Rosalina Calonge v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSALINA CALONGE, an No. 22-16495

individual and successor in interest to

Francis Calonge, deceased, D.C. No.

5:20-cv-07429-

Plaintiff-Appellant, NC

v.

OPINION

CITY OF SAN JOSE, a municipal

public entity; EDWARD CARBONI,

an individual,

Defendants-Appellees,

and

FRANCISCO CALONGE, Nominal

Defendant,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding

Argued and Submitted November 17, 2023

San Jose, California

2 CALONGE V. CITY OF SAN JOSE

Filed June 7, 2024

Before: Mary H. Murguia, Chief Judge, and Richard A.

Paez and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland

SUMMARY*

Deadly Force/Qualified Immunity

The panel reversed the district court’s summary

judgment granting qualified immunity to City of San Jose

Police Officer Edward Carboni in an action brought pursuant

to 42 U.S.C. § 1983 alleging, among other claims, that

Officer Carboni used excessive deadly force when he shot

and killed Francis Calonge.

The panel noted that this case is unusual in that other

officers on the scene contradicted key facts asserted by

Officer Carboni. Construing the facts in the light most

favorable to plaintiff Rosalina Calonge, the panel concluded

that a reasonable jury could decide that Officer Carboni

violated Calonge’s Fourth Amendment right to be free from

excessive force. The panel resolved three disputed facts in

plaintiff’s favor for purposes of the appeal: (1) Calonge was

not drawing his gun or otherwise making a threatening

gesture when Officer Carboni shot him; (2) there were no

bystanders in Calonge’s vicinity when he was shot; and

*

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

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

CALONGE V. CITY OF SAN JOSE 3

(3) officers did not instruct Calonge to get on the ground or

otherwise stop. The totality of the circumstances did not

justify deadly force. A reasonable jury could conclude that

Calonge did not pose an immediate threat and was not

fleeing arrest. Officers were not responding to the

commission of a serious crime, and Calonge was not non-

compliant, given the officers’ conflicting commands about

what to do with the gun.

It would have been clear to a reasonable officer in

Carboni’s position at the time that shooting Calonge was

unlawful. It was clearly established that when a man is

walking down the street carrying a gun in his waistband,

posing no immediate threat, police officers may not shout

conflicting commands at him and then kill him.

COUNSEL

James McManis (argued), Abimael Bastida, and Isaac D.

Nieblas, McManis Faulker, San Jose, California, for

Plaintiff-Appellant.

Thomas J. Gray (argued), Senior Deputy City Attorney;

Ardell Johnson, Assistant City Attorney; Nora Frimann, City

Attorney; San Jose City Attorney’s Office, San Jose,

California; for Defendants-Appellees.

4 CALONGE V. CITY OF SAN JOSE

OPINION

FRIEDLAND, Circuit Judge:

We are presented here with a police officer’s assertion of

qualified immunity after shooting and killing Francis

Calonge. Several officers responded to 911 calls reporting a

man with a gun. They located the man, thirty-three-year-old

Calonge, who had what appeared to be a gun in his

waistband. They followed him for about one minute as he

walked down a street. Officer Edward Carboni then shot and

killed Calonge. Calonge’s mother, Rosalina Calonge, sued

Officer Carboni for violating her son’s Fourth Amendment

right to be free from excessive force.1

This case is unusual in that other officers on the scene

contradict key facts asserted by the officer who used deadly

force. Construing the facts in the light most favorable to Ms.

Calonge, we conclude that a reasonable jury could decide

that Officer Carboni violated the Fourth Amendment. We

also conclude that the relevant law was clearly established at

the time, so Officer Carboni is not entitled to qualified

immunity. We accordingly reverse the district court’s grant

of summary judgment in his favor.

1

Ms. Calonge also brought other claims, which we address in a

concurrently filed memorandum disposition. (For clarity, we refer to

Francis Calonge as “Calonge,” and we refer to Rosalina Calonge as “Ms.

Calonge.”)

CALONGE V. CITY OF SAN JOSE 5

I.

A.

During the afternoon of October 31, 2019, Calonge was

near a shopping center in San Jose. He was carrying a

Powerline 340 BB gun. A passerby, thinking that Calonge

had a real handgun, called 911. About fifteen minutes later,

a driver called 911 and reported a man with a gun walking

down a street near the shopping center. That second caller

expressed concern for the safety of students at nearby

Independence High School, which released its students

around the time of the call.

The San Jose Police Department dispatched officers to

the area. Officers Carboni, McKenzie, Yciano, and Pedreira

were among those who responded. Officer Carboni

requested that the San Jose Guardian Unit, a team trained to

respond to active school shooters, be dispatched to

Independence High School. Officer Carboni then exited his

vehicle holding his rifle and activated his body-worn

camera. Calonge was about twenty yards up the street,

walking toward the officers. He was walking away from the

school, which was about three blocks behind him. Officer

Carboni testified that Calonge had the gun in his front

waistband and was resting his right hand on it.

Officer Carboni began shouting commands to Calonge,

including “let me see your hands” and “drop it.” A different

officer shouted for Calonge to “drop the gun.” A third

officer shouted, “do not reach for it.” That may have been

Officer Yciano, who later testified that he instructed

Calonge, “don’t reach for the gun.” A police report states

that Officer Yciano also told Calonge to “get on the ground.”

Yet when asked at his deposition about what commands he

gave, Officer Yciano testified only that he told Calonge not

6 CALONGE V. CITY OF SAN JOSE

to reach for the gun and to drop the gun. He testified that he

recalled an unspecified other officer telling Calonge to get

on the ground. No command to get on the ground is audible

in the body-worn camera footage.

When the officers began shouting commands, Calonge

paused, crossed the street, and began heading in the opposite

direction, away from the officers and generally toward the

school. Officers Carboni, McKenzie, and Yciano followed

him on foot at a distance of ten to thirty yards, walking along

the road’s median, while Officer Pedreira followed in a

police car. According to the officers, Calonge looked over

his shoulder a few times and smiled. He continued walking,

but he did not speed up.

Officer Carboni started to say something to the other

police officers. He began, “I’m gonna—hey . . .” before

trailing off. He then shouted for Calonge to “drop it.” A few

seconds later, he said to the other officers, “Hey, watch out,

I’m gonna shoot him. Watch out, watch out. Get out of the

way.” That statement took three seconds. Officer Carboni

spent three more seconds steadying his rifle against a tree.

He then shot Calonge once in the back. The bullet struck

Calonge’s heart, killing him. At no point had Officer

Carboni warned Calonge that he was going to shoot. Just

over one minute had elapsed between when Officer Carboni

exited his police car and when he fired his gun.

Officer Carboni later testified that he fired his gun for

two reasons. First, he said he saw Calonge’s arm “bow out”

such that there was space between his arm and his body,

suggesting that he was drawing the gun. Second, Officer

Carboni claimed that Calonge was walking toward some

students who were ten or fifteen yards ahead and that he

feared Calonge would take the students hostage.

CALONGE V. CITY OF SAN JOSE 7

Other evidence conflicts with both of Officer Carboni’s

stated reasons for shooting. As to whether Calonge moved

his arm, although Officer McKenzie later stated that he saw

Calonge’s arm move away from his body, Officer Pedreira

stated that he did not see Calonge do anything that suggested

he was pulling his gun out of his waistband during the

minute before he was shot. And Officer Yciano stated that

he saw Calonge only “turn[] at an angle . . . as if he was

trying to hide” the gun from the officers.2

As to whether there were students nearby, Officer

Pedreira stated that he did not see anyone on the corner of

the intersection toward which Calonge was headed. The

footage from the body-worn cameras, including Officer

Carboni’s camera, does not show any bystanders near

Calonge or further down the sidewalk toward the

intersection.

B.

Ms. Calonge, acting as her son’s successor in interest,

sued Officer Carboni under 42 U.S.C. § 1983 for violating

Calonge’s Fourth Amendment right to be free from

excessive force.

At the close of discovery, Officer Carboni moved for

summary judgment on the ground that he was entitled to

qualified immunity either because his actions did not violate

the Constitution or because the applicable law was not

clearly established.

Ms. Calonge opposed the motion. She argued

principally that the district court could not grant qualified

2

None of the footage from the officers’ body-worn cameras shows

Calonge’s arm in the moments before the shooting.

8 CALONGE V. CITY OF SAN JOSE

immunity at the summary judgment stage because there were

genuine disputes of material fact. She also argued that

qualified immunity was inappropriate because the relevant

law was clearly established. But she did not cite analogous

cases, arguing that it was unnecessary to do so because the

constitutional violation was obvious.

The district court held that Officer Carboni was entitled

to qualified immunity, and thus to summary judgment in his

favor, because Ms. Calonge had failed to identify specific

caselaw clearly establishing that Officer Carboni’s conduct

violated the Fourth Amendment.

II.

We review de novo the question whether a defendant is

entitled to summary judgment on the basis of qualified

immunity. Torres v. City of Madera, 648 F.3d 1119, 1123

(9th Cir. 2011). “[Q]ualified 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.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). The doctrine “balances two important interests—

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they

perform their duties reasonably.” Id. An officer may be

denied summary judgment on the basis of qualified

immunity

only if (1) the [evidence], taken in the light

most favorable to the party asserting injury,

show[s] that the officer’s conduct violated a

CALONGE V. CITY OF SAN JOSE 9

constitutional right, and (2) the right at issue

was clearly established at the time of the

incident such that a reasonable officer would

have understood her conduct to be unlawful

in that situation.

Torres, 648 F.3d at 1123.

A.

“We ‘must view the evidence in the light most favorable

to the nonmoving party’”—here, Ms. Calonge—“‘and draw

all reasonable inferences in that party’s favor.’” Herrera v.

L.A. Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021)

(quoting Dees v. County of San Diego, 960 F.3d 1145, 1151

(9th Cir. 2020)). Where a police officer has used deadly

force, it is especially important that we adhere to that

approach. We “cannot ‘simply accept what may be a self-

serving account by the police officer’ . . . [b]ecause the

person most likely to rebut the officers’ version of events—

the one killed—can’t testify.” Cruz v. City of Anaheim, 765

F.3d 1076, 1079 (9th Cir. 2014) (quoting Scott v. Henrich,

39 F.3d 912, 915 (9th Cir. 1994)). Rather, “we must

carefully examine the evidence in the record to determine

whether the officers’ testimony is internally consistent and

consistent with other known facts.” Gonzalez v. City of

Anaheim, 747 F.3d 789, 791 (9th Cir. 2014) (en banc).

We resolve three disputed facts in Ms. Calonge’s favor

for the purpose of this appeal. First, we assume that Calonge

was not drawing his gun or otherwise making a threatening

gesture when Officer Carboni shot him. Officers Carboni

and McKenzie both say they observed Calonge’s elbow

move away from his body just before Officer Carboni fired

his rifle. But Officers Pedreira and Yciano were also

10 CALONGE V. CITY OF SAN JOSE

watching Calonge at the time, and they saw no such

movement. We resolve the dispute in Ms. Calonge’s favor

at this stage.

Second, we assume that there were no bystanders in

Calonge’s vicinity when he was shot. Officer Carboni stated

that he saw bystanders at the intersection ten or fifteen yards

ahead of Calonge, and that he believed Calonge might take

those bystanders hostage. But Officer Pedreira stated that he

did not see anyone at that intersection. The body camera

footage shows that no one was on the sidewalk near Calonge.

And although the footage does not provide a detailed view

of the intersection, it does not appear to show anyone there,

either. With such conflicting evidence, we again must

resolve the dispute in Ms. Calonge’s favor.

Third, we assume that the officers did not instruct

Calonge to get on the ground (or otherwise stop). A police

report attributes such a command to Officer Yciano, who in

turn attributes it to some other officer. The footage of the

incident reflects no such command. That inconsistency

requires us to assume that Calonge was not instructed to get

on the ground.3

3

Based on later-obtained security camera footage and witness

statements, the parties also dispute whether Calonge brandished or

pointed his gun at anyone before police officers arrived. We need not

decide that question because there is no indication that anyone in Officer

Carboni’s position could have been aware of any such conduct. Davis v.

United States, 854 F.3d 594, 598 (9th Cir. 2017) (“[W]hen considering

qualified immunity, we are . . . limited to considering what facts the

officer could have known at the time of the incident.”). No reports of

such conduct were relayed to the officers by the emergency dispatcher,

who reported only that there was a “suspicious person with a firearm.”

CALONGE V. CITY OF SAN JOSE 11

B.

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated.” U.S. Const. amend. IV. A police officer’s use

of deadly force against a person constitutes a seizure within

the meaning of the Fourth Amendment. Tennessee v.

Garner, 471 U.S. 1, 7 (1985). And a seizure violates the

Fourth Amendment when it is objectively unreasonable.

Graham v. Connor, 490 U.S. 386, 397 (1989). That standard

“requires a careful balancing of ‘the nature and quality of the

intrusion on the individual’s Fourth Amendment interests’

against the countervailing governmental interests at stake.”

Id. at 396 (quoting Garner, 471 U.S. at 8). “Stated another

way, we must ‘balance the amount of force applied against

the need for that force.’” Bryan v. MacPherson, 630 F.3d

805, 823-24 (9th Cir. 2010) (quoting Meredith v. Erath, 342

F.3d 1057, 1061 (9th Cir. 2003)). We conduct that balancing

“from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. at 831

(quoting Graham, 490 U.S. at 396).

On one side of our set of scales is the deadly force

employed by Officer Carboni. “The intrusiveness of a

seizure by means of deadly force is unmatched” because of

a person’s “fundamental interest in his own life.” Garner,

471 U.S. at 9.

Balanced against that force is the “totality of the

circumstances” that might justify it. Id. at 8-9. We must

consider “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or

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

12 CALONGE V. CITY OF SAN JOSE

396. Those factors are “non-exhaustive.” Est. of Lopez ex

rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).

Whether the suspect posed an immediate threat is the “most

important factor.” Id. at 1005-06 (quoting George v. Morris,

736 F.3d 829, 838 (9th Cir. 2013)).

Taking the facts in the light most favorable to Ms.

Calonge, the totality of the circumstances plainly did not

justify deadly force. Starting with the most important factor,

a reasonable jury could conclude that Calonge did not pose

an immediate threat. The parties do not dispute that Officer

Carboni reasonably (although mistakenly) believed that

Calonge was carrying a real firearm. But police officers

“may not kill suspects who do not pose an immediate threat

to their safety or to the safety of others simply because they

are armed.” Harris v. Roderick, 126 F.3d 1189, 1204 (9th

Cir. 1997). An immediate threat might be indicated by “a

furtive movement, harrowing gesture, or serious verbal

threat.” George, 736 F.3d at 838. If a person possesses a

weapon but “doesn’t reach for his waistband or make some

similar threatening gesture, it would clearly be unreasonable

for the officers to shoot him.” Cruz, 765 F.3d at 1078. Here,

we take as true that Calonge did not reach for his waistband

or make a similar furtive or threatening movement. His mere

possession of a gun did not justify the use of deadly force.

Similarly, given that we must assume there were no

bystanders in the vicinity, a threat to those nonexistent

bystanders did not justify the use of deadly force either.

Nor can Officer Carboni’s deadly force be justified on

the ground that Calonge was not complying with the

conflicting commands about what to do with the gun.

Officer Carboni initially told Calonge to “drop it”; then

started instructing Calonge, “let me see your hands”; and

then again told him to “drop it.” At that point, another

CALONGE V. CITY OF SAN JOSE 13

officer told Calonge to “drop the gun, man.” About four

seconds later, two officers shouted contradictory commands

at the exact same moment: One told Calonge to “drop the

gun,” and the other instructed him, “do not reach for it.”

Given that the gun was in Calonge’s waistband, it was

impossible for him to both drop it and not reach for it. We

have explained that when officers initially give conflicting

commands, a person becomes non-compliant only after an

“unequivocal” command is given and the person does not

comply. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1094

n.7 (9th Cir. 2013) (stating that “[i]t is the time from [an]

unequivocal . . . command . . . that matters” for determining

whether—and, if so, for how long—a person was non-

compliant).

The commands arguably remained conflicting up until

Officer Carboni fired. At most, the commands were no

longer conflicting about eight seconds after the other

officers’ simultaneous contradictory commands, when

Officer Carboni instructed Calonge to “drop it” and no other

officer said anything. Three seconds after Officer Carboni

shouted that command, he told the other officers that he was

going to shoot Calonge, and he proceeded to do so. Three

seconds of non-compliance (absent some other threat) does

not justify deadly force. Lopez, 871 F.3d at 1007, 1010-11.

Nor was deadly force justified by the fact that Calonge

continued to walk. Taking the facts in the light most

favorable to Ms. Calonge, the officers did not instruct

Calonge to stop or attempt to arrest him, so his actions

certainly could not amount to fleeing arrest. Indeed, simply

continuing to walk does not amount to fleeing arrest even in

the face of an officer’s commands to stop. A.K.H. ex rel.

Landeros v. City of Tustin, 837 F.3d 1005, 1009, 1012 (9th

Cir. 2016) (explaining that a person is not “flee[ing]” when

14 CALONGE V. CITY OF SAN JOSE

he “continue[s] to move at about the same speed,” even

when an officer instructs him to “get down”).

Nor were the officers responding to the commission of a

serious crime. A reasonable officer in Officer Carboni’s

position would have been aware of conduct by Calonge

amounting to, at most, carrying a loaded firearm in public—

a misdemeanor in California. Cal. Penal Code

§ 25850(c)(7). Under our caselaw, such an offense is not a

serious crime that could justify a high degree of force.

Lopez, 871 F.3d at 1006 (holding that a boy carrying what

appeared to be an AK-47 rifle was “not committing a serious

crime” justifying deadly force); Bryan, 630 F.3d at 829

(holding that “there [is] no substantial government interest

in using significant force to effect [an] arrest” for

misdemeanor violations).

Those considerations are sufficient to conclude that a

reasonable jury could find that Officer Carboni’s actions

violated Calonge’s Fourth Amendment rights. We note

further that no officer warned Calonge that deadly force

would be used. “[W]e have recognized that an officer must

give a warning before using deadly force ‘whenever

practicable.’” Gonzalez, 747 F.3d at 794 (quoting Harris,

126 F.3d at 1201). To be sure, on its own, “[t]he absence of

a warning does not necessarily mean” that deadly force was

unreasonable. Id. at 797. But here, Officer Carboni had time

to warn his fellow officers. Then more time passed before

he shot Calonge. A warning was therefore clearly

practicable. The fact that none was given makes the already

unreasonable use of force even less reasonable.

CALONGE V. CITY OF SAN JOSE 15

C.

We now turn to whether the Fourth Amendment

violation here was clearly established. The law is clearly

established when precedent is “clear enough that every

reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018). It must be

“clear to a reasonable officer” in the defendant’s position

“that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001),

abrogated on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009). That inquiry “must be undertaken in light

of the specific context of the case, not as a broad general

proposition.” Id. at 201. “[S]pecificity is especially

important in the Fourth Amendment context, where . . . ‘[i]t

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) (last alteration in

original) (quoting Saucier, 533 U.S. at 205). “Of course,

there can be the rare ‘obvious case,’ where the unlawfulness

of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.”

Wesby, 583 U.S. at 64 (quoting Brosseau v. Haugen, 543

U.S. 194, 199 (2004) (per curiam)). Outside of an obvious

case, there must be precedent addressing the Fourth

Amendment question in a “more particularized . . . sense.”

Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)).

Officer Carboni contends that Ms. Calonge forfeited any

argument that the clearly established prong of the qualified

immunity analysis was satisfied because she failed to “fully

develop” her argument before the district court by citing

16 CALONGE V. CITY OF SAN JOSE

analogous cases. We must reject that forfeiture argument

because of Elder v. Holloway, 510 U.S. 510 (1994). In

Elder, our court had disregarded authority relevant to the

clearly established prong of qualified immunity because the

authority had not been cited to the district court. Id. at 514.

The Supreme Court reversed, holding that “appellate review

of qualified immunity dispositions is to be conducted in light

of all relevant precedents, not simply those cited to, or

discovered by, the district court.” Id. at 512. The Court

instructed that a court of appeals “engaging in review of a

qualified immunity judgment should . . . use its ‘full

knowledge of its own [and other relevant] precedents.’” Id.

at 516 (second alteration in original) (quoting Davis v.

Scherer, 468 U.S. 183, 192 n.9 (1984)). In Elder, the

plaintiff had argued in the district court that the law was

clearly established but did not cite analogous cases. Here,

Ms. Calonge likewise argued in the district court that the law

was clearly established but did not cite analogous cases. On

appeal, Ms. Calonge continues to argue that the law was

clearly established, and she now cites analogous cases.

Under Elder, we must consider those cases and any other

relevant law.

Applying our “full knowledge” of the relevant law, and

properly construing the facts in the light most favorable to

Ms. Calonge, we concluded above that a reasonable jury

could find that Officer Carboni violated the Fourth

Amendment. The precedents on which we have relied put

the Fourth Amendment question “beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). When a man

is walking down the street carrying a gun in his waistband,

posing no immediate threat, police officers may not shout

conflicting commands at him and then kill him. That rule

was clearly established when Officer Carboni pulled the

CALONGE V. CITY OF SAN JOSE 17

trigger: Every precedent that we cited in our analysis of the

violation prong of qualified immunity was decided well

before October 31, 2019, when the shooting here occurred,

and those cases directly controlled our analysis without

elaboration.

We have held over and over that a suspect’s possession

of a gun does not itself justify deadly force. In George,

police officers shot and killed a man who was “holding a gun

with the barrel pointing down.” 736 F.3d at 832-33.

Because evidence conflicted as to “whether [the man] ever

manipulated the gun, or pointed it directly at deputies,” we

held that a jury could reasonably conclude that the officers

violated the Fourth Amendment by shooting him in the

absence of any immediate threat. Id. at 833, 838-39.

Similarly, in Cruz, police officers shot and killed a man they

claimed was reaching for his waistband as he exited his car

after a traffic stop. 765 F.3d at 1078. We explained that the

only relevant question was whether the man was truly

reaching for his waistband, because “if 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.” Id. We reached that conclusion even assuming

that the police officers reasonably believed that the man was

carrying a gun, and even though he had exhibited some

“dangerous and erratic behavior” leading to the traffic stop.

Id. at 1077-79. And in Lopez, a police officer shot and killed

a boy who was carrying what appeared to be an AK-47. 871

F.3d at 1010-1011. We accepted as true that the boy “did

not point the weapon at the officers or otherwise threaten

them with it” and therefore held that there was no immediate

threat that could have justified the officer’s shooting. Id. at

1017 (emphasis omitted) (quotation marks omitted). We

18 CALONGE V. CITY OF SAN JOSE

further held that the possession of the gun was not a “serious

crime” that could justify deadly force. Id. at 1006.

We have also previously recognized that a person cannot

be considered non-compliant when he fails to obey

conflicting commands. In Gravelet-Blondin, a neighbor

approached officers who were responding to an in-progress

suicide attempt by another man. 728 F.3d at 1089. One

officer instructed the neighbor to “get back” while another

officer commanded him to “stop.” Id. at 1090. The neighbor

did not come closer. Id. Some number of seconds later, an

officer ran toward the neighbor and gave an “unequivocal

‘get back’ command,” before tasing the neighbor. Id. at

1092. We explained that given the earlier “conflicting

commands,” the relevant duration of any non-compliance

was solely the time after the “unequivocal” command. Id. at

1094 n.7 (emphasis omitted). Here, if the commands ever

became non-conflicting, it was only when Officer Carboni

gave the final instruction to “drop it.” Three seconds later,

Officer Carboni told the other officers that he was going to

shoot Calonge, which he proceeded to do. Lopez is again

directly on point—strikingly so. There, the officer shouted

a single command to “drop the gun” to the boy, who was

facing away from the officer. 871 F.3d at 1002-03, 1007.

The boy did not comply for three seconds and then began to

turn toward the officer, at which point the officer shot and

killed him. Id. at 1007. We held that the use of deadly force

was unreasonable. Id. at 1011. Precisely the same number

of seconds elapsed in Lopez between the command to drop

the gun and the use of deadly force as elapsed in this case

CALONGE V. CITY OF SAN JOSE 19

between the only uncontradicted command to drop the gun

and Officer Carboni’s decision to use deadly force.4

We have also previously held that continuing to walk as

Calonge did is not fleeing. In Landeros, we held that a

suspect did not “flee” when he “continued to move at about

the same speed.” 837 F.3d at 1012.

In his brief on appeal, Officer Carboni did not seriously

dispute that, once the facts are construed in Ms. Calonge’s

favor, his conduct violated clearly established constitutional

principles. Officer Carboni instead attempted to distinguish

the controlling cases by improperly construing disputed facts

in his favor and then arguing that Calonge posed an

immediate threat, for example by asserting that Calonge

“brandished the weapon and pointed it at bystanders.”

At oral argument, Officer Carboni shifted gears, arguing

that Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir.

2005), demonstrates that the law was not clearly

established.5 But Blanford differs from this case in multiple

critical ways. There, officers shot a man with a sword. Id.

at 1112. Before shooting, the officers consistently

commanded the man to drop the weapon and warned “that

4

Lopez is factually similar to this case in many other respects as well.

The shooting in that case occurred “close to three schools” that were out

of session, “[t]here were no other people present at the shooting” besides

“a few individuals outside in the surrounding neighborhood,” and the

person shot “had been walking in the general direction of several

houses.” 871 F.3d at 1004. If anything, those facts are more defense-

friendly than the facts here.

5

Even though Officer Carboni did not cite Blanford until oral argument,

we nevertheless give it full consideration, consistent with our obligation

under Elder v. Holloway, 510 U.S. 510 (1994), to consider all relevant

law.

20 CALONGE V. CITY OF SAN JOSE

they would shoot if he did not comply.” Id. at 1116. In

response, the man “raised his sword and growled” at the

officers and then made multiple attempts to gain entry to a

house or its back yard, where the officers reasonably

believed there could have been other people and where he

would no longer have been visible to the officers. Id. Here,

Calonge was given conflicting commands, not consistent

ones; he did not brandish his weapon or menace the officers;

and he did not attempt to disappear into an area that could

contain other people. He simply walked away from the

officers on an empty sidewalk. Given the specifically

relevant precedents that we have discussed, such a factually

different case as Blanford would not lead a reasonable

officer to believe that shooting a man in the circumstances

here was reasonable.

Construing the facts in Ms. Calonge’s favor, it would

have been clear to a reasonable officer in Officer Carboni’s

position that shooting Calonge was unlawful. Officer

Carboni is thus not entitled to qualified immunity.

III.

For the foregoing reasons, we reverse the grant of

summary judgment to Officer Carboni on the Fourth

Amendment claim and remand for further proceedings.