Armando Villanueva v. State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO VILLANUEVA, individually No. 19-55225

and as Successor In Interest to Pedro

Villanueva, deceased; HORTENCIA D.C. No.

SAINZ, individually and as Successor 8:17-cv-01302-

In Interest to Pedro Villanueva, JLS-KES

deceased; FRANCISCO OROZCO,

individually,

Plaintiffs-Appellees, OPINION

v.

STATE OF CALIFORNIA,

Defendant,

and

JOHN CLEVELAND; RICHARD

HENDERSON,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Submitted May 14, 2020 *

Pasadena, California

*

The panel unanimously concludes this case is suitable for decision

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

2 VILLANUEVA V. CLEVELAND

Filed January 28, 2021

Before: David M. Ebel, ** Kim McLane Wardlaw, and

John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

SUMMARY ***

Civil Rights

The panel affirmed the district court’s order denying

qualified immunity to police officers in an action brought

pursuant to 42 U.S.C. § 1983 alleging the officers used

excessive force in violation of the Fourth Amendment when

they shot and killed Pedro Villanueva and wounded

Francisco Orozco, a passenger in Villanueva’s vehicle.

The panel first addressed whether Orozco—a passenger

who was not intentionally targeted by the Officers—had a

cognizable Fourth Amendment interest. The panel

concluded that under Brower v. Cnty. of Inyo, 489 U.S. 593,

597 (1989), Brendlin v. California, 551 U.S. 249, 251

(2007), and Nelson v. City of Davis, 685 F.3d 867, 876 (9th

Cir. 2012), because Orozco’s freedom of movement was

terminated when the Officers intentionally shot at the vehicle

in which he was a passenger to stop its movement, Orozco

**

The Honorable David M. Ebel, United States Circuit Judge for the

U.S. Court of Appeals for the Tenth 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.

VILLANUEVA V. CLEVELAND 3

was seized within the meaning of the Fourth Amendment. It

mattered not whether the Officers intended to shoot Orozco

or whether they even knew he was present as a passenger.

Under clearly established precedent at the time, Orozco was

seized.

The panel held that taking the facts in the light most

favorable to the plaintiffs, after Villanueva stopped his truck

following a vehicular pursuit, he cautiously performed a

three-point-turn, his truck—which was 15 to 20 feet away

from the Officers—was not aimed directly at Sergeant

Cleveland and was moving very slowly and was not

accelerating when the Officers began shooting. In these

circumstances, a reasonable jury could conclude that the

Officers used excessive force, because they lacked an

objectively reasonable basis to fear for their own safety, as

they could simply have stepped back or to the side to avoid

being injured.

The panel held that because it found at the summary

judgment stage that the car was slow-moving and the

Officers could have simply moved away to avoid injury,

their use of deadly force was clearly established as

unreasonable as of 1996 by Acosta v. City & Cnty. of S. F.,

83 F.3d 1143, 1146 (9th Cir. 1996). Accordingly, the

officers were not entitled to qualified immunity.

COUNSEL

Donna M. Dean, Deputy Attorney General; Catherine

Woodbridge and Joel A. Davis, Supervising Deputy

Attorneys General; Danielle F. O’Bannon, Senior Assistant

Attorney General; Xavier Becerra, Attorney General of

4 VILLANUEVA V. CLEVELAND

California; Office of the California Attorney General, Los

Angeles, California; for Defendants-Appellants.

Paul R. Kiesel and Bryan Garcia, Kiesel Law, LLP, Beverly

Hills, California, for Plaintiffs-Appellees Armando

Villanueva and Hortencia Sainz.

Dale K. Galipo and Renee V. Masongsong, Law Offices of

Dale K. Galipo, Woodland Hills, California, for Plaintiff-

Appellee Francisco Orozco.

OPINION

WARDLAW, Circuit Judge:

Two police officers appeal the denial of qualified

immunity in this § 1983 action alleging excessive force in

violation of the Fourth Amendment. We must decide

whether these officers’ use of deadly force against a slow-

moving vehicle following a high-speed chase violated the

victims’ clearly established constitutional rights at the time

of the incident. Because we agree with the district court that

the law precluding deadly force under the circumstances the

officers confronted was clearly established, we affirm.

I.

Many of the facts underlying this case are disputed. We

recount them in the light most favorable to Orozco and

Villanueva, as the non-moving parties in the district court.

Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir. 2019)

(per curiam).

VILLANUEVA V. CLEVELAND 5

A.

On July 3, 2016, at 10:35pm, Sergeant Cleveland and

Officer Henderson (“the Officers”) were on patrol near

Fullerton, California looking for illegal street racing and

“sideshows,” events where streets are blocked off for drivers

to perform unlawful maneuvers like burnouts and donuts. 1

The Officers wore plain clothes and drove an unmarked

black sedan, but they also wore dark tactical vests with

police insignia. The unmarked car was equipped with both

a red and blue flashing light and a blue and amber light.

During their patrol, the Officers found an approximately

twenty-car sideshow taking place in the Santa Fe Springs

Swap Meet parking lot. One of the participating cars was a

red Chevrolet Silverado pickup truck occupied by Pedro

Villanueva, the driver, and Francisco Orozco, his passenger.

After witnessing the Silverado perform or attempt to perform

an illegal maneuver, 2 the Officers entered the parking lot,

intending to make a traffic stop.

As the Officers drove into the parking lot, Villanueva

drove toward the outlet that the Officers had just entered.

The Officers then started following the Silverado.

According to Orozco, the Officers did not use the regular

blue and white light or a typical siren, but only an amber

1

“Donuts” involve quickly rotating the rear of a car around the front

wheel in the hope of creating circular skid marks, while “burnouts”

involve spinning the wheels on a stationary car to cause the tires to heat

up and make smoke.

2

The exact details of the maneuver are in dispute. Cleveland

testified that the Officers saw the Silverado perform multiple “donuts,”

while Orozco testified that Villanueva “attempted” a “burnout,” “but he

just more or less screeched the tires.”

6 VILLANUEVA V. CLEVELAND

light and an atypical screeching noise that was not

identifiable as a police siren. According to Orozco,

Villanueva drove out of the lot at a speed that “didn’t feel

fast,” and without incident.

After leaving the lot, Villanueva drove away. The

Officers turned off the sirens and lights and followed.

Orozco and Villanueva were “scared,” and “in fear for [their]

lives,” because they thought it was “very odd” that a dark car

was following them, as they had received warnings on social

media and from an acquaintance to be wary of muggers in

suspicious black sedans at the truck clubs or truck award

shows. Villanueva continued driving away, going between

50 and 70 miles per hour on surface streets and running at

least three red lights. The Officers followed at a (disputed)

distance, intermittently using their sirens when moving

through intersections. After several minutes of driving,

Villanueva turned north onto North Pritchard avenue, which

dead-ends, and then right onto MacArthur Avenue, which

also dead-ends. The Officers continued their pursuit, turning

onto North Pritchard and then approaching the intersection

with MacArthur, where they saw the Silverado stopped on

MacArthur.

All parties agree on the barebones of what happened

next. The Officers immediately exited their vehicle and

drew their firearms. Cleveland stood near the open driver’s

side door of the police car and Henderson stood near the

open passenger’s door. At the same time, Villanueva

attempted to reverse out of MacArthur in a three-point turn

that resulted in the rear of his vehicle pointing toward the

Pritchard dead-end and the front generally facing the

Officers, who were approximately 15 to 20 feet away. The

Officers then opened fire on the vehicle and shouted a

warning of some kind at the same time or within a second of

VILLANUEVA V. CLEVELAND 7

firing. The shots killed Villanueva and injured Orozco. The

Silverado then slowly rolled forward, ultimately colliding

with the Officers’ car at a very low speed.

A photo of the intersection, taken after the shooting, is

reproduced below. The street that runs horizontally in the

photo is Pritchard, and the street that runs vertically is

MacArthur.

Viewed in the light most favorable to the plaintiffs,

Villanueva performed the three-point turn in a controlled

manner, and when the Officers opened fire, the Silverado

was moving very slowly and was not pointed directly at

either officer or accelerating. After the shooting, Orozco

was detained in the truck until a supervisor arrived, at which

point he was handcuffed and taken to the hospital.

B.

Orozco and Villanueva’s parents, on behalf of their son,

filed this suit, alleging both constitutional and state law

8 VILLANUEVA V. CLEVELAND

claims, including excessive force in violation of the Fourth

Amendment and unreasonable detention and false arrest. 3

The Officers moved for summary judgment, arguing that

they were entitled to qualified immunity on some claims,

including the excessive force claims, and that others failed

as a matter of law. The district court denied the Officers’

motion for summary judgment based on qualified immunity

for the excessive force claims. First, it found that Orozco

had Fourth Amendment standing as a passenger to bring

claims against the Officers, relying on Brendlin v.

California, 551 U.S. 249, 251 (2007). Second, it held that

“there are simply too many disputes of material fact to rule

on summary judgment that [the Officers]’s use of deadly

force was objectively reasonable,” and that, construing the

facts in the light most favorable to the plaintiffs, a reasonable

jury could find that the Officers used excessive force in

violation of clearly established law. The district court also

denied the Officers’ motion for summary judgment as to

Orozco’s unreasonable detention and false arrest claims on

the merits. It declined to address qualified immunity as to

those claims, because it found the Officers had not properly

asserted the defense. The Officers timely appealed. 4

3

Villanueva’s parents withdrew their unreasonable detention and

false arrest claims prior to the district court’s denial of summary

judgment.

4

The Officers waived a defense of qualified immunity as to

Orozco’s unreasonable detention and false arrest claims by failing to

assert it in the district court. We have “a ‘general rule’ against

entertaining arguments on appeal that were not presented or developed

before the district court.” In re Mercury Interactive Corp. Secs. Litig.,

618 F.3d 988, 992 (9th Cir. 2010) (citation omitted). “Although no

bright line rule exists to determine whether a matter [h]as been properly

raised below, an issue will generally be deemed waived on appeal if the

VILLANUEVA V. CLEVELAND 9

II.

“[W]e normally have no jurisdiction to hear

interlocutory appeals from the denial of summary

judgment.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d

938, 944 (9th Cir. 2017). However, under the collateral

order doctrine we have jurisdiction over the interlocutory

appeal of a denial of qualified immunity, “to the extent that

it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). Thus, although “[a]ny decision by the

district court ‘that the parties’ evidence presents genuine

issues of material fact is categorically unreviewable on

interlocutory appeal,’” George v. Morris, 736 F.3d 829, 834

(9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067

(9th Cir. 2009)), we may exercise jurisdiction by “construing

the facts and drawing all inferences in favor of Plaintiffs, to

decide whether the evidence demonstrates a violation by [the

Officers], and whether such violation was in contravention

argument was not raised sufficiently for the trial court to rule on it.” Id.

(internal quotation marks and citation omitted). Failure to argue a point

in a motion for summary judgment qualifies as failing to raise that issue

below. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam) (not reaching an issue not argued in a “memorandum of points

and authorities supporting [the] motion for summary judgment before

the district court”).

“Such waiver is a discretionary, not jurisdictional, determination.”

Mercury Interactive Corp., 618 F.3d at 992. “We may consider issues

not presented to the district court,” but “we are not required to do so.”

Id. As the Officers do not offer any arguments as to why we should

disregard their waiver, and we do not believe this is one of the

“‘exceptional’ case[s] in which review is necessary to prevent a

miscarriage of justice or to preserve the integrity of the judicial process,”

id. (quoting Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985)), we

decline to reach the Officers’ waived qualified immunity argument.

10 VILLANUEVA V. CLEVELAND

of federal law that was clearly established at the time,”

Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016). “We

review the district court’s conclusions regarding qualified

immunity de novo.” Isayeva, 872 F.3d at 946.

III.

“[O]fficers are entitled to qualified immunity under

§ 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation

omitted). A law is clearly established if “at the time of the

officer’s conduct, the law was sufficiently clear that every

reasonable official would understand that what he is doing is

unlawful.” Id. (internal quotation marks and citation

omitted). “[C]ourts must not ‘define clearly established law

at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the

particular circumstances that he or she faced.’” Id. at 590

(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

“While there does not have to be ‘a case directly on point,’

existing precedent must place the lawfulness of the [conduct]

‘beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011)).

A.

Before addressing whether the Officers used excessive

force when they shot at Villanueva and the Silverado, we

must determine whether Orozco—a passenger who was not

intentionally targeted by the Officers—has a cognizable

Fourth Amendment interest. The Officers argue that they

are entitled to qualified immunity as to Orozco’s Fourth

Amendment excessive force claim because it is not clearly

established “that a passenger struck by a bullet intended to

VILLANUEVA V. CLEVELAND 11

stop the driver of a vehicle can assert a Fourth Amendment

claim.” We reject this argument. At the time of the incident,

it was clearly established that when the Officers shot at the

Silverado, both Villanueva, the driver, and Orozco, the

passenger, were seized within the meaning of the Fourth

Amendment. 5

A person is seized under the Fourth Amendment “when

there is a governmental termination of freedom of [his]

movement through means intentionally applied.” Brower v.

Cnty. of Inyo, 489 U.S. 593, 597 (1989) (emphasis omitted).

Freedom of movement is terminated when, “in view of all of

the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(principal opinion). Recognizing that “[t]he law is settled

that in Fourth Amendment terms a traffic stop entails a

seizure of the driver,” in 2007 the Supreme Court held in

5

The district court framed this inquiry as one about whether Orozco

had “standing under the Fourth Amendment to challenge the force

exercised against him,” and concluded that he did have “standing.” It

then performed the distinct excessive force analysis without first

assessing whether Orozco’s “standing” was clearly established.

However, it should have addressed the second step of the qualified

immunity inquiry. The term Fourth Amendment standing is “a useful

shorthand for capturing the idea that a person must have a cognizable

Fourth Amendment interest” to bring a Fourth Amendment claim, “but

it should not be confused with Article III standing, which is

jurisdictional.” Byrd v. United States, 138 S. Ct. 1518, 1530 (2018).

Fourth Amendment standing is “not distinct from the merits” of a Fourth

Amendment claim and “is subsumed under substantive Fourth

Amendment doctrine.” Id. (internal quotation marks and citation

omitted). Thus, even if an individual does have a cognizable Fourth

Amendment right, that right must have been “‘clearly established’ at the

time of defendant’s alleged misconduct” to overcome qualified

immunity. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation

omitted).

12 VILLANUEVA V. CLEVELAND

Brendlin that when a traffic stop occurs the passenger is also

seized, because “during a traffic stop an officer seizes

everyone in the vehicle, not just the driver.” 551 U.S. at 255;

see also Tennessee v. Garner, 471 U.S. 1, 7 (1985)

(“[A]pprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the Fourth

Amendment.”).

The Officers do not dispute that they made a traffic stop

when they shot at Villanueva and the Silverado. Instead,

they argue that Orozco was not seized during the stop

because seizure requires an intentional act on the part of the

officer, see Brower, 489 U.S. at 597, and they subjectively

intended to shoot only Villanueva. But the Supreme Court

“ha[s] repeatedly rejected attempts to introduce this kind of

subjectivity into Fourth Amendment analysis.” Brendlin,

551 U.S. at 260 (collecting cases). 6 As the Brendlin Court

reasoned, the Mendenhall test for what constitutes a seizure

is an objective one. It does not ask whether the officers

intended a seizure; it instead asks “what a reasonable

passenger would understand.” Id. “The intent that counts

under the Fourth Amendment” is the intent conveyed, not

the officers’ subjective intent. Id. at 260–61. So long as the

detention is made “through means intentionally applied,” it

is a Fourth Amendment seizure of the person detained. Id.

at 254.

The Brendlin Court cited Brower and County of

Sacramento v. Lewis, 523 U.S. 833 (1998), to illustrate that

6

The only contrary authority the Officers rely upon are two

unpublished memoranda dispositions, Nakagawa v. Cnty. of Maui, 686

F. App’x 388, 389 (9th Cir. 2017), and Arruda ex rel. Arruda v. Cnty. of

L.A., 373 F. App’x 798, 799 (9th Cir. 2010), and dicta in a pre-Brendlin

opinion, United States v. Lockett, 919 F.2d 585, 590 n.4 (9th Cir. 1990),

none of which is binding here.

VILLANUEVA V. CLEVELAND 13

a passenger can be seized in violation of the Fourth

Amendment even if he is not the motivating target, where

there is an intentional act employed. In Brower, the Court

concluded that officers seized a driver when they

purposefully set up a roadblock that the driver then slammed

into, because roadblocks are “designed to produce a stop by

physical impact if voluntary compliance does not occur.”

489 U.S. at 598. The Court acknowledged that the officers

may have “preferred, and indeed earnestly hoped” that the

driver would choose to stop before running into the

roadblock, but “d[id] not think it practicable to conduct such

an inquiry into subjective intent.” Id. The Brendlin Court

explained that the “officers detained [the Brower driver]

‘through means intentionally applied’; if the car had had

another occupant, it would have made sense to hold that he

too had been seized when the car collided with the

roadblock.” 551 U.S. at 261.

By contrast, in Lewis, “an officer accidentally ran over a

passenger who had fallen off a motorcycle during a high-

speed chase.” Id. (citing Lewis, 523 U.S. at 844) (emphasis

added). “[I]n holding that no seizure took place,” the Court

“stressed that the officer stopped Lewis’s movement by

accidentally crashing into him, not ‘through means

intentionally applied.’” Id. (quoting Lewis, 523 U.S. at

844). Conversely, if the officer had intentionally collided

with the motorcycle to stop it, the injured passenger would

also have been seized; as the Brendlin Court noted, “[w]e did

not even consider, let alone emphasize, the possibility that

the officer had meant to detain the driver only and not the

passenger” in Lewis. Id.

Here, the Officers shot at Villanueva and the Silverado

with the intent of stopping the Silverado from moving,

effecting a traffic stop by force and seizing Orozco in the

14 VILLANUEVA V. CLEVELAND

process, just as the Brower roadblock would have

constituted a seizure of the driver, as well as of any

passengers in the car. See id. Thus, Orozco was seized under

clearly established law as soon as the Officers intentionally

fired at the Silverado to effect the stop.

The Officers also dispute that they knew Orozco was in

the Silverado. But under Brendlin’s logic, it is irrelevant

whether they knew any passengers were in the car, because

they stopped the car and all its possible occupants when they

shot at it. Here, Orozco was subject to the Officers’

“intentional action to stop the car”—and with it the

“objectively manifested” restraint on his movement—

whether the Officers knew he was a passenger when they

fired or not. Id. at 260. The Third Circuit agrees that

Brendlin “ma[kes] clear that an officer’s knowledge of a

passenger’s presence in the vehicle is not dispositive” to the

question of seizure “so long as the detention is willful and

not merely the consequence of an unknowing act.”

Davenport v. Borough of Homestead, 870 F.3d 273, 279 (3d

Cir. 2017) (internal quotation marks and citation omitted).

Indeed, all of the other circuits that have addressed

whether a passenger struck by a stray bullet aimed at the

vehicle or driver has a cognizable Fourth Amendment claim

agree with our conclusion that such a passenger does have a

Fourth Amendment claim in these circumstances. The

Third, Sixth, and Eleventh Circuits have all concluded that

by intentionally stopping a vehicle, an officer subjects the

vehicle’s passenger to a Fourth Amendment seizure. See

Davenport, 870 F.3d at 279 (“[A] passenger shot by an

officer during the course of a vehicular pursuit may seek

relief under the Fourth Amendment.”); Vaughan v. Cox, 343

F.3d 1323, 1328 (11th Cir. 2003) (“[B]ecause he did not

intend to shoot [the passenger], [the officer] contends that

VILLANUEVA V. CLEVELAND 15

[the passenger] did not suffer a Fourth Amendment seizure.

We disagree.”); Fisher v. City of Memphis, 234 F.3d 312,

318–19 (6th Cir. 2000) (“By shooting at the driver of the

moving car, [the officer] intended to stop the car, effectively

seizing everyone inside, including the Plaintiff.”); see also

Lytle v. Bexar Ctny., Tex., 560 F.3d 404, 410 (5th Cir. 2009)

(no dispute that the passenger was “‘seized’ within the

meaning of the Fourth Amendment”). No other Circuit has

addressed the question.

The Officers cite cases from the First, Second, and Tenth

Circuits, arguing for a contrary result, but those cases were

all pre-Brendlin, and address the very different situation

where the passenger was also a hostage and the officers were

trying to rescue the passenger, not arrest him. See Childress

v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000)

(“The police officers in the instant case did not ‘seize’

plaintiffs within the meaning of the Fourth Amendment but

rather made every effort to deliver them from unlawful

abduction.”); Medeiros v. O’Connell, 150 F.3d 164, 168 (2d

Cir. 1998) (“[F]ar from seeking to restrain [the injured

hostage’s] freedom, the troopers’ every effort was bent on

delivering all the hostages from deadly peril.”); Landol-

Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990) (“A

police officer’s deliberate decision to shoot at a car

containing a robber and a hostage for the purpose of stopping

the robber’s flight does not result in the sort of willful

detention of the hostage that the Fourth Amendment was

designed to govern.”). 7

7

The officers mistakenly assert that a recent Tenth Circuit case,

Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203 (10th Cir.

2017), “suggest[s] that the Fourth Amendment does not apply to a

passenger’s claim.” In Carabajal, however, the Tenth Circuit explicitly

16 VILLANUEVA V. CLEVELAND

Moreover, as of the time of the events here, we had

already applied Brendlin and Brower to hold that a Fourth

Amendment seizure occurred where the officers

intentionally used force that injured an individual in a crowd.

Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012).

There, we concluded that Nelson was “unquestionably

seized under the Fourth Amendment,” id. at 876, by officers

who intentionally shot pepperballs into a large college party

they wished to disperse, even though the officers did not

specifically intend to target Nelson, who was hit in the eye

with one of the projectiles, id. at 876–78.

As here, we rejected the officers’ argument that because

Nelson was not individually the target of their use of force,

his injury was unintentional and thus not in violation of the

Fourth Amendment. Id. at 876. Applying Brower and

Brendlin, we explained that “[t]his argument misapprehends

the distinction between intentional and unintentional

conduct that the Supreme Court has repeatedly held as

determinative of the Fourth Amendment analysis.” Id. As

we elaborated:

[a]lthough the officers may have intended

that the projectiles explode over the students’

heads or against a wall, the officers’ conduct

resulted in Nelson being hit by a projectile

declined to reach the question of whether a seizure of the passenger

occurred when the officers shot directly into the vehicle. Id. at 1212–13.

The Tenth Circuit thought that the First Circuit’s discussion in Landol-

Rivera showed a circuit split on seizures of passengers but failed to note

that Landol involved a hostage situation and was decided prior to

Brendlin, so there was in fact no split. Id. at 1212. However, because it

believed there was such division, it simply reasoned that the law was not

clearly established and ruled for the officers on the basis of qualified

immunity. Id. at 1213.

VILLANUEVA V. CLEVELAND 17

that they intentionally fired towards a group

of which he was a member. Their conduct

was intentional, it was aimed towards Nelson

and his group, and it resulted in the

application of physical force to Nelson’s

person as well as the termination of his

movement. Nelson was therefore

intentionally seized under the Fourth

Amendment.

Id. at 877. We further held that as of the time of Nelson’s

shooting, it was clearly established “that the intentional

application of force which terminates an individual’s

freedom of movement results in a seizure.” Id. at 884 (citing

California v. Hodari D., 499 U.S. 621 (1991); Brower, 489

U.S. 593).

We therefore conclude that under Brower, Brendlin, and

Nelson, because Orozco’s freedom of movement was

terminated when the Officers intentionally shot at the

Silverado in which he was a passenger to stop its movement,

Orozco was seized within the meaning of the Fourth

Amendment. It matters not whether the Officers intended to

shoot Orozco or whether they even knew he was present as

a passenger. Under clearly established precedent at the time,

Orozco was seized.

B.

It is clear that Orozco was seized along with Villanueva.

We now turn to whether the two were unreasonably seized;

that is, whether they have a claim of excessive force under

clearly established law such that the Officers are not entitled

to qualified immunity.

18 VILLANUEVA V. CLEVELAND

1.

Allegations of excessive force during an investigatory

stop or arrest of a free citizen are examined under the Fourth

Amendment’s prohibition against unreasonable seizures.

Graham v. Connor, 490 U.S. 386, 394 (1989); see also

Garner, 471 U.S. at 7. This is an objective inquiry that asks

whether an officer’s actions were reasonable in light of the

circumstances he confronted. Graham, 490 U.S. at 397.

Determining whether a particular use of force was

reasonable “requires a careful balancing of the nature and

quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing

governmental interests at stake.” Id. at 396 (internal

quotation marks and citation omitted). To assess the

government interests, we evaluate a “range of factors” that

include “(1) the severity of the crime at issue, (2) whether

the suspect posed an immediate threat to the safety of the

officers or others (3) whether he was actively resisting arrest

or attempting to evade arrest by flight, and any other exigent

circumstances that existed at the time of the arrest.” Deorle

v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001) (cleaned

up and citation omitted); see also Graham, 490 U.S. at 396.

In cases involving use of deadly force against a fleeing

suspect, “the Supreme Court has crafted a more definitive

rule,” allowing an officer to use deadly force “only if ‘the

officer has probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to

others.’” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th

Cir. 2020) (quoting Garner, 471 U.S. at 11). A suspect may

pose a threat of serious physical harm “if ‘there is probable

cause to believe that he has committed a crime involving the

infliction or threatened infliction of serious physical harm,’

or if the suspect threatens the officer or others with a weapon

VILLANUEVA V. CLEVELAND 19

capable of inflicting such harm.” Id. (quoting Garner, 471

U.S. at 11).

The Officers argue that their use of deadly force did not

violate the Fourth Amendment as a matter of law because

Villanueva threatened them with a deadly weapon—his

truck—and any reasonable officer in their positions would

have believed that Villanueva posed an immediate threat of

serious harm or death to Sergeant Cleveland. 8 But in this

case, the key facts demarcating the line between reasonable

and unreasonable force are in dispute. Because we must

construe these facts and the reasonable inferences that arise

from them in favor of the plaintiffs, Thomas v. Dillard, 818

F.3d 864, 874 (9th Cir. 2016), we cannot agree that the

Officers’ actions were reasonable as a matter of law.

“A moving vehicle can of course pose a threat of serious

physical harm, but only if someone is at risk of being struck

by it.” Orn, 949 F.3d at 1174. Use of deadly force to stop a

recklessly speeding vehicle during a car chase is therefore

ordinarily reasonable under the Fourth Amendment. See,

e.g., Mullenix v. Luna, 577 U.S. 7, 15 (2015) (“The Court

has thus never found the use of deadly force in connection

with a dangerous car chase to violate the Fourth

Amendment.”); Scott v. Harris, 550 U.S. 372, 386 (2007)

8

The Officers’ argument rests entirely on the reasonableness of their

fear that Villanueva’s truck was about to hit Sergeant Cleveland. They

do not argue that they had probable cause to believe that Villanueva

committed a crime involving the infliction or threatened infliction of

serious physical harm, and acknowledge that the only crimes they

observed him commit were mere traffic violations. Nor do they argue

that they were concerned for the safety of others. They had no reason to

believe anyone in the Silverado was in possession of a firearm, and no

evidence indicates that any persons other than the Officers were directly

in or near the path of the car when they fired.

20 VILLANUEVA V. CLEVELAND

(“A police officer’s attempt to terminate a dangerous high-

speed car chase that threatens the lives of innocent

bystanders does not violate the Fourth Amendment.”).

But this case does not involve a shooting during a high-

speed chase. It is undisputed that Villanueva slowed to

below the speed limit on Pritchard and came to a stop on

MacArthur before performing the three-point turn. Even

under the Officers’ view of the facts, “the truck was moving

forward at a speed of up to five miles an hour” when they

shot at it.

We have consistently found use of deadly force to stop a

slow-moving vehicle unreasonable when the officers could

have easily stepped out of the vehicle’s path to avoid danger.

See Orn, 949 F.3d at 1175 (“Orn’s vehicle was moving at

just five miles per hour. [The officer] could therefore have

avoided any risk of being struck by simply taking a step

back.”); Acosta v. City & Cnty. of S. F., 83 F.3d 1143, 1146

(9th Cir. 1996), as amended (June 18, 1996), abrogated on

other grounds by Saucier v. Katz, 533 U.S. 194 (2001)

(finding that a reasonable officer “would have recognized

that he could avoid being injured when the car moved

slowly, by simply stepping to the side”). In contrast, we

have found use of deadly force against a stopped or slow-

moving vehicle reasonable only when the driver was trying

to evade arrest in an aggressive manner involving attempted

or actual acceleration of the vehicle. See Monzon v. City of

Murrieta, 978 F.3d 1150, 1161 (9th Cir. 2020) (finding use

of deadly force reasonable when “the van’s event data

recorder, or ‘black box,’ shows that the van’s acceleration

pedal was repeatedly pressed down between 80 and 99

percent during the very short 4.5 seconds from start to

impact, and the van reached a speed of over 17 mph before

hitting [the officer]’s cruiser”); Wilkinson v. Torres, 610

VILLANUEVA V. CLEVELAND 21

F.3d 546, 551–53 (9th Cir. 2010) (finding deadly force

reasonable where the officer “was standing in a slippery yard

with a minivan accelerating around him”); see also

Plumhoff, 572 U.S. at 776 (finding deadly force reasonable

where “the front bumper of [the driver’s] car was flush with

that of one of the police cruisers, [the driver] was obviously

pushing down on the accelerator because the car’s wheels

were spinning, and then [the driver] threw the car into

reverse ‘in an attempt to escape.’”).

The key question, then, is whether Villanueva

accelerated or attempted to accelerate toward the Officers

before the Officers shot at the Silverado and its occupants.

See Monzon, 978 F.3d at 1163; Wilkinson, 610 F.3d at 551–

53. The Officers claim Villanueva was driving “recklessly”

during the three-point turn, to the point that he hit a car

behind him, and that he faced their direction and hit the gas

before shots were fired. But witness testimony suggests that

Villanueva’s three-point turn was controlled, that he did not

crash into another car, and that he never accelerated toward

the police vehicle or the Officers. Orozco attested that

Villanueva was driving below the speed limit while making

the turn, and that Orozco did not feel the Silverado collide

with another vehicle behind it. He also attested that the

Silverado was not moving directly toward the police vehicle

at the time of the shooting, and that he did not see either

officer “in the path of the truck” at any point before or during

the shooting. Witness Lino Mendez testified that he did not

hear the Silverado collide with another vehicle, the engine

rev, or the tires screech, and that he was very confident that

the Silverado did not accelerate toward the police vehicle.

Witness Abel Orozco (no relation) testified that the turn

“wasn’t fast” and that he “didn’t hear no revving or no

burning tires or anything like that.” Witness Thomas Hinkle,

Jr., testified that the Silverado tried to make a U-turn at a

22 VILLANUEVA V. CLEVELAND

“very slow” speed and was not rushing. He never heard the

engine rev and did not see the Silverado accelerate forward

toward the police sedan.

Taking the facts in the light most favorable to the

plaintiffs, then, the three-point-turn was performed

cautiously, the truck—which was 15 to 20 feet away from

the Officers—was not aimed directly at Sergeant Cleveland

and was moving very slowly and not accelerating when the

Officers began shooting. In these circumstances, a

reasonable jury could conclude that the Officers used

excessive force, because they “lacked an objectively

reasonable basis to fear for [their] own safety, as [they] could

simply have stepped back [or to the side] to avoid being

injured.” Orn, 949 F.3d at 1179; see also Acosta, 83 F.3d at

1146.

2.

Because excessive use of force is a highly fact-specific

inquiry, even when we determine excessive force was used,

“police officers are entitled to qualified immunity unless

existing precedent ‘squarely governs’ the specific facts at

issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)

(citation omitted). Leading cases, such as Graham and

Garner, “are cast at a high level of generality” and provide

clearly established law only for the most “obvious” cases.

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam).

However, “[p]recedent involving similar facts can help

move a case beyond the otherwise ‘hazy border between

excessive and acceptable force’ and thereby provide an

officer notice that a specific use of force is unlawful.”

Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 577 U.S. at 18).

Because at the summary judgment stage we find that the car

was slow-moving and the Officers could have simply moved

away to avoid injury, their use of deadly force was clearly

VILLANUEVA V. CLEVELAND 23

established as unreasonable as of 1996 by Acosta, 83 F.3d at

1145–47.

In Acosta, an off-duty, plainclothes police officer chased

on foot two men he believed had stolen a purse. Id. at 1144.

The men got into a waiting, stopped car driven by Michael

Acosta. Id. The officer, still in pursuit, positioned himself

near the front of the car, standing closer to the side than dead-

center. Id. at 1146. The vehicle then began “moving or

rolling very slowly from a standstill” toward the officer. Id.

at 1147. The officer fired two shots into the car, killing

Acosta. Id. at 1144. We held that the officer violated the

Fourth Amendment and was not entitled to qualified

immunity because “a reasonable officer could not have

reasonably believed that shooting at the driver of the slowly

moving car was lawful,” id. at 1148, as he “would have

recognized that he could avoid being injured when the car

moved slowly[] by simply stepping to the side,” id. at 1146.

Acosta thus clearly established that an officer who shoots

at a slow-moving car when he can easily step out of the way

violates the Fourth Amendment, as we recently reaffirmed

in Orn. 949 F.3d 1167. In Orn, after refusing to stop for a

police car with lights activated, a driver led officers on a

slow-speed pursuit for 15 minutes. Id. at 1171–72. The

officers eventually cornered the driver inside a parking lot.

Id. at 1172. After a brief stop, the driver drove slowly—

around five miles per hour—through a narrow gap between

a police car and another parked car. Id. at 1173. While

maneuvering between the vehicles, the driver clipped one of

the police SUVs. Id. At that point, an officer ran toward the

driver’s vehicle on the passenger side and began firing. Id.

We held that the officer was not entitled to qualified

immunity because the facts of Orn, when taken in the light

most favorable to the plaintiff, were “not fairly

24 VILLANUEVA V. CLEVELAND

distinguishable from those in Acosta.” Id. at 1179. “If [the

driver] was traveling at only five miles per hour as he

maneuvered past [the officer’s] SUV, and if he did not

accelerate until after being shot, a reasonable jury could

conclude that [the officer] lacked an objectively reasonable

basis to fear for his own safety, as he could simply have

stepped back to avoid being injured.” Id.

The facts here, when taken in the light most favorable to

the plaintiffs, are similarly “not fairly distinguishable from

those in Acosta.” Id. As in Acosta, Villanueva’s vehicle was

at a stop shortly before the shooting. In both cases, no officer

was standing directly in front of the vehicle. Villanueva, like

the driver in Acosta, did not accelerate toward the police car

or the Officers before the Officers opened fire. 9 In light of

Acosta, all reasonable officers would know it is

impermissible to shoot at a slow-moving car when he could

“simply step[] to the side” to avoid danger. Acosta, 83 F.3d

at 1146.

The Officers cite Wilkinson for the proposition that we

have granted qualified immunity when an officer on foot

shot at the driver of a slow-moving vehicle. 610 F.3d at 552.

However, as the district court astutely observed, Wilkinson

involved distinct facts and does not undermine the clarity of

Acosta’s holding or its application to this case. In Wilkinson,

a fleeing minivan temporarily came to a stop in a muddy yard

after crashing into a telephone pole. Id. at 549. Although

the minivan was surrounded by police vehicles as well as

9

The Officers attempt to distinguish Acosta by suggesting

“Villanueva ‘hit the gas’ and the truck was moving forward at a speed of

up to five miles per hour” before they shot. But, as already discussed,

the factual claim that Villanueva hit the gas or otherwise accelerated is

disputed and cannot be used to support qualified immunity at this stage.

VILLANUEVA V. CLEVELAND 25

two officers on foot, the driver continued to attempt to

accelerate, as evidenced by the minivan’s wheels “spinning

and throwing up mud.” Id. One officer approached the

vehicle and then fell on the slippery ground. Id. A second

officer, believing the first officer had been run over, then

fired at the driver. Id. We held that the officer’s use of

deadly force was reasonable. Id. at 553. We emphasized

that the minivan was only moving at a slow speed because it

was stuck in mud; the driver was “revving” the engine and

the van “could have gained traction at any time, resulting in

a sudden acceleration in speed.” Id. at 552. Furthermore,

the muddy yard was slippery, and the officer who shot the

driver had good reason to believe that another officer was

either still on the ground or “standing but disoriented”—that

is to say, not able to easily move out of the way of an

oncoming car no matter its speed. Id. at 551. The chaotic

situation in Wilkinson has little relevance to the facts of

either Acosta or this case, which involve non-accelerating

vehicles and officers who were standing on normal, paved

roads.

As in Orn, what the Officers here “most forcefully

contest[] is whether [their] alternative account of the

shooting should be accepted as true.” 949 F.3d at 1181. But

we review only “whether, after construing disputed facts and

reasonable inferences in favor of [the plaintiff], [the

defendant] is entitled to qualified immunity as a matter of

law.” Thomas, 818 F.3d at 874. Orn holds that Acosta

clearly established that an officer violates a person’s

constitutional rights by shooting at a slow-moving vehicle

that the officer could reasonably have side-stepped to

remove himself from danger.

26 VILLANUEVA V. CLEVELAND

IV.

Viewing the facts in the light most favorable to the

plaintiffs, we conclude that the Officers are not entitled to

qualified immunity on Villanueva and Orozco’s excessive

force claims. We therefore AFFIRM the district court’s

denial of summary judgment as to the excessive force claim,

DISMISS the appeals as to the false detention and arrest

claims, and REMAND this case for further proceedings.