“[Appellate] jurisdiction in these matters generally is 21 limited to questions of law and does not extend to claims in which 22 the determination of qualified immunity depends on disputed issues 23 of material fact.”
How later courts described this case
- “[Appellate] jurisdiction in these matters generally is 21 limited to questions of law and does not extend to claims in which 22 the determination of qualified immunity depends on disputed issues 23 of material fact.”
- “That a person is armed 21 does not end the reasonableness inquiry.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 I.A., a minor by and through ) Case No. CV 20-06447 DDP (JPRx)
Guardian Ad Litem, Willnicka )
12 ReneePollarda, et al., )
) ORDER GRANTING PLAINTIFFS’ MOTION
13 Plaintiff, ) TO CERTIFY INTERLOCUTORY APPEAL
) AS FRIVOLOUS
14 v. )
)
15 CITY OF REDONDO BEACH, a )
municipality, JOHN ANDERSON, ) [Dkt. 111]
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Defendants.
17 ___________________________
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Presently before the court is Plaintiffs’ Motion to Certify
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Defendant’s Interlocutory Appeal as Frivolous (Dkt. 111). Having
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considered the submissions of the parties, the court grants the
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motion, certifies Defendant’s appeal as frivolous, and adopts the
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following Order.1
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I. Background
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The facts of this case are known to the parties, and recounted
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only briefly here. On July 26, 2018, Redondo Beach Police Officer
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Defendant John Anderson responded to a “man with a gun” radio call
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1 The court has granted Plaintiff’s unopposed ex parte
1 and encountered Sergio Acosta. According to Anderson, Acosta was
2 carrying a gun tucked into his armpit, and thrice ignored
3 Anderson’s commands to drop the gun before moving his hand toward
4 the gun, at which point Anderson shot and killed Acosta. Other
5 witness accounts differed. At least four witnesses stated that
6 they never heard Anderson give any commands. In addition,
7 eyewitness Ginger Mungarro told police that “the cops rolled up in
8 an unmarked car, and [Acosta] got shot. . . . I didn’t think they
9 would shoot that fast. . . . [H]e said all right, all right.”
10 (Dkt. 74-2, Ex. F at 9.) When asked what Acosta did prior to being
11 shot, Mungarro stated, “He went like this with his hands up,” with
12 the gun in hand. (Id. at 10.) Mungarro further stated, “they
13 didn’t tell him to drop it or anything.” (Id.)
14 Plaintiffs brought the instant suit, alleging claims under 42
15 U.S.C. § 1983. Defendant Anderson moved for summary judgment.
16 (Dkt 74.) This Court denied Defendant’s motion. (“Order”, Dkt.
17 95). The court acknowledged that Anderson’s use of force may have
18 been justified under Defendant Anderson’s version of events.
19 (Order at 8.) As the court explained, however, “the question [on
20 summary judgment] is not whether a reasonable jury could find for
21 Defendant. The question, rather, is whether a rational trier of
22 fact could, drawing all inferences in favor of Plaintiffs, find for
23 Plaintiffs.” (Order at 8.) See Anderson v. Liberty Lobby, Inc.,
24 477 U.S. 242, 255 (1986). Given the evidence calling into
25 Anderson’s story into question, including Mungarro’s statements,
26 this Court concluded that “[t]he law does not permit a grant of
27 summary judgment under circumstances such as those here, where
28 there are disputes about material facts.” (Order at 11.) The
1 court further noted that this material dispute of fact also
2 precluded a grant of summary judgment on the basis of qualified
3 immunity. (Order at 11 n. 8). See Morales v. Fry, 873 F.3d 817,
4 824 (9th Cir. 2017) (citing commentary to Ninth Circuit Model Civil
5 Jury Instruction 9.34 (2017); see also Espinosa v. City & Cty. of
6 San Francisco, 598 F.3d 528, 532 (9th Cir. 2010).
7 Following this Court’s denial of his motion for summary
8 judgment, Defendant Anderson proceeded to file several motions in
9 limine in advance of trial.2 (Dkts. 98-102). Defendant then filed
10 a Notice of Appeal, purporting to appeal “from that portion of [the
11 summary judgment] order that denied defendant Anderson’s request
12 for qualified immunity.” (Dkt. 110).
13 Plaintiffs now move for certification that Defendant
14 Anderson’s interlocutory appeal is frivolous.
15 II. Discussion
16 “[A] district court’s denial of qualified immunity is
17 immediately appealable to the extent it turns on an issue of law.”
18 Sharp v. County of Orange, 871 F.3d 901, 909 n. 6 (9th Cir. 2017)
19 (emphasis added); see also Jeffers v. Gomez, 267 F.3d 895, 903 (9th
20 Cir. 2001) (“[Appellate] jurisdiction in these matters generally is
21 limited to questions of law and does not extend to claims in which
22 the determination of qualified immunity depends on disputed issues
23 of material fact.”). Where an interlocutory appeal is proper, the
24 filing of a notice of appeal divests the district court of
25 jurisdiction. Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).
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2 The court notes that Defendant Anderson violated this
Court’s Standing Order on Procedures by filing more motions in
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limine than permitted under that Order.
1 Where a district court finds that an appeal is frivolous, however,
2 and certifies such in writing, the court is not divested of
3 jurisdiction, and the matter may proceed to trial. Id.
4 Here, Defendant contends that his appeal is not frivolous
5 because he will argue that (1) the disputed facts underlying this
6 Court’s denial of summary judgment are not material, and (2)
7 Defendant is entitled to summary judgment even if Plaintiffs’
8 version of facts is presumed correct. (Opposition at 2.) These
9 arguments appear to be premised on mischaracterizations of the
10 record, including this Court’s Order, and a continued, fundamental
11 misunderstanding of the law, and have no merit.
12 Defendant first sets up a straw man, arguing that even if
13 Anderson did not give any warnings before shooting Acosta, “that
14 fact alone would not be dispositive as to whether the defendant
15 violated the decedent’s rights.” (Opp. at 3:7-8). This Court,
16 however, has never suggested that a failure to warn would itself
17 render Anderson’s use of force unreasonable. To the contrary, the
18 court explained that “the question [in an excessive force case] is
19 whether a police officer’s actions were objectively reasonable
20 under the totality of the circumstances.” (Order at 7.) As this
21 Court observed, whether and what warnings were given is but one
22 element of a totality of the circumstances analysis.3 (Order at 8,
23 citing Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir.
24 2001); Gonzalez v. City of Anaheim, 747 F.3d 789, 794 (9th Cir.
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3 As Defendant acknowledges, a failure to warn would also bear
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on Anderson’s credibility, which would not be at issue, however, if
an appellate court were to assume the truth of Plaintiffs’ version
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of facts, as Defendant purports to do. (Opp. at 3:12-14.)
1 2014); and S.R. Nehad v. Browder, 929 F.3d 1125, 1137-38 (9th Cir.
2 2019).)
3 Defendant’s only other argument centers on Mungarro’s
4 statements. Mungarro stated to police that “[Acosta] went like
5 this with his hands up.” Drawing all inferences in favor of
6 Plaintiffs, this Court concluded that a reasonable trier of fact
7 could interpret this evidence to show that Acosta “had his hands up
8 when he was shot.” (Order at 10:6-7.) Here, Defendant argues that
9 Mungarro’s “actual words paint a very different picture: just
10 before Sgt. Anderson fired, the suspect raised his hands – one of
11 which had a gun in it.” (Opp. at 4:5-6).
12 This assertion is fundamentally inconsistent with Defendant’s
13 threshold argument that questions of disputed fact can be subject
14 to interlocutory appeal. In Bingue v. Prunchak, the Ninth Circuit
15 recognized the general principle that appellate jurisdiction over
16 summary judgment claims “does not extend to claims in which the
17 determination of qualified immunity depends on disputed issues of
18 material fact.” 512 F.3d 1169, 1172 (9th Cir. 2008). The court
19 nevertheless held that appellate jurisdiction might exist,
20 notwithstanding disputed facts, so long as the appellate court
21 “assum[es] that the version of the material facts asserted by the
22 non-moving party is correct.” Id. (quoting Jeffers, 267 F.3d at
23 903). Here, however, Defendant cannot credibly contend that
24 Plaintiffs assert that Acosta precipitated the shooting by raising
25 his hands while holding a gun. Rather, that is Defendant’s
26 interpretation of Mungarro’s statement that Acosta “went like this
27 with hands up.” As he did at the summary judgment stage, Defendant
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1 again draws all inferences in his own favor rather than in favor of
2 Plaintiffs.
3 Plaintiff goes on to contend “that even if Ms. Mungarro’s
4 statement is deemed to be an accurate description of what happened,
5 the clearly established law not only did not explicitly prohibit
6 Sgt. Anderson’s actions, it actually authorized his actions.”
7 (Opp. at 4:19-23.) This assertion echoes a mistaken, disturbing
8 interpretation of the law twice put forth by Defendant at the
9 summary judgment stage. To reiterate, Plaintiffs’ version of
10 events, drawing all inferences from Mungarro’s statements in
11 Plaintiffs’ favor, is that Acosta was shot while holding a gun with
12 his hands raised, after saying, “Alright, alright” to Anderson. As
13 this Court has explained, Defendant is simply wrong when he argues
14 that, so long as Acosta was armed and Anderson knew Acosta had
15 fired a weapon earlier, any other circumstances were “immaterial”
16 and the use of lethal force was reasonable as a matter of law.
17 (Order at 10.) “It is well-established that ‘[t]he mere fact that
18 a suspect possesses a weapon does not justify deadly force.’” (Id.
19 quoting Hayes v. County of San Diego, 736 F.3d 1223, 1233 (9th Cir.
20 2013); see also Nehad, 929 F.3d at 1134 (“That a person is armed
21 does not end the reasonableness inquiry.”). Defendant can make no
22 colorable argument that Mungarro’s statements, as interpreted by
23 Plaintiffs, “authorized” Anderson’s use of deadly force.
24 III. Conclusion
25 Nothing in this Order or the court’s prior Order should be
26 read to suggest that the court takes any position as to the
27 strength of Plaintiffs’ claims or the credibility of Mungarro’s, or
28 any other witness’, statements. It is indisputable, however, that
under Plaintiffs’ version of the facts, a reasonable trier of fact
2\| could find for Plaintiffs. Defendant cannot create interlocutory
appellate jurisdiction where none exists simply by
mischaracterizing Plaintiffs’ interpretation of the evidence or by
labeling any genuine dispute immaterial.
6 For these reasons, and for the reasons stated above,
7 Plaintiffs’ Motion is GRANTED. The court hereby certifies that
Defendant’s appeal of this Court’s denial of summary judgment is
frivolous. All pretrial deadlines remain in force.
10 IT IS SO ORDERED.
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12] Dated: October 17, 2023
DEAN D. PREGERSON
13 United States District Judge
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