Leonorilda Ochoa v. City of Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONORILDA OCHOA, individually; No. 20-16069

RACHEL GARCIA, on behalf of S.G.

on behalf of G.G.; KERRY LYNN D.C. No.

CONIGLIO, on behalf of C.J.C; 2:18-cv-00905-

DEANNA MENDOZA; ERIKA GARCIA, JJT

on behalf of minor statutory

beneficiaries J.G. and J.G,

Plaintiffs-Appellants, OPINION

v.

CITY OF MESA, a public entity;

TOWN OF GILBERT, a public entity;

MANUEL R. CELAYA, JR.; ROBERT E.

GAMBEE, JR.; JESS C. NICHOLSON;

KARI R. SAVAGE; BRIAN K. HERMES;

STEVE GILBERT; JACOB MADUENOS;

JASON G. STOUT,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted November 18, 2021

Phoenix, Arizona

Filed February 28, 2022

2 OCHOA V. CITY OF MESA

Before: Ronald Lee Gilman, * Consuelo M. Callahan, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Callahan

SUMMARY **

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of police officers in an action brought

pursuant to 42 U.S.C. § 1983 alleging defendants violated

plaintiffs’ Fourteenth Amendment rights to companionship

and familial association when they shot and killed Sergio

Ochoa.

The panel noted that plaintiffs’ Fourteenth Amendment

claim requires that the officers’ conduct “shocks the

conscience”—a standard that is more demanding of the

plaintiffs than the Fourth Amendment standard typically

applicable in police shooting cases. Because the officers here

did not have time to deliberate before firing, the district court

correctly applied the purpose-to-harm test to determine if the

officers’ conduct shocked the conscience.

The panel noted that at the time of the shooting, the

officers knew that in the past few hours Ochoa had: engaged

*

The Honorable Ronald Lee Gilman, 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.

OCHOA V. CITY OF MESA 3

in a domestic dispute that allegedly involved a gun while

possibly under the influence of heroin or meth; allegedly

entered a stranger’s home stating that he was armed with

knives; failed to yield when a marked police car tried to pull

him over; and had driven erratically, including on the wrong

side of the road directly at police officers. When the officers

arrived at the home where Ochoa was later shot, the situation

escalated. They encountered a frantic man who said that

Ochoa did not belong at the house and who was evacuating

children from a locked bedroom out of the house through a

second-story window. Ochoa ignored repeated commands

to come outside and drop any knives he was carrying. As the

officers entered the front door, Ochoa ran into the backyard,

where he refused to drop two kitchen knives despite multiple

commands from the police to do so. He then took a large

step. Knowing what Ochoa had done earlier in the evening,

the officers had to make a snap decision about Ochoa’s

intentions and the threat he posed to them, the people in the

home, and the public at large.

The district court correctly concluded that under the

purpose-to-harm test, the conduct did not violate the

plaintiffs’ Fourteenth Amendment rights. The officers’

actions instead reflected their attempts to satisfy legitimate

law enforcement objectives: apprehension of an armed,

dangerous suspect and protection of the safety of the

officers, the home’s inhabitants, and the public.

4 OCHOA V. CITY OF MESA

COUNSEL

Jody Lynn Broaddus (argued) and Marc J. Victor, Attorneys

for Freedom Law Firm, Chandler, Arizona; David J.

Catanese, Zachar Law Firm P.C., Phoenix, Arizona;

Benjamin Taylor, Taylor & Gomez LLP, Phoenix, Arizona;

for Plaintiffs-Appellants.

Duncan J. Stoutner (argued), Mesa City Attorney’s Office,

Mesa, Arizona; for Defendants-Appellees City of Mesa,

Manuel R. Celaya Jr., Robert E. Gambee Jr., Jess C.

Nicholson, Kari R. Savage, Brian K. Hermes, and Jason G.

Stout.

Robert Grasso Jr. (argued) and N. Patrick Hall, Grasso Law

Firm P.C., Chandler, Arizona; for Defendants-Appellees

Town of Gilbert, Steve Gilbert, and Jacob Maduenos.

OPINION

CALLAHAN, Circuit Judge:

In 2016, police officers in Arizona shot and killed Sergio

Ochoa. Ochoa’s family sued the officers and the

municipalities they worked for, alleging that they violated

the Fourteenth Amendment under 42 U.S.C. § 1983 by

wrongfully depriving the plaintiffs of Ochoa’s

companionship and familial association, and that they

violated Arizona law by wrongfully killing Ochoa. The

plaintiffs did not assert any claims on behalf of Ochoa’s

estate. The district court granted the defendants summary

judgment on the Fourteenth Amendment claim. The

plaintiffs appealed.

OCHOA V. CITY OF MESA 5

We review the district court’s decision de novo. The

plaintiffs’ Fourteenth Amendment claim requires them to

show that the officers’ conduct “shocks the conscience”—a

standard that requires more of the plaintiffs than the Fourth

Amendment excessive-force standard often applied in police

shooting cases. Viewing the record in the light most

favorable to the plaintiffs, the district court selected the

correct legal test to assess whether the conduct here shocks

the conscience, and it correctly concluded that it does not.

Thus, the defendants did not violate the plaintiffs’

Fourteenth Amendment rights. We therefore affirm the

judgment of the district court.

Background

On the night of March 3, 2016, a Mesa police dispatcher

radioed officers. A 911 caller had told the dispatcher that she

and her ex-boyfriend—Ochoa—had a fight and that a

handgun was involved. The caller said that Ochoa used

heroin and meth, was under the influence of drugs, and had

left by car. Dispatch said that Ochoa had outstanding arrest

warrants.

About eight minutes after the first 911 call, dispatch

radioed the officers about another 911 call nearby. The

second caller told dispatch that a man entered the caller’s

home without permission and said that he had two knives

and that his girlfriend had stabbed him. The intruder left in a

car matching the description of the car from the first 911 call.

A police helicopter found and followed the car.

The police realized that Ochoa had prompted both 911

calls. A marked police car tried to pull Ochoa’s car over, but

it did not stop. The helicopter followed Ochoa’s car and

worked with police on the ground to track its movements.

Officers saw Ochoa driving erratically (including on the

6 OCHOA V. CITY OF MESA

wrong side of the street towards police cars) and

inexplicably stopping at green traffic lights. The officers

then lost sight of the car. The helicopter pilot reported that

Ochoa had abandoned the car in a residential neighborhood

near the border between Mesa and the adjoining town of

Gilbert. A police officer on the ground spotted the car, and

the helicopter pilot told the officer that Ochoa had fled to a

nearby home.

When the officer went to the home, a frantic man on the

second story shouted “Hey, he’s in here, he’s in here!”

Another officer arrived and asked the man if Ochoa was

supposed to be there. The man answered, “Fuck no!” and

told the officers that he had children with him in a locked

bedroom. As more police converged on the location, the man

brought several children onto the roof to evacuate them with

the help of two officers.

Meanwhile, the home’s front door was closed, but

through a window officers could see people yelling in a back

room. Ochoa momentarily appeared at a window in the front

door and then at the front window, looking upset and

possibly holding a knife. He ignored commands to come

outside. One officer, who was a drug-recognition expert,

thought that Ochoa was under the influence of meth.

Fearful that a hostage situation was developing, the

officers decided to enter the house. The lead officer kicked

open the front door and led a line of seven police officers

into the home. Another officer went around the side of the

house to prevent Ochoa from fleeing to neighboring homes.

The police entering the home saw Ochoa go into the

backyard through a sliding glass door and followed him.

Standing between Ochoa and the home, the officers formed

an L-shape around Ochoa. Ochoa had two knives in one

hand and refused to obey the officers’ commands to “Drop

OCHOA V. CITY OF MESA 7

the knife, drop the knife!” According to the officers, Ochoa

looked angry and ready to fight.

Police bodycam video captured what happened next.

One officer fired a beanbag round at Ochoa. Seemingly

simultaneously, another officer released a police dog.

Perhaps reacting to the beanbag round or to the dog, Ochoa

took a large step sideways (and, accepting the plaintiffs’

characterization, away from the officers). The officers then

fired about 30 shots at Ochoa. He fell to the ground on his

stomach, with at least one of his hands tucked near his

waistline. Ochoa did not respond to commands to pull his

hands out. While some officers went inside to clear the

home, the remaining officers say that they commanded the

dog to drag Ochoa so that his hands were visible.

Ochoa died at the scene. A postmortem toxicology report

showed that he had meth in his system. Two knives were

recovered from the backyard. Bodycam video shows that

about 16 seconds elapsed between the officers’ first entry

into the home and the shooting.

Following the shooting, Ochoa’s children, through their

mothers, and Ochoa’s mother filed this lawsuit on their own

behalf. The parties and claims have changed over the course

of the case. The remaining defendants are the Town of

Gilbert and two Gilbert police officers, as well as the City of

Mesa and seven Mesa police officers. In the two remaining

claims, the plaintiffs allege that the defendants (1) violated

the Fourteenth Amendment under 42 U.S.C. § 1983 by

wrongfully depriving the plaintiffs of Ochoa’s

companionship and familial association and (2) violated

Arizona law, A.R.S. § 12-611, by wrongfully killing Ochoa.

At oral argument, the plaintiffs confirmed that Ochoa’s

estate has not separately asserted any claims related to this

shooting, including any Fourth Amendment claims.

8 OCHOA V. CITY OF MESA

After removing the case from state court to federal court,

the defendants moved for summary judgment. Among other

things, the defendants asserted that they were protected by

qualified immunity—a legal doctrine that shields

government officials from liability for alleged constitutional

violations—because there was no violation of a clearly

established Fourteenth Amendment right.

The district court ruled in the defendants’ favor on the

Fourteenth Amendment claim. It remanded the state-law

wrongful-death claim back to state court and declined to rule

on other issues raised by the defendants. The court entered a

final judgment, and the plaintiffs timely appealed to this

court.

Legal Standards

We have jurisdiction to review the district court’s grant

of summary judgment and entry of judgment because they

are the district court’s final decisions. See 28 U.S.C. § 1291.

We review an order granting summary judgment de novo.

Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir.

2002). Applying the same standards as the district court, we

affirm a grant of summary judgment if “there is no genuine

dispute as to any material fact” when viewing the record in

the light most favorable to the nonmoving party, such that

the moving party “is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). A factual issue is genuine “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A material fact is one that is

needed to prove (or defend against) a claim, as determined

by the applicable substantive law. Id. at 255.

OCHOA V. CITY OF MESA 9

Here, the plaintiffs’ claim—and thus the applicable

substantive law—is rooted in the Fourteenth Amendment.

The Amendment states in relevant part that “[n]o State shall

. . . deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. “[A]

parent has a constitutionally protected liberty interest under

the Fourteenth Amendment in the companionship and

society of his or her child and . . . a ‘child’s interest in her

relationship with a parent is sufficiently weighty by itself to

constitute a cognizable liberty interest.’” Curnow ex rel.

Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.

1991) (citations omitted) (quoting Smith v. City of Fontana,

818 F.2d 1411, 1419 (9th Cir. 1987)).

A claim asserting that police officers violated these

Fourteenth Amendment rights during a police shooting must

show that the officers’ conduct “shocks the conscience.”

Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).

There are two tests used to decide whether officers’ conduct

“shocks the conscience.” Which test applies turns on

whether the officers had time to deliberate their conduct.

On one hand, the deliberate-indifference test applies if

the situation at issue “evolve[d] in a time frame that permits

the officer to deliberate before acting.” Porter, 546 F.3d

at 1137. Deliberation is not possible if the officers

“encounter[ed] fast paced circumstances presenting

competing public safety obligations.” Id. at 1139.

Deliberation in this context “should not be interpreted in the

narrow, technical sense.” Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010).

On the other hand, the purpose-to-harm test applies if the

situation at issue “escalate[d] so quickly that the officer [had

to] make a snap judgment.” Porter, 546 F.3d at 1137. This

test requires “a more demanding showing that [the officers]

10 OCHOA V. CITY OF MESA

acted with a purpose to harm [the decedent] for reasons

unrelated to legitimate law enforcement objectives.” Id.

Legitimate objectives can include “arrest, self-protection,

and protection of the public.” Foster v. City of Indio,

908 F.3d 1204, 1211 (9th Cir. 2018). Illegitimate objectives

include “when the officer ‘had any ulterior motives for using

force against’ the suspect, such as ‘to bully a suspect or “get

even,”’ or when an officer uses force against a clearly

harmless or subdued suspect.” Id. (citations omitted)

(quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 798

(9th Cir. 2014); Wilkinson, 610 F.3d at 554).

Whether evaluated under the deliberate-indifference test

or the purpose-to-harm test, the Fourteenth Amendment

“shocks the conscience” standard is not the standard that

typically comes to mind in police shooting cases. Another

standard—the standard applicable to Fourth Amendment

excessive-force claims—is more familiar in this context.

That standard asks whether the officers’ conduct was

“objectively unreasonable.” Graham v. Connor, 490 U.S.

386, 397 (1989).

We have previously recognized that applying the Fourth

Amendment excessive-force standard to a Fourteenth

Amendment claim for loss of companionship and familial

association following a fatal police shooting might have

“surface appeal.” 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 F. App’x

651, 652 (9th Cir. 2001). The gist of the two claims is the

same: an officer is accused of improperly using police power

to kill someone.

But the Fourteenth Amendment standard applicable to a

claim by a relative demands more of such a plaintiff than a

Fourth Amendment claim by the victim of an officer’s

OCHOA V. CITY OF MESA 11

actions. Moreland v. Las Vegas Metro. Police Dep’t,

159 F.3d 365, 371 n.4 (9th Cir. 1998), as amended (Nov. 24,

1998). The Supreme Court has held that “Fourth

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

vicariously asserted.” Plumhoff v. Rickard, 572 U.S. 765,

778 (2014) (omission in original) (quoting Alderman v.

United States, 394 U.S. 165, 174 (1969)). The plaintiffs here

cannot sidestep this prohibition and assert Ochoa’s Fourth

Amendment rights through a Fourteenth Amendment claim.

See Byrd, 137 F.3d at 1134. Instead, they must show more:

not just that the officers’ actions were objectively

unreasonable and thus violated Ochoa’s Fourth Amendment

rights, but that the officers’ actions “shock[ed] the

conscience” and thus violated the plaintiffs’ Fourteenth

Amendment rights. See Porter, 546 F.3d at 1137.

This difference in standards can be dispositive where

relatives assert Fourteenth Amendment claims but there is

no Fourth Amendment claim. Indeed, “it may be possible for

an officer’s conduct to be objectively unreasonable [under

the Fourth Amendment] yet still not infringe the more

demanding standard that governs substantive due process

claims [under the Fourteenth Amendment].” Moreland,

159 F.3d at 371 n.4.

Analysis

The district court in this case correctly applied the

Fourteenth Amendment standard. Viewed in the light most

favorable to the plaintiffs, the record supports the district

court’s decision to apply the purpose-to-harm test and its

conclusion that the officers’ conduct did not shock the

conscience. Therefore, the officers did not violate the

plaintiffs’ Fourteenth Amendment rights.

12 OCHOA V. CITY OF MESA

The officers did not have time to deliberate before

shooting Ochoa. At the time of the shooting, the officers

knew that in the past few hours Ochoa had: engaged in a

domestic dispute that allegedly involved a gun while

possibly under the influence of heroin or meth; allegedly

entered a stranger’s home stating that he was armed with

knives; failed to yield when a marked police car tried to pull

him over; and driven erratically, including on the wrong side

of the road directly at police officers.

When the officers arrived at the home where Ochoa was

later shot, the situation escalated. They encountered a frantic

man who said that Ochoa did not belong at the house and

who was evacuating children from a locked bedroom out of

the house through a second-story window. Meanwhile,

downstairs Ochoa appeared angry and agitated around other

people while armed with at least one knife. He ignored

repeated commands to come outside and drop any knives he

was carrying. As the officers entered the front door, Ochoa

ran into the backyard, where he refused to drop two kitchen

knives despite multiple commands from the police to do so.

He then took a large step. Knowing what Ochoa had done

earlier in the evening, the officers had to make a snap

decision about Ochoa’s intentions and the threat he posed to

them, the people in the home, and the public at large. The

urgency of that moment—caused by Ochoa’s failure to

follow police commands—forced the officers to react

instantly, without deliberation. Given the undisputed facts,

the district court correctly chose to apply the purpose-to-

harm test.

Under this test, the officers’ conduct was consistent with

legitimate law enforcement objectives and did not violate the

Fourteenth Amendment. As the district court noted, when

officers confronted Ochoa, “at least four law enforcement

OCHOA V. CITY OF MESA 13

objectives [were] apparent: officer safety, protection of the

occupants still inside the home, apprehension of an

apparently dangerous suspect, and protection of the public at

large in the event [Ochoa] escaped from the backyard.”

There is nothing in the record suggesting that the officers

had an improper purpose to harm. There is no allegation that

the officers sought to bully Ochoa or get even with him.

There is no indication that the officers had prior dealings

with Ochoa. At most, there are assertions that the officers

continued to shoot Ochoa when he was on the ground and

that when the officers directed the police dog to drag Ochoa

so they could see his hands, the officers laughed and cheered.

But as the plaintiffs confirmed at oral argument, there is no

direct evidence anywhere in the record supporting either of

these allegations. 1 Such assertions, without evidentiary

support, do not create a genuine issue of material fact. Galen

v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

Further, even if we accepted the truth of these two

unsubstantiated assertions, they do not show that the officers

acted with an improper purpose to harm. As to the assertion

about the continued firing, several officers testified that they

were concerned that Ochoa still had access to the knives

(which were later recovered from the area where Ochoa was

shot) because they could not see at least one of his hands

near his waistband. See Foster, 908 F.3d at 1211 (“A police

officer lacks such legitimate law enforcement objectives . . .

when an officer uses force against a clearly harmless or

1

As confirmed by the plaintiffs at oral argument, the only support

in the record for these assertions is a statement by the plaintiffs’ retained

expert. That is insufficient, particularly in the face of sworn denials from

the officers. See Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th

Cir. 2019) (“Expert testimony cannot create a genuine issue of material

fact if it rests on assumptions that are not supported by evidence.”).

14 OCHOA V. CITY OF MESA

subdued suspect.”). This reflects a legitimate law

enforcement objective: the safety of the officers and others.

As to the contested (though unsupported) assertion about the

cheering and laughing, it has minimal relevance because it

relates to events that took place after the officers fired at

Ochoa.

Other assertions made by the plaintiffs also carry little

weight. For example, the plaintiffs note that Ochoa had

always been welcome in the home where he was shot and

that the women there (later identified as Ochoa’s ex-wife and

her mother) were not afraid of Ochoa. But the officers did

not know this at the time. As the plaintiffs conceded at oral

argument, the analysis focuses on what the officers knew in

the moment, not what became known hours, days, or weeks

later.

Finally, the plaintiffs’ suggestion that the officers created

the emergency that led to the shooting is not well taken

considering Ochoa’s alleged violence, flight, and failure to

follow police commands earlier that evening. This incident

was not instigated by police.

In sum, the record does not show that the officers acted

with a purpose to harm unrelated to a legitimate law

enforcement objective. Rather, it reflects that the officers

took steps to ensure that a fleeing, armed, and noncompliant

suspect would not further endanger the officers, the home’s

inhabitants, and the public. On this record, the officers’

conduct does not shock the conscience and the officers did

OCHOA V. CITY OF MESA 15

not violate the plaintiffs’ rights under the Fourteenth

Amendment. 2

Conclusion

The plaintiffs’ Fourteenth Amendment claim requires

that the officers’ conduct “shocks the conscience”—a

standard that is more demanding of the plaintiffs than the

Fourth Amendment standard typically applicable in police

shooting cases. Because the officers here did not have time

to deliberate before firing, the district court correctly applied

the purpose-to-harm test to determine if the officers’ conduct

shocks the conscience. The court correctly concluded that

under that test, the conduct did not violate the plaintiffs’

Fourteenth Amendment rights. The officers’ actions instead

reflect their attempts to satisfy legitimate law enforcement

objectives: apprehension of an armed, dangerous suspect and

protection of the safety of the officers, the home’s

inhabitants, and the public. The district court’s grant of

summary judgment is AFFIRMED.

2

Because we agree that there was no Fourteenth Amendment

violation and affirm summary judgment on that basis, we do not address

the second prong of the qualified-immunity test described by the

Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), which asks if

the right at issue was clearly established at the time the officer acted,

such that the officer would have (or should have) known to not act in a

way that violated it. This is consistent with the suggested approach for

qualified-immunity issues. County of Sacramento v. Lewis, 523 U.S.

833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which

the defense of qualified immunity is raised is to determine first whether

the plaintiff has alleged a deprivation of a constitutional right at all.”);

Monzon v. City of Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020) (“Only

if we conclude that the officers did violate a constitutional right would

we then need to proceed to the second step of the inquiry . . . .”).