Kristin Hart v. City of Redwood City

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN HART, individually and as No. 22-17008

co-successor-in-interest to Decedent

KYLE HART; E.H., individually and D.C. No.

as co-successor-in-interest to Decedent 4:21-cv-02653-

KYLE HART; W.H., individually and YGR

as co-successor-in-interest to Decedent

KYLE HART,

OPINION

Plaintiffs-Appellees,

v.

CITY OF REDWOOD CITY, a

municipal corporation; DANIEL

MULHOLLAND, individually and in

his capacity as Chief of Police for the

CITY OF REDWOOD CITY;

ROMAN GOMEZ, individually and in

his official capacity as a Police Officer

for the CITY OF REDWOOD CITY;

LEILA VELEZ, individually and in

her official capacity as a Police Officer

for the CITY OF REDWOOD CITY,

Defendants-Appellants.

2 HART V. CITY OF REDWOOD CITY

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted February 12, 2024

San Francisco, California

Filed April 19, 2024

Before: Eric D. Miller, Bridget S. Bade, and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge VanDyke

SUMMARY *

Deadly Force/Qualified Immunity

The panel reversed the district court’s denial, on

summary judgment, of qualified immunity to City of

Redwood City Police Officer Gomez in an action alleging

constitutional and state law violations arising from the

deadly shooting of Kyle Hart.

Officers Gomez and Velez responded to a call involving

a man attempting suicide with a knife in his backyard. When

they arrived, they found the man’s wife covered in blood and

frantically pleading for help. At her urging, the officers went

to the backyard, where they found Hart holding a

*

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

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

HART V. CITY OF REDWOOD CITY 3

knife. They told him to drop the knife, but instead of doing

so he began moving towards them with the knife raised. As

Hart neared the officers, Officer Velez deployed her taser,

but it was ineffective. With Hart approaching closely and

wielding a knife, Officer Gomez shot and killed him.

As an initial matter, the panel held that it had jurisdiction

because both whether the disputed facts were material and

whether qualified immunity applied were questions of law

subject to the court’s jurisdiction.

The panel held that Officer Gomez was entitled to

qualified immunity. Plaintiffs failed to show that Officer

Gomez’s conduct was objectively unreasonable and

therefore a violation of Hart’s Fourth Amendment

rights. Hart posed an immediate threat when he rapidly

approached the officers brandishing a knife and refusing

commands to drop it. Moreover, even if Officer Gomez’s

conduct violated the Fourth Amendment, he would still be

entitled to qualified immunity because the conduct did not

violate clearly established law. None of the cases plaintiffs

identified would have put Officer Gomez on notice that his

actions in this case would be unlawful.

COUNSEL

Benjamin Nisenbaum (argued), John L. Burris, and Ayana

C. Curry, Burris Nisenbaum Curry & Lacy LLP, Oakland,

California, for Plaintiffs-Appellees.

Kevin E. Gilbert (argued) and Carolyn M. Aguilar, Orbach

Huff & Henderson LLP, Pleasanton, California; Mark G.

Bonino and Donald L. Hall, III, Hayes Scott Bonino

Ellingson Guslani Simonson & Clause LLP, San Carlos,

4 HART V. CITY OF REDWOOD CITY

California; Stephen P. Ellingson, Hayes Scott Bonino

Ellingson & McLay LLP, Redwood City, California; for

Defendants-Appellants.

OPINION

VANDYKE, Circuit Judge:

Officers Gomez and Velez responded to a tragic call

involving a man attempting suicide with a knife in his

backyard. When they arrived, they found the man’s wife

covered in blood and frantically pleading for help. At her

urging, the officers went to the backyard, where they found

Hart holding a knife. They told him to drop the knife, but

instead of doing so he began moving towards them while

raising the knife. As Hart neared the officers, Officer Velez

deployed her taser, but it was ineffective. With Hart

approaching closely and wielding a knife, Officer Gomez

took action to protect himself and his partner, shooting Hart.

Medical assistance was called for Hart, but he ultimately

passed away in the emergency room. Hart’s family brought

suit alleging that Gomez, Velez, and the City of Redwood

City violated their and Hart’s constitutional and state law

rights. The parties filed cross-motions for summary

judgment, and as relevant here, the district court found that

Officer Gomez was not entitled to qualified immunity.

We conclude that the district court erred in denying

qualified immunity. As an initial matter, we have

jurisdiction over the case because both whether disputed

facts are material and whether qualified immunity applies

are questions of law subject to our jurisdiction. And Officer

Gomez is entitled to qualified immunity because Plaintiffs

HART V. CITY OF REDWOOD CITY 5

have failed to show either that his conduct was objectively

unreasonable, and therefore a violation of Hart’s Fourth

Amendment rights, or that such rights were clearly

established by precedent existing at the time of the conduct.

I.

On December 10, 2018, plaintiff Kristin Hart (Plaintiff,

and together with her children, Plaintiffs) heard one of her

two children crying and called out to her husband Kyle Hart

(Hart) to help comfort the child. When she did not hear a

response, Plaintiff went into the kitchen to check on Hart and

found him using a “serrated utility knife” to cut at his own

throat while their son watched. Plaintiff told Hart “many

times” to stop cutting himself; Hart lowered the knife several

times, but each time resumed cutting himself.

Eventually, Plaintiff managed to take the knife from

Hart. She began searching for her cell phone to call 911, but

when she could not find it, Hart gave her his phone. She

called 911, but as she did Hart retrieved a different knife and

again began cutting at his throat. Plaintiff told the 911

dispatcher that her husband was committing suicide by

cutting his throat and his wrists. While she was on the

phone, her husband went into the backyard, and continued to

cut himself on the throat, arms, and chest.

Officers Roman Gomez and Leila Velez were the first to

arrive on the scene. Plaintiff met them in the front yard,

uninjured, but covered in blood and frantically pleading for

them to help Hart. Because Gomez was senior, he took the

lead and instructed Velez “to go less lethal with the taser”

while he “would go lethal with [his] firearm.” 1 The officers

1

Another officer was enroute with a “40 millimeter less lethal” weapon

but did not arrive until some time later.

6 HART V. CITY OF REDWOOD CITY

asked Plaintiff where Hart was and immediately ran in the

direction she pointed.

The officers took a narrow, muddy path on the left side

of the house to reach the backyard. Gomez took the lead,

holding his firearm “low ready” while Velez came behind

him with her taser. Plaintiff followed behind them. While

the parties agree on the broad strokes of what happened next,

their testimonies vary regarding certain details.

Gomez stated that he approached the backyard from the

“middle left” side of the pathway to give himself a better

view of the yard as he rounded the corner. Although he did

not look to see Velez’s position behind him, he assumed that

because he was to the left, she was behind him and to his

right. Velez, on the other hand, stated that she was on

Gomez’s left side, rather than his right. They found Hart

standing in the backyard holding a knife. Plaintiff stated that

Hart was standing in the back corner of the backyard,

holding the knife to his throat. Gomez said that the first time

he saw Hart, the man was standing on the other side of some

patio furniture and a small child’s play structure, facing

away from them and holding the knife down from his side.

Velez indicated that Hart was facing them and holding the

knife out at shoulder height.

Gomez yelled “drop the knife” twice. Instead of

dropping the knife, Hart began moving towards the officers

while still holding the knife. Plaintiff remembered seeing

Hart move toward the officers, but at that point she realized

her children were unattended, so she left to check on them.

Plaintiff did not see the shooting. Gomez said that Hart came

towards them at a slow run, holding the knife out towards

the officers, going from thirty feet away to eight or ten feet

away in “approximately five seconds.” Velez characterized

HART V. CITY OF REDWOOD CITY 7

Hart’s pace as a “brisk walk.” What is not disputed—and

was recognized by Plaintiffs’ own expert—is that Hart went

from his starting position across the yard to where he

eventually ended up only a few feet from the officers in less

than 5.9 seconds.

The officers did not warn Hart that they would shoot, but

with him approaching and wielding a knife, they took action

to protect themselves. Velez testified that she fired her taser

at Hart before any shots were fired. She said that Hart was

still upright and holding the knife up at them when she fired

the taser. One taser probe struck Hart on the left side of his

head, and the other missed, passing Hart and landing 17 feet

away from the officers. Because contact with both probes is

required for the taser to function, the taser had no effect on

Hart.

Velez testified that Gomez only fired after the taser

failed to make contact with Hart. Gomez, however, stated

that he fired his “firearm simultaneously to when Officer

Velez fired her taser.” Regardless of the timing, the taser

was ineffectual, and Gomez fired five shots, striking Hart

three times in the upper torso. Velez stated that, after Hart

was shot, he fell to the ground five feet to her left; Gomez

stated that Hart fell at his feet. Paramedics were already

enroute when Gomez requested medical assistance. The

paramedics transported Hart to an emergency room, but he

was ultimately pronounced dead.

While there are some discrepancies regarding the details

of the incident, the material facts are not in dispute. When

Officers Gomez and Velez arrived at Hart’s residence,

Plaintiff was covered in blood and frantic. At her urging, the

officers went along the side of the house to the backyard,

where they found Hart holding a knife. Gomez told Hart to

8 HART V. CITY OF REDWOOD CITY

“drop the knife.” Instead of complying, Hart began moving

towards the officers while still holding the knife. As

corroborated by the officers’ testimony, Plaintiffs’ expert,

and the 911 call recording, Hart crossed the backyard to

within a few feet of the officers in less than 5.9 seconds.

Viewing Hart—who advanced on them with a knife—as an

imminent threat, 2 Velez fired her taser, but this was

ineffective because only one probe made contact with Hart.

Gomez fired five shots, striking Hart three times in the upper

torso. Hart fell to the ground near the officers, was provided

emergency medical assistance, but was pronounced

deceased upon arrival at an emergency room.

In April 2021, Plaintiffs filed their complaint alleging

that Gomez, Velez, their chief of police, and the City of

Redwood City (collectively, Defendants) violated their and

Hart’s constitutional and state law rights. The parties filed

cross-motions for summary judgment, which the district

court denied except as to certain claims asserted against

Velez under 42 U.S.C. § 1983. Relevant to this appeal, the

district court found that the officers were not entitled to

qualified immunity.

In making this determination, the district court relied on

this court’s previous statement that “[e]very police officer

should know that it is objectively unreasonable to shoot …

[1] an unarmed man who: [2] has committed no serious

offense, [3] is mentally or emotionally disturbed, [4] has

been given no warning of the imminent use of such a

significant degree of force, [5] poses no risk of flight, and

[6] presents no objectively reasonable threat to the safety of

the officer or other individuals.” Deorle v. Rutherford, 272

2

At his deposition, Plaintiffs’ expert conceded that Hart posed an

imminent threat to the officers.

HART V. CITY OF REDWOOD CITY 9

F.3d 1272, 1285 (9th Cir. 2001). The district court found,

viewing the facts in the light most favorable to Plaintiffs, that

these factors were met because “Hart had committed no

offense, was suicidal, was not a flight risk, did not pose a

threat to others, and a dispute exists regarding whether an

adequate warning that force would be used by the officers

was given.” While it was undisputed that Hart was holding

a knife, the district court found that “he was not necessarily

‘armed’ as the term is commonly understood.” The district

court further concluded that, even if Hart was armed, under

the law at the time of the incident, it may have still been

unreasonable for Gomez to use lethal force on the basis that

Hart may have been mentally unstable. Vos v. City of

Newport Beach, 892 F.3d 1024, 1033 (9th Cir. 2018).

Defendants filed a timely notice of appeal in December

2022, appealing only the Fourth Amendment claim. We

therefore do not address the state law claims.

II.

We have jurisdiction under 28 U.S.C. § 1291. Courts

“normally have no jurisdiction to hear interlocutory appeals

from the denial of summary judgment … [b]ut an exception

arises where the movant was denied summary judgment

based on qualified immunity.” Isayeva v. Sacramento

Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir. 2017) (citations

omitted). Such denials of qualified immunity are considered

“final decisions” under the collateral order doctrine because

qualified immunity is immunity from suit itself and so would

not be properly vindicated by an appeal after final judgment.

Id. at 944–45. We review “the district court’s conclusions

regarding qualified immunity de novo” and consider

“disputed facts in the light most favorable to the nonmoving

party.” Id. at 946.

10 HART V. CITY OF REDWOOD CITY

III.

The district court erred in denying Defendants’ motion

for summary judgment on the ground that Officer Gomez is

not entitled to qualified immunity. As an initial matter, we

have jurisdiction to hear this appeal even though a purported

dispute of material facts exists because determining the

materiality of disputed facts is a question of law over which

we have jurisdiction. And in light of the undisputed material

facts, Officer Gomez is entitled to qualified immunity

because Plaintiffs have shown neither (1) that Officer

Gomez’s conduct was objectively unreasonable and

therefore a violation of Hart’s Fourth Amendment rights, nor

(2) that such rights were clearly established by precedent

existing at the time of the conduct.

A.

That a purported dispute of material facts exists is not

enough to divest us of our jurisdiction in this case. See

Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996). If it were,

then every denial of summary judgment based upon

“controverted issues of material fact” would be

“nonappealable.” Id. But “summary judgment

determinations are appealable when they resolve a dispute

concerning an abstract issue of law relating to qualified

immunity,” even when the underlying conduct is

controverted. Id. at 313 (internal citation and quotations

omitted). “In other words, we have jurisdiction to review an

issue of law determining entitlement to qualified immunity—

even if the district court’s summary judgment ruling also

contains an evidence-sufficiency determination—but not to

accede to a defendant’s request that we review that evidence-

sufficiency determination on appeal.” Estate of Anderson v.

Marsh, 985 F.3d 726, 731 (9th Cir. 2021).

HART V. CITY OF REDWOOD CITY 11

While appellate review “does not extend to claims in

which the determination of qualified immunity depends on

disputed issues of material fact,” “any issue of law, including

the materiality of the disputed issues of fact, is a permissible

subject for appellate review.” Jeffers v. Gomez, 267 F.3d

895, 903, 904 (9th Cir. 2001). Once the materiality of the

facts is determined, we “assume[] the version of the material

facts asserted by the non-moving party to be correct.” Id. at

905 (quoting Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th

Cir. 2000)). And in doing so, we may “consider facts offered

by the defendant that are uncontradicted by any evidence in

the record.” Hopson v. Alexander, 71 F.4th 692, 697 (9th Cir.

2023) (internal quotations omitted) (quoting Wilkinson v.

Torres, 610 F.3d 546, 551 (9th Cir. 2010)).

So here we have jurisdiction to both (1) determine

whether the disputed facts are material and (2) consider

whether Office Gomez is entitled to qualified immunity when

the material facts are viewed in the light most favorable to

Plaintiffs.

B.

Officer Gomez is entitled to qualified immunity.

Qualified immunity protects government officials from suit

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)). In this case, there are some factual disputes

(though not as many as Plaintiffs say). But as explained

below, they are not material. Ultimately, in the light of the

undisputed material facts, neither prong is satisfied.

12 HART V. CITY OF REDWOOD CITY

1.

Officer Gomez’s actions were objectively reasonable. In

determining whether “the use of force is contrary to the

Fourth Amendment’s prohibition against unreasonable

seizures,” the Supreme Court has instructed us to inquire

“whether it would be objectively reasonable for the officer

to believe that the amount of force employed was required

by the situation he confronted.” Wilkins v. City of Oakland,

350 F.3d 949, 954 (9th Cir. 2003) (citing Saucier v. Katz,

533 U.S. 194, 205 (2001)). To assess the reasonableness of

a particular use of force, we balance “‘the nature and quality

of the intrusion on the individual’s Fourth Amendment

interests’ against ‘the countervailing government interests at

stake.’” Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.

2003) (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)).

The nature of the intrusion here is a serious one. “The

intrusiveness of a seizure by means of deadly force is

unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).

Because this is a clear intrusion of Hart’s Fourth

Amendment rights, our inquiry reduces to “whether the

governmental interests at stake were sufficient to justify it.”

Vos, 892 F.3d at 1031.

The Supreme Court has provided three factors for

determining the strength of the government’s interest:

“[1] the severity of the crime at issue, [2] whether the

suspect poses an immediate threat to the safety of the officers

or others, and [3] whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at

396. The “most important” of these factors is “whether the

suspect posed an immediate threat to the safety of the

officers or others.” Lal v. California, 746 F.3d 1112, 1117

HART V. CITY OF REDWOOD CITY 13

(9th Cir. 2014); see also George v. Morris, 736 F.3d 829,

838 (9th Cir. 2013).

a.

Beginning with the most important factor, id., Hart posed

an immediate threat to Officer Gomez. “The

‘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.” Graham, 490

U.S. at 396. So when determining whether Hart posed an

immediate threat to Officer Gomez, the perspective of an

officer on the scene must be considered.

When Officers Gomez and Velez arrived, they walked

down a path to the backyard at the frantic urging of Plaintiff.

Plaintiffs emphasize minor differences in testimony between

Gomez and Velez as to where each stood relative to each

other on the path, i.e., whether Velez stood to Gomez’s right

or left. But which side of the path each officer stood on is

immaterial to the inquiry of whether Hart posed an immediate

threat to the officers.

When the officers reached the backyard, they found Hart

standing in the yard holding a knife. Plaintiffs again attempt

to present a factual dispute, first noting that depending on

whose testimony is considered, Hart was either standing on

or behind a low dirt mound. But either way, Hart was initially

at most 37 feet away from the officers. Plaintiffs next dispute

how Hart was holding the knife. But they rely only on

testimony about how he was holding the knife when the

officers first encountered him. This is immaterial in light of

two undisputed facts: (1) Hart was holding a knife when they

first saw him and (2) Hart was holding the knife towards the

officers as he approached them. As Officer Gomez did not

employ lethal force until Hart approached them, how Hart

14 HART V. CITY OF REDWOOD CITY

held the knife at that point is the material issue, and that issue

is undisputed in the record.

Hart was non-communicative and failed to respond to or

comply with Gomez’s command to “drop the knife.” 3

Instead, he approached the officers, holding the knife out

towards them. Plaintiffs argue that whether Hart ran or

briskly walked towards the officers is material to whether he

posed a threat. But while this might be material under other

circumstances, whether Hart’s pace was specifically a run or

a brisk walk is immaterial given he crossed the yard to within

close range of the officers in less than 5.9 seconds. It is

undisputed that Officers Gomez and Velez literally had only

seconds to react to a non-responsive man quickly

approaching them with a knife. Officer Gomez’s decision to

fire was based on Hart’s failure to comply with commands,

his approach, and his possession of a lethal weapon.

Plaintiffs’ asserted factual disputes do not eliminate any of

these core, undisputed circumstances. These undisputed

facts are what led Officer Gomez to reasonably believe that

Hart posed an immediate threat to both himself and his

partner.

This court has previously found it objectively reasonable

to view an individual as an immediate threat in similar

situations. For example, in Blanford v. Sacramento County,

this court concluded that it was objectively reasonable for an

officer to view an individual carrying a sword, attempting to

enter a home, and failing to comply with verbal commands

3

Plaintiffs now contest whether Officer Gomez said this twice or only

once, based on the 911 dispatch recording. But Plaintiff herself testified

she heard Gomez say it twice, and it is difficult to hear the officers at all

on the 911 call recording. Regardless, Plaintiffs do not dispute that the

command was, in fact, given at least once.

HART V. CITY OF REDWOOD CITY 15

as an immediate threat, despite later determining that the

individual lived in that home and did not hear the officer’s

commands because he wore headphones. 406 F.3d 1110,

1116 (9th Cir. 2005). Here, Hart similarly wielded an edged

weapon and failed to comply with commands. And in Lal,

police officers were involved in a car chase that culminated

in a standoff where the individual, who had already hit

himself “with a stone,” approached them with a “football-

sized rock” held over his head. 746 F.3d at 1117. As here,

one officer requested less than lethal assistance, but they

were forced to take action before assistance arrived. Id. at

1114. This court held that the officers were justified in

believing that the individual approaching them with a blunt

weapon was an immediate threat. Id. at 1117. If anything,

here—where Hart carried a knife rather than a rock—the

threat was greater. If the individuals in Blanford and Lal

posed an immediate threat, it is difficult to conclude that

Hart did not.

Plaintiffs make a number of arguments as to why Hart

did not present an immediate threat, but each is

unconvincing. Plaintiffs first argue that whether Hart was

running or briskly walking is critical to whether he presented

an immediate threat. But what is undisputed is that Hart

crossed the entirety of the “roomy backyard” in a matter of

seconds. So whether Hart was running or merely walking,

there is no dispute that he quickly closed the distance

between himself and Officer Gomez while wielding a lethal

weapon.

In some tension with their argument that Hart was

moving too slowly to present a threat to the officers,

Plaintiffs also argue that the situation developed too quickly.

Plaintiffs argue that “constitutional violations” are routinely

found “when the shooting of an armed suspect happens

16 HART V. CITY OF REDWOOD CITY

quickly.” As Plaintiffs point out, this may be true when the

“officers themselves … unnecessarily create their own sense

of urgency,” S.R. Nehad v. Browder, 929 F.3d 1125, 1135

(9th Cir. 2019) (internal quotations and modifications

omitted), or where the police were quick to shoot despite

having significant time to plan their actions, see Vos, 892

F.3d at 1034. But here, the officers responded to an

emergency situation involving an armed individual. They

were immediately urged to help by the victim’s “very, very

upset” and “very animated” wife, who directed them to

Hart’s location. And Officer Gomez did not engage in lethal

force until Hart was approaching them with a knife held out

towards them. The officers were responding quickly to an

emergency, which led to a confrontation with a man who

approached them while wielding a knife and refused to drop

it when commanded. Nothing about the speed of events in

this case eliminated Hart’s immediate threat.

Plaintiffs also argue that because Hart had already

harmed himself when the officers arrived, he presented less

of a threat. Plaintiffs cite Tan Lam v. City of Los Banos for

the proposition that one who is wounded may no longer

present an immediate threat. 976 F.3d 986, 999 (9th Cir.

2020). In Tan Lam, the individual stabbed an officer with

scissors. Id. The officer then shot the individual. Id. This

court found that first shot to be an objectively reasonable use

of force. Id. But then, after the individual “was injured and

was [no longer] approaching [the officer] with scissors,” the

officer shot him again. Id. (emphasis added). At that point,

this court determined that the individual was no longer an

immediate threat. Id. Perhaps if Hart’s injuries had made it

so he could no longer approach the officers with the knife,

then as in Tan Lam, Hart would not have been an immediate

threat. But it is uncontroverted that Hart was able to

HART V. CITY OF REDWOOD CITY 17

approach at least at a brisk walk, while wielding the knife in

front of him.

Finally, Plaintiffs suggest that Hart was still “15 to 17

feet away” from the officers and falling to the ground when

they fired their weapons. This assertion is belied by the

record. Plaintiffs posit that because the taser probe that

missed Hart was found 15 to 17 feet away, Hart must have

been shot when he “was 15 to 17 feet away.” But the mere

fact that the errant barb landed 17 feet away is not evidence

that Hart himself was that far away. Consistent with the

officer’s testimony, Hart could have been significantly

closer and the taser barb simply flew past and landed beyond

him.

Plaintiffs’ assertion that Hart was falling when the

officers first deployed their weapons likewise has no support

in the record. Plaintiffs appear to base this claim solely on a

misreading of the coroner’s report, but the coroner’s report

does not opine on the bullet’s trajectory in flight or Hart’s

position when struck. On the other hand, Defendants’ expert

opined without contradiction that “[t]he trajectory angle of

the wound is not consistent with someone whose back is

turned towards the officer,” and that Gomez “would have

stopped firing while Mr. Hart was still armed, still moving

towards them, and still upright.”

In short, Hart was clearly an immediate threat to the

officers when he approached them while wielding the knife.

Plaintiffs’ own expert testified to this effect:

Q. … Based upon your expert opinion and

the information you reviewed, at any

point did Mr. Hart pose an imminent

18 HART V. CITY OF REDWOOD CITY

threat to either Officer Veldez [sic],

Officer Gomez, or anyone else?

A. Yes.

Q. And—let’s be more specific, then. At

any point, did Mr. Hart pose an imminent

threat to Officer Veldez [sic]?

A. He—yes.

Q. At any point, did Mr. Hart pose an

imminent threat to Officer Gomez?

A. Yes.

Q. At what point did Mr. Hart pose an

imminent threat to Officer Gomez and/or

Officer Veldez [sic]?

A. When Mr. Hart began to walk towards

them, they could have viewed that as an

imminent threat.

Plaintiffs point out that, notwithstanding this testimony, their

expert generally “was critical of the Officers’ conduct during

the incident.” But their expert’s other criticisms do not rebut

what he expressly acknowledged: “I believe [Hart] was a

threat to [the officers] when he had the knife in his hand. …

I believe that he presented an imminent threat to them.”

While the expert’s opinion that Hart posed an imminent

threat is not what makes it true, the larger point is that Hart’s

threat to the officers was so obvious that an adverse expert

had to concede it because a non-responsive individual

approaching while holding out a knife is unarguably an

immediate threat. This issue, which is the “most important

single element of the three specified [Graham] factors,”

Lowry v. City of San Diego, 858 F.3d 1248, 1258 (9th Cir.

HART V. CITY OF REDWOOD CITY 19

2017) (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.

1994)), renders Officer Gomez’s conduct objectively

reasonable, 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)

(stating that “where a suspect threatens an officer with a

weapon such as a gun or a knife, the officer is justified in

using deadly force”).

b.

Even though the immediacy of the threat posed by Hart

as he approached with a knife is dispositive here, see Estate

of Hernandez by & through Hernandez v. City of Los

Angeles, No. 21-55994, 2024 WL 1203884, at *4–5 (9th Cir.

Mar. 21, 2024), the other Graham factors also arguably

support the reasonableness of Gomez’s conduct, and

certainly do not undermine it.

The second factor is the severity of the crime at issue.

After encountering the police officers, Hart approached the

police officers while wielding a knife and refusing

commands to drop it. Hart’s approach while carrying a

deadly weapon may have constituted an assault on the police

officers. Cal. Penal Code §§ 217.1, 240 (defining “assault”

as “an unlawful attempt, coupled with a present ability, to

commit a violent injury on the person of another”). He also

willfully resisted Officer Gomez’s commands to “drop the

knife,” a form of resisting arrest, and did so while exhibiting

20 HART V. CITY OF REDWOOD CITY

a deadly weapon, both of which are also crimes in

California. 4 Cal. Penal Code §§ 148(a), 417.8.

It is true that analyzing the severity of crimes committed

against the officers in a case like this ties this Graham factor

almost inextricably to the immediate threat factor. But that

is hardly surprising because many of the actions constituting

an immediate threat to others are also crimes. If someone is

actively murdering those around him, for example, he is both

committing a serious crime and posing an immediate threat

to anyone near him. The severity of the crime is thus very

often related to or the cause of the heightened and immediate

threat. See Lowry, 858 F.3d at 1258 (concluding that a

suspect posed an immediate threat in part because he was in

the process of committing burglary). This will often be the

case unless, unlike here, the crime committed is temporally

separate from the interaction with police. See Browder, 929

F.3d at 1136. Because the crimes Hart committed

contributed to the immediacy of his threat to Officers Gomez

and Velez, the second Graham factor does not weigh against

4

California courts have concluded that California Penal Code Section

148 “penalizes even passive delay or obstruction of an arrest, such as

refusal to cooperate.” People v. Curtis, 74 Cal. Rptr. 713, 718 n.6 (Ct.

App. 1969), disapproved on another ground in People v. Gonzalez, 275

Cal. Rptr. 729, 750 (Ct. App. 1990). California courts have held that

Section 148 cannot be supposed to “criminalize[] a person’s failure to

respond with alacrity to police orders,” but where the suspect acts

defiantly, such passive obstruction has been held to satisfy Section 148.

In re Muhammed C., 116 Cal. Rptr. 2d 21, 24 (Ct. App. 2002) (citation

omitted); see also In re J.C., 176 Cal. Rptr. 3d 503, 507 (Ct. App. 2014)

(concluding Section 148 was satisfied where the suspect “did not comply

with the officer’s order to sit down and calm down, or with his

subsequent order to submit peacefully to detention”). Here, Hart not

only failed to drop the knife when commanded, he affirmatively

approached the officers with the knife in defiance of that command.

HART V. CITY OF REDWOOD CITY 21

the reasonableness of the use of force. See Ames v. King

Cnty., Washington, 846 F.3d 340, 348–49 (9th Cir. 2017)

(finding that the severity of the crime factor weighs in

defendant’s favor when the crime, even if minor in nature,

prolongs or exacerbates an ongoing emergency); Bernal v.

Sacramento Cnty. Sheriff’s Dept., 73 F.4th 678, 692 (9th Cir.

2023) (same).

c.

The final Graham factor is whether Hart was “actively

resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396. As discussed above, Hart failed

to comply with orders to drop the knife he carried. Plaintiffs

cite Bryan v. MacPherson in arguing that, while “passive

resistance” can support the use of force, “the level of force

an individual’s resistance will support is dependent on the

factual circumstances underlying that resistance.” 630 F.3d

805, 830 (9th Cir. 2010). We have also explained that “a

failure to fully or immediately comply with an officer’s

orders neither rises to the level of active resistance nor

justifies the application of a non-trivial amount of force.”

Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012).

But here, Hart’s conduct objectively amounted to more

than mere “passive resistance.” Not only did Hart fail to

comply with the order to drop the knife, but importantly he

also approached the officers while brandishing that knife.

The circumstances in this case are therefore unlike Bryan

where the officer “was confronted with a half naked,

unarmed, stationary, apparently disturbed individual

shouting gibberish at a distance of approximately twenty

feet.” 630 F.3d at 828. Nor are they like those in Nelson,

where the plaintiff failed to leave when commanded, but

committed no other acts of aggression. 685 F.3d at 874.

22 HART V. CITY OF REDWOOD CITY

This case is also unlike Glenn v. Washington County, where

this court determined that the suspect did not actively resist

arrest because, although he “remained in possession of the

pocketknife despite officers’ commands to put it down,” he

“stayed in the same position from the time officers arrived

and took no threatening actions (other than noncompliance

with shouted orders).” 673 F.3d 864, 874–75 (9th Cir.

2011). Here, Hart was not simply holding a knife—he

approached the officers with the knife while failing to

comply with the officers’ commands. This active resistance

satisfies Graham’s final factor.

Ultimately, it is the totality of the circumstances that lead

us to conclude that Graham’s standard is satisfied. See id.

at 872 (“We examine the totality of the circumstances and

consider whatever specific factors may be appropriate in a

particular case ….” (internal quotations and citation

omitted)). To repeat: if Hart had merely possessed a knife,

the use of deadly force would not have been justified here.

Likewise, Hart’s failure to comply with the officers’

commands, standing alone, would not have justified it. But

Hart failed to comply with the officers’ commands to drop

the knife and instead rapidly approached them while

wielding it. These facts, together, made Hart an immediate

threat to the officers and justified Officer Gomez’s use of

deadly force.

d.

Besides the three Graham factors, Plaintiffs argue that

additional factors are relevant to the analysis, including the

officers’ pre-shooting conduct, the availability of less

intrusive alternatives, Hart’s apparent mental illness, and the

officers’ failure to warn that they would shoot.

HART V. CITY OF REDWOOD CITY 23

While California state law does factor pre-shooting

conduct into whether an officer acts “reasonably when using

deadly force,” Hayes, 305 P.3d at 256, “[t]he Fourth

Amendment is narrower and places less emphasis on pre[-

]shooting conduct,” Vos, 892 F.3d at 1037 (internal

quotations and modifications omitted). And though “[t]he

events leading up to the shooting, such as the officer’s

tactics, are encompassed in [the] facts and circumstances” a

court can consider, 5 Hung Lam v. City of San Jose, 869 F.3d

1077, 1087 (9th Cir. 2017), one cannot “establish a Fourth

Amendment violation based merely on bad tactics that result

in a deadly confrontation that could have been avoided,”

Billington v Smith, 292 F.3d 1177, 1190 (9th Cir. 2002),

abrogated on other grounds by County of Los Angeles v.

Mendez, 581 U.S. 420 (2017). Plaintiffs argue that pre-

shooting conduct is relevant to the Fourth Amendment

analysis, but when it comes to identifying what specific pre-

shooting conduct makes Officer Gomez’s conduct

objectively unreasonable, Plaintiffs simply argue that the

officers could have moved to a different location in the yard.

Plaintiffs point out that the backyard was roomy and had

patio furniture, and so the officers could have repositioned

and potentially put the patio table between themselves and

Hart. But even if they had repositioned within the backyard,

5

While we sometimes consider pre-shooting conduct, other circuits do

not. See, e.g., Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005)

(“[T]he reasonableness of the officer’s actions in creating the dangerous

situation is not relevant to the Fourth Amendment analysis; rather,

reasonableness is determined based on the information possessed by the

officer at the moment that force is employed.”); Gardner v. Buerger, 82

F.3d 248, 254 (8th Cir. 1996) (requiring that the plaintiff “must present

evidence that the seizure itself, not its prologue, was unreasonable”);

Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure

conduct is not subject to Fourth Amendment scrutiny.”).

24 HART V. CITY OF REDWOOD CITY

there is no evidence to indicate that Hart would have been

then unable to continue to approach them with the knife.

Plaintiffs cite their police practices expert, who opined that

“tactical repositioning is often utilized for officer safety.”

But the district court determined that the expert’s statement

that Gomez could have engaged in such “tactical

repositioning” was an impermissible opinion about the

“knowledge and state of mind of the officers,” and Plaintiffs

do not challenge this determination. Thus, Plaintiffs’

argument is based on speculation that repositioning in the

backyard was an available alternative in this case. This

speculation does not refute the officers’ testimony that the

condition of the side yard prevented them from retreating.

See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th

Cir. 1996) (“[M]ere allegation and speculation do not create

a factual dispute for purposes of summary judgment.”).

Nor does Hart’s mental illness change the outcome in

this case. While “whether the suspect has exhibited signs of

mental illness is one of the factors the court will consider,”

this court has “refused to create two tracks of excessive force

analysis, one for the mentally ill and one for serious

criminals.” Crawford v. City of Bakersfield, 944 F.3d 1070,

1078 (9th Cir. 2019) (quoting Vos, 892 F3d at 1034 n.9).

Ultimately, that an individual who poses an immediate threat

may be mentally ill does not remove the case from the

Graham analysis performed above, and any mental health

crisis Hart experienced is considered in view of the

surrounding circumstances. Here, Hart approached the

officers while holding a knife after ignoring a command to

drop it. This case is therefore unlike Glenn, where our court

concluded that a jury could find an unreasonable use of force

when the mentally-ill suspect was holding a “pocketknife

with a three-inch blade, which he did not brandish at

HART V. CITY OF REDWOOD CITY 25

anyone” and where that individual “stayed in the same

position from the moment the officers arrived and showed

no signs of attempting to move until after he was fired upon.”

673 F.3d at 873–74.

Similarly, while “[o]ur cases demonstrate that officers

provide warnings, where feasible, even when the force used

is less than deadly,” Deorle, 272 F.3d at 1284, a warning is

required only “where feasible,” Garner, 471 U.S. at 11–12;

see also Smith v. Agdeppa, 81 F.4th 994, 1006 (9th Cir.

2023). Here, given the speed at which the unfortunate events

unfolded, it was not unreasonable for Officer Gomez to

forgo a verbal warning and take action to protect himself and

his partner from an immediate threat.

2.

Officer Gomez’s conduct did not violate the Fourth

Amendment, but even if it had, he would still be entitled to

qualified immunity because he did not violate clearly

established law. To deny qualified immunity, not only must

a constitutional right be violated, but that right must be

“clearly established” at the time. Wesby, 583 U.S. at 62–63.

To be clearly established, there need not be “a case directly

on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011). While in the “rare”

case a clearly established right may be obvious, clearly

establishing a right usually requires “‘controlling authority’

or a robust ‘consensus of cases of persuasive authority.’”

Wesby, 583 U.S. at 63, 64 (quoting al-Kidd, 563 U.S. at 741–

42). The burden is on Plaintiffs to make the showing,

Isayeva, 872 F.3d at 946, that “the right’s contours were

sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

26 HART V. CITY OF REDWOOD CITY

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

(citation omitted). As discussed below, none of the cases

Plaintiffs identify would have put Gomez on notice that his

actions in this case would be unlawful.

Plaintiffs first point to Deorle. As an initial matter, the

Supreme Court has “instructed [us] not to read [our] decision

in [Deorle] too broadly in deciding whether a new set of facts

is governed by clearly established law.” Id. at 1154. Even

looking beyond this rare instruction from the Supreme Court

about how to apply our circuit’s own precedent, “the

differences between [Deorle] and the case before us leap

from the page.” City and County of San Francisco v.

Sheehan, 575 U.S. 600, 614 (2015). In Deorle, a police

officer fired a beanbag round into the face of a man who was

“unarmed, … had generally obeyed the instructions given

him by various police officers, and had not committed any

serious offense.” 272 F.3d at 1275. By contrast, Hart was

armed with a knife, failed to drop the knife when

commanded, and approached the officers while brandishing

the knife. Additionally, the officers in Deorle had “thirty to

forty minutes” to plan their course of action, id. at 1276,

while Gomez and Velez were responding quickly to an

emergency suicide situation. In light of the extensive

dissimilarities between this case and Deorle, extending

Deorle here would be directly at odds with the Supreme

Court’s instruction to read Deorle narrowly.

Plaintiffs next rely on Vos, but that case is also factually

distinguishable. In Vos, the officers saw Vos standing inside

a 7-Eleven, yelling and “pretending to have a gun.” 892 F.3d

at 1029. The officers had about twenty minutes to plan their

action. Id. at 1029–30. Then, the officers—one bearing “a

40-millimeter less-lethal projectile launcher” while the others

had traditional firearms—entered the 7-Eleven to engage

HART V. CITY OF REDWOOD CITY 27

Vos. Id. When they did, he approached them while holding

what they initially believed to be scissors, but what turned out

to actually be a “pronged metal display hook.” Id. One

officer told Vos to “[d]rop the weapon,” but when he failed

to comply, they fired at him with both the less-lethal and

lethal weapons, striking him four times and killing him. Id.

Our court in Vos held that “a reasonable jury could [have

found] that the force employed was greater than [was]

reasonable under the circumstances.” Id. at 1034 (internal

quotations omitted). In doing so, we relied in part on both

the fact that one of the officers was armed with a 40-

millimeter less-lethal firearm and the extended timeline

available to “coordinate a plan for their use of force.” Id. at

1033–34. Here, while an officer armed with a 40-millimeter

less lethal weapon was en route, he did not arrive before the

officers engaged with Hart. And unlike the situation in Vos,

in which police officers had twenty minutes to develop a

tactical plan, Officers Gomez and Velez were responding to

an emergency suicide situation in which time was of the

essence. They had only seventeen seconds from when they

arrived on the scene until Hart advanced towards them with

a knife. As such, the factual scenario Officers Gomez and

Velez faced was sufficiently different from that in Vos that

Gomez would not have been on notice from that case.

Plaintiffs next suggest that, if Deorle and Vos fail to

clearly establish Gomez’s violation, Browder nonetheless

decides the issue. As an initial matter, Browder was decided

after the events of this case, so it could not have informed

Gomez that his conduct was unlawful. See al-Kidd, 563 U.S.

at 741 (requiring “existing precedent” to put “the statutory

or constitutional question beyond debate” (emphasis

added)). And even if Browder were relevant to whether the

law at issue here was clearly established, the facts of that

28 HART V. CITY OF REDWOOD CITY

case would similarly fail to clearly control this one. In

Browder, an officer arrived on the scene after an individual

(Nehad) had reportedly threatened a store employee with a

knife. 929 F.3d at 1130. When the officer first saw Nehad,

he found Nehad fiddling with something but “told …

investigators that he had not seen any weapons.” Id. at 1131.

Within five seconds, the officer fatally shot Nehad, who

turned out to have been carrying a blue pen. Id. In contrast

to Hart’s active suicide attempts and rapid movement toward

the officers, Nehad had not harmed himself or others. And

even though the officer later changed his story to the effect

that he thought Nehad had been carrying a knife, this

testimony was disputed, even by his own earlier statements.

Id. at 1133. Here, it is undisputed that Hart wielded a knife

as he approached the officers. As such, Browder could not

be read to clearly establish that Gomez’s conduct violated

Hart’s rights.

Plaintiffs have the burden of showing that the law was

clearly established. Isayeva, 872 F.3d at 946. None of the

cases Plaintiffs have identified—Deorle, Vos, or Browder—

put the “constitutional question beyond debate” that the

“violative nature of [Gomez’s] particular conduct [was]

clearly established.” al-Kidd, 563 U.S. at 741–42. As such,

Plaintiffs have failed to show that Hart’s rights were “clearly

established.” Wesby, 583 U.S. at 62–63 (quoting Reichle,

566 U.S. at 664).

Because Plaintiffs have not shown that Officer Gomez’s

conduct was objectively unreasonable and therefore a

violation of Hart’s Fourth Amendment rights or that such

rights were clearly established by existing precedent, Officer

Gomez is entitled to qualified immunity.

HART V. CITY OF REDWOOD CITY 29

IV.

We have jurisdiction over this case because both whether

disputed facts are material and whether qualified immunity

applies are questions of law subject to our jurisdiction.

Plaintiffs have shown neither (1) that Officer Gomez’s

conduct was objectively unreasonable and therefore a

violation of Hart’s Fourth Amendment rights, nor (2) that

such rights were clearly established by precedent existing at

the time of the conduct. The district court therefore erred in

finding that Officer Gomez was not entitled to qualified

immunity.

REVERSED.