Maria Ventura v. Jennifer Rutledge

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA VENTURA, individually and No. 19-16626

on behalf of the Estate of Omar

Ventura and the Heirs of Omar D.C. No.

Ventura; O. V., Maria Ventura, as 1:17-cv-00237-

guardian ad litem; J. V., Maria DAD-SKO

Ventura, as guardian ad litem,

Plaintiffs-Appellants,

OPINION

v.

JENNIFER RUTLEDGE, Officer; CITY

OF PORTERVILLE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted September 2, 2020 *

Pasadena, California

Filed October 22, 2020

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 VENTURA V. RUTLEDGE

Before: Sandra S. Ikuta and Mark J. Bennett, Circuit

Judges, and Douglas P. Woodlock, ** District Judge.

Opinion by Judge Bennett

SUMMARY ***

Civil Rights

The panel affirmed the district court’s grant of summary

judgment to a police officer, on the basis of qualified

immunity, in an action brought pursuant to 42 U.S.C. § 1983

alleging that the officer used excessive deadly force when

she shot plaintiff’s son, Omar Ventura.

The district court found that no controlling precedent had

clearly established that Omar’s right under the Fourth

Amendment to be free from the excessive use of deadly force

by police would be violated when he was shot and killed as

he advanced toward an individual he had earlier that day

assaulted, while carrying a drawn knife and while defying

specific police orders to stop.

The panel held that the Supreme Court’s decision in

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) showed that,

as of 2010, there was no clearly established law

demonstrating that Officer Rutledge’s use of deadly force

**

The Honorable Douglas P. Woodlock, United States District

Judge for the District of Massachusetts, 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.

VENTURA V. RUTLEDGE 3

was unconstitutional. The panel further held that the cases

cited by appellant subsequent to Kisela did not “squarely

govern” the facts here. Omar was advancing with a knife

toward a woman whom he had reportedly just assaulted. He

ignored Officer Rutledge’s repeated commands to stop and

a warning that she would shoot. None of the cases plaintiff

cited involved an officer acting under similar circumstances

as Officer Rutledge, and therefore, plaintiff failed to show

that it was clearly established that Officer Rutledge’s actions

amounted to constitutionally excessive force.

COUNSEL

Kevin G. Little, Law Office of Kevin G. Little, Fresno,

California, for Plaintiffs-Appellants.

Bruce D. Praet (argued), Ferguson Praet & Sherman, Santa

Ana, California, for Defendants-Appellees.

OPINION

BENNETT, Circuit Judge:

Maria Ventura, individually and on behalf of the Estate

of Omar Ventura and the Heirs of Omar Ventura, appeals the

district court’s grant of summary judgment to Officer

Jennifer Rutledge and the City of Porterville based on

qualified immunity. The only issue before us is whether the

district court properly determined that Officer Rutledge is

entitled to qualified immunity from Ventura’s Fourth

Amendment claim stemming from the shooting of her son,

Omar Ventura (“Omar”). We have jurisdiction under

28 U.S.C. § 1291 and affirm.

4 VENTURA V. RUTLEDGE

I.

The following facts are undisputed. On December 24,

2015, Martha Andrade, the mother of Omar’s children,

called 911 and reported that Omar had hit Andrade and his

mother, Plaintiff Ventura, and had smashed Andrade’s

vehicle’s window. Officer Rutledge responded to the 911

call, which was classified as a violent domestic disturbance.

When Officer Rutledge arrived at the home, Omar was not

present. While Officer Rutledge interviewed Andrade, Omar

started walking up the street toward the home. Andrade

identified Omar to Officer Rutledge, pointing to him and

exclaiming “that’s him.” Andrade moved behind trash cans

in the driveway as Omar continued to approach. Officer

Rutledge issued several orders for Omar to “stop.” Despite

these orders, Omar continued to advance toward Andrade

and took out a knife from his pocket. Continuing to approach

Andrade with knife in hand, Omar asked, “Is this what you

wanted?” Officer Rutledge then shouted a warning to Omar

to “[s]top or I’ll shoot.” When Omar did not stop, Officer

Rutledge fired two shots at him. The shots killed Omar. At

oral argument before the district court, the parties agreed that

Omar got within 10–15 feet of Andrade before Officer

Rutledge fired.

The district court found that no controlling precedent had

“clearly establish[ed] that Omar’s right under the Fourth

Amendment to be free from the excessive use of deadly force

by police would be violated when he was shot and killed as

he advanced toward an individual he had earlier that day

assaulted, while carrying a drawn knife and while defying

specific police orders to stop.” We agree.

VENTURA V. RUTLEDGE 5

II.

“We review de novo both the grant of summary

judgment and the conclusion that a[n officer] is entitled to

qualified immunity.” C.F. ex rel. Farnan v. Capistrano

Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). We

view the evidence and draw all inferences in the light most

favorable to the non-moving party to determine whether any

issues of material fact remain and whether the district court

correctly applied the law. See id.

“Qualified immunity attaches when an [officer’s]

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)

(per curiam)). Clearly established law exists when “‘[t]he

contours of [a] right [are] sufficiently clear’ that every

‘reasonable [officer] would have understood that what [she]

is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (first three alterations in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The

precedent establishing this right must place the question

“beyond debate.” Id. In the Fourth Amendment excessive

force context, “specificity is especially important,” Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015), and “thus police officers

are entitled to qualified immunity unless existing precedent

squarely governs the specific facts at issue,” Kisela, 138 S.

Ct. at 1153 (internal quotation marks and citation omitted).

We consider two questions in determining whether an

officer is entitled to qualified immunity: (1) whether the

facts “taken in the light most favorable to the party asserting

the injury show that the officers’ conduct violated a

constitutional right” and (2) whether “the right was clearly

established at the time of the alleged violation.” Thompson

6 VENTURA V. RUTLEDGE

v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal

quotation marks and brackets omitted) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)). We may consider the two

questions in any order. Id. We consider only the second

question here.

The undisputed facts establish that (1) Officer Rutledge

was responding to a violent domestic disturbance where

Andrade had called 911 to report that Omar had hit her and

Omar’s mother and had smashed the window of Andrade’s

car; (2) Omar was approaching Andrade with a knife drawn;

(3) Omar continued his advance while ignoring multiple

commands from Officer Rutledge to stop and a warning that

Officer Rutledge would shoot; and (4) Omar had advanced

to within 10–15 feet of Andrade when Officer Rutledge

fired.

The Supreme Court in Kisela considered a similar

situation. It concluded that, as of 2010, it was not clearly

established in the Ninth Circuit that the use of deadly force

was unconstitutional where the decedent “was armed with a

large knife,” had advanced “within striking distance” of

another individual, and was ignoring the officer’s orders to

drop the knife. Kisela, 138 S. Ct. at 1154. The Supreme

Court also found that even though the decedent appeared

calm and the other woman present did not feel endangered,

the shooting officer did not violate clearly established law

and was therefore entitled to qualified immunity. Id. at 1151,

1154.

Omar posed at least as much of a threat as the decedent

in Kisela. Officer Rutledge was responding to a violent

domestic dispute rather than the simple “check welfare” call

in Kisela. Id. at 1155 (Sotomayor, J., dissenting). Omar had

reportedly just assaulted Andrade and his own mother and

had smashed the window of Andrade’s car. He ignored

VENTURA V. RUTLEDGE 7

Officer Rutledge’s repeated orders to stop and continued to

advance toward Andrade with a knife. Kisela shows that, as

of 2010, there was no clearly established law demonstrating

that Officer Rutledge’s use of deadly force was

unconstitutional.

We also find that no intervening case gave Officer

Rutledge notice that her actions would violate clearly

established law—the cases Ventura cites are distinguishable

in material ways. In Glenn v. Washington County, 673 F.3d

864 (9th Cir. 2011), the decedent had not previously

attempted to hurt anyone and had not moved toward anyone

else until after he was shot with a beanbag gun. Id. at 874,

878–79. In George v. Morris, 736 F.3d 829 (9th Cir. 2013),

while the officers were responding to a domestic disturbance

call, decedent’s wife had not been previously assaulted, was

not near the decedent, and there was a question of material

fact as to whether the decedent, who was using a walker, had

raised his gun toward the responding officers. Id. at 832–33,

839. Finally, the opinion in Estate of Lopez v. Gelhaus,

871 F.3d 998 (9th Cir. 2017), not only postdates the incident

here by two years, it also does not squarely govern the facts

before us. In Gelhaus, an officer shot a teenager who was

walking with a toy gun that looked like an AK-47. Id.

at 1002–03. The teenager was suspected of no crime and was

shot when he turned in response to a single order to drop his

gun that came from behind. Id. at 1020–21.

The degrees of apparent danger in these cases do not

“squarely govern” the facts here. Omar was advancing with

a knife toward a woman whom he had reportedly just

assaulted. He ignored Officer Rutledge’s repeated

commands to stop and a warning that she would shoot. None

of the cases Ventura cites involved an officer acting under

similar circumstances as Officer Rutledge, and therefore,

8 VENTURA V. RUTLEDGE

Ventura fails to show that it was clearly established that

Officer Rutledge’s actions amounted to constitutionally

excessive force. See Shafer v. Cnty. of Santa Barbara, 868

F.3d 1110, 1118 (9th Cir. 2017) (holding officer was entitled

to qualified immunity because plaintiff “fail[ed] to identify

sufficiently specific constitutional precedents to alert [the

officer] that his particular conduct was unlawful”).

Officer Rutledge is entitled to qualified immunity. 1

AFFIRMED.

1

Ventura argues that there is a question of material fact as to

whether Omar was “walking normally,” whether he appeared to be

brandishing his knife, and whether Andrade felt threatened. Resolution

of these facts does not change our finding that Officer Rutledge did not

violate clearly established law. It was not clearly established, in 2015,

that fatally shooting a person, who was armed with a knife and advancing

toward someone whom he had reportedly just assaulted, and who ignored

multiple commands to stop and a warning that the officer would fire,

constituted constitutionally excessive force, even if the decedent was

“walking normally,” did not appear to be “brandishing” his knife, and

the intended victim did not feel threatened.