankin reasonably perceived that Longoria assumed a

threatening or “shooter’s stance.” “If [he] did, [he] w[as]

entitled to shoot; if [he] didn’t, [he] [was]n’t.” Cruz v. City

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

5

Using frozen frames to bolster the perspective of law enforcement

is not a new phenomenon. Twenty-five years ago in the 1992 Simi Valley

state court trial of the officers who beat Rodney King:

Frame-by-frame stills of the video were mounted on

clean white illustration boards and then used as the

basis for questions to “experts” on prisoner restraint.

Each micro-moment of the beating of King was

broken down into a series of frozen images. As to each

one, the defense attorneys asked the experts whether

King assumed a compliant posture, or might a police

officer reasonably conclude that King still posed a

threat to resist. Once the defense broke the video into

frames, each still could then be re-weaved into a

different narrative about the restraint of King. Each

blow to King represented, not [a] beating . . . but a

police approved technique of restraint complete with

technical names for each baton strike (or “stroke”).

Kimberle Crenshaw and Gary Peller, Reel Time/Real Justice, 70 Denv.

U. L. Rev. 283, 285 (1993).

The state court jury acquitted the officers. See id. at 290.

Subsequently, in a federal court trial for the violation of King’s federal

civil rights, the federal jury convicted two of the four officers charged.

See Koon v. United States, 518 U.S. 81, 88 (1996). These inconsistent

results demonstrate why the probative value of real-time videos and

frozen frames is more appropriately a matter for a jury to view and

evaluate, not a matter for a court to resolve on summary judgment.

14 LONGORIA V. PINAL COUNTY

that a case in which multiple officers shot an unarmed man

turned on whether or not officers perceived the suspect reach

for a gun in his waistband). In Cruz, four officers testified

that the decedent reached for a weapon in his waistband, but

we nevertheless reversed the district court’s grant of

summary judgment because circumstantial evidence cast

doubt upon the officers’ credibility. Id. at 1078–80. Here, the

evidence supporting Rankin’s version of events is even

slimmer. No other officers saw Longoria assume a

“shooter’s stance” and responded accordingly. In fact, the

Eloy officer who Defendant argues can be seen in the cell

phone footage visibly “ducking” in response to the

“shooter’s stance” stated that he cannot remember

responding in such a manner to such a threat. Instead, other

officers gave statements that it appeared that at the time

Rankin killed him, Longoria was moving towards his car

after being shot by non-lethal rounds, flailing in response to

the impact of the bean bags and taser, or moving his hands

to his chest as if checking whether he had been shot.

Longoria’s expert in police practices could not discern

Longoria assuming a “shooter’s stance” from the iPhone

video reviewed in real-time. 6 The material dispute over these

facts alone is enough to deny summary judgment. See Lopez

v. Gelhaus, No. 16-15175, slip op. at 26, 28 (9th Cir. Sept.

22, 2017) (affirming denial of qualified immunity where

officers gave differing accounts as to whether decedent

6

“We have held en banc that ‘[a] rational jury could rely upon such

[expert] evidence in assessing whether the officers’ use of force was

unreasonable.’” Glenn v. Washington County, 673 F.3d 864, 877 (9th

Cir. 2011) (quoting Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir.

2005) (en banc) (reversing district court’s grant of summary judgment)).

Here, although the expert’s report is far from clear, we view it in the light

most favorable to Longoria. Moreover, here as in Lopez, both sides had

experts who disagreed as to whether the officer could have perceived the

alleged threatening gesture. Lopez, slip op. at 8, 19.

LONGORIA V. PINAL COUNTY 15

turned towards them and what turned out to be a toy weapon

resembling an AK-47 appeared to be rising and pointing

towards them).

The record reveals many other facts in dispute that are

material to the determination of whether a reasonable officer

would have perceived that Longoria posed any immediate

threat. The real-time videos highlight these competing

inferences rather than “blatantly contradict[ing]” or “utterly

discredit[ing]” Longoria’s version of events. See Scott,

550 U.S. at 380–381. In addition to the question whether

Rankin actually perceived that Longoria assumed a

“shooter’s stance” when he shot and killed him, there is, inter

alia, a material dispute as to: whether Rankin heard

commands to use non-lethal force or the other officers’

shouts that Longoria was holding his wallet behind his back;

whether Rankin, who has 20/20 vision, reasonably perceived

a weapon in Longoria’s hands from his position as he said

he did; whether Longoria was in fact reacting to the non-

lethal force deployed by other officers rather than assuming

a “shooter’s stance”; and whether, as a matter of fact, Rankin

could have had enough time to perceive the alleged

“shooter’s stance” at the moment he claims to have done so

and then shoot Longoria in response to that observation at

the time the videos show he shot him. 7 The district court

resolved all of those disputed facts in favor of Rankin.

Viewing all of these facts in the light most favorable to

Longoria, a reasonable jury could conclude that Rankin

knew or should have known that Longoria was not armed,

7

There is also a question of fact as to whether, even if Rankin did

perceive a “shooter’s stance,” Longoria’s abandoning of that stance and

his turning and raising his hands happened so quickly thereafter that a

reasonable officer would not have had enough time to shoot before

knowing that he should hold his fire.

16 LONGORIA V. PINAL COUNTY

that Rankin never perceived a “shooter’s stance,” and that

Rankin knew or should have known that Longoria was either

surrendering in response to the non-lethal force of the bean

bag rounds and taser or reacting in some manner to their

effects upon him but was by no means threatening to shoot

at Rankin or any of the other officers.

When a suspect is killed and cannot himself provide an

account of what took place, we must examine “whether the

officers’ accounts are ‘consistent with other known facts.’”

Cruz, 765 F.3d at 1080 n.3 (citation omitted); see also

Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir.

2016). This is consistent with our duty to review the record

“from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham,

490 U.S. at 396 (emphasis added). Rankin’s assertion that he

perceived a “shooter’s stance” is refuted by the two real-time

videos, other officers’ accounts, Longoria’s expert, and most

notably, Rice, his partner who ran to the scene of the

collision behind him and had an almost identical perspective.

Rice “observed the suspect reach behind his back and it

appeared he was attempting to return inside the vehicle.” 8

We may consider the conflicting accounts of Rice and other

officers—none of whom related that they saw Longoria

assume a “shooter’s stance”—in assessing Rankin’s claim of

reasonableness, as well as circumstantial evidence, like the

8

Rankin’s account of interactions with Longoria differs from Rice’s

in other ways. For example, Rankin alleges that Longoria pointed

something that appeared to be a gun at him out of the car window while

driving earlier in the pursuit. Rice, like other officers observing these

repeated gestures, observed that “the suspect driver . . . plac[ed] his left

hand out the window making the shape of a handgun with his thumb and

pointer finger.” Rankin also asserts that Longoria threatened him directly

during this interaction; Rice, who sat next to him in the vehicle, reported

no such threat.

LONGORIA V. PINAL COUNTY 17

fact that Longoria was actually unarmed. A reasonable jury

is far less likely to credit Rankin’s perception of a “shooter’s

stance” with the knowledge that Longoria did not have a

gun. See Cruz, 765 F.3d at 1079 (“In this case, there’s

circumstantial evidence that could give a reasonable jury

pause. Most obvious is the fact that Cruz didn’t have a gun

on him, so why would he have reached for his waistband?

. . . [F]or him to make such a gesture when no gun is there

makes no sense whatsoever.”).

In assessing the reasonableness of the use of force, we

must consider the “totality of the circumstances.” Glenn,

673 F.3d at 871 (citation omitted). It is undisputed that

Longoria was emotionally disturbed, acting out, and at times

inviting officers to use deadly force to subdue him. See

Hughes, 862 F.3d at 781. Our precedent establishes that in

these circumstances, a reasonable jury could conclude “that

there were sufficient indications of mental illness to diminish

the governmental interest in using deadly force.” Id. Other

officers appear to have been aware of this and prepared to

respond accordingly by employing only non-lethal weapons.

And like many other similarly tragic encounters with

mentally ill or emotionally disturbed individuals, the

situation facing Rankin was “far from that of a lone police

officer suddenly confronted by a dangerous armed felon

threatening immediate violence.” Deorle v. Rutherford,

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

opportunity to observe Longoria for more than forty minutes

before he killed him. See id. During that time, Longoria

neither brandished a gun nor shot at anyone.

Another circumstance to be considered is that Rankin

was monitoring the EPD and PCSO radio frequencies

throughout the incident. Despite this, Rankin claims he did

not hear portions of the police broadcast earlier in the pursuit

18 LONGORIA V. PINAL COUNTY

that conveyed Longoria was unarmed, nor did he hear the

commands to use less than lethal force and the shouts that

Longoria was unarmed in the seconds before the shooting.

Viewing the facts in the light most favorable to Longoria,

Rankin disobeyed orders to maintain a perimeter and

sprinted towards the scene—through the line of fire. Rankin

knew that other officers were in better positions to see and

respond to Longoria, had their weapons drawn, and were in

the process of using non-lethal force. The totality of

circumstances does not support the conclusion that Rankin’s

conduct was objectively reasonable. Rather it raises a

genuine issue of material fact to be determined by a jury.

The immediacy of the threat and Rankin’s objective

reasonableness in the totality of the circumstances depend

upon the resolution of disputes of material facts that must be

resolved against Rankin at this stage of the proceedings. We

cannot say as a matter of law that Rankin acted reasonably.

The question of whether a constitutional violation occurred

is therefore a matter for the jury to determine.

B. Clearly Established Right

We next proceed to the second question in assessing

qualified immunity: whether the right at issue was clearly

established. “The ‘dispositive inquiry in determining

whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.’” Hernandez v. Mesa, 137 S. Ct.

2003, 2008 (2017) (per curiam) (quoting Saucier v. Katz,

533 U.S. 194, 202 (2001)). Our analysis “is limited to ‘the

facts that were knowable to the defendant officers’ at the

time they engaged in the conduct in question.” Id. (quoting

White, 137 S. Ct. at 550). Because we are making a

determination at summary judgment, we must view any

disputed facts in the light most favorable to Longoria.

LONGORIA V. PINAL COUNTY 19

To determine whether the law was clearly established,

we do not “require a case directly on point, but existing

precedent must have placed the . . . constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). We have acknowledged that qualified immunity may

be denied in novel circumstances. See Mattos v. Agarano,

661 F.3d 433, 442 (9th Cir. 2011) (citing Hope v. Pelzer,

536 U.S. 730, 741 (2002)). “Otherwise, officers would

escape responsibility for the most egregious forms of

conduct simply because there was no case on all fours

prohibiting that particular manifestation of unconstitutional

conduct.” Deorle, 272 F.3d at 1286; see also Brosseau,

543 U.S. at 199 (stating that “in an obvious case, [general]

standards can ‘clearly establish’ the answer, even without a

body of relevant case law”).

The law governing this case is clearly established: “A

police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” Garner, 471 U.S. at 11.

While locating the outer contours of the

Fourth Amendment may at times be a murky

business, few things in our case law are as

clearly established as the principle that an

officer may not “seize an unarmed,

nondangerous suspect by shooting him dead”

in the absence of “probable cause to believe

that the suspect poses a threat of serious

physical harm, either to the officer or to

others.”

Torres, 648 F.3d at 1128 (quoting Garner, 471 U.S. at 11);

see also Adams v. Spears, 473 F.3d 989, 994 (9th Cir. 2007).

Thus, Longoria’s Fourth Amendment right not to be shot

dead while unarmed, surrounded by law enforcement, and in

the process of surrendering is clearly established such that a

20 LONGORIA V. PINAL COUNTY

“it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” 9 Hernandez,

137 S. Ct. at 2008. If, however, Rankin reasonably perceived

that Longoria posed a threat of serious physical harm to

Rankin or other officers, then he could have lawfully used

deadly force. There is no dispute in this case about these

propositions.

We are presented here with a pure question of fact and

not a question of law or of mixed fact and law. Rankin

contends that he in fact perceived that Longoria assumed a

“shooter’s stance” and that Longoria appeared to be armed.

Longoria, on the other hand, asserts that Rankin did not see,

nor could he in fact have seen, what he claimed caused him

to believe that Longoria assumed a “shooter’s stance” and

that he appeared to be armed.

“Where the facts are disputed, their resolution and

determinations of credibility ‘are manifestly the province of

a jury.’” Wall v. County of Orange, 364 F.3d 1107, 1110 (9th

Cir. 2004) (quoting Santos, 287 F.3d at 852). This case turns

on disputed facts, including the credibility of Rankin.

Rankin’s account of an earlier interaction with Longoria

during the car pursuit is inconsistent with that of his partner,

Rice. Rankin heard some information on the radio dispatches

of both the EPD and the PSCO, but he claims not to have

heard any of the information relayed over those radio

frequencies that would be helpful to Longoria. Unlike other

PCSO officers, Rankin interpreted the command to maintain

a perimeter as a command to run towards Longoria and the

9

Within the specific context of Longoria’s death, shot with his

empty hands in the air above his head, this constitutional right is so

clearly established that it has become the anthem in many protests of

other police shootings: “Hands up, don’t shoot!”

LONGORIA V. PINAL COUNTY 21

Eloy officers after a PIT maneuver totally disabled

Longoria’s car. Rankin likewise asserts that he did not hear

any of the commands to use non-lethal force immediately

prior to the shooting, nor did he hear officers shouting that

Longoria was unarmed. This is inconsistent with the

accounts of many other officers on the scene. Most

important, no one else saw Longoria assume a “shooter’s

stance,” including Rice, who was just behind him at the time.

The two videos show that anyone who saw the events in real-

time, including Rankin, would not have seen Longoria adopt

what would have appeared to be a “shooter’s stance.”

A jury must determine Rankin’s credibility in light of

conflicting accounts from his partner, other officers,

Longoria’s expert, and the videos in real-time. See Cruz,

765 F.3d at 1080 (“We make no determination about the

officers’ credibility, because that’s not our determination to

make. We leave it to the jury.”). If a jury concluded that

Rankin reasonably perceived Longoria to be armed and

threatening, it could find he had reason to use deadly force

and thus there was no violation of Longoria’s clearly

established constitutional right. See Act Up!/Portland v.

Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (“[T]he facts and

circumstances within an officer’s knowledge . . . are matters

of fact to be determined, where genuine disputes of a

material nature exist, by the fact finder.”). However, a

reasonable jury could also conclude that Rankin knew or

should have known that Longoria was not holding a gun and

that he did not assume a “shooter’s stance” and could find

that Rankin’s statements to the contrary were not credible. A

jury resolving these questions in Longoria’s favor could thus

find that Rankin violated Longoria’s clearly established

right. We may not usurp the jury’s role as the arbiters of fact,

nor can our analysis at summary judgment change simply

because the videos that show these disputed events unfolding

22 LONGORIA V. PINAL COUNTY

in real-time may be called into question by a single frozen

frame that does not represent what an officer actually saw at

the time the events unfolded. See Lopez, slip op. at 45

(finding that a jury must determine the facts relevant to

qualified immunity: whether the officer could have

reasonably perceived the decedent turning while holding a

toy AK-47 as a “harrowing gesture”).

Defendants are not entitled to qualified immunity

because there is a material issue of fact as to whether Rankin

violated Longoria’s clearly established constitutional right.

We therefore reverse the district court’s grant of summary

judgment and remand for a jury to determine whether

Rankin’s use of deadly force was lawful.

II. Plaintiffs’ Rule 56(d) Motion

Plaintiffs challenge the denial of their Rule 56(d) motion.

This challenge is moot because on remand the parties will be

entitled to conduct further discovery.

III. Family-Member Plaintiffs’ § 1983 Claims

Longoria challenges the dismissal of the family-member

Plaintiffs’ § 1983 claims. Only Longoria’s estate may bring

a § 1983 for the violation of his Fourth Amendment rights;

his family members have no standing to sue on their own

behalves. The Supreme Court has made this abundantly

clear. Alderman v. United States, 394 U.S. 165, 174 (1969)

(“Fourth Amendment rights are personal rights which . . .

may not be vicariously asserted.”). Moreover, the Court has

recently reaffirmed this principle. Plumhoff, 134 S. Ct. at

2022 (“Our cases make it clear that Fourth Amendment

rights are personal rights which may not be vicariously

asserted.”) (citations omitted). We therefore affirm the

LONGORIA V. PINAL COUNTY 23

district court’s dismissal of the family-members’ § 1983

claims.

IV. State Wrongful Death Claim

Plaintiffs brought a wrongful-death claim under Arizona

Revised Statute § 12-611 against Rankin, as well as Pinal

County Sheriff Paul Babeu (in his official capacity) and

Pinal County under a respondeat superior theory of liability.

Because we find a material dispute of facts as to whether or

not Rankin’s use of deadly force was reasonable, we reverse

the district court’s grant of summary judgment in the state

cause of action as well.

CONCLUSION

For the reasons set forth above, the district court’s order

granting Defendants’ motions for summary judgment is

REVERSED. The district court’s order dismissing the

family-member Plaintiffs’ § 1983 claims is AFFIRMED,

and the case is REMANDED for proceedings consistent

with this opinion.