The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY J. ZION, individually and No. 15-56705
as successor in interest to Connor
Zion, D.C. No.
Plaintiff-Appellant, 8:14-cv-01134-
JVS-RNB
v.
COUNTY OF ORANGE; MICHAEL OPINION
HIGGINS,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted June 6, 2017
Pasadena, California
Filed November 1, 2017
Before: Stephen Reinhardt and Alex Kozinski, Circuit
Judges, and Terrence Berg,* District Judge.
Opinion by Judge Kozinski
*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 ZION V. COUNTY OF ORANGE
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought pursuant to 42 U.S.C. § 1983 and state law alleging
that a County of Orange police officer used excessive deadly
force when he shot Connor Zion and killed him.
County of Orange police officer Michael Higgins fired
nine rounds at Zion after witnessing him stab a fellow officer
in the arms with a knife and run away. Police video footage
showed that after Zion fell to the ground, Higgins ran towards
the body and fired nine more rounds from a distance of about
four feet. While Zion was still moving on the ground in fetal
position, Higgins stomped on Zion’s head three times.
Addressing the Fourth Amendment excessive force claim,
the panel held that if a suspect is on the ground and appears
wounded, he may no longer pose a threat. A reasonable
officer would then reassess the situation rather than continue
shooting. This is particularly true when the suspect wields a
knife rather than a firearm. The panel held that in this case,
a jury could reasonably conclude that Higgins could have
sufficiently protected himself and others after Zion fell by
pointing his gun at Zion and pulling the trigger only if Zion
attempted to flee or attack. Although Higgins testified that
Zion was trying to get up, the panel determined that in light
of the video footage to the contrary, the issue of whether Zion
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZION V. COUNTY OF ORANGE 3
attempted to flee or attack involved a dispute of fact that had
to be resolved by a jury. The panel held that if a jury
determined that Zion no longer posed an immediate threat,
any deadly force Higgins used after that time violated long-
settled Fourth Amendment law. Higgins would therefore
have been on notice that his conduct was unlawful and
defendants would not be entitled to qualified immunity.
Addressing the Fourteenth Amendment due process
claim, the panel held that Higgins didn’t violate the
Fourteenth Amendment by emptying his weapon at Zion
because whether excessive or not, the shootings served the
legitimate purpose of stopping a dangerous suspect. The
panel held that the head stomps were different. The panel
held that like forced stomach-pumping, head-stomping a
suspect curled up in the fetal position is bound to offend even
hardened sensibilities. The panel held that a jury could
reasonably find that Higgins knew or easily could have
determined that he had already rendered Zion harmless. If so,
a reasonable jury could also conclude that Higgins was acting
out of anger or emotion rather than any legitimate law
enforcement purpose.
The panel affirmed the district court’s summary judgment
on plaintiff’s municipal liability claims under Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978) because plaintiff admitted
in the district court that they lacked merit. The panel
remanded plaintiff’s remaining claims to the district court to
consider in the first instance.
4 ZION V. COUNTY OF ORANGE
COUNSEL
Jerry L. Steering (argued) and Brenton W. Aitken Hands,
Law Office of Jerry L. Steering, Newport Beach, California,
for Plaintiff-Appellant.
Lann G. McIntyre (argued), Lewis Brisbois Bisgaard & Smith
LLP, San Diego, California; Greg Ryan, Matthew P.
Harrison, and Dana Alden Fox, Lewis Brisbois Bisgaard &
Smith LLP, Los Angeles, California; for Defendants-
Appellees.
OPINION
KOZINSKI, Circuit Judge:
When police confront a suspect who poses an immediate
threat, they may use deadly force against him. But they must
stop using deadly force when the suspect no longer poses a
threat. We explore the murky boundary between these two
circumstances.
BACKGROUND
Connor Zion suffered several seizures. He then had a
seemingly related episode where he bit his mother and cut her
and his roommate with a kitchen knife. Police were called.
Deputy Juan Lopez arrived at Zion’s apartment complex. As
Lopez exited his police car, Zion ran at him and stabbed him
in the arms. Deputy Michael Higgins drove up separately and
witnessed the attack on Lopez.
ZION V. COUNTY OF ORANGE 5
What happened next is captured in two videos taken by
cameras mounted on the dashboards of the two police
cruisers.1 Zion is seen running toward the apartment
complex. Lopez Video 2:58. Higgins shoots at him from
about fifteen feet away. Higgins Video 3:25. Nine shots are
heard and Zion falls to the ground. Lopez Video 2:54.
Higgins then runs to where Zion has fallen and fires nine
more rounds at Zion’s body from a distance of about four
feet, emptying his weapon. Id. at 3:00–03. Zion curls up on
his side. Id. Higgins pauses and walks in a circle. Id. at
3:05. Zion is still moving. Id. at 3:00–12. Higgins then
takes a running start and stomps on Zion’s head three times.
Id. at 3:11–20.
Zion died at the scene. His mother brought suit under
42 U.S.C. § 1983, claiming Higgins used excessive force.
She also claims Higgins deprived her of her child without due
process. She raised a separate substantive due process claim
on Zion’s behalf, municipal liability claims and various state
law claims. The district court granted summary judgment to
defendants on all claims.
ANALYSIS
A. Fourth Amendment
1. Police use of force is excessive and violates the Fourth
Amendment if it’s objectively unreasonable under the
circumstances. Graham v. Connor, 490 U.S. 386, 388
(1989); Scott v. Harris, 550 U.S. 372, 383 (2007). We assess
1
The videos can be viewed at https://www.ca9.uscourts.gov/media/
15-56705/evidence/Lopez (Lopez Video) and https://www.ca9.uscourts.
gov/media/15-56705/evidence/Higgins (Higgins Video).
6 ZION V. COUNTY OF ORANGE
reasonableness using the non-exhaustive Graham factors:
“the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” 490 U.S. at 396. The most important factor
is whether the suspect posed an immediate threat. Mattos v.
Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). If the
evidence, viewed in the light most favorable to plaintiff,
could support a jury finding of excessive force, defendants
aren’t entitled to summary judgment. Smith v. City of Hemet,
394 F.3d 689, 701 (9th Cir. 2005) (en banc).
Plaintiff doesn’t challenge Higgins’s initial nine-round
volley, but does challenge the second volley (fired at close
range while Zion was lying on the ground) and the head-
stomping. By the time of the second volley, Higgins had shot
at Zion nine times at relatively close range and Zion had
dropped to the ground. In the video, Zion appears to have
been wounded and is making no threatening gestures. Lopez
Video 3:04. While Higgins couldn’t be sure that Zion wasn’t
bluffing or only temporarily subdued, Zion was lying on the
ground and so was not in a position where he could easily
harm anyone or flee. A reasonable jury could find that Zion
was no longer an immediate threat, and that Higgins should
have held his fire unless and until Zion showed signs of
danger or flight. Or, a jury could find that the second round
of bullets was justified, but not the head-stomping.
Defendants argue that Higgins’s continued use of deadly
force was reasonable because Zion was still moving. They
quote Plumhoff v. Rickard: “[I]f police officers are justified
in firing at a suspect in order to end a severe threat to public
safety, the officers need not stop shooting until the threat has
ended.” 134 S. Ct. 2012, 2022 (2014). But terminating a
ZION V. COUNTY OF ORANGE 7
threat doesn’t necessarily mean terminating the suspect. If
the suspect is on the ground and appears wounded, he may no
longer pose a threat; a reasonable officer would reassess the
situation rather than continue shooting. See id. This is
particularly true when the suspect wields a knife rather than
a firearm.2 In our case, a jury could reasonably conclude that
Higgins could have sufficiently protected himself and others
after Zion fell by pointing his gun at Zion and pulling the
trigger only if Zion attempted to flee or attack.
Higgins testified that Zion was trying to get up. But we
“may not simply accept what may be a self-serving account
by the police officer.” Scott v. Henrich, 39 F.3d 912, 915
(9th Cir. 1994). This is especially so where there is contrary
evidence. In the video, Zion shows no signs of getting up.
Lopez Video 3:01. This is a dispute of fact that must be
resolved by a jury.
2. The Fourth Amendment right here was “clearly
established.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
curiam). If a jury determines that Zion no longer posed an
immediate threat, any deadly force Higgins used after that
time violated long-settled Fourth Amendment law. We have
cases holding that the use of deadly force against a non-
threatening suspect is unreasonable. See, e.g., Tennessee v.
Garner, 471 U.S. 1, 11–12 (1985); Harris v. Roderick,
126 F.3d 1189, 1201 (9th Cir. 1997). We’ve also held that
continued force against a suspect who has been brought to the
ground can violate the Fourth Amendment. In Drummond v.
2
It may be that, once on the ground, Zion had dropped the knife.
Whether the knife was still in Zion’s hand or within his reach, and
whether Higgins thought Zion was still armed, are factual questions that
only a jury can resolve.
8 ZION V. COUNTY OF ORANGE
City of Anaheim, we found that officers used excessive force
by sitting on a prone suspect’s back, asphyxiating him.
343 F.3d 1052, 1057–58 (9th Cir. 2003). And in Davis v.
City of Las Vegas, we held that an officer violated the Fourth
Amendment by punching a handcuffed suspect in the face
while the suspect lay on the floor. 478 F.3d 1048, 1053 (9th
Cir. 2007). If a jury were to find that Higgins shot and/or
stomped on Zion’s head after Zion no longer posed an
immediate threat, Higgins would have been “on notice that
his conduct would be clearly unlawful.” Saucier v. Katz,
533 U.S. 194, 202 (2001). Defendants therefore aren’t
entitled to qualified immunity.
B. Fourteenth Amendment
Parents “have a Fourteenth Amendment liberty interest in
the companionship and society of their children.”
Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).
Excessive force claims typically must be “analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard,
rather than under a substantive due process standard.”
Graham, 490 U.S. at 388. But a familial relations claim
alleges a different constitutional violation under the Due
Process Clause that isn’t barred by Graham. Curnow v.
Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).
Conduct that “shocks the conscience” violates due process.
Wilkinson, 610 F.3d at 554.
Higgins violated the Fourteenth Amendment if he acted
with “a purpose to harm without regard to legitimate law
enforcement objectives.” Porter v. Osborn, 546 F.3d 1131,
1133 (9th Cir. 2008). Plaintiff mistakenly argues that the
lower “deliberate indifference” standard applies. That
standard is appropriate only where “actual deliberation is
ZION V. COUNTY OF ORANGE 9
practical.” Id. at 1137 (quoting Moreland v. Las Vegas
Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998)).
Higgins didn’t violate the Fourteenth Amendment by
emptying his weapon at Zion. The two volleys came in rapid
succession, without time for reflection. Whether excessive or
not, the shootings served the legitimate purpose of stopping
a dangerous suspect.
The head stomps are different. After the two volleys, the
video shows Higgins walking around in a circle for several
seconds before returning for the head strikes. He even takes
a running start before each strike. Lopez Video 3:11. This is
exactly the kind of “brutal” conduct the Due Process Clause
protects against. Breithaupt v. Abram, 352 U.S. 432, 435
(1957). Like forced stomach-pumping, head-stomping a
suspect curled up in the fetal position “is bound to offend
even hardened sensibilities.” Rochin v. California, 342 U.S.
165, 172 (1952); see United States v. Cameron, 538 F.2d 254
(9th Cir. 1976).
This case is akin to A.D. v. California Highway Patrol,
where we found that an officer violated due process by
shooting a suspect who posed no immediate threat. 712 F.3d
446, 451, 458 (9th Cir. 2013). The suspect there had
repeatedly rammed her car into the officer’s vehicle, but the
officer saw that the suspect had no weapons and ten seconds
elapsed between the ramming and the shooting. Id. at 451.
Similarly, here a reasonable jury could find that Higgins
knew he had rendered Zion incapable of causing harm or
fleeing. Higgins had just fired eighteen bullets in Zion’s
direction, half of them at very close range while Zion lay on
the ground. No competent officer could have failed to at least
wound his target under these conditions. Higgins then paused
10 ZION V. COUNTY OF ORANGE
before delivering what appear to be vicious blows to Zion’s
head. Lopez Video 3:04–12. A jury could reasonably find
that Higgins knew or easily could have determined that he
had already rendered Zion harmless. If so, a reasonable jury
could also conclude that Higgins was acting out of anger or
emotion rather than any legitimate law enforcement purpose.
C. Remaining Claims
1. The district court granted summary judgment on
plaintiff’s municipal liability claims under Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978), because plaintiff admitted
that they lacked merit. Plaintiff doesn’t challenge this finding
on appeal. She argues instead that we should restore these
claims because the district court relied on its erroneous
Fourth and Fourteenth Amendment rulings in rejecting the
Monell claims. But the district court relied on plaintiff’s
concession, not on its Fourth or Fourteenth Amendment
holdings. We affirm the district court as to the Monell
claims.
2. The district court did rely on its rejection of plaintiff’s
Fourth Amendment and familial relations claims in
summarily resolving plaintiff’s remaining substantive due
process and state law claims in defendants’ favor. We
remand to the district court for it to consider these claims in
the first instance. See Drummond, 343 F.3d at 1062.
The videos—Exhibits A and B—shall be unsealed.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
Plaintiff shall recover her costs.