S.R. Nehad v. Neal Browder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

S.R. NEHAD; K.R. NEHAD; ESTATE No. 18-55035

OF FRIDOON RAWSHAN NEHAD,

Plaintiffs-Appellants, D.C. No.

3:15-cv-01386-

v. WQH-NLS

NEAL N. BROWDER; CITY OF SAN

DIEGO; SHELLEY ZIMMERMAN, in OPINION

her personal and official capacity as

Chief of Police,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted February 27, 2019

Southwestern Law School Los Angeles, California

Filed July 11, 2019

Before: Sidney R. Thomas, Chief Judge, Michael Daly

Hawkins, Circuit Judge, and Dean D. Pregerson,*

District Judge.

Opinion by Judge Pregerson

*

The Honorable Dean D. Pregerson, United States District Judge for

the Central District of California, sitting by designation.

2 NEHAD V. BROWDER

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of defendants and

remanded in an action alleging that a City of San Diego

police officer used excessive deadly force when he shot and

killed Fridoon Nehad.

The panel held that there were several genuine disputes of

material fact regarding plaintiffs’ Fourth Amendment claim.

At a broad level, the panel held that a triable issue remained

regarding the reasonableness of the police officer’s use of

deadly force. More specifically, there were genuine disputes

about: (1) the officer’s credibility; (2) whether Nehad posed

a significant, if any, danger to anyone; (3) whether the

severity of Nehad’s alleged crime warranted the use of deadly

force; (4) whether the officer gave or Nehad resisted any

commands; (5) the significance of the officer’s failure to

identify himself as a police officer or warn Nehad of the

impending use of force; and (6) the availability of less

intrusive means of subduing Nehad.

The panel further held that disputed factual questions also

precluded a grant of summary judgment on qualified

immunity grounds, as it was well-established at the time of

the shooting that the use of deadly force under the

circumstances in this case, viewed in the light most favorable

to plaintiffs, was objectively unreasonable.

**

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

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

NEHAD V. BROWDER 3

The panel held that plaintiffs presented sufficient

evidence of police department customs, practices, and

supervisory conduct to support a finding of entity and

supervisory liability. Furthermore, the district court never

afforded plaintiffs an opportunity to be heard before granting

summary judgment on the negligence and wrongful death

claims sua sponte. The panel therefore reversed the grant of

summary judgment in favor of defendants on plaintiffs’

Fourth Amendment and state law claims.

The panel affirmed the grant of summary judgment in

favor of defendants on plaintiffs’ claim for violation of their

Fourteenth Amendment interest in the companionship of their

child. The panel held that the police officer’s use of force,

even if unreasonable, did not evidence a subjective purpose

to harm.

COUNSEL

Daniel S. Miller (argued), Sean G. McKissick, J. Mira

Hashmall, and Louis R. Miller, Miller Barondess LLP, Los

Angeles, California, for Plaintiffs-Appellants.

George Frederick Schaefer (argued), Assistant City Attorney;

Kathy J. Steinman, Deputy City Attorney; Mara W. Elliott,

City Attorney; Office of the City Attorney, San Diego,

California; for Defendants-Appellees.

Scott J. Street, Baute Crochetiere & Hartley LLP, Los

Angeles, California; Brian Hardingham, Public Justice P.C.,

Oakland, California; Adrienna Wong and Peter Bibring,

ACLU Foundation of Southern California, Los Angeles,

California; for Amici Curiae American Civil Liberties Union

4 NEHAD V. BROWDER

of Northern California, American Civil Liberties Union of

Southern California, American Civil Liberties Union of San

Diego & Imperial Counties, and Public Justice.

Lee H. Roistacher, Daley & Heft LLP, Solana Beach,

California, for Amici Curiae California State Association of

Counties, League of California Cities, and International

Municipal Lawyers Association.

OPINION

PREGERSON, District Judge:

On April 30, 2015, Officer Neal Browder of the San

Diego Police Department responded to a 911 call about a man

making threats with a knife. Browder arrived at the scene,

where he encountered Fridoon Nehad walking at a steady

pace in Browder’s direction. The subsequent series of events,

which is in dispute, culminated in Browder exiting his vehicle

and, less than five seconds later, fatally shooting Nehad.

Appellants brought Fourth Amendment, Fourteenth

Amendment, and state law claims against Browder, San

Diego Chief of Police Shelley Zimmerman, and the City of

San Diego. The district court granted summary judgment to

Appellees on all claims.

We have jurisdiction under 28 U.S.C. § 1291. Reviewing

the district court’s grant of summary judgment de novo, we

affirm with respect to Appellants’ Fourteenth Amendment

claim, reverse with respect to all other claims, and remand.

NEHAD V. BROWDER 5

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after midnight on April 30, 2015, Andrew Yoon

encountered Fridoon Nehad outside the bookstore where

Yoon worked. Nehad showed Yoon an unsheathed knife and

said that he wanted to hurt people. Nehad was incoherent and

“didn’t seem like he knew what was going on[,]” so Yoon

returned to work inside the store. A few minutes later, Nehad

entered the store without a knife in hand, again said he

wanted to harm people, then left the store via a side door into

an adjoining alley. Yoon called 911 and told the emergency

dispatcher that Nehad had threatened him with a knife.

Around 12:06 a.m., the police dispatcher put out a

“Priority 1” call for a “417 (Threatening w[ith] weapon),” and

indicated that a male in a back lot was threatening people

with a knife.1 San Diego Police Department Officer Neal

Browder volunteered to respond to the call and drove to the

scene in his police cruiser.

Surveillance camera footage shows that Nehad was

walking down the alley behind the bookstore toward the

street before Browder arrived. Browder turned his car from

the street into the alley and turned on his car’s high headlight

beams. Browder did not activate his car’s siren or police

lights. Browder saw two people in a parking lot adjoining the

alley and, soon after turning into the alley from the street, saw

Nehad in the alley. Browder confirmed with dispatch that

1

California Penal Code § 417 provides that anyone who draws or

exhibits a deadly weapon, other than a firearm, “in a rude, angry, or

threatening manner” is guilty of a misdemeanor. Cal. Pen. Code

§ 417(a)(1).

6 NEHAD V. BROWDER

Nehad matched the description of the person brandishing a

knife.

Once in the alley, Browder brought his vehicle to a halt

and opened the driver’s side door. Nehad continued to walk

down the alley toward Browder and the street. Browder’s

vehicle advanced a short distance with the driver’s door open

before again coming to a stop. Nehad continued to walk

toward Browder at a steady pace. Browder did not hear

Nehad say anything, and did not see Nehad change his pace

or make any sudden movements. Approximately twenty-

eight seconds after pulling into the alley and eighteen seconds

after opening his car door, Browder exited his vehicle.

Browder did not activate his body camera.

Eyewitness accounts of what happened next differ. One

witness, Andre Nelson, testified that Nehad was stumbling

forward at a “drunken pace” in a nonagressive manner, “like

he wasn’t all there,” while “fiddling with something in his

midsection.” Nelson could not recall Browder audibly

identifying himself as a police officer, giving any type of

warning, or saying anything at all. Nelson did recall Browder

extending his left hand in a “stop” motion. No such motion

is clearly visible on the surveillance video. Another witness,

Albert Gallindo, testified that he heard Browder say, “Stop,

drop it” two or three times.2 Yoon, who was still on the

phone with the emergency dispatcher when Browder arrived,

recalled hearing Browder say “Stop, drop it” one time, no

more than a “couple seconds” after Browder got out of the

police car. Browder did not recall identifying himself or

2

Gallindo also testified that Browder said, “Throw it down. Throw

it down.” It is unclear, however, whether Gallindo meant that Browder

gave that command in addition to or as a variant of, “Stop, drop it.”

NEHAD V. BROWDER 7

saying anything to Nehad. Video surveillance shows Nehad

slowed down a few moments after Browder exited his

vehicle, although it is unclear whether Browder perceived or

could have perceived Nehad’s change of pace.

Less than five seconds after exiting his vehicle, Browder

fired a single shot at Nehad, fatally striking him in the chest.

Nehad was approximately seventeen feet away at the time

Browder shot him.

A few hours later, after police investigators arrived at the

scene, they asked Browder whether he saw any weapons and

where in the alley they might be. Browder told the

investigators that he had not seen any weapons. Browder’s

attorney would not allow investigators to ask Browder any

more questions that night. The investigators did not find any

weapons in the alley, and determined that Nehad had been

carrying a metallic blue pen when Browder shot him.3

On May 5, five days after the shooting, Browder and his

attorney met with homicide investigators at a police station.

Police officials provided Browder and his attorney with

surveillance video of the shooting, which Browder and his

attorney reviewed in a police lieutenant’s office for

approximately twenty minutes before an interview

commenced. During the interview, Browder stated that he

first saw Nehad when Nehad was twenty-five to thirty feet

from Browder’s car and that Nehad was “aggressing” the car

and “walking at a fast pace . . . right towards [the] car.”

Browder also stated, for the first time, that he had thought

Nehad was carrying a knife, and that he had fired on Nehad

because he thought Nehad was going to stab him.

3

Investigators did find a knife sheath in the alley.

8 NEHAD V. BROWDER

Appellants, Nehad’s parents and estate, filed suit against

Browder, the City of San Diego, and San Diego Chief of

Police Shelley Zimmerman (collectively, “Appellees”). In

the operative Second Amended Complaint (“SAC”),

Appellants allege 42 U.S.C. § 1983 claims for Fourth and

Fourteenth Amendment violations and Monell and

supervisory liability, two civil rights claims under state

statutes, and common law claims for assault and battery,

negligence, and wrongful death. Appellees filed a motion for

summary judgment on seven of the nine claims, excluding the

SAC’s common law claims for negligence and wrongful

death.

The district court granted Appellees’ motion. The court

granted summary judgment on Appellants’ Fourth

Amendment claim because, according to the district court,

Browder’s use of force was objectively reasonable. The court

granted summary judgment on Nehad’s parents’ Fourteenth

Amendment claim because there was no evidence that

Browder acted with a purpose to harm unrelated to legitimate

law enforcement objectives. The court further concluded that

Browder was entitled to qualified immunity because there

was no clear precedent establishing that Browder’s use of

deadly force would be considered excessive. The court also,

in light of its determination that no constitutional violation

had occurred, dismissed the Monell and supervisory liability

claims against all Appellees. Lastly, the court concluded that,

because Browder’s use of force was objectively reasonable,

Appellees were entitled to summary judgment on “all” state

law claims.

Appellants now appeal the district court’s grant of

summary judgment.

NEHAD V. BROWDER 9

STANDARD OF REVIEW

We review de novo a grant of summary judgment to

determine whether “a rational trier of fact might resolve the

issue in favor of the nonmoving party.” Blankenhorn v. City

of Orange, 485 F.3d 463, 470 (9th Cir. 2007). In so doing,

we view the facts in the light most favorable to the

nonmoving party and draw all inferences in that party’s favor.

Id. We also review de novo a district court’s grant of

summary judgment on qualified immunity grounds. Id.

ANALYSIS

A. Whether a Jury Could Conclude that Browder’s Use of

Force Was Unreasonable

In Fourth Amendment excessive force cases, we examine

whether police officers’ actions are objectively reasonable

given the totality of the circumstances. Byrd v. Phoenix

Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018); Bryan v.

MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). Our analysis

must balance the nature of the intrusion upon an individual’s

rights against the countervailing government interests at

stake, without regard for the officers’ underlying intent or

motivations. Graham v. Connor, 490 U.S. 386, 396–97

(1989). Whether a use of force was reasonable will depend

on the facts of the particular case, including, but not limited

to, whether the suspect posed an immediate threat to anyone,

whether the suspect resisted or attempted to evade arrest, and

the severity of the crime at issue. Id. at 396. Only

information known to the officer at the time the conduct

occurred is relevant. Cty. of Los Angeles v. Mendez, 137 S.

Ct. 1539, 1546–47 (2017); Glenn v. Washington Cty.,

673 F.3d 864, 873 n.8 (9th Cir. 2011).

10 NEHAD V. BROWDER

1. Whether Nehad Posed a Danger

The most important Graham factor is whether the suspect

posed an immediate threat to anyone’s safety. Mattos v.

Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The

use of deadly force is only reasonable if a suspect “poses a

significant threat of death or serious physical injury to the

officer or others.” Gonzalez v. City of Anaheim, 747 F.3d

789, 793 (9th Cir. 2014) (emphasis added) (internal quotation

omitted).

Here, there is a genuine dispute as to whether Nehad

posed a significant threat to Browder’s safety.4 To be sure,

there is some evidence in the record that Nehad did pose a

threat to Browder. Browder stated that he thought Nehad had

a knife, and two witnesses heard Browder say some variant

of, “Stop, drop it.” Browder further testified that Nehad was

“aggressing” Browder’s vehicle, and that Browder thought

Nehad was going to stab him. The question on summary

judgment, however, is not whether some version of the facts

supports Appellees’ position, but rather whether a trier of

fact, viewing the evidence in the light most favorable to

Appellants, could find in Appellants’ favor. Blankenhorn,

485 F.3d at 470. We therefore proceed by viewing the

evidence in the record through that lens.

4

Although two bystanders were present in a parking lot adjoining the

alley, Browder testified that he did not believe that anyone else was under

threat of immediate bodily harm when he shot Nehad, and there is no

evidence that either bystander was or felt threatened.

NEHAD V. BROWDER 11

a. Browder’s Credibility

As an initial matter, “summary judgment is not

appropriate in § 1983 deadly force cases that turn on the

officer’s credibility that is genuinely in doubt.” Newmaker v.

City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Here,

approximately three hours after the shooting, Browder told

homicide investigators that he did not see any weapons, and

made no mention of feeling threatened by Nehad. Five days

later, however, after consulting with his attorney and

reviewing surveillance footage inside a police station,

Browder claimed that he thought Nehad had a knife, that

Nehad was “aggressing” the car, and that he thought Nehad

was going to stab him. These possible inconsistencies, along

with video, eyewitness, and expert evidence that belies

Browder’s claim that Nehad was “aggressing,” are sufficient

to give rise to genuine doubts about Browder’s credibility.

b. The Reasonableness of Browder’s Beliefs

Appellees, relying upon an out of context quotation from

Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010),

suggest that when examining the immediacy of the threat a

suspect posed, the “critical inquiry is what the officer

perceived.” Appellees are mistaken. Where, as here, “an

officer’s particular use of force is based on a mistake of fact,

we ask whether a reasonable officer would have or should

have accurately perceived that fact.” See Torres v. City of

Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).5 “[W]hether

5

Wilkinson is not to the contrary. There, the question was whether a

reasonable officer could have believed fellow officers were in danger

where a suspect driver had failed to yield to police sirens or commands

and was accelerating his vehicle in a muddy yard near two disoriented

12 NEHAD V. BROWDER

the mistake was an honest one is not the concern, only

whether it was a reasonable one.” Id. at 1127.

In that regard, Appellees assert that it was not

unreasonable for Browder to mistake a pen for a knife

because Browder knew that someone matching Nehad’s

description had been reported as carrying a knife and there is

evidence that Nehad was “fiddling with something” as he

walked down the alley.6 A reasonable trier of fact could,

however, conclude that Browder’s mistake was not

reasonable. Appellants’ police practices expert opined that

officers are trained to recognize what suspects are carrying

and to distinguish pens from knives, and that Browder had

“very sufficient time to determine that it was not a knife in

Nehad’s hand and, in fact was a pen . . . .” Furthermore, one

of the homicide investigators testified that the lighting in the

alley was sufficient to enable an observer to identify the color

blue in the pen, even taking into account the distance between

police officers. Wilkinson, 610 F.3d at 551. We explained that whether

one of the disoriented officers was, in actuality, out of the suspect’s

vehicle’s trajectory was less important than the shooting officer’s

reasonable perception, uncontradicted by any evidence and supported by

bystander testimony, that his fellow officer had been run over and was in

danger of being hit again. Id. We did not suggest, in Wilkinson or

elsewhere, that the objective reasonableness of an officer’s response is

dependent upon that officer’s subjective perceptions.

6

Simmie Barber, a bouncer at a nearby club, told detectives that he

had heard from Yoon that Nehad had a knife. Nehad showed Barber the

shiny, polished, silver tip of what Barber understood to be a knife. Nehad

did not threaten Barber in any way, and Barber was not worried.

Although none of this information was known to Browder, Barber’s

testimony could support a finding of reasonable mistake, to the extent a

factfinder could conclude that Nehad actually showed Barber the metallic

tip of a pen and that Barber, too, mistook it for a knife.

NEHAD V. BROWDER 13

Browder and Nehad. Whether Browder reasonably mistook

the pen for a knife is therefore a triable question of fact.

c. Whether, Even if Armed, Nehad Posed a Threat

Even if it were established that Browder reasonably

believed Nehad was carrying a knife, or even if Nehad had

actually been carrying a knife, Browder’s use of lethal force

was not necessarily reasonable as a matter of law. That a

person is armed does not end the reasonableness inquiry.

Glenn, 673 F.3d at 872; see also Hayes v. County of San

Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (“[T]he mere fact

that a suspect possesses a weapon does not justify deadly

force.”) (alteration in original). Indeed, we have often denied

summary judgment in excessive force cases to police officers

who use force against armed individuals. See, e.g., N.E.M. v.

City of Salinas, 761 F. App’x. 698, 699–700 (9th Cir. 2019)

(affirming denial of summary judgment to officers who shot

garden shear-wielding suspect when he turned toward officers

less than nine feet away, after having swung shears at

officers); S.B. v. Cty. of San Diego, 864 F.3d 1010, 1014 (9th

Cir. 2017) (finding triable issue where decedent was armed

with a knife); Hayes, 736 F.3d at 1233–34 (same); Glenn,

673 F.3d at 878–79 (finding triable issue where police used

beanbag rounds on knife-wielding subject prior to using lethal

force); cf. Estate of Lopez v. Gelhaus, 871 F.3d 998, 1017

(9th Cir. 2017) (denying summary judgment where decedent

was holding toy AK-47 rifle).

Here, an eyewitness testified that Nehad “wasn’t

aggressive in nature” and “didn’t make any offensive

motions.” Browder himself testified that Nehad did not say

anything, make any sudden movements, or move the

supposed knife in any way. Browder further testified that he

14 NEHAD V. BROWDER

did not believe anyone else was under threat of immediate

bodily harm when he shot Nehad. When Browder fired on

Nehad, Nehad was seventeen feet away from Browder and

walking at what Appellees’ own expert described as a

“relatively slow pace.” Appellants’ expert, Roger Clark,

explicitly opined that Nehad “was actually not a lethal threat”

to Browder. Under these facts, even if Browder had

reasonably perceived Nehad as holding a knife, a reasonable

factfinder could conclude that Nehad did not pose a danger to

anyone.

d. Browder’s Role in Creating the Danger

Appellees make much of the (asserted) fact that Browder

had less than five seconds between the time he exited his

vehicle and the moment he shot Nehad. We recognize, as we

have often done before, that officers must act “without the

benefit of 20/20 hindsight,” and must often 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.” Gonzalez, 747 F.3d

at 794 (quoting Graham, 490 U.S. at 396–97); see also

Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001).

Sometimes, however, officers themselves may “unnecessarily

creat[e] [their] own sense of urgency.” Torres, 648 F.3d at

1127; see also Porter v. Osborn, 546 F.3d 1131, 1141 (9th

Cir. 2008) (“When an officer creates the very emergency he

then resorts to deadly force to resolve, he is not simply

responding to a preexisting situation.”).7 Reasonable triers of

fact can, taking the totality of the circumstances into account,

7

Although Porter involved a Fourteenth Amendment claim, we

looked to “analogous jurisprudence” involving Fourth Amendment

excessive force claims. Porter, 546 F.3d at 1141.

NEHAD V. BROWDER 15

conclude that an officer’s poor judgment or lack of

preparedness caused him or her to act unreasonably, “with

undue haste.” Torres, 648 F.3d at 1126.

Here, evidence in the record could support such a

determination. As described above, Nehad was walking

down the alley at a relatively slow pace without saying

anything or threatening anyone. The lighting was sufficient

to allow an observer to identify the color of a pen at a

distance of seventeen feet, yet Browder, responding to a call

about a man brandishing a knife, drove his car several car

lengths into the alley, opened his door, then drove further

toward Nehad before exiting his vehicle.8 Although Browder

himself testified that it is important that police officers

identify themselves because people may respond differently

once they know they are interacting with a police officer, it is

undisputed that Browder never identified himself as a police

officer or warned Nehad that he was going to shoot. Two

witnesses, including Browder himself, could not recall

Browder giving any verbal command or saying anything at

all. Video surveillance shows that as Nehad continued to

walk toward Browder, Browder stepped out sideways from

the protection of his vehicle door, closed the door, and, less

than two seconds later, fired.

Appellants’ expert emphasized that Browder had “a lot of

time” to determine what to do before shooting Nehad, but

“squandered all the opportunities tactically.” Appellants’

expert further elaborated, “It is not a five second decision[,]”

8

Nelson, who was facing away from Nehad until approximately ten

seconds prior to the shooting, was able to see Nehad “fiddling with

something in his midsection” from his position five to ten feet behind

Browder.

16 NEHAD V. BROWDER

and, “[Browder] had all the time he wanted to take . . . .”9

Given such evidence, a reasonable factfinder could conclude

that any sense of urgency was of Browder’s own making.

2. The Severity of the Crime at Issue

Also relevant to the reasonableness inquiry is the severity

of the crime at issue. Graham, 490 U.S. at 396. We have

applied this factor in two slightly different ways. In Miller v.

Clark County, 340 F.3d 959 (9th Cir. 2003), for example, we

emphasized the government’s interest in apprehending

criminals, and particularly felons, as a factor “strongly”

favoring the use of force. Miller, 340 F.3d at 964. Under our

logic in Miller, a particular use of force would be more

reasonable, all other things being equal, when applied against

a felony suspect than when applied against a person suspected

of only a misdemeanor. Here, police dispatch records suggest

that Browder was assigned a “Priority 1” call regarding a

“417 (Threatening w[ith] weapon)” offense. Because

brandishing a knife in violation of California Penal Code

§ 417 is only a misdemeanor, a strict application of Miller’s

9

Appellees make several references to the “21-foot rule that a suspect

can close a 21-foot distance before an officer can react.” Although a

suspect’s distance from an officer is undoubtedly a relevant factor in a

reasonableness analysis, there is evidence in the record calling into

question the applicability of the “21-foot rule” here. As Appellees’ expert,

Geoffrey T. Desmoulin, acknowledged, Browder had more time than

average to react because, although the average time for an officer to

remove his gun, aim, and shoot is 1.5 seconds, Browder had already

unholstered his weapon, and took only 0.83 seconds to raise his weapon,

aim, and fire. Furthermore, even if the “rule” were applicable, that fact

would have to be balanced against Browder’s potential role in creating the

urgent circumstances that made the rule applicable. Torres, 648 F.3d at

1127.

NEHAD V. BROWDER 17

reasoning would provide little, if any, basis for a use of

deadly force.

Perhaps recognizing this (notwithstanding their citation to

Miller), Appellees argue that the police dispatcher’s decision

to characterize Yoon’s 911 call as a “417” misdemeanor

should not be dispositive because Nehad’s reported conduct

“posed a serious threat” and could have been characterized as

felonious. This argument reflects the second way in which

we have sometimes applied the severity of the crime factor.

Although the danger a suspect posed is a separate Graham

consideration, courts, including this one, have used the

severity of the crime at issue as a proxy for the danger a

suspect poses at the time force is applied. See, e.g., Lowry v.

City of San Diego, 858 F.3d 1248, 1257 (9th Cir. 2017)

(holding, where officer reasonably concluded that a burglary

might be in progress, severity-of-crime factor weighed in

favor of use of force because burglary is “dangerous” and

“can end in confrontation leading to violence”), cert. denied

sub nom. Lowry v. City of San Diego, Cal., 138 S. Ct. 1283

(2018); Smith v. City of Hemet, 394 F.3d 689, 702–03 (9th

Cir. 2005) (en banc) (holding, where suspect had physically

assaulted his wife but was standing alone on his porch when

officers arrived,“the nature of the crime at issue provid[ed]

little, if any, basis” for the use of force); Conatser v. City of

N. Las Vegas, No. 206CV01236PMPLRL, 2009 WL

10679150, at *6 (D. Nev. Nov. 9, 2009) (finding severity of

the crime “very low” where no crime was in progress when

police arrived, even though suspect might have threatened his

mother before police arrived).

This severity-of-crime as proxy-for-danger approach,

however, does little to support Appellees’ arguments here.

Even if Nehad had made felonious threats or committed a

18 NEHAD V. BROWDER

serious crime prior to Browder’s arrival, he was indisputably

not engaged in any such conduct when Browder arrived, let

alone when Browder fired his weapon. A jury could,

therefore, conclude that the severity of Nehad’s crimes,

whether characterized as a misdemeanor or an already

completed felony, did not render Browder’s use of deadly

force reasonable. See Harris v. Roderick, 126 F.3d 1189,

1203 (9th Cir. 1997) (“[T]he fact that [the suspect] had

committed a violent crime in the immediate past is an

important factor but it is not, without more, a justification for

killing him on sight.”).10

3. Whether Nehad Was Resisting or Seeking to Evade

Arrest

In analyzing whether a use of force was reasonable, we

also look to whether the suspect was resisting arrest.

Graham, 490 U.S. at 396. Here, video of the incident clearly

shows that Nehad made no attempt to flee from Browder.

Appellees argue, nevertheless, that Nehad resisted by failing

to obey Browder’s command to, “Stop, drop it.” As

discussed above, although two witnesses heard Browder give

a command a few seconds before firing, neither Nelson nor

Browder himself had any such recollection. Thus, whether

Nehad resisted arrest by ignoring Browder’s command is, at

best, a disputed issue of fact.

10

We applied this principle in Harris notwithstanding the fact that the

suspect had fired upon, and possibly killed, a federal agent—a crime far

more serious than Nehad’s suspected offense. See Harris, 126 F.3d

at 1193.

NEHAD V. BROWDER 19

4. Other Factors

Other factors, in addition to the three Graham factors,

may be pertinent in deciding whether a use of force was

reasonable under the totality of the circumstances. Smith,

394 F.3d at 701; see also Franklin v. Foxworth, 31 F.3d 873,

876 (9th Cir. 1994). Here, we consider whether Browder

provided Nehad appropriate warnings and whether less

intrusive alternatives to deadly force were available.

a. Failures to Warn

i. Failure to Order to Halt

In some cases, the absence of a warning or order to halt

prior to deploying forceful measures against a suspect may

suggest that the use of force was unreasonable. Deorle v.

Rutherford, 272 F.3d at 1283–84. In Deorle, for example, we

determined that “[s]hooting a person who is making a

disturbance because he walks in the direction of an officer at

a steady gait with a can or bottle in his hand is clearly not

objectively reasonable” where “the officer neither orders the

individual to stop nor drop the can or bottle . . . .” Id. at 1284

(finding use of beanbag round unreasonable). We recognize,

of course, that it may not always be feasible for an officer to

warn a suspect prior to deploying force. Here, however, as

discussed above, there is evidence that, like the suspect in

Deorle, Nehad was walking toward Browder at a slow, steady

pace, with no indication of violent intent. And here, as in

Deorle, there is evidence that Browder never ordered Nehad

to halt or to drop whatever he was carrying. Such facts could

support a conclusion that Browder’s decision to shoot Nehad

was unreasonable.

20 NEHAD V. BROWDER

ii. Failure to Warn that Failure to Comply

Would Result in the Use of Deadly Force

Whether an officer warned a suspect that failure to

comply with the officer’s commands would result in the use

of force is another relevant factor in an excessive force

analysis. Deorle, 272 F.3d at 1284. The seemingly obvious

principle that police should, if possible, give warnings prior

to using force is not novel, and is well known to law

enforcement officers. Indeed, it was already common police

practice to warn recalcitrant suspects of imminent forceful

measures when we decided Deorle nearly two decades ago.

Id. (“Appropriate warnings comport with actual police

practice. Our cases demonstrate that officers provide

warnings, where feasible, even when the force used is less

than deadly.”); see also Glenn, 673 F.3d at 864 (holding that

an officer’s use of a beanbag round without an appropriate

prior warning weighed against reasonableness, even though

officers had earlier warned the suspect that they would use

lethal force and the shooting officer did yell “beanbag,

beanbag” before firing).11 A prior warning is all the more

important where, as here, the use of lethal force is

contemplated. Even assuming Browder did command Nehad

to “Stop, drop it,” there is no dispute that Browder never

warned Nehad that a failure to comply would result in the use

of force, let alone deadly force.12 A jury could consider

11

Although Appellees assert that Browder did not have time to give

a warning, whether a warning was feasible here is also a triable issue.

12

A suspect’s refusal to comply with police commands despite

warnings of serious or deadly consequences, could, of course, weigh in

favor of the use of force, either as an “other” factor or as an indication of

the threat posed by the suspect. Conversely, a jury could view a suspect’s

behavior, including failure to comply with police commands, as innocuous

NEHAD V. BROWDER 21

Browder’s failure to provide such a warning as evidence of

objective unreasonableness.

iii. Failure to Identify as a Police Officer

Although not specifically discussed by the parties, we

have also considered as relevant a police officer’s failure to

identify himself or herself as such. See, e.g., McKenzie v.

Lamb, 738 F.2d 1005, 1010–11 (9th Cir. 1984); see also, e.g.,

Vlasak v. Las Vegas Metro. Police Dep’t, 213 F. App’x 512,

514 (9th Cir. 2006) (unpublished disposition); Bluestein v.

Groover, 940 F.2d 667, 1991 WL 136179, at *2 (9th Cir.

1991) (unpublished disposition); Kiles v. City of N. Las

Vegas, No. 2:03CV01246 KJDPAL, 2006 WL 1967469,

at *2, 4 (D. Nev. July 12, 2006), aff’d, 276 F. App’x 620 (9th

Cir. 2008). Here, Browder acknowledged he was trained to

identify himself as a police officer and that it is important to

do so, particularly before using force. However, it is

undisputed that Browder never verbally identified himself as

a police officer or activated his police lights or siren. A jury

could consider those failures in assessing Nehad’s response

to Browder and in determining whether Browder’s use of

force was reasonable.

b. Failure to Use Less Intrusive Alternatives

Another relevant factor is “the availability of alternative

methods of capturing or subduing a suspect.” Smith,

394 F.3d at 703 (citing Chew v. Gates, 27 F.3d 1432, 1441

n.5 (9th Cir. 1994)). Police need not employ the least

intrusive means available; they need only act within the range

where an officer gave no indication of any possible, let alone deadly,

consequences.

22 NEHAD V. BROWDER

of reasonable conduct. Glenn, 673 F.3d at 876 (citing Scott

v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). “However,

‘police are required to consider [w]hat other tactics if any

were available,’ and if there were ‘clear, reasonable and less

intrusive alternatives’ to the force employed, that ‘militate

against finding [the] use of force reasonable.’” Id.

(alterations in original) (quoting Bryan v. MacPherson,

630 F.3d 805, 831 (9th Cir. 2010)) (internal quotation marks

omitted).

Here, Browder carried a taser, mace, and a collapsible

baton in addition to his firearm. Appellants’ expert described

these less-lethal alternatives as “obvious,” and it is

undisputed that, at the time of the shooting, Nehad was within

the taser’s effective range. However, Browder admitted he

never considered any of the available alternatives. Although

Appellees contend the alternatives were not practical for

various reasons, that is a question of fact best resolved by a

jury. See id. at 877 (questions of fact precluded summary

judgment where plaintiff’s expert testified that taser, rather

than beanbag round, was the “‘ideal less-lethal option to

temporarily disable the decedent, at approximately 15 feet

away’”).

5. Conclusion

Viewing the evidence in the light most favorable to

Appellants, we conclude that a rational trier of fact could find

that Browder’s use of deadly force was objectively

unreasonable.

NEHAD V. BROWDER 23

B. Fourteenth Amendment

Nehad’s parents also assert a claim for violation of their

Fourteenth Amendment interest in the companionship of their

child. Police action sufficiently shocks the conscience, and

therefore violates substantive due process, if it is taken with

either “(1) deliberate indifference or (2) a purpose to harm[,]

unrelated to legitimate law enforcement objectives.” A.D. v.

California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013)

(internal quotation marks omitted). Here, Appellants argue

Browder’s shooting satisfies the purpose to harm standard

because Nehad assertedly posed no danger to Browder or

anyone else.13

“The purpose to harm standard is a subjective standard of

culpability.” Id. It is well established that a use of force

intended to “teach a suspect a lesson” or “get even” meets

this standard. Id. at 1141. For example, in A.D., we affirmed

the denial of the defendant officer’s motion for judgment as

a matter of law in light of evidence that the decedent posed no

danger to anyone and repeatedly insulted the officer before

the officer shot her twelve times, even though no other officer

opened fire and a supervisor had ordered the officer to stop.

A.D., 712 F.3d at 451. We have also reversed a grant of

summary judgment where a police officer, who had

reasonably fired eighteen shots at a suspect who had just

stabbed another officer, walked in a circle around the suspect

and then took a running start before stomping on the suspect’s

13

“The lower ‘deliberate indifference’ standard applies to

circumstances where actual deliberation is practical.” A.D., 712 F.3d

at 453 (internal quotation marks omitted). Although Appellants suggest

in a brief footnote that the deliberate indifference standard “may apply,”

we limit our analysis to the argument Appellants actually raise.

24 NEHAD V. BROWDER

head three times. Zion v. County of Orange, 874 F.3d 1072,

1077 (9th Cir. 2017).

The circumstances here are distinguishable from those in

A.D. and the like. While those cases, like this case, did

involve some evidence that a suspect posed no danger, they

also involved some additional element suggesting an

improper motive on the part of the shooting officer. Here,

there is no evidence that Browder fired on Nehad for any

purpose other than self-defense, notwithstanding the evidence

that the use of force was unreasonable.

Although “[o]bjective reasonableness is one means of

assessing whether” conduct meets the “shocks the

conscience” standard, an unreasonable use of force does not

necessarily constitute a Fourteenth Amendment substantive

due process violation. Brittain v. Hansen, 451 F.3d 982, 991

n.1 (9th Cir. 2006) (citing Moreland v. Las Vegas

Metropolitan Police Dep’t, 159 F.3d 365, 371 n.4 (9th Cir.

1998) (“[I]t may be possible for an officer’s conduct to be

objectively unreasonable yet still not infringe the more

demanding standard that governs substantive due process

claims.”)). In Gonzalez, for example, we reversed a grant of

summary judgment in officers’ favor on a Fourth Amendment

excessive force claim, but nevertheless affirmed the grant of

summary judgment on a Fourteenth Amendment claim

because “plaintiffs produced no evidence that the officers had

any ulterior motives for using force . . . .” 747 F.3d at

797–98; see also Hayes, 736 F.3d at 1231.

We acknowledge that some district courts have indeed

denied summary judgment on Fourteenth Amendment claims

in the absence of evidence of bad intent separate and apart

from evidence of an objectively unreasonable use of force.

NEHAD V. BROWDER 25

See, e.g., F.C., III v. Cty. of Los Angeles, No. CV 10-169

CAS (RZX), 2011 WL 13127347, at *4 (C.D. Cal. Sept. 13,

2011); Ramirez v. Cty. of San Diego, No. 06 CV 1111JM

(JMA), 2009 WL 1010898, at *6–7 (S.D. Cal. Apr. 15, 2009).

The circumstances of those cases, however, are easily

distinguished from those presented here. In FC, III, for

example, there was evidence that two officers shot a fleeing

suspect in the back. 2011 WL 13127347, at *2. In Ramirez,

there was evidence that an officer shot a fleeing robbery

suspect twice in the leg and then, while the suspect was on

the ground and possibly raising his hands in surrender,

reloaded and shot the suspect six more times in the chest.

2009 WL 1010898, at *2.

Thus, although most meritorious purpose to harm claims

will involve evidence of ulterior motive or bad intent separate

and apart from evidence of an unreasonable use of force, we

decline to hold that such evidence is required as a matter of

law. In some cases, a use of force might be so grossly and

unreasonably excessive that it alone could evidence a

subjective purpose to harm. Here, Browder’s use of force,

even if unreasonable, does not present such a case. We

therefore affirm the district court’s grant of summary

judgment on the Fourteenth Amendment claim.

C. Qualified Immunity

A government official’s entitlement to qualified immunity

depends on “(1) whether there has been a violation of a

constitutional right; and (2) whether that right was clearly

established at the time of the officer’s alleged misconduct.”

Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).

Courts may examine either prong first, depending on the

26 NEHAD V. BROWDER

relevant circumstances. Id. Here, the district court granted

Browder qualified immunity on the second prong.

A review of the district court’s order, however, reveals

that the court construed the facts in the light most favorable

to Browder, asserting as established fact not only Browder’s

version of events, but also other facts favorable to Browder,

such as the disputed fact that Browder verbally warned Nehad

to “Stop[,] Drop it.” “[W]hen there are disputed factual

issues that are necessary to a qualified immunity decision,

these issues must first be determined by the jury before the

court can rule on qualified immunity.” Morales v. Fry,

873 F.3d 817, 824 (9th Cir. 2017) (citing commentary to

Ninth Circuit Model Civil Jury Instruction 9.34 (2017)); see

also Espinosa v. City & Cty. of San Francisco, 598 F.3d 528,

532 (9th Cir. 2010). As discussed above, there are numerous

genuine disputes of material fact, which preclude a grant of

summary judgment on qualified immunity.

Appellees argue that even if, under the Appellants’

version of the facts, a constitutional right was violated, that

right was not clearly established at the time of the shooting.

That argument is unconvincing. In determining whether

Browder’s mistake as to what the law requires was

reasonable, and thus whether he is entitled to qualified

immunity under the clearly-established prong, we “assume

[]he correctly perceived all of the relevant facts and ask

whether an officer could have reasonably believed at the time

that the force actually used was lawful under the

circumstances.” Torres, 648 F.3d at 1127 (internal quotation

marks omitted). This analysis must be made “in light of the

specific context of the case, not as a broad general

proposition.” S.B., 864 F.3d at 1015. There need not be a

prior case “directly on point,” so long as there is precedent

NEHAD V. BROWDER 27

“plac[ing] the statutory or constitutional question beyond

debate.” Id.

Under Appellants’ version of the facts, Browder

responded to a misdemeanor call, pulled his car into a well-lit

alley with his high beam headlights shining into Nehad’s

face, never identified himself as a police officer, gave no

commands or warnings, and then shot Nehad within a matter

of seconds, even though Nehad was unarmed, had not said

anything, was not threatening anyone, and posed little to no

danger to Browder or anyone else. Appellees cannot credibly

argue that the prohibition on the use of deadly force under

these circumstances was not clearly established in 2015.

Torres, 648 F.3d at 1128 (“[F]ew things in our case law are

as clearly established as the principle that an officer may not

‘seize an unarmed, nondangerous suspect by shooting him

dead’ in the absence of ‘probable cause to believe that the []

suspect poses a threat of serious physical harm . . . .’”

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

Indeed, nearly twenty years ago, we explained that it was

sufficiently established that a police officer could not

reasonably use a beanbag round on “an unarmed man who:

has committed no serious offense, . . . has been given no

warning of the imminent use of such a significant degree of

force, poses no risk of flight, and presents no objectively

reasonable threat to the safety of the officer or other

individuals.” Deorle, 272 F.3d at 1285.

Although Appellees attempt to distinguish Deorle because

the suspect there was suicidal and officers took several

minutes to observe him before using less than lethal force,

those facts, to the extent they are distinguishing, weigh

against qualified immunity in this case. Here, there is no

evidence that any eyewitness to the shooting considered

28 NEHAD V. BROWDER

Nehad to be a threat. In light of the evidence that Browder

could have taken more time to evaluate the situation,

Browder’s brief observation of Nehad before using lethal

force only makes Browder’s conduct less reasonable.

Browder is therefore not entitled to qualified immunity under

the clearly established prong.

D. Monell and Supervisory Liability

The district court granted summary judgment in favor of

Zimmerman and the City on Appellants’ Monell claim and in

favor of Zimmerman on Appellants’ supervisory liability

claim on the grounds that (1) there was no constitutional

violation, and (2) Appellants presented no evidence that “any

policy or deficient training was a ‘moving force’ behind the

shooting.”14 As discussed above, there are genuine disputes

of material fact regarding the first basis for the district court’s

decision.

The record also belies the district court’s second

conclusion. As an initial matter, Appellants need not show

evidence of a policy or deficient training; evidence of an

informal practice or custom will suffice. See Los Angeles

Cty. v. Humphries, 562 U.S. 29, 30, 36 (2010); Trevino v.

Gates, 99 F.3d 911, 918 (9th Cir. 1996). Appellants

14

A local government is liable for a constitutional violation if its

policies, official decisions, or informal customs cause the violation. See

City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988). “A defendant

may be held liable as a supervisor under [42 U.S.C.] § 1983 if there exists

either (1) his or her personal involvement in the constitutional deprivation,

or (2) a sufficient causal connection between the supervisor’s wrongful

conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202,

1207 (9th Cir. 2011) (internal quotation marks omitted); see also Larez v.

City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

NEHAD V. BROWDER 29

submitted evidence that: (1) 75% of the San Diego Police

Department’s officer-involved shootings were avoidable;

(2) the Nehad shooting was approved by the department,

which took no action against Browder; and (3) the department

looks the other way when officers use lethal force. Indeed,

Chief Zimmerman explicitly affirmed that Browder’s

shooting of Nehad “was the right thing to do,” and the

department identified Browder as the victim of the incident

and conducted his interview several days after the shooting,

once Browder had watched the surveillance video with his

lawyer. This evidence is sufficient to create a triable issue at

least as to the existence of an informal practice or policy and,

thus, Monell and supervisory liability.

E. State Law Claims

1. Triable Issues of Fact Preclude Summary Judgment

The district court concluded that because Browder’s use

of force was objectively reasonable, Appellees were entitled

to summary judgment “on all state law claims.” This

included not only Appellants’ state civil rights claims under

California Civil Code §§ 52.1 and 52.3 and Appellants’

assault and battery claim, but also two claims, for negligence

and wrongful death, on which Appellees never sought

summary judgment. As discussed at length above, whether

Browder’s use of force was objectively reasonable is a

disputed issue of fact. We therefore reverse the district

court’s grant of summary judgment on all state law claims.15

15

Appellees also argue, briefly, that Appellants’ state civil rights

claims under California’s Bane Act require threats or intimidation other

than an underlying use of excessive force. We have squarely rejected that

argument, as has the California Court of Appeal. See Reese v. Cty. of

30 NEHAD V. BROWDER

2. Sua Sponte Grant of Summary Judgment on

Negligence and Wrongful Death Claims

Appellees do not dispute that Appellants’ state law claims

for negligence and wrongful death were not the subject of

Appellees’ motion for summary judgment and were not

briefed to the district court. A district court may only grant

summary judgment sua sponte if the losing party has

reasonable notice that the claims are at issue and an

opportunity to be heard. Norse v. City of Santa Cruz,

629 F.3d 966, 971–72 (9th Cir. 2010). Here, Appellants were

not provided with such notice or opportunity. We therefore

reverse the district court’s grant of summary judgment on

Appellants’ negligence and wrongful death claims for that

additional reason.16

CONCLUSION

We conclude that there are several genuine disputes of

material fact regarding Appellants’ Fourth Amendment claim.

Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (discussing Cornell v.

City & Cty. of San Francisco, 17 Cal. App. 5th 766 (2017)). Although

Bane Act claims do require the specific intent to deprive a person of

constitutional rights, such intent can be proven by evidence of

recklessness. Id. at 1045.

16

Appellants raise the additional argument that summary judgment

was improper because state law negligence claims are judged by different

standards than federal constitutional claims. We have observed that state

negligence law is indeed broader than federal Fourth Amendment law.

See Vos v. City of Newport Beach, 892 F.3d 1024, 1037–38 (9th Cir.

2018). Because, however, we reverse the district court’s grant of

summary judgment on Appellants’ state law claims for the reasons

discussed above, we need not and do not reach any question regarding the

potential differences between state law and constitutional claims.

NEHAD V. BROWDER 31

At a broad level, a triable issue remains regarding the

reasonableness of Browder’s use of deadly force. More

specifically, there are genuine disputes about: (1) Browder’s

credibility; (2) whether Nehad posed a significant, if any,

danger to anyone; (3) whether the severity of Nehad’s alleged

crime warranted the use of deadly force; (4) whether Browder

gave or Nehad resisted any commands; (5) the significance of

Browder’s failure to identify himself as a police officer or

warn Nehad of the impending use of force; and (6) the

availability of less intrusive means of subduing Nehad. These

disputed factual questions also preclude a grant of summary

judgment on qualified immunity grounds, as it was well-

established at the time of the shooting that the use of deadly

force under the circumstances here, viewed in the light most

favorable to Appellants, was objectively unreasonable.

Appellants have also presented sufficient evidence of police

department customs, practices, and supervisory conduct to

support a finding of entity and supervisory liability.

Furthermore, the district court never afforded Appellants an

opportunity to be heard before granting summary judgment

on the negligence and wrongful death claims sua sponte.

We therefore reverse the grant of summary judgment

on Appellants’ Fourth Amendment and state law claims.

We affirm, however, the grant of summary judgment on

Appellants’ Fourteenth Amendment claims.

AFFIRMED IN PART; REVERSED IN PART; and

REMANDED.

Each party to bear its own costs on appeal.