Michael Easley v. City of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL EASLEY; STEPHANIA No. 16-55941

SESSION,

Plaintiffs-Appellants, D.C. No.

5:14-cv-00117-

v. TJH-SP

CITY OF RIVERSIDE; SERGIO DIAZ;

SILVIO MACIAS; DOES, 1 TO 10, OPINION

inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Senior District Judge, Presiding

Argued and Submitted February 6, 2018

Pasadena, California

Filed May 18, 2018

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,

Circuit Judges, and Robert W. Pratt,* District Judge.

*

The Honorable Robert W. Pratt, United States District Judge for

the Southern District of Iowa, sitting by designation.

2 EASLEY V. CITY OF RIVERSIDE

Opinion by Judge Callahan;

Dissent by Judge Pratt

SUMMARY **

Civil Rights

The panel affirmed the district court’s grant, on summary

judgment, of qualified immunity to a police officer in a 42

U.S.C. § 1983 action alleging that the officer used excessive

force when he shot plaintiff three times following a traffic

stop.

The panel first held that the district court did not err by

raising the issue of qualified immunity sua sponte and

addressing it on summary judgment because the district

court retains this authority and because defendant raised and

preserved qualified immunity as a defense. On the merits,

the panel held that the district court correctly granted

qualified immunity and summary judgment in defendant’s

favor because his application of deadly force was objectively

reasonable under the Fourth Amendment. The panel noted

that based on the undisputed facts, a reasonable officer may

have reasonably feared that plaintiff had a gun and was

turning to shoot him.

Dissenting, District Judge Pratt stated that he perceived

genuine, material factual disputes in the record that the

district court and the majority had either improperly

**

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

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

EASLEY V. CITY OF RIVERSIDE 3

purported to resolve or improperly ignored. Judge Pratt

would reverse the summary judgment and remand for further

proceedings.

COUNSEL

Dale K. Galipo (argued) and Hang D. Le, Law Offices of

Dale K. Galipo, Woodland Hills, California, for Plaintiffs-

Appellants.

Alana H. Rotter (argued) and Timothy T. Coates, Greines

Martin Stein & Richland LLP, Los Angeles, California; John

M. Porter, Lewis Brisbois Bisgaard & Smith LLP, San

Bernardino, California; Neil Okazaki, Deputy City

Attorney; Gary Geuss, City Attorney; Office of the City

Attorney, Riverside, California; for Defendants-Appellees.

OPINION

CALLAHAN, Circuit Judge:

On December 22, 2011, Michael Easley (“Easley”) was

shot three times by Officer Silvio Macias (“Macias”)

following a traffic stop. Based on his resulting injuries,

which include permanent physical disability and paralysis,

Easley filed this action alleging that Macias violated

42 U.S.C. § 1983 through the use of excessive force. The

district court sua sponte ordered an evidentiary hearing

regarding Macias’ entitlement to qualified immunity.

Following the two-day hearing, the district court ruled

Macias was entitled to qualified immunity and granted

summary judgment in his favor. Easley appeals, challenging

the district court’s sua sponte grant of summary judgment as

4 EASLEY V. CITY OF RIVERSIDE

procedurally impermissible and arguing that the record

construed in the light most favorable to Easley reflects that

genuine issues of material fact remain as to Macias’

entitlement to qualified immunity. We affirm because the

district court properly considered qualified immunity sua

sponte and because, viewing the record in the light most

favorable to Easley, Macias’ use of deadly force was

objectively reasonable under the Fourth Amendment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

On the night of December 22, 2011, at around 8:20 p.m.,

Macias and his partner, Officer Anthony Watkins

(“Watkins”), were on patrol in the 12th Street area of

Riverside, California, in their police car. They noticed a

pink Chevrolet Monte Carlo with what appeared to be

illegally-tinted windows. Macias thought he recognized the

driver, Stephania Session (“Session”), from a prior

encounter. Easley, her husband, was a passenger in the car.

As the Chevrolet passed the police car, Macias shone his

flashlight into the car and the passenger leaned back in the

seat.

Macias and Watkins began following the Chevrolet,

which made a U-turn, sped up, and entered a strip mall

parking lot. When the Chevrolet sped across the parking lot,

fishtailing and barely avoiding hitting another car, the

officers activated the patrol car’s lights and sirens. The

Chevrolet did not initially heed the lights and sirens, but then

it suddenly stopped.

Easley bolted out of the car and, clutching the waistband

of his pants with his right hand, ran away from the patrol car.

Macias and Watkins exited their patrol car and Watkins

EASLEY V. CITY OF RIVERSIDE 5

shouted “Gun” or “He’s got a gun.” 1 Macias pursued Easley

on foot.

Easley continued to clutch his waistband with his right

hand. However, with his left hand he removed an object,

later determined to be a gun, from his right pants’ pocket and

flung the item to his left. Macias fired three shots, striking

Easley twice in the right arm and once in the back. Easley

was shot within two to four seconds of throwing the gun.

B.

Easley and Session filed this action in California state

court alleging, among other claims, the unreasonable and

excessive use of force in violation of the Fourth and

Fourteenth Amendments, made actionable under 42 U.S.C.

§ 1983. The case was removed to the United States District

Court for the Central District of California. Plaintiffs filed a

First Amended Complaint, which Macias answered asserting

that his actions “were objectively reasonable under the

circumstances” and that he was entitled to “qualified

immunity from suit, liability and damages.”

The parties negotiated a partial dismissal of some of the

claims in the complaint and Macias agreed not to seek

summary judgment on the remaining claims. On February

29, 2016, the district court conducted a pretrial status

conference and sua sponte raised the issue of Macias’

entitlement to qualified immunity. The district court ordered

an evidentiary hearing on the issue, which was held on April

7 and 8, 2016. The court heard testimony from Macias,

Easley, and several fact and expert witnesses. On June 1,

1

The dashboard camera video entered as an exhibit in the trial court

records that Watkins shouted these words to Macias.

6 EASLEY V. CITY OF RIVERSIDE

2016, the district court issued its order determining that there

remained no genuine issue of material fact for determination

by a jury and that Macias was entitled to qualified immunity

and judgment as a matter of law. Easley and Session filed a

timely notice of appeal.

II. STANDARD OF REVIEW

We review a district court’s summary judgment

determination de novo. Longoria v. Pinal Cty., 873 F.3d

699, 703 (9th Cir. 2017); see also Glenn v. Wash. Cty.,

673 F.3d 864, 870 (9th Cir. 2011) (“We review a district

court’s decision to grant summary judgment de novo,

considering all facts in dispute in the light most favorable to

the nonmoving party.”).

III. ANALYSIS

A.

Before addressing the merits, we consider whether the

district court erred by raising sua sponte the issue of

qualified immunity. We have held that “[d]istrict courts

unquestionably possess the power to enter summary

judgment sua sponte even on the eve of trial.” Norse v. City

of Santa Cruz, 629 F.3d 966, 971 (9th Cir. 2010). In so

ruling, we followed the Supreme Court’s command. See

Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)

(“[D]istrict courts are widely acknowledged to possess the

power to enter summary judgments sua sponte, so long as

the losing party was on notice that she had to come forward

with all of her evidence.”).

Easley questions the district court’s ability to raise the

matter of qualified immunity sua sponte, and alternatively

argues that Macias waived his right to raise qualified

EASLEY V. CITY OF RIVERSIDE 7

immunity as a defense. Neither argument is persuasive.

Although qualified immunity is an affirmative defense, see

Siegert v. Gilley, 500 U.S. 226, 231 (1991) (“Qualified

immunity is a defense that must be pleaded by a defendant

official.”), a district court is not proscribed from directing

the parties to brief the issue when it has been properly raised.

Here, Macias raised qualified immunity as a defense in his

answer, and he never waived or abandoned his claim of

qualified immunity. Macias did not move for summary

judgment, but reasonably asserted qualified immunity when

directed by the district court to brief the issue.

The district court did not err by raising the issue of

qualified immunity sua sponte and addressing it on summary

judgment.

B.

“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.’” Stanton v. Sims, 571 U.S. 3, 4–5 (2013) (per

curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). The doctrine is designed to balance “two important,

competing interests: the need to hold public officials

accountable for irresponsible actions, and the need to shield

them from liability when they make reasonable mistakes.”

Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017); see

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified

immunity gives government officials breathing room to

make reasonable but mistaken judgments about open legal

questions.”); Green v. City & Cty. of S.F., 751 F.3d 1039,

1051 (9th Cir. 2014). “When properly applied, it protects

‘all but the plainly incompetent or those who knowingly

8 EASLEY V. CITY OF RIVERSIDE

violate the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)).

Courts engage in a two-pronged analysis to determine

whether qualified immunity applies: “[O]fficers are entitled

to qualified immunity under § 1983 unless (1) they violated

a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). The second prong requires us to analyze two

discrete sub-elements: “whether the law governing the

conduct at issue was clearly established” and “whether the

facts as alleged could support a reasonable belief that the

conduct in question conformed to the established law.”

Green, 751 F.3d at 1052.

On de novo review of a district court’s summary-

judgment ruling, this Court “must view the evidence,

including all reasonable inferences, in favor of the non-

moving party.” Reed v. Lieurance, 863 F.3d 1196, 1204

(9th Cir. 2017); see Sharp v. Cty. of Orange, 871 F.3d 901,

909 (9th Cir. 2017). Consequently, at summary judgment,

an officer may be denied qualified immunity in a § 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. See Pearson, 555 U.S. at

232.

Courts are “permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id. at 236; see

EASLEY V. CITY OF RIVERSIDE 9

Morales, 873 F.3d at 822. If the second prong is dispositive,

courts need not analyze the first. Pearson, 555 U.S. at 236–

37. In this case, the district court analyzed only the second

prong and concluded that summary judgment was warranted.

We stated the applicable law in Wilkinson v. Torres,

610 F.3d 546, 550 (9th Cir. 2010):

Apprehension by deadly force is a seizure

subject to the Fourth Amendment’s

reasonableness requirement. See Graham v.

Connor, 490 U.S. 386, 395 (1989). However,

an officer using deadly force is entitled to

qualified immunity, unless the law was

clearly established that the use of force

violated the Fourth Amendment. See

Brosseau v. Haugen, 543 U.S. 194, 198

(2004). . . .

Case law has clearly established that an

officer may not use deadly force to apprehend

a suspect where the suspect poses no

immediate threat to the officer or others.

Tennessee v. Garner, 471 U.S. 1, 11 (1985).

On the other hand, it is not constitutionally

unreasonable to prevent escape using deadly

force “[w]here the officer has probable cause

to believe that the suspect poses a threat of

serious physical harm, either to the officer or

to others.” Id.

We further noted that “[w]hether the use of deadly force is

reasonable is highly fact-specific . . . but the inquiry is an

objective one.” Wilkinson, 610 F.3d at 551 (citing Scott v.

Harris, 550 U.S. 372, 383 (2007), and Graham, 490 U.S. at

10 EASLEY V. CITY OF RIVERSIDE

397). The question “is whether the officers’ actions are

‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Wilkinson, 610 F.3d at

551 (quoting Graham, 490 U.S. at 397). We also observed

that “[a] reasonable use of deadly force encompasses a range

of conduct, and the availability of a less-intrusive alternative

will not render conduct unreasonable.” Id.

Here, taking the facts and allegations in the light most

favorable to Easley, Macias’ use of deadly force was

objectively reasonable. It is an undisputed fact that Macias

was concerned about the presence of a gun. Watkins,

Macias’s partner, had shouted “Gun” or “He’s got a gun”

when Easley ran away from the Chevrolet and the patrol car.

Macias then saw Easley grab his waistband as he ran. It is

undisputed that as he ran, Easley pulled an object from his

right pants’ pocket with his left hand and threw it away from

his body. Macias shot Easley within two to four seconds of

the object leaving Easley’s hand. 2 Easley stated that he

threw the gun in a motion similar to throwing a Frisbee

across his body; this would necessarily involve some upper

body or shoulder movement. Based on these undisputed

facts, a reasonable officer may have reasonably feared that

Easley had a gun and was turning to shoot him. Thus,

viewing the critical evidence in the light most favorable to

Easley, we conclude that Macias is entitled to qualified

2

The dissent believes that we do not read the record in the light most

favorable to Easley by relying on the two-to-four-second timeframe.

Dissent at 18. But Easley did not claim that four seconds elapsed; as the

dissent notes, he first estimated “maybe three or four seconds” and then

agreed that it could have been only two or three. Regardless, any

possible discrepancy is not dispositive. See Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018) (finding qualified immunity where a police officer

shot a possibly threatening suspect after only “mere seconds to assess the

potential danger”).

EASLEY V. CITY OF RIVERSIDE 11

immunity. We need not, and do not, resolve the remaining

disputed issues of fact in Macias’ favor to reach this result.

As the Supreme Court noted in Graham, “[t]he calculus

of reasonableness must embody allowance 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.” 490 U.S. at 396–97.

This was just such a situation. Macias’ application of deadly

force was a proportional response because “the Fourth

Amendment does not require” a police officer to be

“omniscien[t], and absolute certainty of harm need not

precede [an officer’s] act of self-protection.” Wilkinson,

610 F.3d at 553 (citation and internal question mark

omitted).

IV. CONCLUSION

The district court committed no error when it sua sponte

raised the issue of qualified immunity and addressed it on

summary judgment because the district court retains this

authority and because Macias raised and preserved qualified

immunity as a defense. On the merits, the district court

correctly granted qualified immunity to Macias and

summary judgment in his favor because his application of

deadly force was objectively reasonable under the Fourth

Amendment.

AFFIRMED.

12 EASLEY V. CITY OF RIVERSIDE

PRATT, District Judge, dissenting:

In order to ensure Officer Macias is insulated from

liability at this pre-trial stage in the present litigation, the

district court and today’s majority have stretched too thin the

established bodies of law concerning both summary

judgment and qualified immunity. I respectfully dissent and

address each of these two issues in turn.

I

I first consider the law of summary judgment, a term

which is something of a misnomer. The adjective

“summary” suggests a simple and abbreviated judicial

process coupled with a brief dispositional order; however, a

proper, effective application of the summary-judgment

standard is in fact complicated and time-consuming. See

Hon. D. Brock Hornby, Summary Judgment Without

Illusions, 13 Green Bag 2d 273, 273 (2010). Because

Easley’s Seventh Amendment right to trial by jury is at

stake, we must “assiduously avoid deciding disputed facts or

inferences” in our quest to determine whether this record

contains any genuine factual disputes necessitating trial. Id.

at 281–82; see U.S. Const. amend. VII. In the context of

§ 1983 actions, “the jury’s role in vindicating constitutional

rights has long been recognized by the federal courts.” City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 721 (1999). It is therefore constitutionally imperative

that we carefully and deliberately apply the law of summary

judgment and its underlying principles to Easley’s complaint

to ensure we do not prematurely vitiate his jury demand or

undermine the traditional role of the jury in § 1983 actions

alleging a violation of constitutional protections.

“[S]ummary judgment is an extreme remedy.” May

Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1214

EASLEY V. CITY OF RIVERSIDE 13

(9th Cir. 1980). “It should not be granted unless the movant

has established its right to judgment with such clarity as to

leave no room for controversy. It must be found that the

other party is not entitled to recover under any discernable

circumstances.” Id. The purpose of summary judgment is

not “to cut litigants off from their right of trial by jury if they

really have issues to try.” Poller v. Columbia Broad. Sys.,

Inc., 368 U.S. 464, 467 (1962) (quoting Sartor v. Ark.

Natural Gas Corp., 321 U.S. 620, 627 (1944)).

To that end, we must view all the record evidence in the

most favorable light to Easley, and we also must give him

the benefit of every reasonable inference. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The

evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.”); see

Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017). The

evidence to be considered is strictly limited to objective

circumstances; the subjective beliefs of the defendant are

categorically irrelevant. Inouye v. Kemna, 504 F.3d 705, 712

(9th Cir. 2007). “Credibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge . . . .”

Anderson, 477 U.S. at 255. Courts may not issue findings of

facts—either formal or de facto—when granting or denying

summary judgment. 1 Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (per curiam) (holding summary judgment courts may

not “weigh the evidence and determine the truth of [a]

matter” (quoting Anderson, 477 U.S. at 249)). Instead,

1

The proscription against fact-finding on summary judgment is a

deceptively difficult mandate. Both this Court and the district courts of

this circuit sometimes inadvertently fail to adhere to it. See Rand v.

Rowland, 154 F.3d 952, 957 n.4 (9th Cir. 1998).

14 EASLEY V. CITY OF RIVERSIDE

courts are left only to make legal determinations. See

Anderson, 477 U.S. at 251–52.

Summary judgment may properly be entered only

against a party who has failed to make a showing sufficient

to establish a genuine dispute as to the existence of an

element essential to his case and upon which the party will

bear the burden of proof at trial. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). To grant summary

judgment, therefore, there can be no genuine issue of

material fact. Fed. R. Civ. P. 56(a). A disputed issue is

“genuine” when the evidence produced “is such that a

reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248. “As to materiality, the

substantive law will identify which facts are material . . . .

Factual disputes that are irrelevant or unnecessary will not

be counted.” 2 Id.

This case presents a particular class of summary

judgment ruling: whether a law enforcement officer, alleged

to have used unconstitutionally excessive or deadly force, is

entitled to qualified immunity and cannot be sued under

§ 1983. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019

(2014) (affirming that qualified immunity provides entitled

officers with immunity from suit rather than a defense to

liability). Over time, this Court’s recitations of the separate

laws of summary judgment and qualified immunity began to

mutate and coalesce, and the two bodies of law have been

occasionally folded into one symbiotic permutation:

2

Because the question of materiality relies on the underlying

substantive law, I consider the materiality of the factual disputes in detail

below following a review of the law of qualified immunity.

EASLEY V. CITY OF RIVERSIDE 15

[A]t 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.”

Longoria v. Pinal Cty., 873 F.3d 699, 704 (9th Cir. 2017)

(second alteration in original) (quoting Hughes v. Kisela,

862 F.3d 775, 779 (9th Cir. 2016), rev’d on other grounds,

138 S. Ct. 1148 (2018)); see also, e.g., Townsend v.

Basterrechea, No. 1:16-cv-151, 2017 WL 242606 (D. Idaho

Jan. 18, 2017) (applying the shortened standard without

separate discussion or application of summary judgment

principles). This abbreviated standard, in my view, gives

short shrift to the importance of careful examination and

construction of the factual record on summary judgment; to

the courts’ duty to fastidiously decline to make findings of

fact; and to plaintiffs’ constitutional rights under the Seventh

Amendment, which necessarily hang in the balance. The

U.S. Supreme Court has expressly held that summary-

judgment standards are not different or lowered in the

context of a claim to qualified immunity. Tolan, 134 S. Ct.

at 1866. It cannot be enough for a court merely to say that it

affords every fact and inference to the party opposing the

motion; the court must affirmatively endeavor to do so. See

Scott v. Harris, 550 U.S. 372, 378 (2007).

In this case, I perceive genuine, material factual disputes

in the record that the district court and the majority have

either improperly purported to resolve or improperly

16 EASLEY V. CITY OF RIVERSIDE

ignored. In doing so, they have inadvertently encroached

upon the constitutional province of the jury and upon

Easley’s Seventh Amendment rights. See City of Monterey,

526 U.S. at 709–10, 721.

Concerning the district court’s approach to this case, the

record shows the court made impermissible credibility

determinations and engaged in other affirmative fact

finding. 3 See Anderson, 477 U.S. at 249; Tolan, 134 S. Ct.

at 1866. The court found Macias’s controverted testimony

to be credible, finding that Macias “saw the profile of the

gun” when Easley removed it from his pocket and threw it

away. The court went one step further and held there was

“no evidence” to the contrary. However, significant portions

of counsel’s cross-examination of Macias at the evidentiary

hearing was committed to circumstantial evidence

suggesting Macias did not see the profile of the gun or have

express knowledge of the presence of a gun. The district

court erroneously either discounted or ignored the

reasonable inferential value of Easley’s evidence on this

question when it concluded there was “no evidence”

contrary to its finding that Macias saw the profile of the gun.

Cf. Tolan, 134 S. Ct. at 1863. We cannot consider whether

Macias subjectively believed Easley carried or threw a gun;

we may only consider whether the objectively identifiable

profile of a gun was visible to him. See Inouye, 504 F.3d at

712. Therefore, in drawing all inferences in Easley’s favor

3

With all deference to the district court and its judicial autonomy, I

conclude its sua sponte evidentiary hearing contributed to the incidental

fact finding that appears in its summary judgment order. While I agree

with the majority that the evidentiary hearing does not constitute error

per se, I am convinced that the risk of a court instinctually weighing

credibility and implicitly finding facts should militate against this kind

of proceeding. Notably, at oral argument, both parties conceded they

had never previously participated in or witnessed this type of procedure.

EASLEY V. CITY OF RIVERSIDE 17

to conform with the law of summary judgment, we may not

find or presume either (1) that the object Easley threw during

the foot chase was or was not visibly identifiable or (2) that

Macias did or did not “see the profile” of a gun.

Additionally, the district court found that the incident

occurred in a “high-crime area.” Macias suggests we should

affirm this finding, which should support his decision to use

deadly force in this case. However, the case law Macias

relies upon concerning so-called “high-crime areas”

involves reasonable-suspicion Terry stops, not allegations of

excessive force. See, e.g., Illinois v. Wardlow, 528 U.S. 119,

124 (2000). According to those cases, “[a]n individual’s

presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized

suspicion that the person is committing a crime.” Id. at 124.

Furthermore, this Court has warned that “citing of an area as

‘high-crime’ requires careful examination by the court,

because such a description, unless properly limited and

factually based, can easily serve as a proxy for race or

ethnicity.” United States v. Montero-Camargo, 208 F.3d

1122, 1138 (9th Cir. 2000) (en banc). Given the limited

record evidence supporting a finding of a high-crime area

and the fact that such a finding relies on inference in

Macias’s favor rather than Easley’s, I conclude that

consideration of the purported “high-crime area” to Macias’s

benefit is contrary to the summary-judgment evidentiary

standard.

The majority has avoided these two summary-judgment

pitfalls, but it has joined the district court in three others.

First, the district court and the majority have improperly

considered the fact that Easley conceded post facto that the

object thrown was in fact a gun. The standard is that the

record must be evaluated “from the perspective of a

18 EASLEY V. CITY OF RIVERSIDE

reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.”

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); see

City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1776–77

(2015) (noting that courts’ refusal to rely on hindsight also

serves an important protective role for officials asserting

qualified immunity); Estate of Lopez ex rel. Lopez v.

Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017) (“[W]hen

considering qualified immunity, we are also limited to

considering what facts the officer could have known at the

time of the incident.” (quoting Davis v. United States,

854 F.3d 594, 598 (9th Cir. 2017))). The majority’s

consideration of knowledge gained after the incident is

contrary to both the proper standard concerning

reasonableness and the principles of summary-judgment

evidence. Therefore, we can give no weight to Macias’s

claim in his briefing that he “correctly thought [Easley] was

armed,” and I reject the majority’s apparent reliance on the

fact that the object thrown was “later determined to be a

gun.”

Second, the district court and the majority fail to properly

construe the record pertaining to the amount of time that

elapsed between Easley disarming himself and Macias firing

on him. On direct examination, Easley testified that “maybe

three to four seconds” passed, but on cross-examination, he

affirmed defense counsel’s assertion that “two or three

seconds” had elapsed. The discrepancy was not explored in

the hearing, but for purposes of summary judgment, of

course, this Court must construe the testimony in the light

most favorable to Easley. See Newmaker v. City of Fortuna,

842 F.3d 1108, 1111 (9th Cir. 2016), cert. denied sub nom.

Soeth v. Newmaker, 137 S. Ct. 2217 (2017). A jury could

credit Easley’s assertion that four seconds elapsed between

the moment he threw the gun and the moment Macias fired

EASLEY V. CITY OF RIVERSIDE 19

the first shot, and we must therefore accept that allegation as

true. 4 The district court determined it did not need to

construe the record on the question of timing because it was

not a “material fact.” 5 However, the majority appears to

sidestep the question of materiality entirely by concluding

there is no genuine factual dispute. The majority states it is

an “undisputed fact[]” that “Easley was shot within two to

four seconds of throwing the gun.” However, this statement

is not a fact at all—it is a range of possible facts. Neither is

it undisputed. Each party has flatly contradicted the other’s

version of the timing of events. The majority’s recitation

reveals it has not properly construed the record in the light

most favorable to Easley. Four seconds, two seconds, and

zero seconds are not constitutionally equivalent in these

circumstances; we cannot so easily dismiss the distinction by

stating that the event occurred “within two to four seconds.”

Third, neither the district court nor the majority

acknowledge Easley’s testimony—which we must accept as

true—stating that throughout the chase, he did not turn to

look back at Macias, did not face Macias, and did not level

the object in Macias’s direction.

Having clarified these several points of departure

between myself and the majority concerning the proper

evidence for consideration on summary judgment, I proceed

4

Macias argues the credibility of Easley’s version of the timeline is

“dubious” and contrary to physical evidence, but he concedes it must be

accepted as true for summary-judgment purposes.

5

I disagree with the district court’s materiality conclusion and

discuss my analysis thereof in Section II(A) below.

20 EASLEY V. CITY OF RIVERSIDE

to consider whether the factual disputes are material

pursuant to the law of qualified immunity.

II

Concerning the doctrine of qualified immunity, I agree

in general terms with the majority’s recitation of the

applicable law. In essence, there are three inquiries we must

perform to determine whether an official is entitled to

qualified immunity: (1) whether the official’s conduct

violated a plaintiff’s constitutional right; (2) whether the

constitutional right asserted by the plaintiff was clearly

established in the law as it was at the time of the official’s

conduct; and (3) whether the law at the time would have

made it clear to a reasonable official that the alleged conduct

was unlawful under the circumstances. See Green v. City &

Cty. of S.F., 751 F.3d 1039, 1051 (9th Cir. 2014); Torres v.

City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). On

summary judgment, if these three inquiries could be

answered in the affirmative upon development of the record

at trial, the official is not entitled to qualified immunity.

Green, 751 F.3d at 1052–53.

The majority concludes that one (or perhaps more) of

these inquiries must be answered in the negative in this case.

However, it is not clear which question is the dispositive one.

For its part, the district court has conflated the first inquiry—

whether an official’s exercise of force was unreasonable and

therefore a violation of a constitutional right—with the third

inquiry—whether a reasonable officer would have

understood particular conduct to be unlawful. 6 Compare

6

The district court purportedly based its decision on the second and

third prongs of the qualified-immunity test, but it also relied solely on a

reasonable-force analysis, which alone answers only the first prong. The

EASLEY V. CITY OF RIVERSIDE 21

San Jose Charter of Hells Angels Motorcycle Club v. City of

San Jose (Hells Angels), 402 F.3d 962, 971 (9th Cir. 2005)

(“The relevant, 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.” (quoting Saucier v. Katz, 533 U.S.

194, 202 (2001)); with Longoria, 873 F.3d at 705–09

(applying the factors for evaluating the reasonableness of the

use of force as applied to the first—not second—prong of

the qualified immunity standard). Though each inquiry turns

on a determination of objective reasonableness, the two

questions are neither identical nor coextensive. The first

asks whether the use of force was reasonable, while the third

asks whether a reasonable official would have known the

force used was unreasonable under the law. 7

majority states the district court relied on the second and third prongs,

then proceeds to review the district court’s ruling; however, its ultimate

conclusion that Macias’s “application of deadly force was objectively

reasonable” suggests it relies on the first prong.

7

These two questions, though discrete, require some overlapping

analysis. This redundancy may account for the present confusion

between the different qualified-immunity prongs. The first prong was

initially a required consideration, but it later became a discretionary and

sometimes disfavored consideration in cases in which the established-

law prong was dispositive. See generally Camreta v. Greene, 563 U.S.

692, 705–07 (2011); Pearson v. Callahan, 555 U.S. 223, 236–42 (2009).

The Supreme Court’s most recent decision on this question may be read

to suggest that the first prong does not appertain to qualified immunity

at all, but to the substance of the underlying § 1983 claim. See Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (“[T]he Court need not, and does

not, decide whether [the official] violated the Fourth Amendment when

he used deadly force against [the plaintiff]. For even assuming a Fourth

Amendment violation occurred—a proposition that is not at all evident—

on these facts [the official] was at least entitled to qualified immunity.”);

see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (noting a

22 EASLEY V. CITY OF RIVERSIDE

Regardless, we review summary judgment de novo. And

on de novo review, I conclude that genuine issues of material

fact remain as to all three qualified-immunity inquiries.

Summary judgment was therefore improper. I address each

of the three inquiries individually.

A

The first inquiry asks whether the defendant official

“violated a federal statutory or constitutional right.” District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

Therefore, our “analysis begins by identifying the specific

constitutional right allegedly infringed by the challenged

application of force.” Graham v. Connor, 490 U.S. 386, 394

(1989). In this case, “the Fourth Amendment provides an

explicit textual source of constitutional protection against

this sort of physically intrusive governmental conduct.” Id.

at 395. The Fourth Amendment guarantees citizens that they

will “be secure in their persons . . . against unreasonable . . .

seizures.” U.S. Const. amend. IV. “[T]he ‘reasonableness’

of a particular seizure depends not only on when it is made,

but also on how it is carried out.” Graham, 490 U.S. at 395.

Because “[t]he test of reasonableness under

the Fourth Amendment is not capable of

precise definition or mechanical application,”

. . . its proper application requires careful

defendant official may be entitled to qualified immunity on the

established-law prong even if he had in fact violated a constitutional

right). Perhaps the established-law prong will ultimately subsume the

currently bifurcated qualified-immunity analysis. But a denial of

qualified immunity at present requires consideration of the existing first

prong to determine whether Macias’s alleged conduct constitutes a

violation of a constitutional right, which by necessity abuts the

underlying merits of the complaint.

EASLEY V. CITY OF RIVERSIDE 23

attention to the facts and circumstances of

each particular case, including 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.

Id. at 396 (alteration in original) (quoting Bell v. Wolfish,

441 U.S. 520, 559 (1979)). It is in any case well established

that “[t]he use of deadly force to prevent the escape of . . .

suspects, whatever the circumstances, is constitutionally

unreasonable.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).

“A police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” Id.

The dispositive consideration for the district court was

whether there were objective identifiers that Easley “pose[d]

an immediate threat to the safety of” Macias. Id. I do not

agree that the evidence—construed pursuant to the

summary-judgment standard—reflects an indisputable,

objectively perceptible, and immediate threat. There remain

genuine disputes about, inter alia, Macias’s line of sight on

the gun and the timing between Easley’s self-disarming and

Macia’s decision to fire on him. Therefore, it is possible for

a jury to conclude on this record that Macias first reasonably

suspected Easley was armed, then clearly observed Easley

divest himself of the suspected firearm, and finally

decided—after sufficient time to recognize Easley was

unarmed and not dangerous—to fire upon him.

The district court avoided this conclusion in part by

deciding that the timing of this event is immaterial for

summary-judgment purposes. I disagree. It is, for example,

self-evident, that if an officer observes a suspect disarm

24 EASLEY V. CITY OF RIVERSIDE

himself and then pursues the suspect on foot away from the

discarded weapon for thirty seconds, he may not then decide

to fire upon the suspect and claim in good faith that he was

in fear of the suspect using the discarded weapon to hurt him.

Likewise, it is clear that if an officer observes a suspect

remove a firearm from his pocket toward the officer and the

officer shoots the suspect before the firearm leaves the

suspect’s hands, the officer’s fear was reasonable even if the

suspect later claims it was his intent to discard the weapon.

This case, then, presents a complex line-drawing exercise: at

what point between these two extremes does a fear of

immediate harm become unreasonable?

As the majority notes, the law is clear that “[t]he calculus

of reasonableness must embody allowance 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. Indeed, at the evidentiary hearing, Macias

presented expert testimony regarding the time it takes “to

identify a threat, process it, make a decision, and then

execute a response.” Macias’s expert testified that the “lag

time” that occurs “between an action and a reaction” consists

of “milliseconds,” or “anywhere from [a] quarter-second to

a third of a second.” In this case, according to the summary-

judgment record, Macias had four seconds to deliberate after

Easley disarmed himself before he fired the first shot. Four

seconds—by pure definition—pushes past the outer bounds

of the case law’s provision for “split-second judgments” and

beyond the “milliseconds” needed to process new

information according to Macias’s own expert.

Of course, if a jury were to determine that fewer than

four seconds passed or that Macias could not have

EASLEY V. CITY OF RIVERSIDE 25

objectively seen or known that Easley had disarmed himself,

this calculus changes. That is why the matters of timing and

of Easley discarding his firearm remain genuine, triable

issues of material fact. It does not settle the issue to say

simply that Easley was shot “within two to four seconds of

throwing the gun.” 8 I therefore dissent from the majority’s

conclusion that Macias’s “application of deadly force was

objectively reasonable” as a matter of law.

B

The second inquiry asks whether the constitutional “right

at issue was clearly established at the time of the incident.”

Torres, 648 F.3d at 1123. The first step in determining

whether Macias’s alleged conduct violated a clearly

established right is to determine whether case law existed at

the time of the incident in which “an officer acting under

similar circumstances . . . was held to have violated the

Fourth Amendment.” White v. Pauly, 137 S. Ct. 548, 552

(2017); see Morales v. Fry, 873 F.3d 817, 823 (9th Cir.

2017). In some circumstances, the existence of case law

proscribing the alleged conduct will be “obvious.” White,

137 S. Ct. at 552. For example, when an officer is alleged to

have “seize[d] an unarmed, nondangerous suspect by

shooting him dead,” as in Garner, it is “obvious” that such

8

Though the Supreme Court recently held an officer was entitled to

qualified immunity when exercising deadly force with “mere seconds to

assess . . . potential danger,” the circumstances in that case involved a

suspect armed with a knife who refused to comply with directions to

disarm herself and was accosting a bystander within striking distance.

Kisela, 138 S. Ct. at 1152. We are confronted with distinguishable facts

on summary judgment in this case: Easley was disarmed and not within

striking distance of a third party. Therefore, a general “mere seconds”

finding such as the one relied upon in Kisela cannot fully and properly

inform our analysis in this case.

26 EASLEY V. CITY OF RIVERSIDE

conduct is unconstitutional. Garner, 471 U.S. at 11; see

White, 137 S. Ct. at 552; see also Graham, 490 U.S. 395–96

(setting out the general reasonableness standard for

excessive-force claims). Insofar as Easley asserts that

Macias clearly observed Easley disarm himself and

nevertheless proceeded to fire on him knowing he was not

armed, he is alleging this case is the rare but “obvious one

where Graham and Garner alone offer a basis for decision.”

Brosseau v. Haugen, 543 U.S. 194, 199 (2004). For the

purposes of summary judgment, our analysis should end

there; Graham and Garner were well established at the time

of the incident.

Even if this is not the “obvious” case, I conclude other

clearly established case law in this circuit would have given

officers fair notice that the conduct alleged here was

unconstitutional at the time of the incident. See Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting

Brosseau, 543 U.S. at 198). In non-obvious cases, courts

must explicitly identify particular court rulings

demonstrating the unlawfulness of the alleged conduct.

White, 137 S. Ct. at 552. “Such specificity is especially

important 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.’” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (quoting Saucier, 533 U.S.

at 205). This specific-case requirement ensures that officers

are not exposed to liability without a “fair and clear warning

of what the Constitution requires.” Sheehan, 135 S. Ct. at

1778 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 746 (2011)

(Kennedy, J., concurring)); see Kisela, 138 S. Ct. at 1152.

This Court has held that its 1991 decision, Curnow ex

rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.

EASLEY V. CITY OF RIVERSIDE 27

1991), fairly informs officers of the constitutionality of the

use of deadly force in circumstances sufficiently analogous

to the present case. See Lopez, 871 F.3d at 1020. In Curnow,

police officers broke down a door to confront a suspect.

952 F.2d at 323. The officers claimed that as they entered

through the doorway, the suspect picked up a nearby firearm

and raised the weapon as he began to turn towards the

officers. Id. However, for summary-judgment purposes

only, the court accepted as true the contrary testimony of a

witness who stated the suspect did not have the gun in his

hand, did not raise his arm, and did not turn toward the

officers. Id. The officers shot the suspect in the back. Id.

This Court held, “[T]he police officers could not reasonably

have believed the use of deadly force was lawful because

[the suspect] did not point the gun at the officers and

apparently was not facing them when they shot him the first

time.” Id. at 325.

In the present case, as in Curnow, the record for

summary-judgment purposes reveals that Easley was not

holding a gun at the time of the shooting, nor was he raising

his arm toward or turning to face Macias. Further, in

Curnow, the suspect had a firearm within immediate reach,

while in this case, Plaintiff had thrown his firearm away

from his person and continued to run in the opposite

direction of the gun. Therefore, Curnow, a twenty-year-old

decision at the time of the shooting in this case, gave Macias

a fair and clear warning that his use of deadly force—at least

on the facts as construed for summary judgment—was not

constitutional.

The parties present competing arguments regarding the

value of Curnow for the purposes of the present established-

law inquiry. Macias argues that Curnow is legally

distinguishable from the present case. There is some tension

28 EASLEY V. CITY OF RIVERSIDE

in the case law concerning how distinguishable a case may

be on its facts before it cannot be construed as clearly

established law for qualified-immunity purposes. On the

one hand, the Supreme Court has repeatedly admonished this

Court “not to define clearly established law at a high level of

generality.” Kisela, 138 S. Ct. at 1152 (quoting Sheehan,

135 S. Ct. at 1775–76); see al-Kidd, 563 U.S. at 742

(majority opinion). To constitute clearly established law, the

“existing precedent must have placed the . . . constitutional

question beyond debate” and must “‘squarely govern[]’ the

specific facts at issue.” Kisela, 138 S. Ct. at 1152–53 (first

quoting White, 137 S. Ct. at 551; then quoting Mullenix,

136 S. Ct. at 310). At the same time, the Supreme Court has

consistently maintained that its “caselaw does not require a

case directly on point for a right to be clearly established,”

id. at 1152 (quoting White, 137 S. Ct. at 551), and that

“officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002). This of course must be

true because every individual case will present at least

nominal factual distinctions. If precisely identical facts were

required, qualified immunity would in fact be absolute

immunity for government officials.

With these principles in mind, I conclude that clearly

established law for qualified-immunity purposes will

necessarily contain both operative circumstances—i.e., the

circumstances from which the constitutional violation

flowed—and ancillary circumstances—i.e., the surrounding

factual details of the case that bear no constitutional

significance. The operative circumstances described in

Curnow include: (1) the suspect was not holding a gun when

shot even though a gun was within his reach, (2) the suspect

did not point a gun at the officers, and (3) the suspect did not

turn to face the officers. These same circumstances are the

EASLEY V. CITY OF RIVERSIDE 29

foundational points of fact in the present case for summary-

judgment purposes.

Macias notes this case involved a foot chase, while

Curnow involved officers breaking down a door to intercept

a seated suspect they believed was armed. This is indeed a

factual distinction. However, both Curnow and the present

case involve similarly high-pressure situations for the

officers. Macias has presented no principled reason why he

is subject to a lower threshold than the officers in Curnow,

who were also involved in quickly evolving and tense

circumstances. Ultimately, the factual distinction Macias

relies upon does not overcome the parallel operative

circumstances between the two cases.

In broader terms, Macias contends the only court ruling

that would satisfy the established-law inquiry would be a

case holding that it is “unconstitutional for an officer to shoot

at an armed suspect who grabbed and raised an object

immediately before being shot, simply because the suspect

let go of the object seconds before being hit.” This curious

characterization of the present circumstances is strained and

self-contradictory; it claims Easley was simultaneously

armed and unarmed. But more to the point, the law does not

require this level of precise factual identity for the

unconstitutionality of certain conduct to be “clearly

established.”

In this case, there exists a construction of the disputed

facts that is controlled by the clearly established expectations

for government officials both as generally set forth in

Garner and Graham and as specifically set forth in Curnow.

30 EASLEY V. CITY OF RIVERSIDE

C

The third inquiry asks whether “a reasonable officer

would have understood her conduct to be unlawful” in the

circumstances alleged. Torres, 648 F.3d at 1123. Again,

this is a separate question from whether Macias’s conduct

was reasonable. Macias enjoys an extra layer of deference

on this third inquiry insofar as he may have reasonably

believed his conduct was permissible even if it was not. In

recognition of this extra deference, “if officers of reasonable

competence could disagree on this issue, immunity should

be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

However, the proper answer to this inquiry, like that of

the first inquiry, is presently lost within the contested facts.

If the objective circumstances would have unequivocally

informed a reasonable officer that Easley was disarmed and

if four full seconds to deliberate passed between that

officer’s perception thereof and his decision to shoot Easley,

I conclude there is no room for a reasonable officer with an

understanding of Garner, Graham, and Curnow to assert that

the use of deadly force was reasonable. Therefore, there

remain genuine issues of material fact bearing upon

resolution of this inquiry. Based on the summary-judgment

record taken in the light most favorable to Easley, Macias’s

entitlement to qualified immunity is not presently

established as a matter of law.

D

My conclusion that summary judgment was improper is

not equal to a conclusion that Macias is not entitled to

qualified immunity. Macias may prove in further

proceedings that he is so entitled. He simply has not done

so at this pre-trial, summary-judgment stage. The proper

resolution to this appeal, therefore, is that we should reverse

EASLEY V. CITY OF RIVERSIDE 31

the grant of summary judgment and remand for resolution of

the contested factual issues by a jury. See, e.g., Zion v. Cty.

of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017); Jones v. Las

Vegas Metro. Police Dep’t, 873 F.3d 1123, 1132 (9th Cir.

2017); Longoria, 873 F.3d at 705; Green, 751 F.3d at 1053.

It is well established that the question of eligibility for

qualified immunity should be resolved at the earliest stage

possible in the proceedings because it is an immunity from

suit and not merely a defense to liability. Hunter v. Bryant,

502 U.S. 224, 228 (1991) (per curiam); see Morales,

873 F.3d at 822. But in this case, the district court’s two-day

evidentiary hearing was a de facto bench trial, and Macias

therefore has already suffered whatever abstract harm might

result from an infraction upon his asserted immunity from

suit, mooting consideration of that injury for our purposes on

appeal.

When, as here, triable issues of fact preclude resolution

of an official’s entitlement to qualified immunity, then the

immunity question is “transformed from a doctrine

providing immunity from suit to one providing a defense at

trial.” Morales, 873 F.3d at 823. On remand, “special

interrogatories to the jury can be used to establish disputed

material facts,” which the district court can then rely upon to

determine Macias’s eligibility for qualified immunity as a

matter of law. See id. at 823–24.

III

The requisite analyses in this case are difficult and

complex; nonetheless, we must diligently and carefully

perform each one to ensure that we fulfill our roles as neutral

arbiters of the law in § 1983 actions alleging excessive force,

which are presently subject to increased public scrutiny.

Though the law is complicated, the outcome in this case is

32 EASLEY V. CITY OF RIVERSIDE

simple: there remain genuine, triable disputes concerning

facts material to Macias’s entitlement to qualified immunity.

I therefore conclude we are prohibited from granting

summary judgment at this stage in the proceedings. My

conclusion in no way prejudices Macias’s ability to prove

his entitlement to qualified immunity at trial, and it also

avoids any potential for irremediable prejudice to Easley’s

Fourth or Seventh Amendment rights. And because we are

not permitted to weigh evidence or make credibility

determinations, we may not opine as to the likelihood either

that Easley will prevail on the merits of his claim or that

Macias will be able to establish entitlement to qualified

immunity at trial. The best course for us is to reverse and

remand for further proceedings. I therefore dissent from the

majority’s decision to affirm the district court.