Ernest Foster, Sr. v. Jeremy Hellawell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST FOSTER, SR., as personal No. 17-55167

representative of Ernest Foster, Jr.;

R. F., minor, by and through his D.C. No.

Guardian Ad Litem Raymond 5:15-cv-01175-

Foster; A. F., minor, by and through FMO-DTB

her Guardian Ad Litem Raymond

Foster; RAYMOND FOSTER,

individually, and as successors in OPINION

interest to Ernest Foster, Jr.,

deceased,

Plaintiffs-Appellees,

v.

CITY OF INDIO; RICHARD P. TWISS,

individually and in his capacity as

Indio Police Chief; DOES, 1 through

10, inclusive,

Defendants,

and

JEREMY HELLAWELL, individually

and in his capacity as an officer of

the Indio Police Department,

Defendant-Appellant.

2 FOSTER V. HELLAWELL

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted March 6, 2018

Pasadena, California

Filed November 20, 2018

Before: A. Wallace Tashima, Sandra S. Ikuta,

and Jacqueline H. Nguyen, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge Ikuta

SUMMARY*

Civil Rights

The panel dismissed in part an appeal from the district

court’s order denying qualified immunity, and reversed in

part the order, in an action brought pursuant to 42 U.S.C.

§ 1983 alleging that a police officer conducted an unlawful

investigatory stop and used excessive deadly force when he

shot Ernest Foster three times in the back during a response

to a 911 call.

The panel held that it lacked jurisdiction, on interlocutory

review, to consider questions of evidentiary sufficiency as to

*

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

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

FOSTER V. HELLAWELL 3

the claims that the shooting violated Foster’s Fourth

Amendment right and the surviving family’s Fourteenth

Amendment rights. The panel held that on interlocutory

appeal it could not reweigh the evidence to evaluate whether

the district court properly determined there was a genuine

issue of material fact, and therefore could neither credit

defendant’s testimony that Foster turned and pointed a gun at

defendant, nor assume that Foster took other actions that

would have been objectively threatening.

Addressing plaintiffs’ claim that the officer violated

Foster’s Fourth Amendment rights by making an

investigative stop of Foster and by approaching him with an

unholstered gun, the panel held that it had jurisdiction to

consider the claims because the facts were undisputed and the

appeal raised a purely legal issue. The panel held that the

officer did not violate clearly established law when he

concluded, based on the 911 call, that he had reasonable

suspicion to stop and investigate Foster. The panel further

held that a reasonable officer in defendant’s position could

reasonably conclude that unholstering a gun during the stop

did not constitute a violation of Foster’s right to be free from

excessive force.

Dissenting, Judge Ikuta stated that she disagreed with the

majority’s conclusion that it lacked jurisdiction to consider

the district court’s denial of qualified immunity as to

plaintiffs’ Fourteenth Amendment claim. Judge Ikuta wrote

that, viewing the evidence in the light most favorable to the

plaintiffs, no reasonable jury could find that the officer acted

with a purpose to harm Foster for reasons unrelated to

legitimate law enforcement objectives.

4 FOSTER V. HELLAWELL

COUNSEL

Konrad Muth Rasmussen (argued) and John P. McCormick,

McCormick Mitchell & Rasmussen, San Diego, California,

for Defendant-Appellant.

Justin Palmer (argued), Filer Palmer LLP, Long Beach,

California; NaShaun Neal and Peter L. Carr IV, Sias Carr

LLP, Los Angeles, California; for Plaintiffs-Appellees.

OPINION

PER CURIAM:

Officer Jeremy Hellawell was dispatched to investigate a

911 call from a citizen who reported that a man matching

Ernest Foster’s description was walking toward a shopping

plaza armed with a concealed handgun. As the incident

unfolded, Hellawell approached Foster at the shopping plaza

to investigate the report, Foster fled, and Hellawell ultimately

shot Foster fatally three times in the back. Foster’s family

(the plaintiffs) claim that Hellawell violated Foster’s Fourth

Amendment rights and the plaintiffs’ Fourteenth Amendment

rights. The district court denied Hellawell’s motion for

summary judgment based on qualified immunity. Because

we lack jurisdiction to consider questions of evidentiary

sufficiency on interlocutory review, we dismiss Hellawell’s

appeal of the court’s order with respect to the claims that the

shooting violated Foster’s Fourth Amendment right and

plaintiffs’ Fourteenth Amendment rights. We reverse the

district court’s denial of qualified immunity on Foster’s other

Fourth Amendment claims, because Hellawell’s actions

FOSTER V. HELLAWELL 5

during the investigative stop did not violate any clearly

established law.

I

Because this case arises from the denial of Officer

Hellawell’s motion for summary judgment, we view the facts

in the light most favorable to the nonmoving party, here,

Foster’s father and minor children (collectively, the

“plaintiffs”).1 On July 4, 2013, at around 1:30 p.m., the City

of Indio Police Department received an anonymous 911 call

reporting an individual carrying a gun. The caller stated that

a man “with a brown hat, aqua shirt, a blue aqua shirt, [and]

black blue jeans” was “walking down Highway 111 toward

subways and smoke shops with a handgun, with a . . . gun in

his right side pocket.” The caller also described the man as

a “55-year-old African-American gentleman weighing about

250 pounds with a hand gun in his right side pocket” and a

“baby brown or beige ball cap.” The caller further stated that

the man did not point the gun at him, but “walked out of the

liquor store” and “just opened the gun.” The caller further

stated that the man “was no stress to me, but . . . he wants to

let people know who he is.”

The information provided by the caller was immediately

dispatched over the police radio. Officer Hellawell received

information that “a Black male wearing a tan hat, a[n] aqua-

colored shirt, and dark-colored pants with a handgun in his

pocket” was “last seen going towards Subway.” Hellawell,

who was wearing his police uniform, drove to the Indio

Shopping Plaza near Highway 111, where the Subway was

located. Because the Subway and Payday Advance Money

1

We note where the facts are in dispute.

6 FOSTER V. HELLAWELL

Store had been robbed in the past, Hellawell’s first thoughts

were that the tip might indicate a robbery was about to occur.

Hellawell did not use his patrol car sirens on the way to the

plaza and did not believe he was in danger “at that moment.”

As Hellawell pulled into the parking lot near the Subway,

he saw “a Black male wearing a[n] aqua-green shirt, wearing

a tan hat and dark-colored pants” near the Subway. The man

matched the description of the 911 call and, according to

Hellawell, appeared nervous. The man, Ernest Foster, was

standing against the wall next to the smoke shop adjacent to

Subway. Hellawell exited his vehicle about ten feet from

Foster. Hellawell did not see a gun in Foster’s hands or on

his person. Hellawell identified himself as a police officer

and stated: “Let me see your hands. Keep your hands where

I can see them. I just need to talk to you for a minute.” At

that point, Foster started running away from Hellawell.

Hellawell gave chase. According to Hellawell, he might have

drawn his gun either when Foster made a movement or

started to run.2 Hellawell subsequently re-holstered the gun,

because he would not run with a gun in his hand.

Hellawell chased Foster through the shopping plaza then

down an alley between two stores. According to Hellawell,

throughout the pursuit, Hellawell told Foster to “stop,” and to

“show me your hands.” Hellawell yelled: “I believe you have

a gun. Stop or I am going to shoot.” Hellawell testified that

Foster’s left hand was visible, but his right hand appeared to

be holding something against his body. Hellawell did not see

Foster holding a gun. At one point, Hellawell shot Foster

2

Although one witness leaving Subway, Jose Flores, stated that he

saw something in Hellawell’s hands during the chase, no witness testified

that Hellawell drew his gun as he approached Foster.

FOSTER V. HELLAWELL 7

with his taser; although one dart hit Foster, the taser did not

affect him because, according to Hellawell, the other dart was

dragging along the ground.

As the chase went on, Hellawell shot Foster with his

service firearm either just before or shortly after Foster

rounded the corner of a nearby store. According to Hellawell,

he shot Foster when he was turning toward him with a gun in

his hand. This account was corroborated by Officer Felipe

Escalante and a civilian witness, Daniel Kelley. Escalante

had driven to the shopping center in response to Hellawell’s

report of foot pursuit. He testified that he saw Foster turn

towards Hellawell and that Foster might have had

“something” in his hands, but Escalante could not tell for

sure. In a March 31, 2016 declaration, Kelley testified that he

was smoking a cigarette outside of the Jack-in-the-Box, and

saw Hellawell chase Foster behind the restaurant. He stated

that as Foster ran by him, he saw Foster holding something in

his hand. Kelley followed Hellawell, and saw Foster lying on

the ground with a gun next to him.

Other witnesses offered differing accounts. Jaime Perez,

who was waiting in his car in the parking lot, stated in his

initial declaration on April 1, 2016, that he “saw a male

running around the northeast corner of the AutoZone grasping

an object up against his chest.” He “watched the man go

down” and he “noticed an object fall from his hand and land

on the ground two feet in front of him.” He stated that the

object was a handgun. But in a second declaration on August

31, 2016, he stated that he had previously testified that he saw

a gun fall from Foster’s hands only because the police

officers who interviewed him said they had found a gun and

he was scared and nervous during his interview. In the

August 31st declaration, Perez stated, “I did not see a gun.

8 FOSTER V. HELLAWELL

Mr Foster did not point a gun at anyone, nor did I see a gun

in his hand.” Rather, according to Perez, Hellawell shot

Foster in the back “for no reason,” and Perez “did not see []

Foster bend, shift, twist, or make any sudden movements

before [Hellawell] shot him.”

A third witness, John-David Vallesillo, witnessed the

chase from his car. In his interview with the police on the

day of the shooting, Vallesillo stated that he heard a volley of

shots, after which he turned his head and saw Foster “facing

away from [Hellawell], falling forward onto his face onto the

ground.” Vallesillo further explained that from his

perspective, “I didn’t see a gun in [Foster’s] hands at any

point and it looked like he was, he got shot in the back.” In

a later declaration, dated August 31, 2016, Vallesillo again

explained: “I heard a volley of shots coming from [the]

general direction [of the police chase]. I also saw Mr. Foster

fall face down onto the concrete.” Vallesillo added that he

“did not see Mr. Foster turn or bend towards the police

officer” before the gunshots, “did not see Mr. Foster with a

gun in his hand,” and “did not see a gun on the sidewalk after

the police officer shot him in the back.”

Finally, Jose Flores, who observed the chase from his

mother’s car, testified that Foster did not turn toward

Hellawell during the chase. Flores saw Foster “lying face

down on the concrete,” but “did not see a gun in [Foster’s]

hands or on the ground.”

Foster was treated on the scene and later died at the

hospital. The plaintiffs brought suit under 42 U.S.C. § 1983

against Hellawell, the City of Indio, the Indio Police

Department, and Chief of Police Richard Twiss. They

claimed violations of Foster’s right to be free from excessive

FOSTER V. HELLAWELL 9

force under the Fourth Amendment; violations of the family’s

right to familial association under the Fourteenth

Amendment; and unconstitutional municipal customs,

practices, and policies, see Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978). The plaintiffs alleged that Hellawell

(1) conducted an unlawful investigatory stop without

reasonable suspicion; (2) used excessive force by drawing his

firearm in conjunction with the investigatory stop; (3) used

excessive force by shooting Foster with his taser during the

foot chase; and (4) used excessive force by shooting Foster

three times and killing him. The defendants moved for

summary judgment on all claims, arguing that qualified

immunity applied and no violation occurred.

The court denied Hellawell’s summary judgment motion

on the majority of plaintiffs’ Fourth and Fourteenth

Amendment claims. The court concluded that a genuine issue

of material fact existed as to (1) whether Hellawell violated

Foster’s Fourth Amendment rights in making the

investigative stop without reasonable suspicion; (2) whether

Hellawell violated Foster’s Fourth Amendment right to be

free from excessive force by drawing his firearm during the

investigatory stop; (3) whether Hellawell violated Foster’s

Fourth Amendment right to be free from excessive force by

fatally shooting him; and (4) whether Hellawell violated the

plaintiffs’ Fourteenth Amendment rights because a reasonable

jury could find that Hellawell shot Foster with a purpose to

harm him without regard to legitimate law enforcement

objectives.3

3

The district court granted summary judgment in favor of Hellawell

on plaintiffs’ claim that Hellawell’s use of a taser constituted excessive

force. The court also granted summary judgment in favor of the City of

10 FOSTER V. HELLAWELL

Hellawell filed this interlocutory appeal from the denial

of summary judgment.

II

The Supreme Court has held that “pretrial orders denying

qualified immunity generally fall within the collateral order

doctrine,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014),

and therefore, in the qualified immunity context, “we have

jurisdiction over the denial of summary judgment, an

interlocutory decision not normally appealable,” George v.

Morris, 736 F.3d 829, 834 (9th Cir. 2013). “This is so

because such orders conclusively determine whether the

defendant is entitled to immunity from suit; this immunity

issue is both important and completely separate from the

merits of the action, and this question could not be effectively

reviewed on appeal from a final judgment because by that

time the immunity from standing trial will have been

irretrievably lost.” Plumhoff, 134 S. Ct. at 2019.

Despite this general rule, “the scope of our review over

the appeal [in this context] is circumscribed.” George,

736 F.3d at 834. A public official may not immediately

appeal “a fact-related dispute about the pretrial record,

namely, whether or not the evidence in the pretrial record was

sufficient to show a genuine issue of fact for trial.” Johnson

v. Jones, 515 U.S. 304, 307 (1995). In other words, where “a

portion of a district court’s summary judgment order” in a

qualified immunity case “determines only a question of

‘evidence sufficiency,’ i.e., which facts a party may, or may

not, be able to prove at trial,” it is not a final decision under

Indio on plaintiffs’ municipal liability claim, and in favor of Chief Twiss

on plaintiffs’ claim of supervisory liability.

FOSTER V. HELLAWELL 11

the collateral order doctrine. Id. at 313. Accordingly, we

have jurisdiction only to the extent “the issue appealed

concerned, not which facts the parties might be able to prove,

but, rather, whether or not certain given facts showed a

violation of ‘clearly established law.’” Id. at 311 (quoting

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).

To the extent the district court’s order denies summary

judgment on purely legal issues, however, we do have

jurisdiction. As Plumhoff explained, defendants’ contention

that their conduct “did not violate the Fourth Amendment

and, in any event, did not violate clearly established law,”

raises legal issues that are “quite different from any purely

factual issues that the trial court might confront if the case

were tried.” 134 S. Ct. at 2019. Deciding such legal issues

“is a core responsibility of appellate courts, and requiring

appellate courts to decide such issues is not an undue

burden.” Id. Therefore, we may address them on

interlocutory appeal.

In deciding such legal claims, we apply the Supreme

Court’s qualified immunity standard. “Qualified immunity

attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly,

137 S. Ct. 548, 551 (2017) (per curiam)). “Because the focus

is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of

the law at the time of the conduct.” Id. (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Although

we do “not require a case directly on point for a right to be

clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” Id.

12 FOSTER V. HELLAWELL

(quoting Pauly, 137 S. Ct. at 551). We may not “define

clearly established law at a high level of generality.” Id. at

1152 (quoting City & Cty. of San Francisco v. Sheehan,

135 S. Ct. 1765, 1776 (2015)). Rather, the clearly established

law at issue “must be ‘particularized’ to the facts of the case.”

Pauly, 137 S. Ct. at 552 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)); see also Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (per curiam) (“The dispositive

question is ‘whether the violative nature of particular conduct

is clearly established.’”) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011)). An officer cannot “have violated a

clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff,

134 S. Ct. at 2023). “In other words, immunity protects ‘all

but the plainly incompetent or those who knowingly violate

the law.’” Pauly, 137 S. Ct. at 551 (quoting Mullenix, 136 S.

Ct. at 308).

III

We turn first to Hellawell’s appeal of the district court’s

denial of summary judgment on plaintiffs’ claims that the

fatal shooting of Foster violated his Fourth Amendment rights

and plaintiffs’ Fourteenth Amendment rights. The district

court here concluded that genuine issues of material fact

precluded summary judgment on both the Fourth and

Fourteenth Amendment claims, because a reasonable jury

could find that Hellawell shot Foster in the back while Foster

was running away from him; that Foster was unarmed; and

that Foster did not turn, bend, or look back at Hellawell in a

manner that could make a reasonable officer fear being shot.

FOSTER V. HELLAWELL 13

The legal standards for plaintiffs’ Fourth and Fourteenth

Amendment claims are not in dispute. It is clearly

established law that shooting a fleeing suspect in the back

violates the suspect’s Fourth Amendment rights. “Where the

suspect poses no immediate threat to the officer and no threat

to others, the harm resulting from failing to apprehend him

does not justify the use of deadly force to do so. . . . A police

officer may not seize an unarmed, nondangerous suspect by

shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11

(1985); see also Gonzalez v. City of Anaheim, 747 F.3d 789,

793 (9th Cir. 2014) (en banc). By contrast, “[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, it is not constitutionally unreasonable to prevent

escape by using deadly force.” Garner, 471 U.S. at 11.

“Thus, if the suspect threatens the officer with a weapon or

there is probable cause to believe that he has committed a

crime involving the infliction or threatened infliction of

serious physical harm, deadly force may be used if necessary

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

been given.” Id. at 11–12.

In the Fourteenth Amendment context, it has been clearly

established since 1998 “that a police officer violates the

Fourteenth Amendment due process clause if he kills a

suspect when acting with the purpose to harm, unrelated to a

legitimate law enforcement objective.” A.D. v. Cal. Highway

Patrol, 712 F.3d 446, 450 (9th Cir. 2013). Legitimate law

enforcement objectives include, among others, arrest, self-

protection, and protection of the public. See id. at 454. A

police officer lacks such legitimate law enforcement

objectives when the officer “had any ulterior motives for

using force against” the suspect, see Gonzalez, 747 F.3d at

797, such as “to bully a suspect or ‘get even,’” Wilkinson v.

14 FOSTER V. HELLAWELL

Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v.

Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)), or when an

officer uses force against a clearly harmless or subdued

suspect, Johnson v. Bay Area Rapid Transit Dist., 724 F.3d

1159, 1170 (9th Cir. 2013); see also Zion v. Cty. of Orange,

874 F.3d 1072, 1077 (9th Cir. 2017) (holding that an officer

may have violated the Fourteenth Amendment when, after

shooting the suspect multiple times at close range, the officer

took “a running start” and stomped on the suspect’s head

multiple times in succession), cert. denied, 138 S. Ct. 1548

(2018).

Rather than claim that an officer in Hellawell’s position

could have reasonably thought it was lawful to shoot a

fleeing, unarmed suspect in the back, Hellawell argues that

the evidence was insufficient to create a genuine issue of

material fact regarding the plaintiffs’ Fourth and Fourteenth

Amendment claims. According to Hellawell, the district

court erred by considering the evidence supporting plaintiffs’

version of events. Hellawell argues that Vallesillo’s

testimony was immaterial because he was not in a position to

see whether or not there was a gun and his declaration

contradicted his initial statement to the police that he did not

see the shots fired.4 Likewise, Hellawell argues that Perez’s

4

Contrary to Hellawell’s argument, Vallesillo’s initial interview with

the police does not contradict his earlier declaration. In his July 4, 2013

interview, Vallesillo stated: “I caught the last [shot] fired, I caught the last

two shots and at that time [Foster] was facing away [from Hellawell] and

still in the same position I saw him coming, like running, running away

from [Hellawell], facing away from [Hellawell], falling forward onto his

face onto the ground.” In the August 31, 2016 declaration, he stated that

he “did not see Mr. Foster turn or bend towards the police officer before

I heard the gunshots.” While these two statements are not identical, they

are not inconsistent. Further, to the extent the two statements contradict

FOSTER V. HELLAWELL 15

August 31, 2016 declaration is not entitled to weight because

it contradicted his April 1, 2016 declaration. Hellawell

contends that because the Perez and Vallesillo declarations

contradict their earlier statements, the latter declarations are

inadmissible as sham affidavits.

Instead of relying on these witnesses, Hellawell argues,

the court should have relied on Hellawell’s testimony.

Hellawell contends that his statement that he saw a gun in

Foster’s hand is effectively undisputed, because the

witnesses’ testimony that they did not see a gun in Foster’s

possession does not mean there was no gun. According to

Hellawell, he did not violate the Fourth Amendment, let alone

any clearly established law, where he reasonably believed

Foster posed a threat of serious physical harm. On the

Fourteenth Amendment claim, Hellawell argues that he was

engaged in a fast-moving situation and fired his gun when he

believed Foster was turning toward him to shoot him. Thus,

according to Hellawell, because his actions undisputedly

served a legitimate governmental objective of defending

himself and preventing an armed suspect’s escape, there was

no genuine issue of material fact regarding whether he had

violated plaintiffs’ Fourteenth Amendment rights.

We have previously rejected similar arguments. See

George, 736 F.3d at 834–35. George involved a § 1983

excessive force claim against three sheriff’s deputies who

fatally shot an armed homeowner. Id. at 832–33. The district

court denied the deputies’ motion for qualified immunity on

the ground that there “were genuine disputes of fact such that

a reasonable jury could ‘disbelieve the officers’ testimony’

each other, we must resolve all factual disputes and draw all reasonable

inferences in the plaintiffs’ favor. See George, 736 F.3d at 836.

16 FOSTER V. HELLAWELL

and rely on record evidence to conclude that [the victim] had

not ignored commands to drop the gun, or taken other

threatening measures such as pointing the weapon at

deputies.” Id. at 835. On appeal, the deputies argued that the

district court erred, because the plaintiff could not prove at

trial that the homeowner did not turn and point his gun at

deputies. Id. at 834. Like Officer Hellawell, the defendants

in that case claimed “that a review of the district court’s

‘reasoning establishes that rather than delineating actual

material disputed facts, [the court] commingled a group of

insignificant discrepancies in statements’ in order to conclude

that a dispute existed about what had transpired during [the

victim’s] final minutes.” Id. We disagreed, stating that even

though the officers used “the language of materiality, their

argument actually goes to the sufficiency of [the plaintiff’s]

evidence,” because “[a]t bottom, their contention is that [the

plaintiff] could not ‘prove at trial’ that [the victim] did not

turn and point his gun at deputies.” Id. (quoting Johnson,

515 U.S. at 313). We concluded that we could “not decide at

this interlocutory stage if the district court properly

performed” its review of “whether there is enough evidence

in the record for a jury to conclude that certain facts are true.”

Id. at 835 (quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th

Cir. 2004) (en banc)).

We decline review of Hellawell’s arguments for the same

reason. As in George, Hellawell challenges the sufficiency

of the plaintiffs’ evidence; he argues that plaintiffs will not be

able to prove at trial that he shot an unarmed suspect in the

back without any provocation in violation of the Fourth and

Fourteenth Amendments. But this sort of “evidence

sufficiency” claim does not raise a legal question. Johnson,

515 U.S. at 314. We may not reweigh the evidence to

evaluate whether the district court properly determined there

FOSTER V. HELLAWELL 17

was a genuine issue of material fact, and therefore may

“neither credit [Hellawell’s] testimony that [Foster] turned

and pointed his gun at [Hellawell], nor assume that [Foster]

took other actions that would have been objectively

threatening.” See George, 736 F.3d at 834, 838. And even if

we could consider Hellawell’s sham affidavit argument on

interlocutory review, we would reject it as meritless because

the sham affidavit rule applies only to declarations by the

parties, not to declarations by non-party witnesses like Perez

and Vallesillo. See Nelson v. City of Davis, 571 F.3d 924,

928 (9th Cir. 2009) (“The rationale underlying the sham

affidavit rule is that a party ought not be allowed to

manufacture a bogus dispute with himself to defeat summary

judgment. That concern does not necessarily apply when the

dispute comes from the sworn deposition testimony of

another witness.”).5

Therefore, under George, we lack jurisdiction to consider

Hellawell’s argument that we should reverse the district

court’s determination that there was a genuine issue of

material fact regarding plaintiffs’ Fourth and Fourteenth

Amendment claims relating to Hellawell’s fatal shooting of

Foster. See George, 736 F.3d at 835. We therefore dismiss

Hellawell’s appeal of these claims.

IV

We now turn to the plaintiffs’ claims that Hellawell

violated Foster’s Fourth Amendment rights by making an

5

Hellawell also argues that the district court erred in considering the

plaintiffs’ expert’s report. Even if this was an error, it was harmless

because other evidence in the record creates a genuine issue of material

fact.

18 FOSTER V. HELLAWELL

investigative stop of Foster and by approaching him with an

unholstered gun. Because the facts related to these claims are

undisputed, Hellawell’s appeal raises a purely legal issue:

whether, based on undisputed facts, Hellawell violated clearly

established law. See Plumhoff, 134 S. Ct. at 2019; Mitchell,

472 U.S. at 528. Thus, we have jurisdiction to consider

Hellawell’s appeal on interlocutory review.

A

A law enforcement officer may, consistent with the

Fourth Amendment, conduct a “brief investigatory stop” of

a suspect when the officer has “a particularized and objective

basis for suspecting the particular person stopped of criminal

activity.” United States v. Cortez, 449 U.S. 411, 417–18

(1981); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968).

The “reasonable suspicion” necessary to justify such a Terry

stop depends “upon both the content of information possessed

by police and its degree of reliability.” Alabama v. White,

496 U.S. 325, 330 (1990). In applying this standard, we take

into account the “totality of the circumstances.” Id. (quoting

Cortez, 449 U.S. at 417).

For an anonymous tip to provide reasonable suspicion, the

tip must contain “sufficient indicia of reliability,” White,

496 U.S. at 327, that “criminal activity may be afoot,” Terry,

392 U.S. at 30 (internal quotations omitted). Thus, we must

consider, based on the undisputed facts, whether it was

clearly established at the time of the incident that the tip in

this case: (1) was not sufficiently reliable and (2) did not

provide information on potential illegal activity.

First, a reasonable officer in Hellawell’s position could

have concluded that the 911 call in this case demonstrated

FOSTER V. HELLAWELL 19

“sufficient indicia of reliability to provide reasonable

suspicion to make [an] investigatory stop.” White, 496 U.S.

at 327. One factor supporting the reliability of a tip is that the

tipster claims eyewitness knowledge, coupled with sufficient

detail in his description. Illinois v. Gates, 462 U.S. 213, 234

(1983) (stating that the tipster’s “explicit and detailed

description of alleged wrongdoing, along with a statement

that the event was observed first-hand, entitles his tip to

greater weight than might otherwise be the case”). A second

factor supporting the reliability of the tip is that it predicts a

suspect’s future actions. Thus, White held that an anonymous

tip had sufficient indicia of reliability to support reasonable

suspicion in part because “the anonymous [tip] contained a

range of details relating not just to easily obtained facts and

conditions existing at the time of the tip, but to future actions

of third parties ordinarily not easily predicted.” 496 U.S. at

332 (alteration in original) (quoting Gates, 462 U.S. at 245).

White differentiated between a caller’s description of a car

parked in front of an apartment building, which anyone could

have “predicted” because it was existing at the time of the

call, and a caller’s ability to predict that the suspect would

drive along a particular route. Id. Because the tipster

correctly predicted the suspect’s movement, a police officer

could reasonably conclude that there was some degree of

reliability to the tipster’s claim that the suspect was engaged

in criminal activity. Id. at 331–32. Finally, a caller’s use of

a 911 number makes the tip more credible because a 911 call

can be recorded and callers can be traced. See Florida v. J.L.,

529 U.S. 266, 275–76 (2000) (Kennedy, J., concurring);

United States v. Terry-Crespo, 356 F.3d 1170, 1175–76 (9th

Cir. 2004). In addition, 911 calls are more credible “because

the police must take 911 emergency calls seriously and

respond with dispatch,” when compared to non-emergency

20 FOSTER V. HELLAWELL

tips concerning “general criminality.” Terry-Crespo,

356 F.3d at 1176.

The tip in this case had several indicia of reliability. First,

the tipster made a recorded 911 call. See id. at 1175–76. The

tipster also claimed eyewitness knowledge of the concealed

handgun and provided explicit detail about his observations,

including that he personally observed the suspect taking out

his gun in a manner “let[ting] people know who he is.” See

Gates, 462 U.S. at 234. Finally, the tipster stated that the

suspect was walking down Highway 111 in the direction of

the Subway and the smoke shops. Whether this was a

prediction or merely an observation is unclear, but Hellawell

corroborated this statement when he encountered the suspect

at the specified location. See White, 496 U.S. at 331–32.

The plaintiffs argue that Florida v. J.L. clearly establishes

that a reasonable officer should not have relied on the 911

call in this case because it lacked the necessary indicia of

reliability. In J.L., the police received an anonymous tip that

“a young black male standing at a particular bus stop and

wearing a plaid shirt was carrying a gun.” 529 U.S. at 268.

An officer arrived at the bus stop, frisked J.L., and seized a

gun from his pocket. Id. The Court held that the tip lacked

“the moderate indicia of reliability” necessary to give rise to

reasonable suspicion. Id. at 271. In reaching this conclusion,

the Court noted that “[a]ll the police had to go on in this case

was the bare report of an unknown, unaccountable informant

who neither explained how he knew about the gun nor

supplied any basis for believing he had inside information

about J.L.” Id. at 271. Moreover, the tip itself consisted

merely of “[a]n accurate description of a subject’s readily

observable location and appearance” and did not “show that

FOSTER V. HELLAWELL 21

the tipster has knowledge of concealed criminal activity.” Id.

at 272.

Given the body of Supreme Court case law in existence

at the time of the incident here, we cannot say that J.L. would

have made it clear to a reasonable officer in Hellawell’s

position that the 911 call regarding Foster lacked sufficient

indicia of reliability or placed this question “beyond debate.”

See Kisela, 138 S. Ct. at 1152 (quoting Pauly, 137 S. Ct. at

551). J.L. emphasized that the tipster in that case had not

indicated the basis for his tip and had reported mere

observations. 529 U.S. at 271. But here the tipster explained

the basis of his knowledge, predicted the suspect’s route, and

made the tip via a recorded 911 call. A reasonable officer

could rely on these facts when assessing the tip’s reliability.

See J.L., 529 U.S. at 274–76 (Kennedy, J., concurring);

Terry-Crespo, 356 F.3d at 1175–76. Further, in J.L. “the

record did not indicate how long the police waited before

responding to the tip,” United States v. Fernandez-Castillo,

324 F.3d 1114, 1117 n.3 (9th Cir. 2003) (discussing J.L.,

529 U.S. at 268); in contrast, here Hellawell responded within

minutes.

Accordingly, although the facts in J.L. are similar to the

facts in this case, they are not identical, and other Supreme

Court decisions provide a basis for a reasonable officer to

conclude that the 911 call in this case had sufficient indicia of

reliability. This conclusion is confirmed by the Supreme

Court’s subsequent determination in Navarette v. California,

which distinguished J.L. on similar grounds to the ones at

issue here. 572 U.S. 393, 397–400 (2014). In Navarette, the

Court held that an anonymous tip has sufficient indicia of

reliability to provide reasonable suspicion when the tipster

accurately predicts a direction of travel, the tip is made

22 FOSTER V. HELLAWELL

“contemporaneous[ly] with the observation of criminal

activity,” and the tip is made on the 911 system. Id. at 400.

Second, a reasonable officer in Hellawell’s position could

have concluded that the tip in this case provided information

on potential illegal activity. Where state law makes it

generally unlawful to carry a concealed weapon without a

permit, a tip that a person is carrying a concealed firearm

raises a reasonable suspicion of potential criminal activity,

even if the tip does not state that the person is carrying the

firearm illegally or is about to commit a crime. See United

States v. Woods, 747 F.3d 552, 556 (8th Cir. 2014)

(“Considering Missouri law, and based on the call that there

was an individual carrying a concealed weapon that had

exited the bus, the officers had reason to believe criminal

activity was afoot.”); United States v. Gatlin, 613 F.3d 374,

378 (3rd Cir. 2010) (“[W]e hold that reasonable suspicion

existed in this case based solely on the reliable tip from a

known informant because carrying a concealed handgun is

presumptively a crime in Delaware.”).6

6

Unpublished authority further bolsters our conclusion that a

reasonable officer could consider the 911 call in this case to have

sufficient indicia of reliability. See United States v. Bias, 352 F. App’x

162, 163 (9th Cir. 2009) (holding that the fact that a “Terry stop was

concluded in a county in which less than 1% of the population had a

permit to carry a concealed weapon” contributed to reasonable suspicion

that a person was carrying a concealed weapon and posed a threat of

criminal activity); United States v. Montague, 437 F. App’x 833, 835–36

(11th Cir. 2011) (per curiam) (rejecting the argument that “the officers

could not have reasonably suspected that [defendant] was engaging in

criminal activity because under Florida law it is not illegal to possess a

concealed weapon if the carrier has a permit”). We may look to such

decisions when determining whether a right is clearly established and

whether reasonable officials would know their actions violated such a

right. Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005).

FOSTER V. HELLAWELL 23

Here, California law “generally prohibits carrying

concealed firearms in public, whether loaded or unloaded.”

Peruta v. Cty. of San Diego, 824 F.3d 919, 925 (9th Cir.

2016) (en banc); see also Cal. Penal Code § 25400 (crime of

carrying a concealed firearm), § 25850 (crime of carrying a

loaded firearm in public). Although “the prohibition of

§ 25400 does not apply to those who have been issued

licenses to carry concealed weapons,” Peruta, 824 F.3d at

926, California officials strictly limit the issuance of

concealed carry permits, Cal. Penal Code § 26150(a).7 As of

December 2015, California had issued concealed carry

permits to approximately .2% of its adult population of

29.9 million.8 John R. Lott, Jr., Concealed Carry Permit

Holders Across the United States: 2016, 17, 21, Crime

Prevention Research Center (July 26, 2016), https://ssrn.co

m/abstract=2814691. Given the insignificant number of

concealed carry permits issued in California, a reasonable

officer could conclude that there is a high probability that a

person identified in a 911 call as carrying a concealed

handgun is violating California’s gun laws.

7

California law exempts certain small groups from the permit

requirement, including retired or honorary peace officers, members of the

Army, Navy, Air Force, Coast Guard, Marine Corps, or National Guard,

and licensed hunters or fishermen. Cal. Penal Code §§ 25450, 25620,

25640.

8

In Riverside County in 2016, less than .1% of adults had a concealed

carry permit. See Brett Kelman, Want to Carry a Gun in Riverside

County? You Have to Wait 2 Years Just to Be Considered, Desert Sun

(Jan. 4, 2018), http://www.desertsun.com/story/news/crime_courts/201

8/01/04/want-carry-gun-riverside-county-you-have-wait-two-years-just-

considered/991704001/; QuickFacts: Riverside County, California, U.S.

Census Bureau, http://www.census.gov/quickfacts/fact/table/riversideco

untycalifornia/PST045217 (last visited Oct. 5, 2018).

24 FOSTER V. HELLAWELL

Moreover, the Supreme Court has long held that even

factors consistent with innocent conduct may give rise to

reasonable suspicion. See United States v. Arvizu, 534 U.S.

266, 274 (2002); United States v. Sokolow, 490 U.S. 1, 9

(1989). For instance, although there is a small possibility that

a person transporting cocaine has lawfully obtained it from

the National Institute on Drug Abuse for research purposes,

a reasonable officer can nevertheless have a reasonable

suspicion of illegal activity when told that a person has been

spotted transporting cocaine. Likewise, other circuits have

rejected the argument that the possibility a person is lawfully

carrying a firearm precludes reasonable suspicion. See

Woods, 747 F.3d at 556; Gatlin, 613 F.3d at 378–79.

Accordingly, although a person exiting a liquor store with

a concealed handgun in his right-hand pocket, walking in the

direction of stores that had previously been robbed, may have

had a concealed carry permit and been engaged in innocent

activities, it would not violate clearly established law for a

reasonable officer in Hellawell’s position to conclude that the

tip, corroborated by his own observations, gave rise to a

reasonable suspicion that the man was engaged in criminal

conduct.9 Therefore, we determine that Hellawell did not

9

We further note that “the existence of a statute or ordinance

authorizing particular conduct” favors “the conclusion that a reasonable

official would find that conduct constitutional.” Grossman v. City of

Portland, 33 F.3d 1200, 1209 (9th Cir. 1994); see also Acosta v. City of

Costa Mesa, 718 F.3d 800, 824–26 (9th Cir. 2013). Here, § 25850(b) of

the California Penal Code authorizes police officers “to examine any

firearm carried by anyone on the person or in a vehicle while in any public

place or on any public street in an incorporated city or prohibited area of

an unincorporated territory.” Therefore, an officer in Hellawell’s situation

could reasonably believe he had authority to examine any firearm Foster

FOSTER V. HELLAWELL 25

violate clearly established law when he concluded, based on

the 911 call, that he had reasonable suspicion to stop and

investigate Foster. See Kisela, 138 S. Ct. at 1152. We

reverse the district court’s conclusion that Hellawell was not

entitled to qualified immunity with respect to the stop.

B

We next turn to the plaintiffs’ claim that Hellawell

violated Foster’s Fourth Amendment rights in approaching

him with a drawn gun.

In his deposition, Hellawell testified as follows:

I don’t recall drawing my gun, but I do

remember fumbling with my holster as I ran

behind Jack in the Box or on the side of Jack

in the Box. I honestly can’t sit there and tell

you when I drew it. . . . Whether I drew it

when he started to run or when he made some

type of a movement as he began to run, I

might have. I don’t remember. But I do

remember – as we ran along the west side of

Jack in the Box, I remember fumbling with

my holster because I will not run with my gun

in my hand. So that’s all I can recall on that

subject.

Similarly, in his initial interview with the police

investigator, Hellawell stated that “I initially had my gun out

when he first started running because I believed he had a gun

might be carrying and could reasonably rely on § 25850(b) in stopping

Foster.

26 FOSTER V. HELLAWELL

– and because I don’t like to run with my gun in my hand, I

ended up holstering my gun.” There is no other evidence in

the record on this issue. Although the plaintiffs argue in their

brief on appeal that Hellawell approached Foster “with his

police firearm drawn,” and pointed his firearm at Foster, no

evidence in the record supports this claim. In addition to

Hellawell’s statements, the plaintiffs cite Flores’s declaration,

which states only that he saw Hellawell with something in his

hand during the chase. Flores did not see Hellawell draw his

firearm as he approached Foster.

Based on this record, the district court erred in finding a

genuine dispute as to whether Hellawell approached Foster

with his gun drawn.10 The bare allegation alone, without any

evidence in the record, is insufficient to conclude that

Hellawell did anything more than unholster his gun during

the initial encounter with Foster. The parties have not cited

any case holding that merely unholstering a gun without

pointing it at the suspect constitutes excessive force. We

have held only that “pointing a loaded gun at a suspect,

employing the threat of deadly force” may constitute

excessive force. Espinosa v. City & Cty. of San Francisco,

598 F.3d 528, 537 (9th Cir. 2010) (emphasis added); see also

Tekle v. United States, 511 F.3d 839, 845 (9th Cir. 2007)

(“We have held that the pointing of a gun at someone may

constitute excessive force, even if it does not cause physical

injury.”); Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th

10

Although we do not ordinarily have jurisdiction on an interlocutory

appeal to review a denial of qualified immunity based on the existence of

a disputed fact, “[w]hen there is an allegation about the conduct part of

the equation, but insufficient evidence of that conduct to create a genuine

issue of material fact, our cases permit review.” See Jeffers v. Gomez,

267 F.3d 895, 907 (9th Cir. 2001).

FOSTER V. HELLAWELL 27

Cir. 2002) (en banc) (recognizing “as a general principle that

pointing a gun to the head of an apparently unarmed suspect

during an investigation can be a violation of the Fourth

Amendment, especially where the individual poses no

particular danger”). Neither we nor the Supreme Court have

held that merely unholstering a firearm, without more,

constitutes excessive force. The plaintiffs’ reliance on

Espinosa, Robinson, and similar decisions is unpersuasive

because each of those cases focuses on whether a gun was

pointed at the suspect. See, e.g., Espinosa, 598 F.3d at 537;

Tekle, 511 F.3d at 845; Hopkins v. Bonvicino, 573 F.3d 752,

761, 776–77 (9th Cir. 2009); Robinson, 278 F.3d at 1013.

Because a reasonable officer in Hellawell’s position could

reasonably conclude that unholstering a gun during the stop

did not constitute a violation of Foster’s right to be free from

excessive force, we reverse the district court’s conclusion that

Hellawell was not entitled to qualified immunity on this

point.

V

Because we lack jurisdiction to review Hellawell’s claim

that the district court erred in denying him qualified immunity

for the fatal shooting of Foster, we dismiss Hellawell’s appeal

of this portion of the district court’s ruling. We conclude that

Hellawell is entitled to qualified immunity for his initial stop

of Foster, and therefore reverse the district court’s denial of

summary judgment on these Fourth Amendment claims.11

DISMISSED IN PART AND REVERSED IN PART.

11

The parties shall bear their own costs on appeal.

28 FOSTER V. HELLAWELL

IKUTA, Circuit Judge, dissenting:

I disagree with the majority’s conclusion that we lack

jurisdiction to consider Hellawell’s appeal of the district

court’s denial of qualified immunity for the plaintiffs’

Fourteenth Amendment claim. Here, viewing the evidence in

the light most favorable to the plaintiffs, no reasonable jury

could find that Hellawell acted with a “‘purpose to harm’

[Foster] for reasons unrelated to legitimate law enforcement

objectives.” Gonzalez v. City of Anaheim, 747 F.3d 789, 797

(9th Cir. 2014) (en banc) (quoting Porter v. Osborn, 546 F.3d

1131, 1137 (9th Cir. 2008)).

Because Foster matched the description of an individual

reportedly carrying a firearm in the area, there is no genuine

issue of triable fact as to whether Hellawell believed Foster

to be armed. The evidence in the record is consistent with

Hellawell’s testimony that he used deadly force because he

believed Foster was a fleeing and dangerous suspect in a

crowded area on the Fourth of July.

Moreover, the plaintiffs have produced no evidence that

Hellawell had “any ulterior motives for using force against”

Foster, Gonzalez, 747 F.3d at 798, that Hellawell “did not

believe he was responding to an emergency,” Bingue v.

Prunchak, 512 F.3d 1169, 1177 (9th Cir. 2008), or that

Hellawell intended to “get even” with Foster, Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v.

Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)). Any

“speculation” regarding “improper motive does not rise to the

level of evidence sufficient to survive summary judgment.”

See Gonzalez, 747 F.3d at 798 (quoting Karam v. City of

Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003)).

FOSTER V. HELLAWELL 29

Because, taken in the light most favorable to the

plaintiffs, the undisputed facts show that Hellawell did not

violate the Fourteenth Amendment, Hellawell is entitled to

qualified immunity. I would hold that we have jurisdiction to

consider his appeal of this claim and would remand to the

district court to dismiss plaintiffs’ Fourteenth Amendment

claim.