Geraldine Nicholson v. Miguel Gutierrez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALDINE NICHOLSON; JOSE No. 17-56648

FERNANDO HUERTA; J. H., a minor

by and through his guardian ad litem, D.C. No.

Jose Fernando Huerta; J. N. G., a 2:15-cv-07594-

minor by and through his guardian DDP-RAO

ad litem, Geraldine Nicholson,

Plaintiffs-Appellees,

OPINION

v.

CITY OF LOS ANGELES; EVERARDO

AMARAL, individually and in his

official capacity as a Police Officer

of the Los Angeles Police

Department,

Defendants,

and

MIGUEL GUTIERREZ, individually

and in his official capacity as a

Police Officer of the Los Angeles

Police Department,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

2 NICHOLSON V. GUTIERREZ

Argued and Submitted March 4, 2019

Pasadena, California

Filed August 21, 2019

Before: Andrew J. Kleinfeld, R. Guy Cole, Jr., *

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen

SUMMARY **

Civil Rights

The panel reversed in part and affirmed in part the

district court’s denial of qualified immunity to a Los Angeles

Police Department officer in an action brought pursuant to

42 U.S.C. § 1983 for violations of plaintiffs’ Fourth

Amendment rights to be free from excessive force and

unreasonable seizure and violations of their Fourteenth

Amendment substantive due process rights.

Plaintiffs were among a group of teenagers who had met

in an alleyway near their school to listen to and sing rap

music. One of the teenagers, plaintiff J.N.G., was shot by

defendant Gutierrez after Gutierrez mistook a plastic Airsoft

replica gun held by one of the other teenagers for an actual

*

The Honorable R. Guy Cole, Jr., United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

**

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

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

NICHOLSON V. GUTIERREZ 3

gun. After the shooting, officers detained the group for over

five hours while they investigated. J.N.G. and J.H. filed a

lawsuit and the district court denied qualified immunity on

plaintiffs’ Fourth and Fourteenth Amendment claims.

Addressing the Fourth Amendment claim, the panel

agreed with the district court that under the circumstances,

plaintiffs’ continued detention for five hours after the

shooting—well after any probable cause would have

dissipated—and the use of handcuffs throughout the

duration of the detention violated plaintiffs’ clearly

established Fourth Amendment rights to be free from

unlawful arrest and excessive force. The panel rejected

Gutierrez’s argument that while he participated in the initial

handcuffing and detention, he was not responsible for any

subsequent constitutional violation because he played no

role in that conduct. The panel held that an officer can be

held liable where he is just one participant in a sequence of

events that gives rise to a constitutional violation. Here,

viewing the evidence in the light most favorable to plaintiffs,

Gutierrez was more than a “mere bystander” in the alleged

constitutional violations. The panel affirmed the district

court’s denial of qualified immunity on the Fourth

Amendment violations because, ultimately, a reasonable

jury could conclude that Gutierrez played an integral role in

the unlawfully prolonged detention and sustained

handcuffing of plaintiffs.

Addressing the Fourteenth Amendment substantive due

process claim, the panel held that, viewing the totality of the

evidence in the light most favorable to the plaintiffs, the

shooting violated plaintiffs’ due process rights. Under the

circumstances, a rational finder of fact could find that

Gutierrez’s use of deadly force shocked the conscience and

was unconstitutional under the Fourteenth Amendment.

4 NICHOLSON V. GUTIERREZ

Nevertheless, the panel held that because no analogous case

existed at the time of the shooting, the district court erred by

denying Gutierrez qualified immunity for this claim. The

panel accordingly reversed the district court and remanded

for an entry of qualified immunity on the Fourteenth

Amendment claim.

COUNSEL

Denise L. Rocawich (argued) and James R. Touchstone,

Jones & Mayer, Fullerton, California, for Defendant-

Appellant.

Herbert-John S. Hayden (argued) and John W. Harris, Harris

& Associates, Los Angeles, California, for Plaintiffs-

Appellees.

OPINION

NGUYEN, Circuit Judge:

On the morning of February 10, 2015, four teenagers met

in an alleyway near their school to listen to and sing rap

music. As the teenagers—Michael Sanders, Abdul Wooten,

J.N.G., and J.H. 1—stood in a tight circle dancing and

rapping, Sanders was holding a plastic Airsoft replica gun

with a bright orange tip as a prop. Just as they turned off the

music and were getting ready to head to school, J.N.G. was

1

Throughout the record, J.N.G. (Jamar Nicholson Green) and J.H.

(Jason Huerta) were referred to by their initials because they were minors

at the time of the incident and for some time after filing this lawsuit. For

consistency, we also refer to them by their initials.

NICHOLSON V. GUTIERREZ 5

shot by Officer Michael Gutierrez of the Los Angeles Police

Department (“LAPD”). Officer Gutierrez fired his weapon

because he mistook Sanders’s replica gun for an actual gun.

Gutierrez fired multiple shots, one of which hit J.N.G. in the

back. After the shooting, officers detained the group for over

five hours while they investigated.

J.N.G. and J.H. (collectively, “Plaintiffs”) filed a lawsuit

against the officers, the LAPD, and the City of Los Angeles,

alleging violations of the Fourth and Fourteenth

Amendments and various state laws. The district court

denied qualified immunity on two of Plaintiffs’

constitutional claims. Gutierrez appeals. We affirm in part

and reverse in part.

BACKGROUND 2

At around 7:15 a.m. on February 10, 2015, J.N.G., J.H.,

Michael Sanders, and Abdul Wooten met in an alley at the

corner of 10th Avenue and Florence Avenue in Los Angeles,

CA, a few blocks from their high school. They regularly

gathered in that alleyway before and after school to listen to

music and freestyle rap. That morning, as they were rapping

and dancing in a circle, Sanders was holding a plastic toy

gun with a bright orange tip. J.N.G., J.H., and Wooten

maintain that Sanders kept the gun pointed downward

around waist-level and did not fire the gun that morning. At

approximately 7:40 a.m., the teenagers turned off the music

and began preparing to head to school.

2

At this stage of the proceedings, we view the facts in the light most

favorable to Plaintiffs. George v. Morris, 736 F.3d 829, 836 (9th Cir.

2013) (9th Cir. 2013).

6 NICHOLSON V. GUTIERREZ

Around this time, Officer Everardo Amaral was driving

down 10th Avenue in an unmarked car with his partner,

Officer Gutierrez. From the passenger seat, Gutierrez “saw

a person (later identified as Michael Sanders) pointing . . . a

blue steel handgun at another person (later identified as

Plaintiff J.H.).” Gutierrez, believing that J.H. was “being

robbed at gun point or was about to be murdered,” yelled

“Gun, gun, gun!” Amaral stopped the vehicle south of the

alley on 10th Avenue. Without conferring with Amaral,

Gutierrez immediately jumped out of the car and ran into the

alley. Amaral parked the car and followed Gutierrez.

Neither officer was in uniform.

Gutierrez claims he identified himself as an LAPD

officer and commanded Sanders to drop the gun. However,

J.H., J.N.G., and Wooten all contend that Gutierrez did not

identify himself or make any verbal commands prior to

shooting his weapon. A few seconds after he entered the

alley, Officer Gutierrez fired at least three shots, one of

which hit J.N.G. in the back. J.N.G. and J.H. contend that

Gutierrez fired his gun with one hand while running toward

them, while Gutierrez stated that he fired only after stopping

a few feet away from the group. When the shots were fired,

J.H. was about to put on his school uniform, and J.N.G. was

spraying cologne on his face. The four of them had been

standing in a tight circle, “within a foot or so of each other.”

Sanders soon turned and dropped the toy gun, though the

parties dispute whether this occurred before or after

Gutierrez fired.

Shortly after Officer Gutierrez fired, Officer Amaral

arrived and requested three additional units. Amaral also

requested an ambulance when he realized that J.N.G. had

been shot. The officers held the group at gunpoint, face

down on the ground. The parties dispute how far the

NICHOLSON V. GUTIERREZ 7

dropped “gun” was from the teenagers when they were on

the ground, but neither officer picked it up or moved it away

from them. While on the ground, J.H. shouted that the gun

was “not even a real gun” and repeatedly asked why the

officers shot at them and “What did we do wrong?” The

officers remained silent in response to his questions, with

dumbfounded expressions on their faces. Responding

officers soon arrived, and they searched and handcuffed the

group. Gutierrez was “involved in the decision to handcuff

them.” Officer Amaral later explained in his deposition that

the detention of the boys was “[f]or [a] weapons violation.”

Officers Gutierrez and Amaral were separated and

monitored soon after additional units arrived on the scene.

J.H. remained in handcuffs throughout the investigation,

which lasted until around 1:00 p.m., over five hours after the

shooting. J.N.G. also remained in handcuffs for over five

hours—through the duration of his hospital examination—

until detectives interrogated him.

J.N.G., by and through his mother and guardian ad litem

Geraldine Nicholson, and J.H., by and through his father and

guardian ad litem Jose Fernando Huerta, sued Officer

Gutierrez, Officer Amaral, the City of Los Angeles, the

LAPD, Chief of Police Charles Beck, and Commander

Andrew Smith. In addition to various state law claims,

Plaintiffs J.N.G. and J.H. alleged claims under 42 U.S.C.

§ 1983 for violations of their Fourth Amendment rights to be

free from excessive force and unreasonable seizure and

violations of their Fourteenth Amendment substantive due

process rights. Defendants Gutierrez, Amaral, and the City

of Los Angeles jointly moved for summary judgment,

arguing in part that no constitutional violation occurred and

that qualified immunity applied.

8 NICHOLSON V. GUTIERREZ

The district court granted in part and denied in part

Defendants’ joint motion for summary judgment. Relevant

to this appeal, the district court denied Gutierrez qualified

immunity in part on Plaintiffs’ Fourth Amendment claim and

on Plaintiffs’ Fourteenth Amendment claim. Gutierrez

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review

the denial of qualified immunity at the summary judgment

stage. Plumhoff v. Rickard, 572 U.S. 765, 771–73 (2014).

But “the scope of our review over the appeal is

circumscribed” because we may not “consider questions of

eviden[tiary] sufficiency, i.e., which facts a party may, or

may not, be able to prove at trial.” Morris, 736 F.3d at 834

(quoting CarePartners, LLC v. Lashway, 545 F.3d 867, 875

(9th Cir. 2008)). “Thus, in this appeal, we are confined to

the question of ‘whether the defendant[s] would be entitled

to qualified immunity as a matter of law, assuming all factual

disputes are resolved, and all reasonable inferences are

drawn, in plaintiff’s favor.’” Id. at 836 (quoting Karl v. City

of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).

DISCUSSION

“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) (per curiam). Once a defendant has raised qualified

immunity as a defense to a claim, a plaintiff must show

“(1) that the right was violated; and (2) that the right was

clearly established at the time of the alleged misconduct.”

Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946

(9th Cir. 2017). Although a right is not clearly established

NICHOLSON V. GUTIERREZ 9

where merely defined “at a high level of generality,”

qualified immunity does not “require a case directly on

point.” Kisela, 138 S. Ct. at 1152. Instead, the “focus is on

whether the officer had fair notice that her conduct was

unlawful,” id., for example, through “any cases of

controlling authority in their jurisdiction at the time of the

incident,” Wilson v. Layne, 526 U.S. 603, 617 (1999).

We now turn to each of Plaintiffs’ constitutional claims.

I. Fourth Amendment Claim

Plaintiffs allege that, after the shooting, Defendants

violated their Fourth Amendment rights by unlawfully

arresting them, using excessive force, and prolonging their

detention. 3 In denying Officer Gutierrez qualified

immunity, the district court concluded that immediately after

the shooting, an investigatory stop was reasonable while the

officers assessed the situation. But “[a]t some point, the

detention evolved into a full-fledged arrest that required

probable cause that J.H. and J.N.G. had been engaged in

criminal activity.” The district court further concluded that

“a reasonable jury could determine that the sustained

handcuffing of J.H. and J.N.G. . . . constituted excessive

force.”

3

Plaintiffs also alleged that the shooting itself also violated their

Fourth Amendment rights. The district court granted summary judgment

in favor of Defendants on this claim, finding that the teenagers were not

“seized” by Gutierrez’s gunfire under the Fourth Amendment because

Gutierrez intended to use deadly force against Sanders, not against

J.N.G. or J.H. See United States v. Al Nasser, 555 F.3d 722, 728 (9th

Cir. 2009). Plaintiffs do not challenge this ruling and thus the question

of whether the shooting violated their Fourth Amendment rights is not

before us in this appeal.

10 NICHOLSON V. GUTIERREZ

It is well-established that a “person may not be arrested,

or must be released from arrest, if previously established

probable cause has dissipated.” United States v. Ortiz-

Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (per curiam).

“As a corollary . . . of the rule that the police may rely on the

totality of facts available to them in establishing probable

cause, they also may not disregard facts tending to dissipate

probable cause.” Id. (quoting Bigford v. Taylor, 834 F.2d

1213, 1218 (5th Cir. 1988)). A reasonable officer would

know that participation in an ongoing seizure after any

probable cause had dissipated violates the Fourth

Amendment.

Here, it was soon apparent to the officers that the

teenagers were unarmed, posed no threat to anyone, and

were not engaged in any criminal activity. The incident

occurred in the morning right before the start of school

hours, and Plaintiffs had their school uniforms and

backpacks. In fact, as Officer Gutierrez approached the

scene, J.N.G. was spraying on cologne and J.H. was donning

his school uniform. Moreover, Officer Gutierrez admitted

that he perceived at least J.H. to be a possible victim, not a

suspect, further undermining any justification to detain him.

We agree with the district court that under these

circumstances, Plaintiffs’ continued detention for five

hours—well after any probable cause would have

dissipated—and the use of handcuffs throughout the

duration of the detention violated Plaintiffs’ clearly

established Fourth Amendment rights to be free from

unlawful arrest and excessive force.

On appeal, Officer Gutierrez does not appear to dispute

that the prolonged detention and handcuffing violated

Plaintiffs’ clearly established Fourth Amendment rights.

Instead, Gutierrez focuses his argument on the fact that he

NICHOLSON V. GUTIERREZ 11

was separated and monitored after the shooting. Thus, his

argument goes, while he admittedly “was an integral

participant in the initial handcuffing and detention,” he is not

responsible for any subsequent constitutional violation

because he played no role in that conduct.

A police officer need not have been the sole party

responsible for a constitutional violation before liability may

attach. “An officer’s liability under section 1983 is

predicated on his ‘integral participation’ in the alleged

violation.” Blankenhorn v. City of Orange, 485 F.3d 463,

481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d

292, 294–95 (9th Cir. 1996)). This theory of liability “does

not require that each officer’s actions themselves rise to the

level of a constitutional violation.” Id. (quoting Boyd v.

Benton County, 374 F.3d 773, 780 (9th Cir. 2004)). Instead,

liability may attach if the officer has “some fundamental

involvement in the conduct that allegedly caused the

violation.” Id. A theory of integral participation thus

comports with general tort principles of causation applicable

to a § 1983 action: “[G]overnment officials, like other

defendants, are generally responsible for the ‘natural’ or

‘reasonably foreseeable’ consequences of their actions.”

Stoot v. City of Everett, 582 F.3d 910, 926 (9th Cir. 2009).

Even though “an intervening decision of an informed,

neutral decision-maker ‘breaks’ the chain of causation,” the

chain of causation is not broken where the intervening

decision was foreseeably influenced by the defendant. Id.

(quoting Murray v. Earle, 405 F.3d 278, 292 (5th Cir.

2005)). Thus, under our case law, an officer could be held

liable where he is just one participant in a sequence of events

that gives rise to a constitutional violation.

For example, in Boyd v. Benton County, we held that

each of the officers in a search operation were liable for

12 NICHOLSON V. GUTIERREZ

excessive force for the use of a flash-bang grenade, even

though only one officer reached into the home and deployed

the device. 374 F.3d at 780. We reasoned that the use of the

device was “part of the search operation in which every

officer participated in some meaningful way.” Id.

Moreover, each officer “was aware of the decision . . . , did

not object to it, and participated in the search operation

knowing the flash-bang was to be deployed.” Id. By

contrast, in Torres v. City of Los Angeles, we found that a

detective was not an integral participant in an allegedly

unlawful arrest, in part because she “was not present [at the

arrest], and there is no evidence that [she] instructed the

other detectives to arrest [the plaintiff] or that any of those

detectives consulted with her before making the arrest.”

548 F.3d 1197, 1206 (9th Cir. 2008).

Here, viewing the evidence in the light most favorable to

Plaintiffs, Gutierrez was more than a “mere bystander” in the

alleged constitutional violations. See Chuman, 76 F.3d at

294. Plaintiffs alleged that Officers Amaral and Gutierrez

“directed the other officers to handcuff, search and arrest all

of us for reasons unknown to any of us.” Gutierrez himself

acknowledged that he was “involved in the decision to

handcuff [Plaintiffs].” In contrast to the absent officer who

was not consulted prior to the arrest in Torres, Gutierrez was

the initial officer who set these events into motion, and either

instructed the other officers to arrest Plaintiffs or consulted

with them in that decision. See 548 F.3d at 1206. The

district court did not decide exactly when during the

prolonged detention probable cause dissipated and,

similarly, how proximate Gutierrez’s conduct was to that

violation. But these issues present questions for the jury

because their resolution depends on disputed material facts.

Ultimately, because a reasonable jury could conclude that

Gutierrez played an integral role in the unlawfully prolonged

NICHOLSON V. GUTIERREZ 13

detention and sustained handcuffing of Plaintiffs, we affirm

the district court’s denial of qualified immunity on the

Fourth Amendment violation.

II. Fourteenth Amendment Claim

Plaintiffs contend that the unlawful shooting violated

their substantive due process rights under the Fourteenth

Amendment. The district court denied Gutierrez qualified

immunity because a jury could reasonably conclude that his

conduct amounted to deliberate indifference. The district

court also found that the substantive due process right at

issue was clearly established. We first address whether

Gutierrez’s conduct violated Plaintiffs’ substantive due

process rights under the Fourteenth Amendment, and then

whether the right was clearly established at the time of the

incident.

A.

To prevail on a substantive due process claim under the

Fourteenth Amendment, Plaintiffs must show that an

officer’s conduct “shocks the conscience.” See Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010). The “critical

consideration [is] whether the circumstances are such that

actual deliberation is practical.” Porter v. Osborn, 546 F.3d

1131, 1137 (9th Cir. 2008) (quoting Moreland v. Las Vegas

Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998)). If

so, “an officer’s ‘deliberate indifference’ may suffice to

shock the conscience,” Wilkinson, 610 F.3d at 554, and the

plaintiff may prevail by showing that the officer

“disregarded a known or obvious consequence of his

action,” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir.

2011). The “deliberate-indifference inquiry should go to the

jury if any rational factfinder could find this requisite mental

state.” Id. Here, having found a triable issue on whether

14 NICHOLSON V. GUTIERREZ

“deliberation was practical under the circumstances,” the

district court held that “[a] finder of fact could conclude . . .

that Gutierrez disregarded the known or obvious risks of

injury to J.H. and J.N.G. when he fired at Sanders without

taking time to assess the situation.”

We agree with the district court and hold that, viewing

the totality of the evidence in the light most favorable to the

Plaintiffs, the shooting violated Plaintiffs’ due process

rights. We do not discount the seriousness of the situation

that Officer Gutierrez thought he observed: a person holding

what appeared to be a gun standing near others who may

have been in danger. But Sanders “was not engaged in any

threatening or menacing behavior, and he kept the airsoft

gun securely pointed toward the ground.” The alleyway was

near a school, and Plaintiffs were “equipped with school

uniforms and backpacks . . . [appearing] to be minors on

their way to school and not gang members.” Yet within

seconds of observing the “gun,” without consulting with his

partner, Gutierrez rushed down the alleyway. As he ran, he

fired his gun toward both Sanders, the perceived perpetrator

of a possible crime, and innocent bystanders, with one bullet

ultimately striking J.N.G. in the back. Under these

circumstances, a rational finder of fact could find that

Gutierrez’s use of deadly force shocks the conscience and

was unconstitutional under the Fourteenth Amendment.

Gutierrez’s arguments to the contrary are unpersuasive.

As a preliminary matter, Gutierrez challenges the district

court’s finding that a reasonable jury could find that

deliberation was practical under the circumstances. But

because this is an interlocutory appeal, we are not free to

revisit the district court’s conclusions as to “which facts a

party may, or may not, be able to prove at trial.” See Morris,

736 F.3d at 834. Our review is limited to whether “the denial

NICHOLSON V. GUTIERREZ 15

of qualified immunity was appropriate by assuming that the

version of the material facts asserted by the non-moving

party is correct.” Bingue v. Prunchak, 512 F.3d 1169, 1172–

73 (9th Cir. 2008). Assuming the facts in Plaintiffs’ favor,

no attendant circumstances weighed in favor of the

immediate use of deadly force, other than Gutierrez’s belief

that Sanders was holding a gun. As the district court noted,

under these circumstances, Gutierrez’s immediate use of

force without communicating with his partner, his failure to

seek cover, and his failure to formulate a plan before acting

were all contrary to LAPD’s training and policy. We agree

with the district court that the evidence is sufficient to create

a genuine dispute of fact on whether deliberation was

practical under the circumstances, and, in any event, we

would be without power to reverse on this ground.

Gutierrez next argues that, as a matter of law, the district

court erred in failing to apply the “intent to harm” standard,

under which Plaintiffs must show that he acted “with a

purpose to harm unrelated to legitimate law enforcement

objectives.” Wilkinson, 610 F.3d at 554. By that standard,

Gutierrez argues, he is entitled to qualified immunity even if

he acted with deliberate indifference, because he did not

intend to shoot J.N.G.

We have previously carved out a narrow situation—

high-speed police car chases—in which we have found,

categorically, that an officer does not have time to deliberate.

Bingue, 512 F.3d at 1177. In Bingue v. Prunchak, we

considered whether high-speed pursuits should categorically

give rise to the application of the “intent to harm” standard,

or whether the “deliberate indifference” standard may apply

depending on the circumstances. In holding that “the intent

to harm” standard “applies to all high-speed police chases,”

id., we reasoned that such a rule best accounts for an officer’s

16 NICHOLSON V. GUTIERREZ

“repeated split-second decisions about how best to

apprehend the fleeing suspect in a manner that will minimize

risk to [the officer’s] own safety and the safety of the general

public.” Id. at 1176. A suspect fleeing in a car at high speed

gives an officer “no time for reflection and precious little

time for deliberation concerning either the decision to join

the chase in the first place or the serial decisions about how

best to pursue the suspect.” Id.

Here, in contrast, under Plaintiffs’ version of the facts,

Gutierrez may have seen what he believed to be a gun

(although it had the orange tip signifying a toy), but he did

not see Sanders point it at anyone. Sanders was standing

among a group of school-aged youths with their backpacks

and school uniforms. Without more, we cannot say that this

situation gives an officer “no time for reflection,” as in a

high-speed chase involving a fleeing suspect in a fast-

moving vehicle. Cf. Estate of Lopez v. Gelhaus, 871 F.3d

998, 1011 (9th Cir. 2017), cert. denied, 138 S. Ct. 2680

(2018) (holding that mistaking a child’s toy gun for an

assault rifle did not as a matter of law justify an officer’s use

of deadly force).

Gutierrez also relies on cases involving serious and

immediate threats to public safety, but these cases too are

easily distinguishable. In Porter v. Osborn, the suspect

engaged in “evasive actions” in response to questions and

direct orders from police officers, including refusing to exit

his vehicle and then driving his vehicle in the direction of

one of the officers in a perceived attempt to run over the

officer. 546 F.3d at 1134–35, 1137. There, we held that the

“rapidly escalating nature” of the confrontation between the

officer and the suspect behind the wheel left too little time

for adequate deliberation and thus necessitated application

of the “intent to harm” standard. Id. In Moreland v. Las

NICHOLSON V. GUTIERREZ 17

Vegas Metropolitan Police Department, the officers were

responding to “the extreme emergency” of an active

“gunfight in progress threaten[ing] the lives of the 50 to 100

people who were trapped in the parking lot.” 159 F.3d

at 372–73. The suspect was indisputably firing a

semiautomatic handgun and refusing to comply with the

officers’ orders to stop. Id. at 372. Given the ongoing crisis,

we held that the officers had no opportunity to deliberate in

light of the “immediate risk of serious harm or death to the

many innocent individuals trapped in the parking lot.” Id.

Thus, the “intent to harm” standard was appropriate. By

contrast, assuming Plaintiffs’ contentions that Sanders was

not pointing the toy gun at anyone and had not given any

indication that he was likely to harm anyone, there was no

“rapidly escalating” confrontation or “extreme emergency”

here that would have deprived Gutierrez of the opportunity

to confer with his partner and formulate a plan to ascertain

what was happening before charging in with gunfire.

Contrary to Gutierrez’s argument, we have not previously

applied the intent to harm standard to Fourteenth

Amendment claims involving facts similar to this case, and

we decline to do so now.

We thus agree that application of the deliberate

indifference standard is warranted under these

circumstances. As the district court explained, in “minimal

information” situations, an officer must take some time to

assess what is happening before employing deadly force.

Holding otherwise would result in an “intolerably high risk

of a tragic shooting that may otherwise have been avoided

by proper deliberation whenever practical.” As such,

applying the deliberate indifference standard to Plaintiffs’

version of the facts, we hold that Gutierrez’s shooting

violated their substantive due process rights under the

Fourteenth Amendment.

18 NICHOLSON V. GUTIERREZ

B.

Even if a constitutional violation occurred, qualified

immunity nevertheless applies unless the violation was

clearly established. Because no analogous case existed at

the time of the shooting, we hold that the district court erred

in denying Gutierrez qualified immunity for this claim.

Kisela v. Hughes is instructive. 138 S. Ct. at 1151. In

Kisela, the Supreme Court reversed our decision denying

qualified immunity to an officer for an excessive force claim

after he shot an individual armed with a knife as she

approached a bystander. Id. The Court reiterated its

repeated admonition to courts “and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” Id. at 1152 (quoting City and County of

San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76

(2015)). The Court explained that, where “the result

depends very much on the facts of each case . . . officers are

entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.” Id. at 1153

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

curiam)).

Here, Plaintiffs failed to identify any authority that

rendered the contours of the substantive due process right at

issue “sufficiently definite that any reasonable official in the

defendant’s shoes would have understood he was violating

it.” See Kisela, 138 S. Ct. at 1153. In their briefing,

Plaintiffs cited cases establishing broadly that “the

Constitution protects a citizen’s liberty interest in her own

bodily security,” which define the right at much too high a

level of generality to clearly establish a rule of conduct. See,

e.g., Ingraham v. Wright, 430 U.S. 651, 673–74 (1977).

They also discuss our “state-created danger exception”

cases, but these involve failures to act that lead to injuries

NICHOLSON V. GUTIERREZ 19

from third parties, rather than affirmative actions by officers

that directly cause injury to the plaintiff. See, e.g., Kennedy

v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006) (failure

to warn allegedly caused shooting by neighbor); Patel,

648 F.3d 965 (failure to adequately supervise a disabled high

school student allegedly caused sexual abuse by another

student); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989)

(failure to leave plaintiff in safe location allegedly caused

rape in a high-crime area). These cases are too factually

dissimilar to clearly establish a constitutional violation by an

officer’s accidental shooting of a bystander.

At oral argument, Plaintiffs conceded that it was “it was

difficult to find a case that was squarely on point,” where a

court found a constitutional violation in the context of a

bystander shooting. Instead, the gravamen of Plaintiffs’

analysis is that the use of deadly force against Sanders was

likely unreasonable, relying principally on our cases

analyzing Fourth Amendment claims of excessive force.

E.g., Hughes v. Kisela, 862 F.3d 775, 789 (9th Cir. 2016),

rev’d sub nom. Kisela v. Hughes, 138 S. Ct. 1148 (2018);

Emmons v. City of Escondido, No. 16-55771, 2018 WL

1531064 (9th Cir. Mar. 29, 2018), rev’d sub nom. City of

Escondido v. Emmons, 139 S. Ct. 500 (2019). 4 While these

cases may help to identify whether the use of force against

Sanders amounted to a Fourth Amendment violation, they

do not clearly establish that a shooting in these

4

Similarly, the district court also relied principally on Fourth

Amendment cases in denying qualified immunity on this claim.

However, as with Plaintiffs’ citations, some of these cases were decided

after the incident, e.g., Gelhaus, 871 F.3d 998, and one has since been

reversed by the Supreme Court on the “clearly established” question.

See Kisela, 138 S. Ct. 1148. These problems present additional reasons

why we find that the law was not clearly established on Plaintiffs’

Fourteenth Amendment claim.

20 NICHOLSON V. GUTIERREZ

circumstances constitutes deliberate indifference to

Plaintiffs. Sanders is not a plaintiff in this lawsuit, and

Plaintiffs would not have standing to raise a Fourth

Amendment claim on his behalf. See Plumhoff, 572 U.S. at

778 (“Our cases make it clear that ‘Fourth Amendment

rights are personal rights which . . . may not be vicariously

asserted.’” (quoting Alderman v. United States, 394 U.S.

165, 174 (1969)). The Fourth Amendment cases therefore

do not clearly establish the contours of the Fourteenth

Amendment substantive due process rights at hand. 5

Because no binding circuit or Supreme Court precedent

has established a substantive due process violation under

comparable circumstances, the Fourteenth Amendment right

at issue lacked “contours . . . sufficiently definite” to place

the issue “beyond debate.” See Kisela, 138 S. Ct. at 1152–

53 (quoting Plumhoff, 572 U.S. at 779). We accordingly

reverse the district court and remand for an entry of qualified

immunity on this claim.

5

Certainly, considerations of reasonableness germane to a Fourth

Amendment analysis are relevant to the substantive due process inquiry.

Historically, our cases have recognized some overlap in these two

constitutional protections. See, e.g., P.B. v. Koch, 96 F.3d 1298, 1303

n.4 (9th Cir. 1996) (holding that, “[r]egardless of the appropriate ‘home’

for plaintiffs’ right to be free from excessive force, there was a clearly

established right to be free such force” because “[u]nder any standard,

[the defendant’s] alleged actions were clearly unlawful.”). But we have

held that a Fourteenth Amendment claim of excessive force “must be

governed by a different standard than” a Fourth Amendment claim of

excessive force. Byrd v. Guess, 137 F.3d 1126, 1133–34 (9th Cir. 1998),

superseded by statute on other grounds as recognized in Little v. City of

Manhattan Beach, 21 Fed. App’x 651 (9th Cir. 2001). Thus, our Fourth

Amendment cases cannot clearly establish the contours of the Fourteenth

Amendment right, despite similarities between the standards.

NICHOLSON V. GUTIERREZ 21

III.

CONCLUSION

We reverse the district court’s denial of qualified

immunity to Gutierrez as to the Fourteenth Amendment

claim and affirm the court’s ruling as to the Fourth

Amendment claim. We remand for proceedings consistent

with this opinion.

REVERSED in part, AFFIRMED in part, and

REMANDED.