The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GOROSTIETA, as a personal No. 19-55030
representative of the Estate of Jesus Orduno
Luviano, D.C. No.
5:16-cv-02288-DOC-JDE
Plaintiff-Appellant,
and
MEMORANDUM*
ALEXANDRA GABRIELA ORDUNO,
Plaintiff,
v.
T. HENDRIX, CHP Officer; et al.,
Defendants-Appellees,
and
CASEY J. FARWICK, CHP Officer; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted May 4, 2020**
Pasadena, California
Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,*** District
Judge.
Plaintiff Jose Gorostieta appeals from the district court’s grant of summary
judgment in this 42 U.S.C. § 1983 action alleging that Officers Hendrix, Fakih,
Milien, Chavez, and Cerna (Defendants) used excessive force when they fatally
shot Jesus Zuriel Orduno Luviano. Gorostieta brings a Fourth Amendment claim
on behalf of Luviano’s estate for excessive force, and a Fourteenth Amendment
claim based on the deprivation of Luviano’s companionship and society. As the
parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly granted summary judgment on Gorostieta’s
Fourth Amendment claim. To determine whether an officer is entitled to qualified
immunity, we ask “(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.” C.V. by & through Villegas v. City of Anaheim, 823 F.3d
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
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1252, 1255 (9th Cir. 2016) (internal quotation marks and citations omitted). We
may exercise our discretion to decide either prong first. Pearson v. Callahan, 555
U.S. 223, 236 (2009). We begin with the second.
Under the second prong of the qualified immunity test, Defendants are
entitled to judgment as a matter of law because they did not violate clearly
established Fourth Amendment law existing “at the time of the conduct.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation
omitted). As of November 2, 2014, it was not clearly established that using deadly
force in this situation would constitute excessive force, even when viewing the
facts in the light most favorable to Gorostieta. Because no existing precedent
“squarely governs” the facts of this case, Defendants are entitled to qualified
immunity. Id. at 1153.
2. The district court also properly granted summary judgment on
Gorostieta’s Fourteenth Amendment claim. A plaintiff bringing a familial
association claim must show that a government official’s conduct “shocks the
conscience.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (internal
quotation marks and citation omitted). When an officer “makes a snap judgment
because of an escalating situation, his conduct may be found to shock the
conscience only if he acts with a purpose to harm unrelated to legitimate law
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enforcement objectives.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1230 (9th
Cir. 2013) (citing Wilkinson, 610 F.3d at 554).
Gorostieta argues the deliberate indifference standard applies because
“actual deliberation [wa]s practical.” Cty. of Sacramento v. Lewis, 523 U.S. 833,
851 (1998). The undisputed evidence shows that Defendants faced an escalating
situation and had to make snap judgments to protect their safety, especially once
Luviano raised his shotgun into the air. Thus, the purpose to harm standard
applies. Gorostieta concedes he cannot meet this heightened standard, so the
district court properly granted summary judgment.
AFFIRMED.
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