The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF DANIEL HERNANDEZ, No. 21-55994
by and through successors in interest,
Manuel Hernandez, Maria Hernandez D.C. Nos.
and M.L.H.; MANUEL 2:20-cv-04477-
HERNANDEZ, individually; MARIA SB-KS
HERNANDEZ, individually, 2:20-cv-05154-
DMG-KS
Plaintiffs-Appellants,
and OPINION
M. L. H., a minor, by and through her
guardian ad litem Claudia Sugey
Chavez,
Plaintiff,
v.
CITY OF LOS ANGELES; LOS
ANGELES POLICE DEPARTMENT;
TONI MCBRIDE,
Defendants-Appellees.
2 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
M. L. H., a minor, by and through her No. 21-55995
guardian ad litem Claudia Sugey
Chavez, D.C. Nos.
2:20-cv-04477-
Plaintiff-Appellant, SB-KS
2:20-cv-05154-
and DMG-KS
ESTATE OF DANIEL HERNANDEZ,
by and through successors in interest,
Manuel Hernandez, Maria Hernandez
and M.L.H.; MANUEL
HERNANDEZ, individually; MARIA
HERNANDEZ, individually,
Plaintiffs,
v.
CITY OF LOS ANGELES; LOS
ANGELES POLICE DEPARTMENT;
TONI MCBRIDE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 3
Argued and Submitted March 2, 2023
Pasadena, California
Filed March 21, 2024
Before: Milan D. Smith, Jr., Daniel P. Collins, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Collins
SUMMARY *
Deadly Force/Qualified Immunity
The panel affirmed the district court’s grant of summary
judgment to the City of Los Angeles, the Los Angeles Police
Department (“LAPD”), and Officer McBride on plaintiffs’
federal claims, and reversed the district court’s grant of
summary judgment on several of plaintiffs’ state law claims
in plaintiffs’ 42 U.S.C. § 1983 action arising from the
shooting death of Daniel Hernandez during a confrontation
with LAPD officers.
Affirming the district court’s grant of summary
judgment to McBride, the officer who shot Hernandez, on
plaintiffs’ Fourth Amendment excessive force claim, the
panel held that although a reasonable jury could find that the
force employed by McBride in firing her fifth and sixth shots
at Hernandez was excessive, she was nonetheless entitled to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
qualified immunity because McBride did not violate clearly
established law.
Affirming the district court’s grant of summary
judgment to all defendants on plaintiffs’ Fourteenth
Amendment claim, the panel held that plaintiffs failed to
show that McBride acted with a purpose to harm without
regard to legitimate law enforcement objectives, and
therefore there was no Fourteenth Amendment violation.
Affirming the district court’s grant of summary
judgment to the City of Los Angeles and the LAPD on
plaintiffs’ Monell claim, the panel agreed with the district
court that even if there was an underlying constitutional
violation, plaintiffs failed to provide any basis for holding
the City and LAPD liable for McBride’s shooting of
Hernandez.
The panel reversed the district court’s grant of summary
judgment to defendants with respect to plaintiffs’ state law
claims for assault, wrongful death, and violation of the Bane
Act. Because the reasonableness of McBride’s final volley
of shots presented a question for a trier of fact, the district
court erred in dismissing these state law claims based on its
determination that McBride’s use of force was reasonable.
COUNSEL
Gerald P. Peters (argued), Law Office of Gerald Philip
Peters, Thousand Oaks, California; Arnoldo Casillas,
Casillas & Associates, Long Beach, California; Denisse O.
Gastelum, Gastelum Law APC, Long Beach, California; for
Plaintiff-Appellants Estate of Daniel Hernandez, Manuel
Hernandez and Maria Hernandez.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 5
Narine Mkrtchyan (argued), Glendale, California; Melanie
T. Partow, Law Offices of Melanie Partow, Long Beach,
California; Paul L. Hoffman, Schonbrun Seplow Harris
Hoffman & Zeldes LLP, Hermosa Beach, California; for
Plaintiff-Appellant M.L.H.
Kevin E. Gilbert (argued) and Carolyn Aguilar, Orbach Huff
& Henderson LLP, Pleasanton, California; Colleen R. Smith
and Jonathan H Eisenman, Deputy City Attorneys, Los
Angeles City Attorney’s Office, Los Angeles, California; for
Defendants-Appellees.
James L. Buchal, Murphy & Buchal LLP, Portland, Oregon,
for Amicus Curiae National Police Association.
OPINION
COLLINS, Circuit Judge:
These consolidated actions under 42 U.S.C. § 1983 arise
from the shooting death of Daniel Hernandez during a
confrontation with officers of the Los Angeles Police
Department (“LAPD”) on April 22, 2020. Plaintiffs-
Appellants, who are the Estate, parents, and minor daughter
of Hernandez, asserted a variety of federal and state law
claims against the City of Los Angeles (“City”), the LAPD,
and the officer who shot Hernandez, Toni McBride. The
district court granted summary judgment to Defendants on
all claims, and Plaintiffs appeal. We conclude that, although
a reasonable jury could find that the force employed by
McBride was excessive, she is nonetheless entitled to
qualified immunity on Plaintiffs’ Fourth Amendment
excessive force claim. We also hold that the district court
6 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
properly granted summary judgment to all Defendants on
Plaintiffs’ remaining federal claims. However, because the
reasonableness of McBride’s force presents a triable issue,
the district court erred in granting summary judgment on that
basis as to certain of Plaintiffs’ state law claims.
Accordingly, we affirm in part, reverse in part, and remand.
I
A
During the late afternoon of April 22, 2020, uniformed
officers Toni McBride and Shuhei Fuchigami came upon a
multi-vehicle accident at the intersection of San Pedro Street
and East 32nd Street in Los Angeles. They decided to stop
and investigate the situation. Video footage from the patrol
car and from McBride’s body camera captured much of what
then transpired. 1
As the officers arrived near the intersection, they
observed multiple seriously damaged vehicles, some with
people still inside, and at least two dozen people gathered at
the sides of the road. As the officers exited their patrol car,
the car’s police radio stated that the “suspect’s vehicle” was
“black” and that the suspect was a “male armed with a
knife.” A bystander immediately told the officers about
someone trying to “hurt himself,” and Fuchigami stated
loudly, “Where is he? Where’s he at?” In response, several
bystanders pointed to a black pickup truck with a heavily
damaged front end that was facing in the wrong direction
1
Because no party contends these videotapes were “doctored” or
“altered,” or that they lack foundation, we “view[] the facts in the light
depicted by the videotape.” See Scott v. Harris, 550 U.S. 372, 378, 380–
81 (2007). However, to the extent that a fact is not clearly established
by the videotape, we view the evidence “in the light most favorable to
the nonmoving part[ies],” i.e., Plaintiffs. Id. at 380.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 7
near two parked vehicles on the southbound side of San
Pedro Street. The officers instructed the crowd to get back,
and McBride drew her weapon. One nearby driver, who was
sitting in her stopped sedan, told McBride through her open
car window that “he has a knife.” McBride asked her, “Why
does he want to hurt himself?” and the bystander responded,
“We don’t know. He’s the one who caused the accident.”
McBride instructed that bystander to exit her car and go to
the sidewalk, which she promptly did. McBride then
shouted to the bystanders in both English and Spanish that
they needed to get away. At the same time, the police radio
announced that the suspect was “cutting himself” and was
“inside his vehicle.” McBride then asked her partner, “Do
we have less lethal?” Referencing the smashed pickup truck,
McBride said, “Is there anybody in there?” She then stated,
“Hey, partner, he might be running.”
As McBride faced the passenger side of the truck, which
was down the street, she then saw someone climb out of the
driver’s side window. McBride yelled out, “Hey man, let me
see your hands. Let me see your hands man,” while a
bystander yelled, “He’s coming out!” Daniel Hernandez
then emerged shirtless from behind the smashed black
pickup truck, holding a weapon in his right hand. As he did
so, Officer McBride held her left hand out towards
Hernandez and shouted, “Stay right there!” Hernandez
nonetheless advanced towards McBride in the street, and he
continued to do so as McBride yelled three times, “Drop the
knife!” While Hernandez was coming towards her, McBride
backed up several steps, until she was standing in front of
the patrol car.
Hernandez began yelling as he continued approaching
McBride, and he raised his arms out by his sides to about a
45-degree angle. McBride again shouted, “Drop it!” As
8 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
Hernandez continued yelling and advancing with his arms
out at a 45-degree angle, Officer McBride fired an initial
volley of two shots, causing Hernandez to fall to the ground
on his right side, with the weapon still in his right hand. At
the point that McBride fired at Hernandez, he was between
41–44 feet away from her.
Still shouting, Hernandez rolled over and leaned his
weight on his hands, which were pressed against the
pavement. He began pushing himself up, and he managed
to get his knees off the pavement. As Hernandez started
shifting his weight to his feet to stand up, McBride again
yelled “Drop it!” and fired a second volley of two shots,
causing Hernandez to fall on his back with his legs bent in
the air, pointing away from McBride. Hernandez began to
roll over onto his left side, and as he did this, McBride fired
a fifth shot. Hernandez then continued to roll over, so that
he was again facing McBride. His bent left knee was pressed
against the ground, and he placed his left elbow on the street,
as if to push himself upwards. But Hernandez started to
collapse to the ground, and just as he did so, McBride fired
a sixth shot. Hernandez then lay still, face-down on the
street, as McBride and other officers approached him with
their pistols drawn. McBride’s body camera clearly shows
that the weapon was still in Hernandez’s right hand as an
officer approached and took it out of his hand. 2 The weapon
turned out not to be a knife, but a box cutter with two short
blades at the end. Starting from the point at which
Hernandez came out from behind the truck until he collapsed
2
M.L.H.’s assertion that Hernandez was unarmed during the latter part
of the incident is thus “blatantly contradicted” by the videotape. Scott,
550 U.S. at 380–81.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 9
on the ground, the entire confrontation lasted no more than
20 seconds. All six shots were fired within eight seconds.
Hernandez died from his injuries. A forensic pathologist
retained by Plaintiffs opined that McBride’s sixth shot—
which the pathologist concluded “more likely than not”
struck Hernandez in the top of his head before ultimately
lodging inside the tissues in his neck—caused “[t]he
immediately fatal wound in [Hernandez’s] death.” The
pathologist further concluded that “[t]he next most serious
wound was the wound to [Hernandez’s] right shoulder that
involved the lung and liver,” which he opined was “more
likely than not” inflicted by McBride’s fourth shot.
However, he stated that the shoulder wound “would not . . .
have produced immediate death” and that “[w]ith immediate
expert treatment, this wound alone may have been
survivable.” In Defendants’ response to Plaintiffs’
oppositions to summary judgment, Defendants did not raise
evidentiary objections to the forensic pathologist’s report,
nor did they provide any basis for rejecting its conclusions
as a matter of law.
B
In May and June of 2020, Hernandez’s parents (Manuel
and Maria Hernandez) and his minor daughter (M.L.H.)
(collectively, “Plaintiffs”) filed separate § 1983 actions
alleging constitutional violations in connection with the
shooting death of Hernandez. Shortly thereafter, the district
court formally consolidated the two cases for all purposes,
and Plaintiffs filed a consolidated complaint against the City
of Los Angeles (“the City”), the Los Angeles Police
Department (“LAPD”), and McBride (collectively,
“Defendants”). The operative consolidated complaint
alleged three federal claims that remain at issue in this
10 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
appeal: (1) a Fourth Amendment excessive force claim
brought against McBride by Plaintiffs, acting on behalf of
Hernandez’s Estate; (2) a Fourteenth Amendment claim for
interference with familial relations brought by Plaintiffs on
their own behalf against all Defendants; and (3) a claim
under Monell v. Department of Social Services of the City of
N.Y., 436 U.S. 658 (1978), by Plaintiffs, on behalf of the
Estate and themselves, against the City and LAPD. The
complaint also asserted pendent state law claims for, inter
alia, assault, wrongful death, and violation of the Bane Act
(Cal. Civ. Code § 52.1).
In August 2021, the district court granted Defendants’
motion for summary judgment on all claims. The court held
that, as a matter of law, McBride did not use excessive force
in violation of the Fourth Amendment but that, even if she
did, she was entitled to qualified immunity. The court also
held that McBride’s actions did not “shock the conscience”
and that the Fourteenth Amendment claim therefore lacked
merit as a matter of law. The court concluded that the Monell
claim failed both because there was no underlying
constitutional violation and because, even if there were such
a violation, Plaintiffs had not established any basis for
holding the City and LAPD liable. Finally, the court held
that, because all parties agreed that the remaining state law
claims for assault, wrongful death, and violation of the Bane
Act “r[o]se or f[e]ll based on the reasonableness of Officer
McBride’s use of force,” summary judgment was warranted
on these claims as well.
Plaintiffs timely appealed, and we have jurisdiction
under 28 U.S.C. § 1291.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 11
II
We first address Plaintiffs’ claim, asserted on behalf of
Hernandez’s Estate, that McBride used excessive force in
violation of the Fourth Amendment.
A
A police officer’s application of deadly force to restrain
a subject’s movements “is a seizure subject to the
reasonableness requirement of the Fourth Amendment.”
Tennessee v, Garner, 471 U.S. 1, 7 (1985); see Kisela v.
Hughes, 584 U.S. 100, 103–07 (2018) (applying Fourth
Amendment standards to a police shooting of a suspect
confronting another person with a knife). Accordingly, any
such use of deadly force must be “objectively reasonable.”
Graham v. O’Connor, 490 U.S. 386, 397 (1989).
In evaluating whether a particular use of force against a
person is objectively reasonable under the Fourth
Amendment, “the trier of fact should consider all relevant
circumstances,” including, as applicable, “the following
illustrative but non-exhaustive factors: ‘the relationship
between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by
the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.’” Demarest v. City of Vallejo, 44
F.4th 1209, 1225 (9th Cir. 2022) (quoting Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015)). The overall
assessment of these competing factors must be undertaken
with two key principles in mind. First, “[t]he
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Kisela, 584
12 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
U.S. at 103 (citation omitted). Second, “[t]he calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. (citation omitted).
We first consider whether, under these standards,
McBride “acted reasonably in using deadly force” at all.
Plumhoff v. Rickard, 572 U.S. 765, 777 (2014). We agree
with the district court that, based on the undisputed facts,
McBride’s initial decision to fire her weapon at Hernandez
was reasonable as a matter of law.
The “most important” consideration in assessing the
reasonableness of using deadly force is “whether the suspect
posed an ‘immediate threat to the safety of the officers or
others,’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.
2011) (en banc) (citations omitted), and here the undisputed
facts establish that the “threat reasonably perceived by the
officer,” Demarest, 44 F.4th at 1225 (citation omitted), was
substantial and imminent. At the time that McBride fired her
first shot, Hernandez had ignored her instruction to “Stay
right there!” and instead advanced towards her while holding
a weapon that McBride had been told repeatedly was a knife.
He did so while extending his arms out and yelling in
McBride’s direction, and, as he continued approaching her,
he ignored four separate commands to drop the knife. Under
these circumstances, use of deadly force to eliminate the
objectively apparent threat that Hernandez imminently
posed was reasonable as a matter of law. See Hayes v.
County of San Diego, 736 F.3d 1223, 1234 (9th Cir. 2013)
(“[T]hreatening an officer with a weapon does justify the use
of deadly force.”); Smith v. City of Hemet, 394 F.3d 689, 704
(9th Cir. 2005) (en banc) (“[W]here a suspect threatens an
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 13
officer with a weapon such as a gun or a knife, the officer is
justified in using deadly force.”). While Plaintiffs
emphasize that Hernandez was still approximately 40 feet
away from McBride when she fired, “[t]here is no rule that
officers must wait until a [knife-wielding] suspect is literally
within striking range, risking their own and others’ lives,
before resorting to deadly force.” Reich v. City of
Elizabethtown, 945 F.3d 968, 982 (6th Cir. 2019) (holding
that shooting of approaching knife-wielding suspect within
six feet was reasonable and that even shooting a knife-
wielding suspect 36 feet away would not violate clearly
established law).
We also conclude, however, that the evidence in this case
would permit a reasonable trier of fact to find that McBride
fired three temporally distinct volleys of two shots each. See
supra at 7–9. Indeed, there is almost a two-second pause
between McBride’s second and third shots, and there is
about a one-second pause between her fourth and fifth shots.
Accordingly, even though McBride’s first volley of shots
was reasonable as a matter of law, we must still consider
whether she “acted unreasonably in firing a total of [six]
shots.” Plumhoff, 572 U.S. at 777. On that score, Plumhoff
holds that, “if police officers are justified in firing at a
suspect in order to end a severe threat to public safety, the
officers need not stop shooting until the threat has ended.”
Id. We have cautioned, though, that “terminating a threat
doesn’t necessarily mean terminating [a] suspect.” Zion v.
County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017)
(emphasis added). Thus, if an initial volley of shots has
succeeded in disabling the suspect and placing him “in a
position where he could [not] easily harm anyone or flee,” a
“reasonable officer would reassess the situation rather than
continue shooting.” Id.
14 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
Applying these principles to this case, we agree with the
district court that the undisputed video evidence confirms
that, at the time McBride fired the second volley of shots, the
“threat” that Hernandez posed had not yet “ended.”
Plumhoff, 572 U.S. at 777. Despite falling down after having
been hit by two bullets, Hernandez immediately rolled over,
pressed his hands against the ground, and began shifting his
weight to his feet in order to stand up. All the while, he
continued shouting, and he still held his weapon in his hand
despite yet another instruction by McBride to drop it.
McBride’s third and fourth shots were thus reasonable as a
matter of law.
However, McBride’s final volley of shots—i.e., shots
five and six—present a much closer question. Immediately
after the fourth shot, Hernandez was lying on his back with
his legs in the air, pointing away from where McBride was.
Hernandez then rolled over onto his left side such that his
back was towards McBride. He was in that position—facing
away from McBride and still lying on his side on the
ground—when McBride fired her fifth shot. Although
Hernandez was still moving at the time of that shot, he had
not yet shown that he was in any position to get back up.
Hernandez then continued to roll over, so that he was again
facing McBride. As Hernandez, while still down on the
ground, first appeared to shift his weight onto his left elbow,
McBride fired her sixth shot. Under these circumstances, a
reasonable trier of fact could find that, at the time McBride
fired these two additional shots, the threat from
Hernandez—who was still on the ground—had sufficiently
been halted to warrant “reassess[ing] the situation rather than
continu[ing] shooting.” Zion, 874 F.3d at 1076. A
reasonable jury could find that, at the time of the fifth and
sixth shots, Hernandez “was no longer an immediate threat,
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 15
and that [McBride] should have held [her] fire unless and
until [Hernandez] showed signs of danger or flight.” Id.
Alternatively, a reasonable “jury could find that the [third]
round of bullets was justified.” Id. On this record, the
reasonableness of the fifth and sixth shots was thus a
question for the trier of fact, and the district court erred in
granting summary judgment on that issue.
B
McBride alternatively contends that, even if a reasonable
jury could find excessive force, she is nonetheless entitled to
qualified immunity. We agree.
“The doctrine of qualified immunity shields officers
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’” City of Tahlequah
v. Bond, 595 U.S. 9, 12 (2021) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (emphasis added)). In
determining whether the applicable law is “clearly
established,” so as to defeat qualified immunity, the
Supreme Court “has repeatedly told courts—and the Ninth
Circuit in particular—not to define clearly established law at
a high level of generality.” Kisela, 584 U.S. at 104 (citations
and internal quotation marks omitted). Thus, “it does not
suffice for a court simply to state that an officer may not use
unreasonable and excessive force, deny qualified immunity,
and then remit the case for a trial on the question of
reasonableness.” Id. at 105. Rather, the “law at the time of
the conduct” must have defined the relevant constitutional
“right’s contours” in a manner that is “sufficiently definite
that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Id. at 104–05
(citations omitted).
16 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
This need for “[s]pecificity 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.” Kisela, 584
U.S. at 104 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)
(simplified)). Because “[u]se of excessive force is an area
of the law ‘in which the result depends very much on the
facts of each case,’ . . . police officers are entitled to
qualified immunity unless existing precedent ‘squarely
governs’ the specific facts at issue.” Id. (emphasis added)
(citation omitted). Here, there is no such pre-existing
precedent that squarely governs the factual scenario
presented here.
In arguing that McBride violated clearly established law,
Plaintiffs place particular emphasis on this court’s decision
in Zion, 874 F.3d at 1075–76. That is understandable
because, as our earlier analysis shows, the legal principles
discussed in Zion help to elucidate why McBride’s fifth and
sixth shots could be unreasonable under Fourth Amendment
standards. See supra at 13–15. But there is a difference
between concluding that Zion supports Plaintiffs’ position
on the merits and concluding that Zion places the outcome
of this case “beyond debate.” Kisela, 584 U.S. at 104
(citation omitted). The Supreme Court has repeatedly
emphasized that, in addressing whether a particular
precedent meets that latter standard, we must take account of
any material factual differences in that precedent that would
preclude us from saying that it “‘squarely governs’ the
specific facts at issue.” Id. (citation omitted); see also City
of Tahlequah, 595 U.S. at 13–14; Brosseau v. Haugen, 543
U.S. 194, 200–01 (2004); Ventura v. Rutledge, 978 F.3d
1088, 1092 (9th Cir. 2020). Examination of our decision in
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 17
Zion confirms that it differs in several critical respects from
the instant case and that it therefore cannot be said to have
clearly established the law that governs here.
In Zion, the officers were called to Zion’s apartment
complex after he had suffered several seizures and assaulted
his mother and roommate with a knife. 874 F.3d at 1075.
As the first officer arrived at the complex, “Zion ran at him
and stabbed him in the arms.” Id. A second arriving officer
witnessed the stabbing and then shot at Zion nine times from
about 15 feet away while Zion was running back towards the
apartment complex. Id. After Zion fell to the ground, the
second officer ran up to him and fired “nine more rounds at
Zion’s body from a distance of about four feet, emptying his
weapon.” Id. At that point, Zion “curl[ed] up on his side”
but was “still moving.” Id. After taking a pause and
“walk[ing] in a circle,” the officer then took “a running start
and stomp[ed] on Zion’s head three times.” Id. “Zion died
at the scene.” Id. On appeal from a grant of summary
judgment to the defendants, the plaintiff (Zion’s mother) did
not challenge the “initial nine-round volley,” and instead
only “challenge[d] the second volley (fired at close range
while Zion was lying on the ground) and the head-
stomping.” Id. In concluding that there was a triable issue
of excessive force, we emphasized that there were several
disputed issues of fact that, if resolved in the plaintiff’s
favor, would warrant a finding that the second volley of
shots was unreasonable. Id. at 1075–76. In particular, we
held that a jury needed to resolve the parties’ factual disputes
as to whether “Zion was trying to get up”; “[w]hether the
knife was still in Zion’s hand or within his reach”; and
“whether [the officer] thought Zion was still armed.” Id. at
1076 & n.2.
18 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
This case differs from Zion as to each of these critical
facts. The video evidence in this case clearly shows that,
even after the fourth shot, Hernandez continuously moved in
a way that gave the objective appearance of trying to get up;
the video evidence shows that Hernandez never dropped his
weapon and still had it in his hand at the end of the episode;
and McBride’s continued instructions to Hernandez to drop
the knife confirm that she continued to believe that he was
armed. Although we conclude that Zion is persuasive
authority that supports a finding of unreasonableness here,
the case is sufficiently and materially different on its facts
that we cannot say that it “‘squarely govern[ed]’ the specific
facts” of this case or placed that outcome “beyond debate.”
Kisela, 584 U.S. at 104 (citations omitted).
Plaintiffs also rely on Deorle v. Rutherford, 272 F.3d
1272, 1280 (9th Cir. 2001), but the Supreme Court “has
already instructed the Court of Appeals not to read its
decision in that case too broadly in deciding whether a new
set of facts is governed by clearly established law.” Kisela,
584 U.S. at 106. The Court’s summary of Deorle in Kisela
equally confirms why it does not squarely govern the facts
of this case: “Deorle involved a police officer who shot an
unarmed man in the face, without warning, even though the
officer had a clear line of retreat; there were no bystanders
nearby; the man had been ‘physically compliant and
generally followed all the officers’ instructions’; and he had
been under police observation for roughly 40 minutes.” Id.
at 106–07 (citing Deorle, 272 F.3d at 1276, 1281–82).
Nearly all of these key factual premises underlying Deorle’s
holding are missing in this case.
The other Ninth Circuit cases on which Plaintiffs rely are
even more strikingly distinguishable from this case. Indeed,
in addition to other significant differences, none of the cited
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 19
cases even involves a situation (such as this one or Zion) in
which the use of deadly force initially was reasonable. See
Nehad v. Browder, 929 F.3d 1125, 1141 (9th Cir. 2019)
(holding that the officer’s shooting of a suspect reported to
have earlier threatened someone with a knife was
unreasonable under clearly established law where a jury
could find that the officer “responded to a misdemeanor call,
pulled his car into a well-lit alley with his high beam
headlights shining into [the suspect’s] face, never identified
himself as a police officer, gave no commands or warnings,
and then shot [the suspect] within a matter of seconds, even
though [the suspect] was unarmed, had not said anything,
was not threatening anyone, and posed little to no danger to
[the officer] or anyone else”); Hayes, 736 F.3d at 1235
(holding that immediate shooting of suicidal man who
revealed a knife, without ordering him to stop or drop the
knife, was unreasonable).
Plaintiffs argue that, even apart from its specific facts,
Zion clearly establishes the broader proposition that “the use
of deadly force against a non-threatening suspect is
unreasonable.” Zion, 874 F.3d at 1076. But this overbroad
reading of Zion is directly contrary to Kisela, which squarely
held that we may not define “clearly established” law in the
excessive force context at this “high level of generality.”
Kisela, 584 U.S. at 104 (citation omitted). Indeed, Zion
noted that the “boundary” line is “murky” when it comes to
defining exactly when the permissible use of deadly force
against a suspect who “poses an immediate threat” must be
halted on the ground that “the suspect no longer poses a
threat.” Zion, 874 F.3d at 1075. Given that Zion itself noted
that the relevant line is “murky,” it can hardly be said to have
clearly established a general rule that places the outcome of
this case beyond debate.
20 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
We acknowledge that, even when, as here, there is no
relevant “[p]recedent involving similar facts” that “can help
move a case beyond the otherwise ‘hazy border between
excessive and acceptable force,’” generally framed rules can
still “create clearly established law” in “an ‘obvious case.’”
Kisela, 584 U.S. at 105 (citation omitted). But to meet that
high standard, Plaintiffs would have to show that “any
reasonable official in the defendant’s shoes would have
understood that he was violating” the Constitution. Id.
(quoting Plumhoff, 572 U.S. at 778–79 (emphasis added)).
That demanding standard reflects the long-standing
principle that “qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Mullenix, 577 U.S. at 12 (citation omitted). Plaintiffs
have not satisfied that standard here. As our earlier
discussion of the merits of this case makes clear, this is not
an obvious case, but rather a close and difficult one. Thus,
even granting that McBride’s fifth and sixth shots may have
been unreasonable, this is not an obvious situation in which
every reasonable officer would have understood that the law
forbade firing additional shots at the already wounded
Hernandez as he plainly appeared to continue to try to get
up.
Because McBride did not violate clearly established law
in firing her third volley of shots, we conclude that she is
entitled to qualified immunity. On that basis, we affirm the
grant of summary judgment to McBride on Plaintiffs’ Fourth
Amendment excessive force claim.
III
We next address Plaintiffs’ challenge to the district
court’s dismissal of their Fourteenth Amendment claim
against all Defendants.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 21
We have held that “parents have a Fourteenth
Amendment liberty interest in the companionship and
society of their children” and that “[o]fficial conduct that
‘shocks the conscience’ in depriving parents of that interest
is cognizable as a violation of due process.” Wilkinson v.
Torres, 610 F.3d 546, 554 (9th Cir. 2010) (citation omitted).
We have extended this reasoning to also cover the converse
situation of “a ‘child’s interest in her relationship with a
parent.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th
Cir. 2022) (quoting, inter alia, Smith v. City of Fontana, 818
F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds
by Hodgers-Durgin v. De la Viña, 199 F.3d 1037, 1040 n.1
(9th Cir. 1999) (en banc)). In describing the sort of conduct
that would qualify as “shock[ing] the conscience” under this
line of cases, we have drawn a distinction between cases
where “actual deliberation is practical” and those in which it
is not. Zion, 874 F.3d at 1077 (citation omitted). In the
former situation, liability may be established by showing
that the officer acted with “deliberate indifference.” Id.
(citation omitted). But where deliberation is impractical, we
require a showing that the officer “acted with ‘a purpose to
harm without regard to legitimate law enforcement
objectives.’” Id. (citation omitted).
The outcome of this case, under these standards, is
dictated by our decision in Zion. In that case, we held that
the “two volleys [of shots] came in rapid succession, without
time for reflection” and that the more demanding liability
standard therefore applied. Zion, 874 F.3d at 1077. Given
that the two volleys in Zion occurred six seconds apart, see
id. at 1075, the one-second gap between McBride’s second
and third volleys likewise constitutes, under Zion,
insufficient time to reflect. Plaintiffs therefore must show
that McBride “acted with ‘a purpose to harm without regard
22 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
to legitimate law enforcement objectives.’” Id. at 1077
(citation omitted).
Plaintiffs wholly failed to raise a triable issue under this
standard. Here, as in Zion, “[w]hether excessive or not, the
shootings served the legitimate purpose of stopping a
dangerous suspect.” Zion, 874 F.3d at 1077; see also Nehad,
929 F.3d at 1134, 1139 (holding that, although there was a
triable issue as to whether officer used excessive force in
firing on a knife-wielding suspect who “didn’t make any
offensive motions” and “was actually not a lethal threat” to
the officer, the plaintiffs’ Fourteenth Amendment claim
nonetheless failed because there was “no evidence that [the
officer] fired on [the decedent] for any purpose other than
self-defense, notwithstanding the evidence that the use of
force was unreasonable”). 3
Because there was no Fourteenth Amendment violation,
the district court correctly granted summary judgment to all
Defendants on this claim.
IV
As noted earlier, the district court dismissed Plaintiffs’
Monell claim against the City and LAPD, concluding that
(1) there could be no municipal liability when there was no
underlying constitutional violation; and (2) even if there was
such a violation, Plaintiffs had failed to provide any basis for
holding the City and LAPD liable for McBride’s shooting of
Hernandez. The district court’s first rationale fails in light
of our conclusion that there is a triable issue as to whether
3
To the extent that M.L.H. contends that she was not provided a
sufficient opportunity to conduct additional discovery with respect to her
claims, including her Fourteenth Amendment claim, we reject that
argument for reasons explained below. See infra section IV.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 23
McBride’s final volley of shots was excessive under the
applicable Fourth Amendment standards. We nonetheless
agree with the district court’s second rationale, and on that
basis, we affirm the grant of summary judgment to the City
and LAPD on the Monell claim.
As to Hernandez’s parents and Estate, the district court
noted that their summary judgment “opposition [was] almost
entirely silent as to municipal liability” and merely argued
that LAPD was properly named as an additional municipal
Defendant with the City. The same is true of their opening
brief in this court. Even assuming arguendo that
Hernandez’s parents and Estate have not thereby completely
forfeited their Monell claim, they have failed to provide any
basis for reversal beyond what is stated by their co-Plaintiff
(M.L.H.) in the latter’s opening brief.
For her part, M.L.H. does not contest the district court’s
determination that, based on the existing summary judgment
record, there was insufficient evidence to establish
municipal liability under Monell. Instead, M.L.H. seeks
reversal of the dismissal of the Monell claim solely on the
ground that the district court assertedly abused its discretion
in refusing to extend the discovery cut-off deadline
established under the court’s scheduling order issued under
Federal Rule of Civil Procedure 16(b). We reject this
contention.
In requesting a modification of the discovery schedule
set forth in a Rule 16(b) scheduling order, a party must make
a showing of “good cause.” FED. R. CIV. P. 16(b)(4). As we
have explained, “[t]he good cause standard of Rule 16(b)
‘primarily considers the diligence of the party seeking’” the
modification, and “[i]f that party was not diligent, the
inquiry should end.” Branch Banking & Tr. Co., v. D.M.S.I.,
24 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES
LLC, 871 F.3d 751, 764 (9th Cir. 2017) (citation omitted).
The district court did not abuse its discretion in concluding
that M.L.H. had failed to show diligence in pursuing
discovery.
As the court noted, M.L.H. did not serve any formal
discovery for almost six months, and she “waited until the
very end of discovery to notice depositions that she knew she
wanted to take at the outset of the case.” By proceeding in
this fashion, the court concluded, M.L.H. “left herself no
margin for error.” On appeal, M.L.H. contends that the
discovery deadline should have been extended in light of the
asserted inadequacy of Defendants’ responses to the
discovery propounded by the other separately represented
Plaintiffs (i.e., Hernandez’s parents and Estate). But as
M.L.H. herself notes, M.L.H. “could not immediately act” to
address those deficiencies “by way of a motion to compel
because she was not the party who propounded the requests”
(emphasis added). By failing to take any steps to serve her
own formal discovery requests for six months, M.L.H.
unnecessarily placed herself in a position in which she was
unable to bring discovery motions until fairly late in the
process, and thus needed to conduct a range of discovery at
the eleventh hour. M.L.H. also argues that the failure to
serve discovery during the six-month period from August
2020 until February 2021 should have been excused in light
of the Covid pandemic, but that explanation does not justify
a complete failure to serve even written discovery before
February 2021. Although the district court’s ruling may
have been harsh, we cannot say that the court abused its
discretion in concluding that M.L.H. had not shown
sufficient diligence and that an extension of the discovery
cut-off was unwarranted.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 25
Because Plaintiffs have provided no other basis for
concluding that the Monell claim should not have been
dismissed, we affirm the district court’s grant of summary
judgment on that claim.
V
Finally, we turn to Plaintiffs’ state-law claims for
(1) assault, (2) wrongful death, and (3) violation of
California Civil Code § 52.1. The district court’s sole reason
for granting summary judgment to Defendants on these
claims was its “determinat[ion] that Officer McBride’s use
of force was reasonable.” Because we conclude that the
reasonableness of McBride’s final volley of shots presents a
question for a trier of fact, the district court erred in
dismissing these state law claims on that ground. We
therefore reverse the district court’s dismissal of these
claims.
VI
For the reasons we have stated, we affirm the district
court’s grant of summary judgment to Defendants on all of
Plaintiffs’ federal claims, and we reverse the district court’s
summary judgment with respect to Plaintiffs’ state law
claims for assault, wrongful death, and violation of the Bane
Act (Cal. Civ. Code § 52.1).
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.