Estate of Clemente N. Aguirre v. County of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF CLEMENTE NAJERA No. 19-56462

AGUIRRE; J.S.; A.S.; Y.S.,

Plaintiffs-Appellees, D.C. No.

5:18-cv-00762-

v. DMG-SP

COUNTY OF RIVERSIDE; DAN

PONDER, OPINION

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted November 15, 2021

San Francisco, California

Filed March 24, 2022

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and Jane A. Restani, * Judge.

Opinion by Judge McKeown

*

The Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.

2 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

SUMMARY **

Civil Rights

The panel affirmed the district court's denial of qualified

immunity to Sergeant Dan Ponder of the Riverside County

Sheriff’s Department in an action brought pursuant to

42 U.S.C. § 1983 alleging, among other things, that Ponder

used excessive force in violation of the Fourth Amendment

when he shot Clemente Najera-Aguirre six times without

warning and killed him.

The panel first determined, as a threshold matter, that it

had jurisdiction over this interlocutory appeal and that

Ponder’s characterization of the facts did not result in waiver

of his qualified immunity defense.

The panel stated that police shootings, like all Fourth

Amendment seizures, must be objectively reasonable—and

when a suspect poses no immediate threat to an officer or

others, killing the suspect violates his Fourth Amendment

rights. Here, in dispute was the level of threat Najera posed

immediately before he died. A key disputed fact was

whether Najera was facing the officer and coming “on the

attack,” as Ponder contended, or whether Najera was turned

away from the officer, as indicated by the coroner’s report.

Additionally, although eyewitnesses agreed that Najera was

holding at least one bat-like object when he was shot, it was

disputed how he held that object. Nothing in the record

suggested that Najera was threatening bystanders or

advancing toward them when he was killed. Based on

**

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

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

ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 3

Najera’s facts, he presented no threat at all to the officer—

or anyone else—in that moment. The panel concluded that

on interlocutory appeal, construing the evidence in favor of

nonmovant Najera, Ponder’s conduct was not objectively

reasonable, and his use of excessive force violated the Fourth

Amendment.

Because Najera’s estate presented facts sufficient to

establish a Fourth Amendment violation, the panel

considered the second prong of qualified immunity: whether

the law was clearly established. The panel held that although

no body of relevant case law was necessary in an “obvious

case” like this one, this Circuit’s precedent also put Ponder

on notice that his specific conduct was unlawful.

COUNSEL

Tony M. Sain (argued), Lewis Brisbois Bisgaard & Smith

LLP, Los Angeles, California, for Defendants-Appellants.

Dale K. Galipo (argued) and Hang D. Le, Law Offices of

Dale K. Galipo, Woodland Hills, California; Christian F.

Pereira and Ian A. Cuthbertson, Pereira Law, Long Beach,

California; for Plaintiffs-Appellees.

4 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

OPINION

McKEOWN, Circuit Judge:

Police shootings, like all Fourth Amendment seizures,

must be objectively reasonable—and when a suspect poses

no immediate threat to an officer or others, killing the

suspect violates his Fourth Amendment rights. Here, an

officer shot Clemente Najera-Aguirre (“Najera”) six times

without warning and killed him. In dispute is the level of

threat Najera posed immediately before he died. That

quintessential question of fact is reserved for the jury and

precludes summary judgment on the excessive-force claim.

We affirm the district court’s denial of qualified immunity.

I. Background

On April 15, 2016, Sergeant Dan Ponder of the Riverside

County Sheriff’s Department received radio reports that

someone in Lake Elsinore, California, was destroying

property with a bat-like object, and had threatened a woman

with a baby. Crucially, key facts are disputed in this

summary judgment record: whether the officer saw

bystanders bleeding; how close Najera stood to the

bystanders; whether Najera was retreating from the property;

and whether, as he interacted with observers and the police,

Najera was holding his stick upright in a batter’s position in

an ostensibly threatening manner, or with the tip pointed

down in a way that did not pose a threat.

Upon arriving, Ponder exited the patrol car with his gun

drawn and confronted Najera. Ponder motioned for Najera

to back away and demanded that he drop the stick. Najera

did not drop it, and by some accounts verbally refused to do

so. Ponder next tried to pepper-spray Najera, but the spray

blew back in Ponder’s face, and Najera appeared largely

ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 5

unaffected. Ponder pointed his gun at Najera and again

ordered him to drop the stick, but Najera did not comply. By

some eyewitness accounts, Najera next retrieved a baseball

bat from nearby bushes and advanced quickly toward Ponder

with at least one weapon raised; other witnesses say Najera

stood still, holding a single stick pointed down. Whichever

the case, Ponder, without issuing a warning, shot Najera six

times from no more than fifteen feet away. Najera died.

Ponder contends that Najera stood facing him during all

six shots, but the coroner’s report found that Najera died

from two shots to his back. The bullet paths suggested that

Najera had turned away from the officer and was falling to

the ground when the bullets struck.

Three of Najera’s children (collectively, “the Najeras”)

sued Ponder and his employer, Riverside County, under

42 U.S.C. § 1983, alleging that Ponder violated the Fourth

and Fourteenth Amendments. Ponder and Riverside County

moved for summary judgment. The district court granted

summary judgment on the claims against the county and on

the Fourteenth Amendment claim against Ponder but denied

summary judgment on the Fourth Amendment claim, thus

denying Ponder qualified immunity. Ponder asks us to

reverse the district court’s denial of qualified immunity.

II. Jurisdiction

As a threshold matter, we conclude that we have

jurisdiction over this interlocutory appeal. The Najeras

argue that we lack jurisdiction because the district court

found that triable issues of fact precluded summary

judgment, and because Ponder waived his qualified-

immunity defense by failing to present the facts in the light

most favorable to the Najeras. Both arguments miss the

mark. We “undoubtedly” have jurisdiction to consider the

6 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

district court’s denial of qualified immunity. Rodriguez v.

Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 707

(9th Cir. 2010). Likewise, Ponder’s defense-friendly

presentation of the facts does not deprive us of jurisdiction.

Although Ponder’s appellate briefing arguably “lapse[d] into

disputing [plaintiffs’] version of the facts,” we are fully

capable of distinguishing between advocacy and the record

itself. George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013)

(quoting Adams v. Speers, 473 F.3d 989, 990 (9th Cir.

2007)). Ponder’s characterization of the facts did not result

in waiver of his qualified-immunity defense.

III. Qualified Immunity

We now turn to the principal question on appeal:

Whether qualified immunity shields Ponder from Najera’s

§ 1983 claim. The purpose of 42 U.S.C. § 1983 is “to deter

state actors from using the badge of their authority to deprive

individuals of their federally guaranteed rights and to

provide relief to victims if such deterrence fails.” Bracken

v. Okura, 869 F.3d 771, 776 (9th Cir. 2017) (quoting Wyatt

v. Cole, 504 U.S. 158, 161 (1992)). The doctrine of qualified

immunity—though absent from the text of § 1983—“acts to

safeguard government, and thereby to protect the public at

large, not to benefit its agents.” Wyatt, 504 U.S. at 168. As

the architects of qualified immunity, courts must ensure that

the doctrine remains tethered to this principle.

On interlocutory appeal, we review de novo the district

court’s denial of qualified immunity and view the facts in the

light most favorable to the Najeras, the nonmovants here.

See Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021)

(citations omitted). We then ask two questions: (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.” Lam v. City of Los Banos,

ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 7

976 F.3d 986, 997 (9th Cir. 2020), cert. denied, 142 S. Ct.

77 (2021) (citation omitted). The answer to both questions

here is “yes.”

A. The Constitutional Violation

Our touchstone in evaluating an officer’s use of force is

objective reasonableness. See Graham v. Connor, 490 U.S.

386, 397 (1989) (citing Scott v. United States, 436 U.S. 128,

137–39 (1978)). The reasonableness standard “nearly

always requires a jury to sift through disputed factual

contentions,” so summary judgment in an excessive-force

case “should be granted sparingly.” Torres v. City of

Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting

Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). The

reasonableness of Ponder’s conduct is assessed by balancing

the “nature and quality of the intrusion” on Najera’s Fourth

Amendment rights against the government’s countervailing

interest in the force used. Graham, 490 U.S. at 396 (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

The “nature and quality of the intrusion” here was

undoubtedly extreme. Id. Deadly force is the most severe

intrusion on Fourth Amendment interests because an

individual has a “fundamental interest in his own life” and

because, once deceased, an individual can no longer stand

trial to have his “guilt and punishment” determined. Garner,

471 U.S. at 9. Before using deadly force, law enforcement

must, “where feasible,” issue a warning. Id. at 11–12.

Nothing in this summary judgment record suggests that it

was not “feasible” for Ponder to warn Najera before firing

his weapon six times. Id. at 12.

Turning to the government’s countervailing interest in

the force, three factors inform our analysis: (1) the level of

immediate threat Najera posed to the officer or others,

8 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

(2) whether Najera was “actively resisting arrest or

attempting to evade arrest by flight,” and (3) “the severity of

the crime at issue.” Graham, 490 U.S. at 396 (citing Garner,

471 U.S. at 8–9). Without doubt, the suspected crime in this

case was severe, but that is the only Graham factor that

weighs clearly in the officer’s favor. Ponder does not

contend that Najera was attempting to flee or evade arrest;

quite the opposite, Ponder says that Najera was squarely

facing him when all six shots were fired. This contention

conflicts with forensic evidence. The coroner’s report

showed that Najera died from gunshot wounds to his back

strongly suggesting he was turned away from Ponder rather

than, as Ponder claims, facing him and coming “on the

attack.”

That leaves the “most important” Graham factor—and

the central issue in this appeal—the level of threat Najera

posed immediately before his death. Mattos v. Agarano,

661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith

v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en

banc)). A key disputed fact is whether Najera was facing the

officer and coming “on the attack,” as Ponder contends, or

whether Najera was turned away from the officer, as

indicated by the coroner’s report. Additionally, although

eyewitnesses agree that Najera was holding at least one bat-

like object when he was shot, it is disputed how he held that

object. Nothing in the record suggests that Najera was

threatening bystanders or advancing toward them when he

was killed. Here, on Najera’s facts, he presented no threat at

all to the officer—or anyone else—in that moment.

In this scenario, the government’s interest in the use of

force did not justify the “unmatched” intrusion on Najera’s

constitutional rights. Garner, 471 U.S. at 9. Thus, we hold

that, construing the evidence in favor of the Najeras,

ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 9

Ponder’s conduct was not objectively reasonable, and his use

of excessive force violated the Fourth Amendment. 1

B. The Clearly Established Inquiry

Because the Najeras have presented facts sufficient to

establish a Fourth Amendment violation, we consider the

second prong of qualified immunity: whether the law was

clearly established. The Supreme Court’s recent decision in

Rivas-Villegas v. Cortesluna is instructive. As the Court

explained, in an “obvious case,” the standards set forth in

Graham and Garner, though “cast ‘at a high level of

generality,’” can “clearly establish” that a constitutional

violation has occurred “even without a body of relevant case

law.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021)

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

199 (2004) (per curiam)). This is one of those obvious cases.

Deadly force is not justified “[w]here the suspect poses

no immediate threat to the officer and no threat to others.”

Garner, 471 U.S. at 11. Assuming that Najera posed no

immediate threat to Ponder or others at the time of his death,

this “general constitutional rule” applies “with obvious

clarity” here and renders Ponder’s decision to shoot Najera

objectively unreasonable. Hope v. Pelzer, 536 U.S. 730, 741

1

Ponder cites several cases in an effort to counter Najera’s

constitutional claims. See e.g., Bouggess v. Mattingly, 482 F.3d 886, 896

(6th Cir. 2007); Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir.

2003). However, those cases simply restate the uncontroversial

proposition that using force against an immediately threatening suspect

is generally reasonable, and Ponder sidesteps the baseline principle that

at this stage of the proceedings, the facts must be construed in favor of

Najera.

10 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

(2002) (quoting United States v. Lanier, 520 U.S. 259, 270–

71 (1997)).

Although no “body of relevant case law” is necessary in

an “obvious case” like this one, our precedents also put

Ponder “on notice that his specific conduct was unlawful.”

Rivas-Villegas, 142 S. Ct. at 8. We emphasize that only

cases that predate the incident are relevant to the “clearly

established” inquiry. City of Tahlequah v. Bond, 142 S. Ct.

9, 12 (2021) (per curiam) (citation omitted). Two cases

published about three years before the April 2016 incident,

Hayes v. County of San Diego and George v. Morris, made

“clear to a reasonable officer” that a police officer may not

use deadly force against a non-threatening individual, even

if the individual is armed, and even if the situation is volatile.

City of Tahlequah, 142 S. Ct. at 11.

In Hayes, we held that police used excessive force when

they fatally shot Hayes after encountering him inside his

girlfriend’s home holding a large knife pointed tip-down and

standing six to eight feet away. Hayes v. Cnty. of San Diego,

736 F.3d 1223, 1227–28 (9th Cir. 2013). We reasoned that

the officers’ use of deadly force was unreasonable because

the evidence did not “clearly establish that Hayes was

threatening the deputies with the knife,” and because Hayes

was not attempting to evade arrest. Id. at 1233, 1234. It was

also “significant” that, like Ponder, the officers failed to

warn Hayes before deploying deadly force. Id. at 1234–35.

In Hayes, as here, officers, without warning, shot and killed

an individual holding a weapon in a non-threatening manner.

Indeed, the officers in Hayes were much closer to the

individual than Ponder was to Najera when the shooting

occurred. Id. Hayes stands as clearly established law that

Ponder’s actions were unconstitutional.

ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 11

Similarly, in Morris, we held that it was unreasonable for

officers responding to a domestic disturbance call to fatally

shoot a suspect who emerged from his home onto his porch

with his pistol pointed down. See George v. Morris,

736 F.3d 829, 832–33, 839 (9th Cir. 2013). While we were

“clear-eyed about the potentially volatile and dangerous

situation these deputies confronted,” we could not conclude

as a matter of law that the officers behaved reasonably by

shooting the decedent “without objective provocation” and

while “his gun [was] trained on the ground.” Id. at 838–39.

Like the officers in Morris, Ponder entered a “potentially

volatile” situation when he responded to the calls about

Najera. And we too acknowledge the difficult landscape

facing Ponder and other offices responding to tense and

often explosive situations. Nevertheless, Morris established

that, even in such situations, officers must not use deadly

force against non-threatening suspects, even if those

suspects are armed.

Ponder’s response to these clearly established principles

is to repeat his mantra that Najera posed an immediate threat

to the officer or bystanders at the time of his death. But

Ponder can neither rewrite the facts to his own liking nor

ignore the disputed evidence. See Adams, 473 F.3d at 991

(“The exception to the normal rule prohibiting an appeal

before a trial works only if the appellant concedes the facts

and seeks judgment on the law.”). The posture of this

interlocutory appeal coupled with clearly established law

supports the district court’s denial of qualified immunity.

IV. Conclusion

Critical disputes of fact render summary judgment

premature. We cannot assume the jury’s role to resolve the

disputed question whether Najera presented an immediate

threat. Accepting Najera’s version of the facts—as we must

12 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

at this stage—the bedrock standards set forth in Graham and

Garner and the factual similarity of Hayes and Morris put

the officer’s constitutional violation “beyond debate.”

Rivas-Villegas, 595 U.S. at ___, slip op. at 4. We affirm the

district court’s denial of qualified immunity to Ponder.

AFFIRMED.