Fredrick Waid v. County of Lyon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDRICK WAID, appointed co- No. 22-15382

special administrator of the Estate of

Robert Anderson Jr.; JENNIFER D.C. No.

ANDERSON, as co-special 3:20-cv-00435-

administrator of the Estate of Robert LRH-CSD

Anderson Jr.; JENNIFER

ANDERSON, individually; M. R. A.,

a minor, through parent and guardian OPINION

Jennifer Anderson; S. G. A., a minor,

through parent and guardian Jennifer

Anderson,

Plaintiffs-Appellants,

v.

COUNTY OF LYON; TIMOTHY

WRIGHT; BRETT WILLEY,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 5, 2022

Pasadena, California

Filed November 21, 2023

2 WAID V. COUNTY OF LYON

Before: Marsha S. Berzon, Ryan D. Nelson, and Bridget S.

Bade, Circuit Judges.

Opinion by Judge R. Nelson;

Partial Concurrence and Partial Dissent by Judge Berzon

SUMMARY *

Qualified Immunity/Deadly Force

The panel affirmed the district court’s summary

judgment granting qualified immunity to two police officers

in an action alleging, in part, that the officers used excessive

deadly force when they shot and killed Robert Anderson

during a response to a 911 call seeking help with a domestic

violence incident.

After officers arrived at Anderson’s home, Anderson’s

two minor children exited the house and told the officers that

their parents were fighting, that their mother needed an

ambulance, and that there were no weapons in the house

other than a BB gun. When officers entered the house,

Anderson shouted “Fuck you, punks,” ignored a command

to get to the ground, and ran down a short hallway towards

the officers, at which point the officers shot him five times.

The panel held that defendants were entitled to qualified

immunity on plaintiffs’ Fourth Amendment excessive force

claim because plaintiffs’ rights were not clearly

*

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

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

WAID V. COUNTY OF LYON 3

established. First, it was not obvious that defendants were

constitutionally precluded from firing given that they were

responding to an active domestic violence situation, lacked

the benefit of having time to fully assess the circumstances,

and needed to make split-second decisions as they were

being charged.

Second, plaintiffs failed to show controlling authorities

(or a consensus of persuasive ones) that would have put

every reasonable officer on notice that defendants’ conduct

violated the Fourth Amendment. Distinguishing this case

from other cases, the panel noted that Anderson was in a

narrow hall and rapidly approaching the officers, with no

barrier between them. He could have accessed the officers’

weapons at any time or otherwise harmed them. Further, if

the officers took the option to retreat to the house’s

entryway, they would have left Jennifer Anderson—for

whom they had just called an ambulance—alone with her

husband or risked injury themselves if Anderson obtained a

weapon from somewhere in his home.

The panel held that defendants did not violate plaintiffs’

Fourteenth Amendment substantive due process rights

because there was no evidence suggesting that the officers

acted with a purpose to harm unrelated to the legitimate law-

enforcement objective of defending themselves.

Concurring in part and dissenting in part, Judge Berzon

would hold that defendants’ use of force was

unconstitutionally excessive, and they were not entitled to

qualified immunity on the Fourth Amendment claim. The

officers’ repeated, rapid use of deadly force was objectively

unreasonable given that Anderson was unarmed, shirtless,

empty handed, outnumbered, tactically disadvantaged, not

reaching for the officers’ guns, and, when the last two shots

4 WAID V. COUNTY OF LYON

were fired, not moving toward the officers. Additionally,

A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005 (9th

Cir. 2016), established that an officer may not shoot an

unarmed suspect within seconds, multiple times, in rapid

succession, and without warning, if the suspect is not

reaching for a gun—even when the suspect was recently

involved in a domestic violence incident, has not complied

with commands, and quickly closes a short distance between

the officer and the suspect.

Judge Berzon agreed with the majority that the officers

were properly granted qualified immunity on plaintiffs’

Fourteenth Amendment claim.

COUNSEL

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices

of Dale K. Galipo, Woodland Hills, California; Peter

Goldstein, Law Offices of Peter Goldstein, Las Vegas,

Nevada; for Plaintiffs-Appellants.

Katherine F. Parks (argued) and Christine R. Hotchkin,

Thorndal Armstrong PC, Reno, Nevada, for Defendants-

Appellees.

WAID V. COUNTY OF LYON 5

OPINION

R. NELSON, Circuit Judge:

Officers Timothy Wright and Brett Willey responded to

a domestic violence call where they shot and killed Robert

Anderson. Anderson’s estate and family sued Wright,

Willey, and the County of Lyon under 42 U.S.C. § 1983 and

Nevada law. Defendants moved for summary judgment, and

the district court granted qualified immunity to the officers

on the § 1983 claims. We affirm.

I

The events leading to Anderson’s death began with a 911

call. The caller—who did not request emergency medical

care or report any weapons—sought help with a domestic

violence incident. Officers Wright and Willey responded,

and both wore body cameras that recorded the encounter

with Anderson.

Once they arrived at Anderson’s home, Wright knocked

on the door and announced himself. The Andersons’ two

minor children, both distressed, exited the house and spoke

to Wright in the front yard. They told Wright that their

parents were fighting and that their mother needed an

ambulance. Wright called for medics. The Andersons’ son

stated that there were no weapons in the house other than a

BB gun.

Wright walked back to the front door, leaving the

children behind. Willey joined Wright on the porch in front

of the door. Wright recounted what the children had told

him and explained that Anderson was “throwing [Jennifer

Anderson] around.” The officers then entered the home,

with Wright entering first and again announcing himself.

6 WAID V. COUNTY OF LYON

Willey, directly behind Wright, drew his weapon and

pointed it forward as he entered.

As the officers entered the kitchen, Anderson, out of

view, shouted, “Fuck you, punks.” Willey, with his gun still

drawn, moved past Wright toward a hallway to the left of the

kitchen, saw Anderson at the other end of the hallway, and

told him to get on the ground. Wright, now behind Willey,

also drew and pointed his gun in front of him.

Anderson ignored the commands and ran down the short

hallway toward the officers. Willey fired three shots in

quick succession at Anderson as Anderson crossed the

threshold between the short hallway and the kitchen. Wright

fired his weapon twice. Anderson fell to the ground and

began to bleed from his chest as Willey continued to shout

at him, “Get on the ground!” Willey reported the shots and

that the suspect was down. Anderson, who had been shot

five times, died from his injuries.

Plaintiffs sued the officers for (1) violating the Fourth

Amendment by using excessive force; (2) violating the

Fourth Amendment through denying medical care; and (3)

violating the Fourteenth Amendment through unwarranted

state interference with the familial relationship between

Anderson and his wife and children. They also brought three

state-law claims against the officers and the County. The

district court granted qualified immunity to defendants on all

constitutional claims and declined to exercise supplemental

jurisdiction over the state-law claims. Plaintiffs appeal only

the grant of summary judgment on the Fourth Amendment

excessive force claim and the Fourteenth Amendment claim

against the officers.

WAID V. COUNTY OF LYON 7

II

We have jurisdiction under 28 U.S.C. § 1291, and we

review the grant of summary judgment de novo. Desire,

LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir.

2021). Summary judgment is appropriate when the movant

shows “no genuine dispute as to any material fact” and

“entitle[ment] to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “In qualified immunity cases, as in other cases, ‘we

view the facts in the light most favorable to the nonmoving

party.’” Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th

Cir. 2019) (quoting Plumhoff v. Rickard, 572 U.S. 765, 768

(2014)).

III

Qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). It protects

government officials “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, 583 U.S. 48, 62–63 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). We may

address either prong first, see Pearson v. Callahan, 555 U.S.

223, 236–42 (2009), and “may exercise our discretion to

resolve a case only on the second ground when no clearly

established law shows that the officers’ conduct was

unconstitutional,” O’Doan v. Sanford, 991 F.3d 1027, 1036

(9th Cir. 2021).

8 WAID V. COUNTY OF LYON

A

As to plaintiffs’ excessive-force claim, we find the

clearly established prong dispositive. A right is clearly

established when it is “sufficiently clear that every

reasonable official would have understood that what he is

doing violates that right.” Reichle, 566 U.S. at 664 (internal

quotation marks and alterations omitted) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court

“do[es] not require a case directly on point”; it requires

“existing precedent” to “place[] the statutory or

constitutional question beyond debate.” al-Kidd, 563 U.S.

at 741. “Such specificity is especially important in the

Fourth Amendment context, where the Court has recognized

that ‘it is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply

to the factual situation the officer confronts.’” Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (per curiam) (alteration omitted)

(quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).

Cases “cast at a high level of generality” are unlikely to

establish rights with the requisite specificity. Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (per curiam). While a

case addressing general principles may clearly establish a

right “in an obvious case,” id., such obvious cases are “rare,”

Wesby, 583 U.S. at 64. Instead, a clearly established right

usually requires “controlling authority or a robust consensus

of cases of persuasive authority.” Id. at 63 (internal

quotation marks omitted) (quoting al-Kidd, 563 U.S. at 741–

42). Plaintiffs must either explain why their case is obvious

under existing general principles or, more commonly, show

specific cases that control or reflect a consensus of non-

binding authorities in similar situations. See Hopson v.

Alexander, 71 F.4th 692, 698 (9th Cir. 2023) (plaintiff bears

the burden to show that a right is clearly established).

WAID V. COUNTY OF LYON 9

Plaintiffs argue that granting qualified immunity was

improper because genuine disputes of material fact remain,

including whether Anderson was reaching for the officers’

weapons when he was shot. While we cannot resolve

genuine factual disputes at summary judgment, we can

nonetheless evaluate an assertion of qualified immunity “by

assuming that the version of the material facts asserted by

the non-moving party is correct.” Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001) (citing Schwenk v. Hartford, 204

F.3d 1187, 1195 (9th Cir. 2000)).

1

We first conclude that the facts do not show an obvious

violation of Anderson’s constitutional rights, even when

viewed in plaintiffs’ favor.

Those few cases in which courts have found obvious

constitutional violations are instructive. In one case, Hope,

a prison inmate, was chained to a “hitching post” for seven

hours as punishment, during which he was forced to be

shirtless in the hot sun, given water only “once or twice,”

and provided no bathroom breaks. Hope v. Pelzer, 536 U.S.

730, 734–35 (2002). Although the Supreme Court found

that controlling circuit authority clearly established the

Eighth Amendment violation, it noted that “[a]rguably, the

violation was so obvious that [the Court’s] Eighth

Amendment cases gave respondents fair warning that their

conduct violated the Constitution.” Id. at 741. The Court

explained that “[t]he obvious cruelty inherent in this practice

should have provided respondents with some notice that

their alleged conduct violated Hope’s constitutional

protection against cruel and unusual punishment.” Id. at

745.

10 WAID V. COUNTY OF LYON

We have noted that “this obviousness principle, an

exception to the specific-case requirement, is especially

problematic in the Fourth-Amendment context.” Sharp v.

County of Orange, 871 F.3d 901, 912 (9th Cir. 2017). This

is so because a categorical statement that conduct obviously

violates the Fourth Amendment “is particularly hard to make

when officers encounter suspects every day in never-before-

seen ways,” including “countless confrontations . . . that

yield endless permutations of outcomes and responses.” Id.

We thus require Fourth Amendment violations to be

“beyond debate” to be considered obvious. See Hopson, 71

F.4th at 701 (citation omitted). 1

For that reason, we have only found obvious violations

in exceedingly rare circumstances with extreme facts absent

here. For example, we held that the police could not seize

the plaintiffs “for over five hours solely because they were

witnesses to a crime.” Maxwell v. County of San Diego, 708

F.3d 1075, 1083 (9th Cir. 2013). While the witnesses were

seized, the officers had neither “probable cause to arrest” nor

“reasonable suspicion for a temporary Terry detention.” Id.

at 1084. Moreover, “[t]he crime was solved,” no exigencies

justified the detention, and evidence suggested that the

officers “did not perceive” a need to secure the crime scene.

Id. at 1084–85.

We have also held that officers obviously violated the

constitutional rights of a sixth-grade student when they

1

Other circuits apply a similarly high standard. See, e.g., Joseph on

behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 337 (5th Cir. 2020)

(“The standard for obviousness is sky high[.]”); Coffin v. Brandau, 642

F.3d 999, 1015 (11th Cir. 2011) (“‘obvious clarity’ cases” are “rare,” a

“narrow exception,” and “very occasionally encounter[ed]” (internal

citations omitted)).

WAID V. COUNTY OF LYON 11

arrested him even though the child was “compliant and

calm,” committed no known wrongdoing, posed no “threat

to himself or others,” and “engage[d] in no act of resistance.”

C.B. v. City of Sonora, 769 F.3d 1005, 1027 (9th Cir. 2014).

On those facts, we explained that the child’s arrest was “an

obvious violation of the constitutional principle that the

nature of the seizure of a schoolchild must be justified by the

circumstances.” Id.

We recently confirmed that only the rare case will find

that conduct obviously violated the Constitution. For

example, we concluded that a police officer committed an

obvious constitutional violation after he shot and killed a

suspect holding a baseball bat because the suspect was not

facing the officer, was holding the bat pointed downwards,

and was not threatening anyone else when he was shot. See

Est. of Aguirre v. County of Riverside, 29 F.4th 624, 626–27,

629 (9th Cir. 2022). We noted: “Assuming that [the

decedent] posed no immediate threat to [the officer] or

others at the time of his death, this ‘general constitutional

rule’ applies ‘with obvious clarity’ here and renders [the

officer’s] decision to shoot [the decedent] objectively

unreasonable.” Id. at 629 (quoting Hope, 536 U.S. at 741).

Against those cases, the officers here did not obviously

violate Anderson’s right to be free of excessive force. It was

not obvious that the officers’ use of force was objectively

unreasonable “in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397

(1989) (citations omitted). Even assuming that Anderson

was unarmed and not reaching for a weapon, there is no

dispute that he used aggressive language with the officers,

ignored an order from the officers, and rushed towards them

in a small and confined space. It is not obvious that the

officers were constitutionally precluded from firing in this

12 WAID V. COUNTY OF LYON

situation, where they were responding to an active domestic

violence situation, lacked the benefit of having time to fully

assess the circumstances, and needed to make split-second

decisions as they were being charged.

2

Because this case does not present an obvious

constitutional violation, plaintiffs must show controlling

authorities (or a consensus of persuasive ones) that would

have put every reasonable officer on notice that Wright’s and

Willey’s conduct violated the Fourth Amendment. They

have not done so.

In one case, an officer shot an individual nine times,

causing him to fall to the ground. Zion v. County of Orange,

874 F.3d 1072, 1075 (9th Cir. 2017). The officer then fired

nine more rounds into the individual’s body from four feet

away and stomped on his head three times after seeing that

he was still moving on the ground. Id. The decedent’s

mother did not challenge the initial nine shots that brought

the decedent to the ground. Id. Instead, she argued that the

second round and the head-stomping violated the Fourth

Amendment. See id. We explained that “a reasonable

officer would reassess the situation rather than continue

shooting” since the suspect may no longer pose a threat after

he was shot nine times and fell to the ground. Id. at 1076.

Here, Anderson was upright and moving when he was

shot. Although he may have started to fall before the officers

stopped shooting, the shots were fired sequentially, and

Anderson did not fully fall to the ground until after the

shooting stopped. At that point, both officers stopped. The

shots fired here thus are more like the nine shots that the

plaintiff in Zion did not challenge.

WAID V. COUNTY OF LYON 13

Plaintiffs’ other cases are similarly distinguishable. In

Ting v. United States, 927 F.2d 1504, 1507–08 (9th Cir.

1991), FBI SWAT agents went to Ronald Ting’s home to

arrest him. The agents found Ting naked inside his bedroom

with a handgun aimed at them. Id. at 1508. After Ting

complied with an order to drop the gun on the bed, another

agent restrained him next to his bed. Id. As the agents

searched the room, Ting “suddenly pulled his arm free from

Agent Burns’ grasp, stood up, and lunged toward an

unsecured, enclosed dressing area located behind a dividing

wall on the other side of the room.” Id. He was not lunging

toward any of the agents in the room or toward the gun on

the bed. See id. In response, the agent fired one round at

Ting’s back, aiming to kill. Id. We explained that a jury

could find Burns’ use of deadly force unreasonable because

“Ting presents evidence from which a jury could reasonably

conclude that he was shot at close range while in a prone

position or on his hands and knees.” Id. at 1510.

Here, by contrast, Anderson was on his feet when he was

shot. And, unlike Ting, who did not attempt to retrieve his

gun or lunge at the agents searching his room, id. at 1508,

Anderson was quickly approaching Wright and Willey while

ignoring Willey’s command to get on the ground. Even if

Anderson’s hands remained at his side and he never reached

for a weapon, Anderson was rapidly advancing on the

officers and could access their weapons if he was not

stopped. Ting thus provides no harbor.

Plaintiffs’ reliance on A.K.H. ex rel. Landeros v. City of

Tustin, 837 F.3d 1005 (9th Cir. 2016), fares no better. There,

a woman called 911 to report that her ex-boyfriend, Herrera,

took her cell phone after hitting her on the head. Id. at 1008.

She reported that she was unhurt, her children were fine,

paramedics were unnecessary, her boyfriend did not carry

14 WAID V. COUNTY OF LYON

weapons, and he was walking down the road to catch a bus.

Id. The first officer, who drove a large police SUV, spotted

Herrera walking down the road, pulled up behind him,

turned on his lights, and commanded him to stop. Id. at

1009. Herrera did not comply, opting instead to skip, walk,

and run backwards while facing the officer. Id. The officer

continued to follow him in his SUV. Id. A second officer

pulled up and tried to cut off Herrera’s escape route by

driving to Herrera’s other side. Id. The second officer

testified that he did not hear the verbal commands to stop

from the first officer. Id.

During this time, Herrera had his hand in his sweatshirt

pocket. Id. The second officer yelled at Herrera to remove

his hand from his pocket, and as Herrera took his hand out,

the second officer, from his vehicle, shot Herrera twice. Id.

We held the force was excessive because the domestic

violence incident was clearly over. Herrera was not a threat

to either his ex-girlfriend or the officers when he was shot,

the officers had no reason to believe he was armed, and the

second officer unreasonably escalated to deadly force

without warning while Herrera was complying. Id. at 1011–

13.

This case is very different. While Herrera left the scene

of the domestic altercation before he encountered the

officers, id. at 1011, Anderson was in his home and possibly

near his wife, whose physical condition was unknown.

Unlike in A.K.H., where the decedent’s ex-girlfriend told the

officers herself that she “was not hurt” and “did not need

paramedics,” id. at 1008, Anderson’s children told the

officers that their mom needed an ambulance. Further, the

officers in A.K.H. were in their cars, which provided a

physical barrier between themselves and Herrera that would

have prevented Herrera from easily accessing their weapons.

WAID V. COUNTY OF LYON 15

See id. at 1009. Here, Anderson was in a narrow hall and

rapidly approaching the officers, with no barrier between

them. He could have accessed the officers’ weapons at any

time or otherwise harmed them. Further, if the officers took

the option to retreat to the house’s entryway, as plaintiffs

suggest, they would have left Jennifer Anderson—for whom

they had just called an ambulance—alone with her husband

or risked injury themselves if Anderson obtained a weapon

from somewhere in his home. The facts in A.K.H. thus differ

materially from the situation Wright and Willey walked into

with Anderson. A.K.H. did not clearly establish the law on

the facts we face here.

Finally, in Cruz v. City of Anaheim, a confidential

informant told the police that Cruz was a gang member who

sold methamphetamine, carried a gun, had a past felony

conviction, and said that “he was not going back to prison.”

765 F.3d 1076, 1077–78 (9th Cir. 2014). Multiple police

officers pulled Cruz over for a broken taillight. Id. at 1078.

The officers surrounded him, and Cruz tried to escape by

backing his SUV into a marked patrol car. Id. The officers

exited their vehicles with their guns lowered and ordered

Cruz to get on the ground. Id. According to the officers,

Cruz exited his car, ignored their commands, and reached for

the waistband of his pants, prompting all five officers to

open fire. Id. But some facts in the record undermined that

account. A bystander on the other side of Cruz’s vehicle

witnessed the shooting but was unable to see if Cruz in fact

reached toward his waistband because Cruz’s car blocked his

view. Id. The officers fired twenty shots in about two to

three seconds, killing Cruz. See id. His body was found

“tangled in his seat belt and hanging from it.” Id. The

officers did not find a weapon on him but recovered a loaded

gun from the passenger seat. Id.

16 WAID V. COUNTY OF LYON

We reversed the grant of summary judgment to the

officers because of multiple disputed facts. The case came

down to whether a jury would believe the officers given

several pieces of evidence that undermined their account.

Cruz was unarmed when he died. An officer present had

shot a different suspect under the same set of facts. Many

officers reported Cruz used his right hand to reach when

Cruz was left-handed. And Cruz’s body was tangled in the

seat belt and had to be cut free, suggesting he could not have

exited and turned toward the officers. Id. at 1079–80. In

explaining these material disputes of fact, we stated,

[I]f the suspect doesn’t reach for his

waistband or make some similar threatening

gesture, it would clearly be unreasonable for

the officers to shoot him after he stopped his

vehicle and opened the door. At that point,

the suspect no longer poses an immediate

threat to the police or the public, so deadly

force is not justified.

Id. at 1078–79.

Unlike in Cruz, even the facts most favorable to

Anderson suggest that he ignored multiple commands and

was quickly approaching the officers. And given that the

officers were responding to a domestic violence incident and

were told that the mother needed an ambulance, this case

also differs from other cases involving officer responses to

claims of domestic violence on which plaintiffs rely. In

those cases, the domestic violence incident was clearly over

when force was used. See George v. Morris, 736 F.3d 829,

839 (9th Cir. 2013) (“Carol was unscathed and not in

jeopardy when deputies arrived.”); Mattos v. Agarano, 661

WAID V. COUNTY OF LYON 17

F.3d 433, 449–51 (9th Cir. 2011) (en banc) (“the domestic

dispute [was] seemingly over” at the time of the

investigation); Smith v. City of Hemet, 394 F.3d 689, 703

(9th Cir. 2005) (en banc) (“Smith was standing on his porch

alone and separated from his wife.”).

Willey and Wright also had less control of the scene than

the officers in Cruz. Those police officers surrounded Cruz

with their cars, preventing his escape. By contrast, Willey

and Wright were both on one side of the hallway, leaving

Anderson free to go back toward the rest of the house where

his wife presumably was located, possibly trapped or

injured. And, in Cruz, five officers were present, while

Willey and Wright were alone. See Thompson v. Rahr, 885

F.3d 582, 590 (9th Cir. 2018) (presence of two deputies

rather than six police vehicles was a distinguishing factor for

clearly established law analysis). Cruz’s facts differ

significantly from those here.

Because none of the cases on which plaintiffs rely are

sufficiently analogous, we conclude that they cannot put a

reasonable officer on notice that the use of deadly force here

would be unconstitutional. Thus, the officers are entitled to

qualified immunity.

B

The district court also properly concluded that the

officers did not violate the Andersons’ Fourteenth

Amendment substantive due process rights. Under the

Fourteenth Amendment, the children of a decedent

“generally have the right to assert substantive due process

claims.” Wheeler v. City of Santa Clara, 894 F.3d 1046,

1057 (9th Cir. 2018) (citations omitted). Our cases

“recognize[] a fundamental liberty interest in the

companionship and society of one’s child for which the

18 WAID V. COUNTY OF LYON

state’s interference with that liberty interest without due

process of law is remediable under 42 U.S.C. § 1983.”

Sinclair v. City of Seattle, 61 F.4th 674, 678–79 (9th Cir.

2023) (internal quotation marks and alterations omitted).

But “[o]nly official conduct that ‘shocks the conscience’ is

cognizable as a due process violation.” Id. at 680 (quoting

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

Liability turns on “whether the circumstances are such

that ‘actual deliberation is practical.’” Moreland v. Las

Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir.

1998) (quoting County of Sacramento v. Lewis, 523 U.S.

833, 851 (1998)). “[W]here a law enforcement officer

makes a snap judgment because of an escalating situation,

his conduct may only be found to shock the conscience if he

acts with a purpose to harm unrelated to legitimate law

enforcement objectives.” Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010) (citing Porter, 546 F.3d at 1140). By

contrast, “[w]here actual deliberation is practical, then an

officer’s ‘deliberate indifference’ may suffice to shock the

conscience.” Id. (quoting Porter, 546 F.3d at 1137).

The purpose-to-harm standard applies here because

Wright and Willey had to make “a snap judgment because of

an escalating situation.” Id. Seconds after entering the

home, the officers encountered Anderson approaching

quickly toward them. This left little time for actual

deliberation. On these facts, the officers’ actions do not

shock the conscience. No evidence suggests that the officers

“acted with a purpose to harm unrelated to the legitimate

law-enforcement objective of defending themselves.”

Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir.

2013). Thus, Wright and Willey did not violate the

Fourteenth Amendment.

WAID V. COUNTY OF LYON 19

IV

Defendants are entitled to qualified immunity on the

Fourth Amendment claim because plaintiffs’ rights were not

clearly established. And the officers did not violate the

Fourteenth Amendment.

AFFIRMED.

BERZON, Circuit Judge, concurring in part and dissenting

in part:

Yet again, we have before us a case concerning a

confrontation between a civilian and the police resulting in a

tragic death. Officers Timothy Wright and Brett Willey,

responding to a report of a domestic violence incident, shot

and killed Robert Anderson in his home. Anderson’s estate

and family (“Waid”) sued the officers and their employer

Lyon County under 42 U.S.C. § 1983 and Nevada law.

Reviewing de novo the district court’s grant of qualified

immunity, I would reverse in part and affirm in part. In my

view, the officers’ use of force was unconstitutionally

excessive and the officers are not entitled to qualified

immunity on Waid’s Fourth Amendment claim. As to those

issues, I respectfully dissent. I agree with the majority that

the officers were properly granted qualified immunity on

Waid’s Fourteenth Amendment familial interference claim

and so concur in the portion of Part IV of the majority

opinion discussing that claim.

I. Background

On September 2, 2019, an emergency dispatcher radioed

local law enforcement about a domestic violence incident in

20 WAID V. COUNTY OF LYON

Silver Springs, Nevada. The dispatch explained that no

weapons were involved and that no medics had been

requested. The incident reportedly involved a man who had

been drinking and a woman, later identified respectively as

Robert Anderson and Jennifer Anderson, his wife.

Officers Timothy Wright and Brett Willey (“the

officers”) responded to the call. At the time of the incident,

Wright was 5’10” and weighed approximately 195 pounds.

Willey was 5’8” and weighed approximately 205 pounds.

Both officers were equipped with a firearm, a taser, and a

police baton, and Wright carried pepper spray as well.

Wright was the first to arrive at the home of Jennifer and

Robert Anderson. When he got there, Wright knocked on the

front door of the home and announced, “Sherriff’s Office.”

The Andersons’ two children, M.R.A. and S.G.A., came out.

The Andersons’ daughter reported to Wright that she thought

her mother needed an ambulance. Wright then turned to the

Andersons’ son and asked if there were any guns in the

house. There was only a BB gun, the son stated, and his

father had not taken it out.

Willey arrived at the home seconds after Wright’s

conversation with the children. Wright was standing at the

Andersons’ front door as Willey approached the porch.

Wright told Willey that Jennifer Anderson may need an

ambulance and that Anderson was “throwing [Jennifer

Anderson] around.” Willey asked: “Currently?,” and Wright

repeated: “Throwing the girl around.” The officers’

exchange lasted approximately ten seconds.

Wright then again announced, “Sherriff’s Office,” and

pushed the Andersons’ front door open. Willey, who was

initially behind Wright, drew and pointed his firearm before

entering the home; Wright put his hand on his firearm but

WAID V. COUNTY OF LYON 21

left it holstered. Down a hallway that began at the kitchen

and went left, Anderson yelled, out of sight of the officers,

“Fuck you, punks!” Willey immediately rushed forward past

Wright, through the kitchen and toward the hallway, with his

gun pointed forward and the attached light on. The lights

were on in the kitchen, sunlight was coming through the

windows, and the interior of the house was clearly

illuminated in the body camera footage. At the corner where

the kitchen met the hallway, Willey turned left and saw

Anderson, and no one else, in the hallway. Anderson was

5’8” and weighed 185 pounds; he was unarmed and shirtless;

both of his hands were visible and open; and there was

nothing to be seen in his hands or his waistband. 1 Upon

seeing Anderson, Willey shouted to him: “Get down! Get

down on the ground right now!”

Anderson started moving quickly down the hallway—

characterized as “charging” by the officers—in a straight

line; at no point did he change direction or, according to

Wright’s testimony and a reasonable view of the body

camera footage, attempt to reach Willey’s gun. As Anderson

traveled down the hallway and into the kitchen, Willey,

1

The parties have disputed whether Anderson’s hands were visible,

whether Anderson’s hands were clenched, whether Anderson reached for

Willey’s gun, and whether Anderson was alone in the hallway. On a

motion for summary judgment, all evidence and reasonable inferences

are construed in the light most favorable to the non-moving party. See

Lowry v. City of San Diego, 858 F.3d 1248, 1254 (9th Cir. 2017) (en

banc); Scott v. Harris, 550 U.S. 372, 380 (2007). Waid’s characterization

of the facts is largely confirmed by the body camera footage, Wright’s

testimony, and Waid’s expert’s declaration, which was based on the

body camera footage and relevant documents and reports. So I assume

that Anderson’s hands were visible, Anderson’s hands were not

clenched, Anderson did not reach for Willey’s gun, and Anderson was

alone in the hallway.

22 WAID V. COUNTY OF LYON

without warning and in rapid succession, fired three shots.

Willey fired the first shot from a distance of approximately

three to five feet as Anderson reached the end of the hallway;

he fired the second shot at near point-blank range as

Anderson passed in front of him; and he fired the third shot

at Anderson’s back as Anderson fell forward into the

kitchen. Wright fired a single shot at Anderson, after Willey

fired his first two shots and after Anderson had passed

Willey and entered the kitchen. 2

As the result of the several gunshot wounds, Anderson

lay sprawled on the kitchen floor bleeding profusely, while

Willey repeatedly yelled at him to “get on the ground.”

Willey then radioed in the incident and told Jennifer

Anderson, who had emerged from the back of the hallway

after the gunshots were fired, to stay in place. Willey kept

his gun aimed at Anderson, still lying on the kitchen floor

and bleeding, and again instructed him to “stay down.”

The special administrators of Anderson’s estate, Jennifer

Anderson, and the Andersons’ minor children sued Lyon

County, Wright, and Willey, alleging claims under Section

1983 and Nevada law. Under Section 1983, Waid alleged, as

here pertinent, the use of excessive force by the officers in

violation of the Fourth Amendment. The officers moved for

summary judgment on that claim. The district court granted

summary judgment to the officers on Waid’s excessive force

claim, holding that Wright and Willey did not commit any

2

Wright testified that he fired his shot after Willey had fired two shots

and when Anderson was in the kitchen. Waid’s expert declared that

Wright fired his shot “[a]t the same time” as Willey’s second shot. I

adopt Wright’s version for present purposes, as it favors Waid. See

Lowry, 858 F.3d at 1254.

WAID V. COUNTY OF LYON 23

constitutional violation and were entitled to qualified

immunity.

II. Discussion

We review a district court’s grant of qualified immunity

on summary judgment de novo. Hughes v. Rodriguez, 31

F.4th 1211, 1218 (9th Cir. 2022). “Because the excessive

force inquiry nearly always requires a jury to sift through

disputed factual contentions, and to draw inferences

therefrom, we have held on many occasions that summary

judgment . . . in excessive force cases should be granted

sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th

Cir. 2005) (en banc) (alterations and citation omitted). “This

principle applies with particular force where the only witness

other than the officers was killed during the encounter,” as

“the witness most likely to contradict [the officers’] story—

the person shot dead—is unable to testify.” Gonzalez v. City

of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc)

(quoting in part Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994)).

In resolving whether Wright and Willey are entitled to

qualified immunity, we ask two questions: first, whether the

officers—when the evidence and all reasonable inferences

are viewed in the light most favorable to Waid—violated a

constitutional right, and second, whether that constitutional

right was “clearly established” at the time of the

constitutional violation. Peck v. Montoya, 51 F.4th 877, 887

(9th Cir. 2022).

A. Constitutional Violation

Graham v. Connor, 490 U.S. 386 (1989), established the

framework for evaluating whether the officers used

24 WAID V. COUNTY OF LYON

excessive or reasonable force against Anderson. Sitting en

banc, we explained how to apply Graham in such cases:

We apply Graham by first considering the

nature and quality of the alleged intrusion; we

then consider the governmental interests at

stake by looking at (1) how severe the crime

at issue is, (2) whether the suspect posed an

immediate threat to the safety of the officers

or others, and (3) whether the suspect was

actively resisting arrest or attempting to

evade arrest by flight. As we have previously

explained, “[t]hese factors, however, are not

exclusive. Rather, we examine the totality of

the circumstances and consider whatever

specific factors may be appropriate in a

particular case, whether or not listed in

Graham.”

Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en

banc) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th

Cir. 2010)) (citations omitted).

We have considered several factors beyond the

enumerated Graham factors when evaluating the totality of

the circumstances. First, “an officer must give a warning

before using deadly force ‘whenever practicable.’”

Gonzalez, 747 F.3d at 794 (quoting Harris v. Roderick, 126

F.3d 1189, 1201 (9th Cir. 1997)). Second, the availability of

“‘clear, reasonable and less intrusive alternatives’ to the

force employed . . . ‘militate[s] against finding [the] use of

force reasonable.’” Glenn v. Washington County, 673 F.3d

864, 876 (9th Cir. 2011) (quoting Bryan, 630 F.3d at 831).

Third, the length of time before an officer escalates to deadly

force can inform our inquiry. See A.K.H. ex rel. Landeros v.

WAID V. COUNTY OF LYON 25

City of Tustin, 837 F.3d 1005, 1012 (9th Cir. 2016). Fourth,

an officer’s repeated use of force in a short time span can

weigh toward a Fourth Amendment violation. See Mattos,

661 F.3d at 445.

Taken together, the foregoing factors in my view

demonstrate beyond doubt that Willey and Wright

unreasonably used deadly force against Anderson.

1. Nature and Quality of the Alleged Intrusion

The officers’ intrusion on Anderson’s Fourth

Amendment interests was “unmatched.” Tennessee v.

Garner, 471 U.S. 1, 9 (1985). “The use of deadly force

implicates the highest level of Fourth Amendment interests

both because the suspect has a ‘fundamental interest in his

own life’ and because such force ‘frustrates the interest of

the individual, and of society, in judicial determination of

guilt and punishment.’” A.K.H., 837 F.3d at 1011 (quoting

Garner, 471 U.S. at 9). Such an “extreme” intrusion, id., “is

reasonable only if ‘the officer has probable cause to believe

that the suspect poses a significant threat of death or serious

physical injury to the officer or others,’” Gonzalez, 747 F.3d

at 793 (quoting Scott, 39 F.3d at 914).

2. Governmental Interests at Stake

The severity of Anderson’s alleged crime did not justify

the officers’ use of deadly force. Domestic violence

incidents are volatile and dangerous, as “violence may be

lurking and explode with little warning” in such situations.

See Mattos, 661 F.3d at 450 (quoting United States v.

Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)). But

“domestic disputes do not necessarily justify the use of even

intermediate let alone deadly force.” A.K.H., 837 F.3d at

1011.

26 WAID V. COUNTY OF LYON

Two factors suggest that the officers’ use of deadly force

was unwarranted considering the circumstances of

Anderson’s alleged crime. First, the officers did not shoot

Anderson to protect his wife. See A.K.H., 837 F.3d at 1011;

Smith, 394 F.3d at 702–03. On a reasonable view of the body

camera footage, Anderson was alone when Wright and

Willey confronted him. At the time of the shooting,

Anderson was moving away from his wife’s presumed

location and was not actively engaged in a domestic dispute.

So his wife was not “in jeopardy” at the time of the shooting.

A.K.H., 837 F.3d at 1011 (quoting George v. Morris, 736

F.3d 829, 839 (9th Cir. 2013)). Consistent with these

undisputed facts, the officers do not argue that they used

deadly force against Anderson to protect his wife.

Second, Anderson was unarmed throughout the incident,

according to the emergency dispatcher, the Andersons’ son,

and the officers’ body camera footage. See Smith, 394 F.3d

at 702–03; Peck, 51 F.4th at 887–88. Although Anderson

moved quickly down the hallway upon seeing Willey, “[h]e

had no guns or other weapons in his possession and there

were none in the house.” 3 Smith, 394 F.3d at 703. The lack

of weapons on Anderson’s person throughout the domestic

dispute and shooting weighs significantly against the use of

deadly force.

Nor did Anderson pose an immediate threat of death or

serious physical injury, as required for the use of deadly

force under the second and most important Graham factor.

See Gonzalez, 747 F.3d at 793; Peck, 51 F.4th at 887.

Anderson was unarmed and shirtless. His hands were

unclenched and visible. He did not verbally threaten the

officers, although he cursed at them, and he did not reach for

3

Except the stored-away BB gun reported by the Andersons’ son.

WAID V. COUNTY OF LYON 27

Willey’s gun while moving down the hallway, according to

Wright’s testimony and a reasonable interpretation of the

body camera footage. Waid’s expert—a police-practices

specialist who served as a law-enforcement officer and

instructor for 37 years—concluded, after reviewing the

officers’ body camera videos, depositions of Willey and

Wright, and relevant reports and documents, that Anderson

“demonstrated no assaultive behavior toward the [officers]”

and “made no effort to attack or even make contact with

Willey.”

As to the officers’ vulnerability, the officers

outnumbered Anderson and were each larger than him. Each

officer was armed with several lethal and nonlethal weapons,

including tasers and police batons. The officers were trained

in gun-retention techniques and could have holstered their

guns and tried physically to subdue Anderson before

resorting to deadly force. And as evidenced by the ground

covered by Willey when he rushed forward to confront

Anderson, the officers had the option to retreat to the

entryway of the house. Accordingly, Anderson, an unarmed

and outnumbered suspect, did not pose an immediate threat

of death or serious bodily injury to the armed and tactically

advantaged Wright and Willey, and the officers did not have

cause to believe otherwise.

The remaining factor is that Anderson did not get on the

ground when ordered to do so and instead moved quickly

down the hallway. Contrary to the majority’s version of the

facts, Anderson was ordered once, not “multiple” times, to

get on the ground as he approached the officers. Majority

Op. at 16. And the body camera video shows that Anderson

was shot one second after that command to get down. His

failure to comply that fast—if he could even have done so

28 WAID V. COUNTY OF LYON

that quickly—did not justify the use of deadly force against

him. See A.K.H., 837 F.3d at 1012.

In sum, the enumerated Graham factors weigh strongly

toward the conclusion that Wright and Willey used excessive

force against Anderson.

3. Additional Factors

Each of the additional factors that has been used in

Graham analyses confirms the unreasonableness of Willey

and Wright’s actions.

First, the officers did not warn Anderson that they would

use deadly force. The absence of a warning does not

automatically make the use of deadly force unreasonable.

Gonzalez, 747 F.3d at 797. But an officer’s failure to give a

warning before using deadly force “whenever practicable,”

id. at 794 (quoting Harris, 126 F.3d at 1201), is a factor

strongly favoring a finding that excessive force was used.

Here, considering that the officers were able to issue the

command to get down to Anderson—“Get down! Get down

on the ground right now!”—before discharging their

firearms, a jury could find that it was practicable for the

officers to warn Anderson that they would use deadly force

before shooting, e.g., “Get down or we’ll shoot.”

Second, less intrusive means of force were available.

Although “officers need not avail themselves of the least

intrusive means of responding to an exigent situation,”

“police are required to consider what other tactics if any

were available, and if there were clear, reasonable and less

intrusive alternatives to the force employed, that militates

against finding the use of force reasonable.” Glenn, 673 F.3d

at 876 (quoting Scott, 39 F.3d at 915, and Bryan, 630 F.3d at

831) (internal quotation marks and alterations omitted).

WAID V. COUNTY OF LYON 29

Here, other “clear, reasonable, and less intrusive

alternatives” to shooting Anderson were available, given that

the domestic abuse was not occurring at the time the officers

confronted Anderson and that Anderson was not armed. See

supra, at 20–21, 26. Rather than use deadly force from the

get-go, the officers could have tried using nonlethal force

(e.g., their tasers); engaging in tactical retreat; or holstering

their weapons and physically subduing Anderson. In his

declaration, Waid’s expert explained that Willey and Wright

could have employed a “contact and cover” arrangement. In

such an arrangement, after calling out “contact and cover” at

the Andersons’ door, Willey would have entered the house

first with his taser in hand and Wright would have covered

Willey from behind with his firearm, using deadly force only

if necessary. 4 The officers’ failure to use available,

reasonable, and less-than-lethal alternatives supports the

conclusion that their use of deadly force against Anderson

was unreasonable.

Third, the officers immediately—in the one second after

Anderson was first commanded to “get down”—escalated to

deadly force. Our decision in A.K.H. ex rel. Landeros v. City

of Tustin concluded that the “less than a minute” gap

between the officer’s initial contact with the suspect and the

officer’s firing of his weapon was “perhaps [the] most

important” factor in determining that the officer used

excessive force against the suspect. 837 F.3d at 1012. Within

that short gap, “[l]ess than a second elapsed between [the

officer] commanding [the suspect] to take his hand from his

pocket and [the officer] shooting him. [The officer] neither

warned [the suspect] that he was going to shoot him, nor

4

“Contact and cover” is “a tactic that all police officers receive training

on,” as Waid’s expert explained. Willey received training on that tactic.

30 WAID V. COUNTY OF LYON

waited to see if there was anything in [the suspect]’s hand.”

Id.

The logic in A.K.H. applies with equal force in the

present dispute. Willey drew his firearm before entering the

Andersons’ home, commanded Anderson to get on the

ground, and, starting one second after that command, fired

multiple shots at an unarmed Anderson without warning—

with Wright adding his own shot—all within a matter of

seconds. Willey and Wright’s immediate escalation to

deadly force against an unarmed suspect supports a

determination that the officers’ actions were unreasonable.

Finally, Wright and Willey fired four shots at Anderson

in the span of seconds, at least two of which—Willey’s last

shot and Wright’s only shot—were fired after Anderson

plainly posed no objective threat whatever to the officers. In

Mattos v. Agarano, we held that an “overwhelmingly salient

factor” in deciding that the officer-defendants used

excessive force was that the officers tased the suspect three

times in less than one minute. 661 F.3d at 445. “Three

tasings in such rapid succession,” we explained, “provided

no time for [the suspect] to recover from the extreme pain

she experienced, gather herself, and reconsider her refusal to

comply.” Id. And in Tabares v. City of Huntington Beach,

we held that a reasonable jury could find the “number of

shots” fired by an officer to be unreasonable “even had an

initial threat existed,” where the suspect had already been

shot multiple times and the officer “did not give [the suspect]

any time to understand or comply with [his] command

before firing the [final] shot.” 988 F.3d 1119, 1130 (9th Cir.

2021) (citing Zion v. County. of Orange, 874 F.3d 1072,

1076 (9th Cir. 2017)).

WAID V. COUNTY OF LYON 31

A jury could find in this case, as in Mattos and Tabares,

that the number of shots fired by Wright and Willey was

excessive and served no reasonable purpose. Willey fired his

third shot at Anderson’s back after Anderson had already

passed Willey and was collapsing into the kitchen. Wright

fired his only shot at Anderson after Willey had fired his

second shot at Anderson and after Anderson had entered the

kitchen and was no longer heading toward the officers.

Moreover, Anderson did comply with the “get down” order

after Willey’s second shot, whether willingly or because he

was injured and could no longer stand, and yet was shot

twice more. The number of shots fired—especially after

Anderson could reasonably be understood to pose no danger

to either officer—weighs, once again, toward a finding of

excessive force.

* * *

A full analysis of the record demonstrates that Willey

and Wright used excessive force against Anderson in

violation of the Fourth Amendment. Despite Anderson’s

quick movement toward the kitchen, the officers’ repeated,

rapid use of deadly force was objectively unreasonable given

that Anderson was unarmed, shirtless, empty handed,

outnumbered, tactically disadvantaged, not reaching for the

officers’ guns, and, when the last two shots were fired, not

moving toward the officers. The Fourth Amendment does

not countenance a predictably deadly seizure in such

circumstances.

B. Clearly Established Law

The next step in the qualified immunity analysis—and

the only one undertaken by the majority—is to examine

whether the constitutional right violated by Wright and

32 WAID V. COUNTY OF LYON

Willey was clearly established at the time that they shot

Anderson. See Majority Op. at 8–17.

I first note that, as my colleagues in the majority did not

undertake a constitutional merits analysis, their “clearly

established law” analysis is conducted in a vacuum. That is,

my merits analysis highlights the key aspects of the factual

circumstances that in my view give rise to the conclusion

that the force used was excessive. One can then look at the

law established at the time of the events with a focus on how

the case law treated circumstances similar as to the factors

that rendered the force used unreasonable. Otherwise, the

tendency is—as the majority opinion here illustrates—to

treat precedent as distinguishable, and therefore as not

clearly establishing pertinent law, by focusing on peripheral

facts that differ from those in the case before the court but

do not illuminate whether the force used in that case was

unreasonable.

Further, although, to constitute clearly established law,

“[t]he ‘rule’s contours must be so well defined that it is clear

to a reasonable officer that his conduct was unlawful in the

situation he confronted,’” Peck, 51 F.4th at 887 (quoting City

of Tahlequah v. Bond, 585 U.S. 9, 12 (2021) (per curiam), a

case “directly on point” is not required, Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). Without such a case, “officials

may ‘still be on notice that their conduct violates established

law even in novel factual circumstances,’” particularly in the

Fourth Amendment context. Bonivert v. City of Clarkston,

883 F.3d 865, 872 (9th Cir. 2018) (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)). Only a “high degree of

specificity” in prior case law defining the right is required.

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)

(quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per

curiam)) (internal quotation marks omitted). Courts should

WAID V. COUNTY OF LYON 33

generally “identify a case where an officer acting under

similar circumstances was held to have violated the Fourth

Amendment,” id. (quoting White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam)) (ellipses omitted), where the “similar

circumstances” are those that in the prior case gave rise to

the conclusion that the force used was unreasonable.

Here, there is such a case. This court’s decision in A.K.H.

ex rel. Landeros v. City of Tustin established that an officer

may not shoot an unarmed suspect several times—in rapid

succession and without warning—when the suspect is not

reaching for a gun, even if the suspect is involved in a

domestic violence incident, is noncompliant with an order to

get down, and is quickly moving toward the officer. See 837

F.3d at 1008–09, 1011–13. This ruling offered sufficient

notice to Willey and Wright that they used excessive force

against Anderson to preclude qualified immunity on Waid’s

excessive force claim.

In A.K.H., as in the present case, the emergency

dispatcher reported a domestic violence incident involving a

man and a woman, with no weapons present. Id. at 1008.

According to the dispatch relayed to officers in A.K.H., the

suspect was a known gang member, possibly had a $35,000

traffic warrant out for his arrest, and was on parole for a state

drug possession offense. Id. at 1008–09. Two officers

responded to the 911 call in their vehicles as the suspect was

walking down the road from the apartment where he had

allegedly assaulted his ex-girlfriend. Id. at 1009.

The first officer to encounter the suspect turned on his

SUV’s red lights, drew his gun, and told the suspect three

times to “get down,” using his car’s loudspeaker. Id. The

suspect, who had put his right hand in his sweatshirt pocket,

did not comply and continued moving away from the

34 WAID V. COUNTY OF LYON

officer’s SUV. Id. The second officer then drove forward

past the first officer’s car to box the suspect in, held his gun

with the front passenger window open, and shouted at the

suspect to “get your hand out of your pocket.” Id.

While moving quickly toward the second officer’s car,

the suspect began removing his right hand from his pocket

in “an arcing motion over his head.” Id. Within a second of

issuing his command, the second officer fired two shots at

the suspect, without warning and in rapid succession. Id.; see

also id. at 1012. The suspect died as a result of his wounds.

Id. at 1008. The second officer testified that he shot the

suspect because he “believe[ed] that he had a weapon and he

was going to use that weapon on [him]” as the suspect’s right

hand had been “concealed” in his pocket with a “heavy”

object, and the suspect “charged [him] or shortened the

distance or closed the distance at [his] passenger window

very quickly.” Id. at 1009 (alterations in original). Both

officers later stated that they never saw anything in the

suspect’s hands, and the suspect was confirmed after the

incident to have been unarmed. Id.

We denied qualified immunity to the shooting officer. Id.

at 1013. Evaluating the Graham factors in conjunction with

the officer’s rapid escalation to deadly force, we concluded

that the “the intrusion on [the suspect]’s interests

substantially outweighed any interest in using deadly force”

and held that the officer violated clearly established Fourth

Amendment law when he shot and killed the suspect. Id. We

noted that the Supreme Court’s decision in Garner

established that a “police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.” Id. (quoting

Garner, 471 U.S. at 11).

WAID V. COUNTY OF LYON 35

A.K.H. controls our analysis here. The striking

similarities between A.K.H. and the current dispute compel

the same conclusion regarding the officers’ entitlement to

qualified immunity. In both cases:

• a dispatcher reported a domestic violence call;

• no weapons were involved in the domestic incident;

• two officers responded to the call;

• the officers did not together establish a tactical

approach to handle the situation;

• the second officer rushed forward to confront the

suspect with his weapon drawn;

• the suspect did not comply with officer command(s)

to “get down”;

• the suspect was unarmed;

• the suspect quickly closed the distance between

himself and the relevant officers (i.e., Willey and

Wright in this case, the second officer in A.K.H.)—

in the officers’ words in both cases, the suspect

“charged” at the officers;

• the suspect did not reach for a gun;

• the relevant officers stated that they believed that the

suspect was either armed or about to arm himself;

• the officers had the option to retreat or to use less-

than-lethal force; and

• instead, the relevant officers shot the suspect several

times within seconds of encountering him and

without giving any warning.

Under our precedent, no more—and in fact, far less—

similarity to the relevant precedent is needed to demonstrate

that clearly established law was violated. We have denied

qualified immunity to officers solely on the principle that an

36 WAID V. COUNTY OF LYON

officer may not shoot a person who is unarmed and not

reaching for a weapon, without requiring other factual

parallels to the cases establishing that principle. See Peck, 51

F.4th at 887–88. We have determined that a Ninth Circuit

case holding that “use of a taser in drive-stun mode on a

person who actively resisted arrest, but posed no immediate

threat to the safety of the officers or others” was sufficiently

specific to establish a constitutional violation for qualified

immunity purposes, again without discussing other factual

similarities or dissimilarities between the two cases. See

Bonivert, 883 F.3d at 879–81 (internal quotation marks

omitted). With exceedingly similar facts to the present case

and a constitutional holding establishing the officer’s

wrongs, A.K.H. easily clears the bar set by our precedent on

clearly established law. A.K.H. provided pellucid notice to

reasonable police officers that shooting and killing Anderson

in the circumstances confronting Willey and Wright violated

Anderson’s Fourth Amendment rights.

Additional precedent underscores this conclusion,

confirming elements of the rule determined by A.K.H. and

highlighting the clearly established nature of the right

violated by Wright and Willey.

For instance, our decision in Cruz v. City of Anaheim,

established that an officer may not shoot a noncompliant

suspect several times, in rapid succession and without

warning, so long as the suspect was not reaching for a

weapon. See 765 F.3d 1076, 1077–79 (9th Cir. 2014).

Indeed, we have held that “Cruz establishe[d] that officers

may not fire at a suspect—even an armed suspect—absent

some reason to believe that the suspect will soon access or

use the weapon”; we therefore denied qualified immunity to

officer-defendants who shot and killed a suspect when the

suspect was not reaching toward a gun when shot. Peck, 51

WAID V. COUNTY OF LYON 37

F.4th at 888 (emphasis added). Here, Wright and Willey

repeatedly shot Anderson without warning even though

Anderson was unarmed and, a jury could conclude, not about

to arm himself, considering that: Anderson did not reach for

Willey’s gun; Anderson gave no indication that he intended

to arm himself as he approached and passed Willey; and,

even if Anderson had sought to arm himself by reaching for

Willey’s gun, Wright and Willey had numerous ways to

prevent Anderson from doing so, including their gun-

retention techniques and the option to retreat. See supra, at

20–22, 26–28.

Further, in Zion v. County of Orange, we explained that

the use of deadly force against a suspect who “no longer

posed an immediate threat . . . violated long-settled Fourth

Amendment law.” 874 F.3d 1072, 1076 (9th Cir. 2017). At

an absolute minimum, Zion, together with A.K.H., clearly

established that Wright and Willey used excessive force

against Anderson when they fired shots at him after he was

already in the kitchen, was past the officers, and was falling

to the ground injured and bleeding.

The majority’s reasons for rejecting A.K.H. and the other

supporting cases as clearly established law are not

persuasive.

First, the majority maintains that A.K.H. did not put

Willey and Wright on notice that their use of force was

excessive, and so unconstitutional, because in A.K.H. “the

domestic violence incident was clearly over.” Majority Op.

at 14; see id. at 16 (distinguishing cases where “the domestic

violence incident was clearly over when force was used”).

But, on the record viewed in the light most favorable to

Waid, the domestic dispute in this case was likewise not

ongoing when the officers encountered Anderson. See supra,

38 WAID V. COUNTY OF LYON

at 20–21, 26. Anderson was alone in the hallway and moving

away from his wife’s presumed location when Wright and

Willey shot him. See supra, at 21–22, 26. In other words,

even though the domestic dispute was reportedly ongoing

when the officers arrived at the Andersons’ home, in both

A.K.H. and this case, the officers’ use of deadly force at the

time they deployed the force was completely disconnected

from the exigencies of the domestic dispute. In both cases,

the force was not used to protect the victim of the dispute

and so was not justified by the precipitating domestic

violence situation.

Second, the majority maintains that A.K.H. is

distinguishable because the officers in that case were outside

and in vehicles. See Majority Op. at 14–15. But the “clearly

established law” inquiry does not require us to parse

differences at this level of detail unless such detail is

pertinent to the unreasonable force analysis.

In Peck, for example, we denied qualified immunity to

the officer-defendants because Cruz established that an

officer may not use deadly force against a suspect who “was

not armed . . . and was not about to become armed.” Peck,

51 F.4th at 888 (emphasis omitted). There were pronounced

factual differences between the two cases: unlike in Cruz,

the suspect in Peck had pointed a gun at someone only

moments before the officers arrived on the scene, and unlike

in Peck, the suspect in Cruz was surrounded by police

vehicles. But those differences played no role in our

qualified immunity analysis in Peck. See Peck, 51 F.4th at

883; Cruz, 765 F.3d at 1078.

The same logic applies here. As in Peck, the fact that

Anderson was unarmed and, on the record construed most

favorably to Waid, not about to arm himself is all that is

WAID V. COUNTY OF LYON 39

needed for “clearly established law” purposes. That, unlike

in A.K.H., the incident in this case occurred indoors and did

not involve police officers in a car is of no moment to the

clearly established law inquiry here, the majority’s

insistence to the contrary notwithstanding. See Majority Op.

at 14–15, 17. For one thing, the passenger car window in

A.K.H.—the one close to the suspect—was open, so the

protection a vehicle might otherwise offer was breached. See

A.K.H., 837 F.3d at 1009. For another, although they were

inside, Willey and Wright could have retreated to the door

and removed themselves from contact with Anderson as he

moved down the hall into the kitchen. More important, for

these details to matter as to the propriety of deadly force,

there would have to be a basis for believing Anderson was

armed or about to arm himself—and here, again, there was

not. Otherwise, the only fear could have been that Anderson

would try to hit or butt the officers, which would not justify

deadly force in return. So the distinctions relied upon by the

majority are beside the point with regard to why the force

used against Anderson was unreasonable under clearly

established law.

On these facts, then, the officers are not entitled to

qualified immunity for their use of excessive force. 5

5

I note, although the point is not necessary to my “clearly established

law” conclusion, that the officer in A.K.H. faced a significantly higher

probability that the suspect was armed than did the officers in this case.

In addition to having an earlier criminal conviction, reportedly having a

$35,000 warrant out for his arrest, and being a member of the “Southside

Gang,” the suspect in A.K.H. had one hand concealed in his pocket with

a “heavy” object. See 837 F.3d at 1008–09. In contrast, Anderson was

shirtless and visibly empty-handed; both the dispatcher and the

Andersons’ son confirmed that Anderson was unarmed in the moments

before the officers encountered him; and Anderson had no reported

40 WAID V. COUNTY OF LYON

* * *

A.K.H. established that an officer may not shoot an

unarmed suspect within seconds, multiple times, in rapid

succession, and without warning, if the suspect is not

reaching for a gun—even when the suspect was recently

involved in a domestic violence incident, has not complied

with commands, and quickly closes a short distance between

the officer and the suspect. Those factors, combined, are

more than enough to clearly establish the legal principles

governing this case. I would therefore reverse the district

court’s grant of qualified immunity to Wright and Willey on

Waid’s Fourth Amendment excessive force claim.

III. Conclusion

This case involves the use of deadly force against a

suspect who was not armed nor thought to be armed when

shot. Even though the officers outnumbered the suspect and

had nonlethal options, the use of deadly force occurred

within seconds of encountering the suspect and continued

after he appeared to be complying, voluntarily or otherwise,

with the only order he was given—to “get down”—and was

already injured. Those who call the police to protect

themselves and their families, as the Anderson children did

here, have a right to expect that even in tense situations, the

actions of the police reflect circumspection about the use of

deadly force. That the officers’ fears might have materialized

later if several contingencies occurred—if the suspect had

not gotten down as ordered after a reasonable period for

criminal record or gang associations. See supra, at 19–20, 21 & n.1. In

short, if anything, the differences between A.K.H. and this case cut in the

opposite direction from that posited by the majority here—that is, there

was a higher probability in A.K.H. than here that the officers were in

danger from the suspect.

WAID V. COUNTY OF LYON 41

compliance had elapsed, if lesser force had not worked, if

the suspect had grabbed for Willey’s gun and managed to

obtain it—is not enough to allow killing a suspect when no

one, including the domestic abuse victim, was in immediate

danger of death or serious bodily injury when the shots were

fired. An officer’s subjective fear for his safety or the safety

of others is not enough to justify the use of force; objective

factors must justify the officer’s fear. See Mattos, 661 F.3d

at 441–42. And peripheral factual differences with otherwise

controlling precedents cannot be allowed to provide

immunity to police officers for shooting and killing an

unarmed suspect who was making no attempt to arm himself

or otherwise threatening anyone with death or serious injury.

For the foregoing reasons, I respectfully but

emphatically dissent from the majority decision to uphold

the district court’s grant of summary judgment to the officers

on Waid’s Fourth Amendment excessive force claim.