Petition for Writ of Certiorari — Heath Rankin, Petitioner v. Christian Longoria, et al.

App. 1

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APPENDIX A

----------------------------------------------------------------------FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN LONGORIA, a single

man, on behalf of himself as

son of decedent Manuel O.

Longoria, on behalf of all

statutory beneficiaries of

decedent Manuel O. Longoria;

JOSHUA R. WALLACE, as the

personal representative of the

Estate of Manuel O. Longoria;

MANUEL LONGORIA, JR., a single

man; LYNNETTE LONGORIA, a

single woman; P. C. L., a minor,

T. A. L., a minor; K. R. L., a minor; SANISYA LOTT, a single woman;

T. L., a minor; and A. L., a minor,

Plaintiffs-Appellants,

v.

PINAL COUNTY, a political

subdivision of the State of

Arizona; PAUL R. BABEU, in his

official capacity as Sheriff of

Pinal County, Arizona; and

HEATH RANKIN, in his individual

capacity as a Deputy Sheriff

of Pinal County, Arizona,

Defendants-Appellees.

No. 16-15606

D.C. No.

2:15-cv-00043-SRB

OPINION

App. 2

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted June 6, 2017

Pasadena, California

Filed October 10, 2017

Before: Stephen Reinhardt and Alex Kozinski,

Circuit Judges, and Terrence Berg,* District Judge.

Opinion by Judge Reinhardt

COUNSEL

Joel B. Robbins (argued), Robbins & Curtin PLLC,

Phoenix, Arizona; Joseph M. Leal III, Cole & Leal, Casa

Grande, Arizona; Darius Bursh, McCain & Bursh PLC,

Scottsdale, Arizona; for Plaintiffs-Appellants.

Nicholas D. Acedo (argued) and Kathleen L. Wieneke,

Struck Wieneke & Love P.L.C., Chandler, Arizona, for

Defendants-Appellees.

OPINION

REINHARDT, Circuit Judge:

Pinal County Deputy Sheriff Heath Rankin fired

two shots into Manuel Longoria’s back and killed

him just as he was raising his hands above his head.

Rankin’s shots followed the use of non-lethal force by

* The Honorable Terrence Berg, United States District

Judge for the Eastern District of Michigan, sitting by designation.

App. 3

police officers from the City of Eloy who were charged

with arresting Longoria.

When Longoria’s estate (hereinafter “Longoria”)

sued Rankin under § 1983, the district court held that

Rankin was entitled to qualified immunity and entered summary judgment in his favor. We reverse and

remand for further proceedings.1

BACKGROUND

Distraught over his relationship with the mother

of three of his children, Manuel Longoria stole his

brother-in-law’s car and began driving around the city

of Eloy, Arizona. Eloy police officers saw him and initiated a traffic stop, but Longoria fled and led officers on

a chase that lasted for more than 70 minutes.

The Eloy Police Department (“EPD”) asked the Pinal County Sheriff ’s Office (“PCSO”) to be on “standby”

in case Longoria left Eloy’s jurisdiction. PCSO informed its officers that Longoria was driving a stolen

vehicle and (mistakenly) that he was armed. PCSO

Deputy Heath Rankin and his partner, Deputy J. Rice,

joined the pursuit and participated for more than 40

minutes.

During the chase, Longoria stopped his vehicle

and spoke with the pursuing officers several times, but

continued to ignore commands to surrender. During

one of these stops, Longoria got out of the car and was

1

tiffs.

We discuss infra the remainder of the action filed by Plain-

App. 4

seen holding and kissing purple or dark-colored rosary

beads which he held in his hand. During another, he

got out of the car for a brief period and held his wallet

behind his back. EPD Detective Salazar saw that

Longoria was holding a wallet, not a gun, behind his

back and shouted this out to the other officers on the

scene. That information was also dispatched on an

EPD radio frequency that Rankin was monitoring.

Rankin maintains that he did not hear that part of the

broadcast.

Longoria exhibited other erratic behavior. He

threw money and various objects out of the vehicle

while driving and told officers that he had nothing to

live for and wanted to die. Longoria asked officers to

give his money to his family members, and at times

even joked with officers pursuing him that they would

scratch their vehicles if they kept pulling so close to

him. While driving, he waved his hand out of the car,

sometimes making a gun with his fingers and pointing

his fingers at his head as though gesturing for officers

to shoot him. EPD Officer Dean reported over the radio

that Longoria was simulating a gun with his fingers.

As Longoria continued to drive, onlookers gathered

and he laughed, pointed, waved, and even flashed a

peace sign at civilians on the streets.

Shortly before the chase ended, Pinal County Lieutenant Villegas ordered Rankin and other Pinal County

deputies to stand down from the pursuit. Rankin heard

this command and initially followed it. Rankin’s Sergeant then directed him to form a perimeter at the intersection of Main and Battaglia Streets, which he did.

App. 5

A few minutes later, Eloy police officers halted the

chase by disabling Longoria’s car with a PIT maneuver.2 Rankin was standing around the corner about a

half-block away. After hearing the crash, he abandoned

the perimeter, grabbed his assault rifle, and ran towards the scene, followed by his partner Rice.3

While Rankin was sprinting to the scene, Longoria

got out of his vehicle and stood facing the Eloy officers

with one hand behind his back near the car. Eight officers surrounded him and drew their guns. Longoria

initially did not comply with police commands to show

his hands. Eloy Sergeant Tarrango shouted for officers

to use “less lethal,” or less than lethal, force at least

twice. Other Eloy officers shouted that Longoria had

only a wallet behind his back. Still more shouted to

tase Longoria.

Rankin ran behind Longoria – across what would

have been the line of fire had the Eloy officers needed

to shoot – and joined the other officers near the point

of collision. Rankin asserts that he did not hear the

2

A PIT (Pursuit Intervention Technique) maneuver is a

method of forcing a fleeing car to abruptly turn sideways, which

causes the driver to lose control and stop. It involves officers using

a patrol car to veer into the rear half of either the driver’s side or

passenger’s side of a suspect’s car.

3

Rankin asserts that the order to form a perimeter meant

that he was to actively assist with getting Longoria into custody

if and when the chase ended. No PCSO officers other than Rice

abandoned the perimeter and followed Rankin in his pursuit of

Longoria.

App. 6

commands to use less than lethal force while he was

running towards the collision.

Rankin stopped running and took up a position between 25 to 45 feet to Longoria’s right, to the side and

further away from Longoria than all of the other officers who had their weapons drawn. Longoria was facing

the other officers, and continued to stand with one

hand behind his back near his disabled car. Shortly after Rankin stopped sprinting, some of the other officers

fired beanbag rounds at Longoria, striking him. An officer tased him, hitting him with one dart. Longoria

flinched and moved erratically. He then turned halfway around to his right – towards and past Rankin –

to face his car and put his empty hands up above his

head, his back to the officers and Rankin. Rankin fired

two rounds from his assault rifle into Longoria’s back,

killing him.

The § 1983 suit ensued, as did the district court’s

grant of summary judgment on the ground of qualified

immunity.

STANDARD OF REVIEW

We review a district court’s grant of summary

judgment and qualified immunity de novo. Hughes v.

Kisela, 862 F.3d 775, 779 (9th Cir. 2016).

App. 7

DISCUSSION

I.

Qualified Immunity

Longoria challenges the district court’s entry of

summary judgment in favor of Rankin on the ground

of qualified immunity. “The doctrine of qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Qualified immunity exists to

shield an officer from liability for “mere mistakes in

judgment, whether the mistake is one of fact or one of

law.” Butz v. Economou, 438 U.S. 478, 507 (1978). The

doctrine’s purpose is to strike a balance between the

competing “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.”

Pearson, 555 U.S. at 231. “In determining whether

an officer is entitled to qualified immunity, we consider

(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly

established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir.

2014).

“Consequently, at summary judgment, an officer

may be denied qualified immunity in a Section 1983

action ‘only if (1) the facts alleged, taken in the light

most favorable to the party asserting injury, show that

App. 8

the officer’s conduct violated a 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 [his] conduct to be unlawful in

that situation.’ ” Hughes, 862 F.3d at 783 (quoting

Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.

2011)). Our analysis must be from the perspective of a

“reasonable officer on the scene” and “allo[w] for the

fact that police officers are often forced to make splitsecond judgments – in circumstances that are tense,

uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting

Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

We acknowledge at the outset that in the last five

years, the Supreme Court has reversed a number of

federal courts, including ours, in qualified immunity

cases because we failed to abide by the longstanding

principle that “ ‘clearly established law’ should not be

defined at a high level of generality.” White v. Pauly,

137 S. Ct. 548, 551-552 (2017) (per curiam). This has

been a particular problem in cases presenting novel

factual circumstances involving car chases. Here, although preceded by a car chase, the shooting occurred

after the pursuit ended and Longoria’s vehicle was disabled, as described above. This is not one of those cases

occurring mid-pursuit against a “hazy legal backdrop.”

See Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per

curiam) (discussing the factual circumstances in

Plumhoff, 134 S. Ct. at 2012; Scott v. Harris, 550 U.S.

372 (2007); Brosseau v. Haugen, 543 U.S. 194 (2004)

App. 9

(per curiam)). Nor is this like other recent cases the

Court has reversed. We do not rely on a factor mentioned in prior case law but not clearly established

such that a reasonable officer would be on notice to

conform his conduct accordingly, see, e.g., White, 137

S. Ct. at 552, or define a constitutional violation at too

high a level of generality to be clearly established, see,

e.g., Mullenix, 136 S. Ct. at 308-09.

Here we must assess Rankin’s reasonableness

in using deadly force against Longoria, who was unarmed, was surrounded by law enforcement officers,

had been shot by bean bag rounds and a taser, and was

in the process of putting his hands over his head reflexively or in an effort to surrender. Rankin claims

that when Longoria turned to raise his hands he

threatened him or his fellow officers with a “shooter’s

stance.” Because of the many material, disputed facts

in this case, Rankin’s credibility or the accuracy of his

version of the facts is a central question that must be

answered by a jury. We cannot decide as a matter of

law that qualified immunity is appropriate at the summary judgment phase.

A. Constitutional Violation

Plaintiffs argue that Rankin violated Longoria’s

Fourth Amendment rights when he used excessive

force to shoot Longoria dead. We must evaluate such a

claim through the Fourth Amendment’s reasonableness standard, considering “whether the officers’ actions [we]re ‘objectively reasonable’ in light of the facts

App. 10

and circumstances confronting them.” Graham, 490

U.S. at 397. In our analysis, we weigh the “nature and

quality of the intrusion” against the “countervailing

governmental interests at stake.” Id. at 396.

“The intrusiveness of a seizure by means of deadly

force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9

(1985). Rankin deprived Longoria of the “fundamental

interest in his own life.” Id.

“The strength of the government’s interest in the

force used is evaluated by examining three primary

factors: (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.’ ” Hughes, 862 F.3d at 779 (quoting Graham, 490

U.S. at 396). The second factor is the most important,

but we are not limited to these three; rather, we must

consider the “totality of the circumstances.” Id. Here

the district court made impermissible factual inferences in favor of Rankin in its analysis of the second

factor as well as other factual circumstances.

The “most important” factor is whether Longoria

posed an immediate threat. Id. Rankin shot Longoria

after the car chase had ended. Longoria’s car was fully

immobilized; he was surrounded by armed officers, and

his erratic driving no longer posed any threat to bystanders. He had been hit by several bean bag rounds

shot from close range as well as a taser dart. Viewing

the circumstances in the light most favorable to Longoria, the inquiry is thus whether he posed an immediate

App. 11

threat to Rankin or the many officers around him, or

whether a reasonable officer would have perceived

Longoria to be an immediate threat, after the nonlethal force was used but before Rankin shot him dead.

We are aided in our reasonableness analysis by

two videos of the moments right before Longoria’s

death, one from a dashboard camera of an EPD cruiser

and the other from a bystander’s iPhone video recorded

from over 200 feet away. Viewed in real-time, as officers – including Rankin – would have experienced the

event,4 the videos depict Longoria flailing his arms and

moving erratically before turning around and raising

his empty hands above his head in the several seconds

before Rankin shoots and kills him. Defendants argue

that Rankin reasonably perceived a black or silver

weapon in Longoria’s hands and then saw Longoria assume a “shooter’s stance.” The district court relies on

a single frozen frame from one of the videos to find

that “uncontroverted video evidence shows that Mr.

Longoria came up with both hands in front of him facing Defendant Rankin’s direction.” It does not mention

any black or silver weapon.

4

Neither party asserts that the videos portray the events

from Rankin’s exact perspective when he fired his weapon. They

were taken from locations different from where Rankin stood. His

precise position and perspective is an additional fact that would

be relevant to a rational jury in finding the facts, but it remains

unclear based on the varying accounts from Rankin, Rice, other

officers, and the location of the casings from Rankin’s rifle precisely what Rankin saw. The one thing we do know is that he saw

the events in real-time, just as the two videos recorded them, not

as they were depicted in a frozen frame.

App. 12

Deputy Rankin did not however see a frozen

frame, disaggregated from the context of the rest of the

footage. He watched events unfold in real-time as the

two videos played at their ordinary speed portray.

These videos provide some of the most important evidence as to what occurred before and during the shooting and what Rankin actually saw. This evidence alone

raises material questions of fact about the reasonableness of Rankin’s actions and the credibility of his posthoc justification of his conduct. See Johnson v. Bay

Area Rapid Transit Dist., 724 F.3d 1159, 1177 n.7 (9th

Cir. 2013) (observing that a video, even when an imperfect account of an officer’s perspective, is relevant to

his credibility). Viewing the two videos in the light

most favorable to Longoria, the moment Rankin describes as a “shooter’s stance” is not perceptible. While

Rankin relies on a single frozen frame of the iPhone

video to illustrate the “shooter’s stance,” all that

demonstrates is the existence of a genuine dispute of

material fact.5 The full record only heightens this and

other factual disputes.

5

Using frozen frames to bolster the perspective of law enforcement is not a new phenomenon. Twenty-five years ago in the

1992 Simi Valley state court trial of the officers who beat Rodney

King:

Frame-by-frame stills of the video were mounted on

clean white illustration boards and then used as the

basis for questions to “experts” on prisoner restraint.

Each micro-moment of the beating of King was broken

down into a series of frozen images. As to each one, the

defense attorneys asked the experts whether King assumed a compliant posture, or might a police officer

reasonably conclude that King still posed a threat to

App. 13

The most important question in this case is

whether Rankin reasonably perceived that Longoria

assumed a threatening or “shooter’s stance.” “If [he]

did, [he] w[as] entitled to shoot; if [he] didn’t, [he]

[was]n’t.” Cruz v. City of Anaheim, 765 F.3d 1076, 1079

(9th Cir. 2014) (explaining that a case in which multiple officers shot an unarmed man turned on whether

or not officers perceived the suspect reach for a gun in

his waistband). In Cruz, four officers testified that the

decedent reached for a weapon in his waistband, but

we nevertheless reversed the district court’s grant of

summary judgment because circumstantial evidence

cast doubt upon the officers’ credibility. Id. at 107880. Here, the evidence supporting Rankin’s version of

events is even slimmer. No other officers saw Longoria

assume a “shooter’s stance” and responded accordingly.

In fact, the Eloy officer who Defendant argues can

be seen in the cell phone footage visibly “ducking” in

resist. Once the defense broke the video into frames,

each still could then be re-weaved into a different narrative about the restraint of King. Each blow to King

represented, not [a] beating . . . but a police approved

technique of restraint complete with technical names

for each baton strike (or “stroke”).

Kimberle Crenshaw and Gary Peller, Reel Time/Real Justice, 70

Denv. U. L. Rev. 283, 285 (1993).

The state court jury acquitted the officers. See id. at 290. Subsequently, in a federal court trial for the violation of King’s federal

civil rights, the federal jury convicted two of the four officers

charged. See Koon v. United States, 518 U.S. 81, 88 (1996). These

inconsistent results demonstrate why the probative value of realtime videos and frozen frames is more appropriately a matter for

a jury to view and evaluate, not a matter for a court to resolve on

summary judgment.

App. 14

response to the “shooter’s stance” stated that he cannot remember responding in such a manner to such a

threat. Instead, other officers gave statements that it

appeared that at the time Rankin killed him, Longoria

was moving towards his car after being shot by nonlethal rounds, flailing in response to the impact of the

bean bags and taser, or moving his hands to his chest

as if checking whether he had been shot. Longoria’s expert in police practices could not discern Longoria assuming a “shooter’s stance” from the iPhone video

reviewed in real-time.6 The material dispute over these

facts alone is enough to deny summary judgment. See

Lopez v. Gelhaus, No. 16-15175, slip op. at 26, 28 (9th

Cir. Sept. 22, 2017) (affirming denial of qualified immunity where officers gave differing accounts as to

whether decedent turned towards them and what

turned out to be a toy weapon resembling an AK-47

appeared to be rising and pointing towards them).

The record reveals many other facts in dispute

that are material to the determination of whether a

reasonable officer would have perceived that Longoria

posed any immediate threat. The real-time videos

6

“We have held en banc that ‘[a] rational jury could rely upon

such [expert] evidence in assessing whether the officers’ use of

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

864, 877 (9th Cir. 2011) (quoting Smith v. City of Hemet, 394 F.3d

689, 703 (9th Cir. 2005) (en banc) (reversing district court’s grant

of summary judgment)). Here, although the expert’s report is far

from clear, we view it in the light most favorable to Longoria.

Moreover, here as in Lopez, both sides had experts who disagreed

as to whether the officer could have perceived the alleged threatening gesture. Lopez, slip op. at 8, 19.

App. 15

highlight these competing inferences rather than “blatantly contradict[ing]” or “utterly discredit[ing]” Longoria’s version of events. See Scott, 550 U.S. at 380-381.

In addition to the question whether Rankin actually

perceived that Longoria assumed a “shooter’s stance”

when he shot and killed him, there is, inter alia, a material dispute as to: whether Rankin heard commands

to use non-lethal force or the other officers’ shouts

that Longoria was holding his wallet behind his back;

whether Rankin, who has 20/20 vision, reasonably perceived a weapon in Longoria’s hands from his position

as he said he did; whether Longoria was in fact reacting to the non-lethal force deployed by other officers

rather than assuming a “shooter’s stance”; and whether,

as a matter of fact, Rankin could have had enough time

to perceive the alleged “shooter’s stance” at the moment he claims to have done so and then shoot Longoria in response to that observation at the time the

videos show he shot him.7 The district court resolved

all of those disputed facts in favor of Rankin. Viewing

all of these facts in the light most favorable to Longoria, a reasonable jury could conclude that Rankin knew

or should have known that Longoria was not armed,

that Rankin never perceived a “shooter’s stance,” and

that Rankin knew or should have known that Longoria

was either surrendering in response to the non-lethal

force of the bean bag rounds and taser or reacting in

7

There is also a question of fact as to whether, even if Rankin

did perceive a “shooter’s stance,” Longoria’s abandoning of that

stance and his turning and raising his hands happened so quickly

thereafter that a reasonable officer would not have had enough

time to shoot before knowing that he should hold his fire.

App. 16

some manner to their effects upon him but was by no

means threatening to shoot at Rankin or any of the

other officers.

When a suspect is killed and cannot himself provide an account of what took place, we must examine

“whether the officers’ accounts are ‘consistent with

other known facts.’ ” Cruz, 765 F.3d at 1080 n.3 (citation omitted); see also Newmaker v. City of Fortuna, 842

F.3d 1108, 1116 (9th Cir. 2016). This is consistent with

our duty to review the record “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,

109 S.Ct. 1865 (emphasis added). Rankin’s assertion

that he perceived a “shooter’s stance” is refuted by the

two real-time videos, other officers’ accounts, Longoria’s expert, and most notably, Rice, his partner who

ran to the scene of the collision behind him and had

an almost identical perspective. Rice “observed the

suspect reach behind his back and it appeared he was

attempting to return inside the vehicle.”8 We may consider the conflicting accounts of Rice and other officers

– none of whom related that they saw Longoria assume

8

Rankin’s account of interactions with Longoria differs from

Rice’s in other ways. For example, Rankin alleges that Longoria

pointed something that appeared to be a gun at him out of the car

window while driving earlier in the pursuit. Rice, like other officers observing these repeated gestures, observed that “the suspect

driver . . . plac[ed] his left hand out the window making the shape

of a handgun with his thumb and pointer finger.” Rankin also asserts that Longoria threatened him directly during this interaction; Rice, who sat next to him in the vehicle, reported no such

threat.

App. 17

a “shooter’s stance” – in assessing Rankin’s claim of

reasonableness, as well as circumstantial evidence,

like the fact that Longoria was actually unarmed. A

reasonable jury is far less likely to credit Rankin’s perception of a “shooter’s stance” with the knowledge that

Longoria did not have a gun. See Cruz, 765 F.3d at 1079

(“In this case, there’s circumstantial evidence that

could give a reasonable jury pause. Most obvious is the

fact that Cruz didn’t have a gun on him, so why would

he have reached for his waistband? . . . [F]or him to

make such a gesture when no gun is there makes no

sense whatsoever.”).

In assessing the reasonableness of the use of force,

we must consider the “totality of the circumstances.”

Glenn, 673 F.3d at 871 (citation omitted). It is undisputed that Longoria was emotionally disturbed, acting

out, and at times inviting officers to use deadly force

to subdue him. See Hughes, 862 F.3d at 781. Our precedent establishes that in these circumstances, a reasonable jury could conclude “that there were sufficient

indications of mental illness to diminish the governmental interest in using deadly force.” Id. Other officers appear to have been aware of this and prepared to

respond accordingly by employing only non-lethal

weapons. And like many other similarly tragic encounters with mentally ill or emotionally disturbed individuals, the situation facing Rankin was “far from that

of a lone police officer suddenly confronted by a dangerous armed felon threatening immediate violence.”

Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir.

2001). Rankin had an opportunity to observe Longoria

App. 18

for more than forty minutes before he killed him. See

id. During that time, Longoria neither brandished a

gun nor shot at anyone.

Another circumstance to be considered is that

Rankin was monitoring the EPD and PCSO radio frequencies throughout the incident. Despite this, Rankin

claims he did not hear portions of the police broadcast

earlier in the pursuit that conveyed Longoria was unarmed, nor did he hear the commands to use less than

lethal force and the shouts that Longoria was unarmed

in the seconds before the shooting. Viewing the facts in

the light most favorable to Longoria, Rankin disobeyed

orders to maintain a perimeter and sprinted towards

the scene – through the line of fire. Rankin knew that

other officers were in better positions to see and respond to Longoria, had their weapons drawn, and were

in the process of using non-lethal force. The totality of

circumstances does not support the conclusion that

Rankin’s conduct was objectively reasonable. Rather it

raises a genuine issue of material fact to be determined

by a jury.

The immediacy of the threat and Rankin’s objective reasonableness in the totality of the circumstances

depend upon the resolution of disputes of material

facts that must be resolved against Rankin at this

stage of the proceedings. We cannot say as a matter of

law that Rankin acted reasonably. The question of

whether a constitutional violation occurred is therefore a matter for the jury to determine.

App. 19

B. Clearly Established Right

We next proceed to the second question in assessing qualified immunity: whether the right at issue

was clearly established. “The ‘dispositive inquiry in

determining whether a right is clearly established is

whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.’ ” Hernandez v. Mesa, 137 S. Ct. 2003, 2008

(2017) (per curiam) (quoting Saucier v. Katz, 533 U.S.

194, 202 (2001)). Our analysis “is limited to ‘the facts

that were knowable to the defendant officers’ at the

time they engaged in the conduct in question.” Id.

(quoting White, 137 S. Ct. at 550). Because we are making a determination at summary judgment, we must

view any disputed facts in the light most favorable to

Longoria.

To determine whether the law was clearly established, we do not “require a case directly on point, but

existing precedent must have placed the . . . constitutional question beyond debate.” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). We have acknowledged that

qualified immunity may be denied in novel circumstances. See Mattos v. Agarano, 661 F.3d 433, 442 (9th

Cir. 2011) (citing Hope v. Pelzer, 536 U.S. 730, 741

(2002)). “Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that

particular manifestation of unconstitutional conduct.”

Deorle, 272 F.3d at 1286; see also Brosseau, 543 U.S. at

199 (stating that “in an obvious case, [general]

App. 20

standards can ‘clearly establish’ the answer, even without a body of relevant case law”).

The law governing this case is clearly established:

“A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Garner, 471 U.S. at

11.

While locating the outer contours of the

Fourth Amendment may at times be a murky

business, few things in our case law are as

clearly established as the principle that an officer may not “seize an unarmed, nondangerous suspect by shooting him dead” in the

absence of “probable cause to believe that the

suspect poses a threat of serious physical

harm, either to the officer or to others.”

Torres, 648 F.3d at 1128 (quoting Garner, 471 U.S. at

11); see also Adams v. Spears, 473 F.3d 989, 994 (9th

Cir. 2007). Thus, Longoria’s Fourth Amendment right

not to be shot dead while unarmed, surrounded by law

enforcement, and in the process of surrendering is

clearly established such that a [sic] “it would be clear

to a reasonable officer that his conduct was unlawful

in the situation he confronted.”9 Hernandez, 137 S. Ct.

at 2008. If, however, Rankin reasonably perceived that

Longoria posed a threat of serious physical harm to

Rankin or other officers, then he could have lawfully

9

Within the specific context of Longoria’s death, shot with

his empty hands in the air above his head, this constitutional

right is so clearly established that it has become the anthem in

many protests of other police shootings: “Hands up, don’t shoot!”

App. 21

used deadly force. There is no dispute in this case

about these propositions.

We are presented here with a pure question of

fact and not a question of law or of mixed fact and law.

Rankin contends that he in fact perceived that Longoria assumed a “shooter’s stance” and that Longoria appeared to be armed. Longoria, on the other hand,

asserts that Rankin did not see, nor could he in fact

have seen, what he claimed caused him to believe that

Longoria assumed a “shooter’s stance” and that he appeared to be armed.

“Where the facts are disputed, their resolution

and determinations of credibility ‘are manifestly the

province of a jury.’ ” Wall v. County of Orange, 364 F.3d

1107, 1110 (9th Cir. 2004) (quoting Santos, 287 F.3d at

852). This case turns on disputed facts, including the

credibility of Rankin. Rankin’s account of an earlier interaction with Longoria during the car pursuit is inconsistent with that of his partner, Rice. Rankin heard

some information on the radio dispatches of both the

EPD and the PSCO [sic], but he claims not to have

heard any of the information relayed over those radio

frequencies that would be helpful to Longoria. Unlike

other PCSO officers, Rankin interpreted the command

to maintain a perimeter as a command to run towards

Longoria and the Eloy officers after a PIT maneuver

totally disabled Longoria’s car. Rankin likewise asserts

that he did not hear any of the commands to use nonlethal force immediately prior to the shooting, nor did

he hear officers shouting that Longoria was unarmed.

This is inconsistent with the accounts of many other

App. 22

officers on the scene. Most important, no one else saw

Longoria assume a “shooter’s stance,” including Rice,

who was just behind him at the time. The two videos

show that anyone who saw the events in real-time, including Rankin, would not have seen Longoria adopt

what would have appeared to be a “shooter’s stance.”

A jury must determine Rankin’s credibility in

light of conflicting accounts from his partner, other

officers, Longoria’s expert, and the videos in real-time.

See Cruz, 765 F.3d at 1080 (“We make no determination about the officers’ credibility, because that’s not

our determination to make. We leave it to the jury.”). If

a jury concluded that Rankin reasonably perceived

Longoria to be armed and threatening, it could find he

had reason to use deadly force and thus there was no

violation of Longoria’s clearly established constitutional right. See Act Up!/Portland v. Bagley, 988 F.2d

868, 873 (9th Cir. 1993) (“[T]he facts and circumstances

within an officer’s knowledge . . . are matters of fact to

be determined, where genuine disputes of a material

nature exist, by the fact finder.”). However, a reasonable jury could also conclude that Rankin knew or

should have known that Longoria was not holding a

gun and that he did not assume a “shooter’s stance”

and could find that Rankin’s statements to the contrary were not credible. A jury resolving these questions in Longoria’s favor could thus find that Rankin

violated Longoria’s clearly established right. We may

not usurp the jury’s role as the arbiters of fact, nor

can our analysis at summary judgment change simply

because the videos that show these disputed events

App. 23

unfolding in real-time may be called into question by a

single frozen frame that does not represent what an

officer actually saw at the time the events unfolded.

See Lopez, slip op. at 45 (finding that a jury must determine the facts relevant to qualified immunity:

whether the officer could have reasonably perceived

the decedent turning while holding a toy AK-47 as a

“harrowing gesture”).

Defendants are not entitled to qualified immunity

because there is a material issue of fact as to whether

Rankin violated Longoria’s clearly established constitutional right. We therefore reverse the district court’s

grant of summary judgment and remand for a jury to

determine whether Rankin’s use of deadly force was

lawful.

II.

Plaintiffs’ Rule 56(d) Motion

Plaintiffs challenge the denial of their Rule 56(d)

motion. This challenge is moot because on remand the

parties will be entitled to conduct further discovery.

III. Family-Member Plaintiffs’ § 1983 Claims

Longoria challenges the dismissal of the familymember Plaintiffs’ § 1983 claims. Only Longoria’s estate may bring a § 1983 for the violation of his Fourth

Amendment rights; his family members have no standing to sue on their own behalves [sic]. The Supreme

Court has made this abundantly clear. Alderman

v. United States, 394 U.S. 165, 174 (1969) (“Fourth

App. 24

Amendment rights are personal rights which . . . may

not be vicariously asserted.”). Moreover, the Court has

recently reaffirmed this principle. Plumhoff, 134 S. Ct.

at 2022 (“Our cases make it clear that Fourth Amendment rights are personal rights which may not be

vicariously asserted.”) (citations omitted). We therefore affirm the district court’s dismissal of the familymembers’ § 1983 claims.

IV. State Wrongful Death Claim

Plaintiffs brought a wrongful-death claim under

Arizona Revised Statute § 12-611 against Rankin, as

well as Pinal County Sheriff Paul Babeu (in his official

capacity) and Pinal County under a respondeat superior theory of liability. Because we find a material

dispute of facts as to whether or not Rankin’s use of

deadly force was reasonable, we reverse the district

court’s grant of summary judgment in the state cause

of action as well.

CONCLUSION

For the reasons set forth above, the district court’s

order granting Defendants’ motions for summary judgment is REVERSED. The district court’s order dismissing the family-member Plaintiffs’ § 1983 claims is

AFFIRMED, and the case is REMANDED for proceedings consistent with this opinion.

App. 25

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APPENDIX B

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Christian Longoria, et al., No. CV-15-00043-PHX-SRB

Plaintiffs,

ORDER

v.

(Filed Mar. 17, 2016)

Pinal County, et al.,

Defendants.

At issue are Defendants’ Motion for Summary

Judgment (“Defs.’ MSJ”) (Doc. 53) and Plaintiffs’ CrossMotion for Summary Judgment on Qualified Immunity (“Pls.’ Resp. to MSJ and MPSJ”) (Doc. 85).

I.

BACKGROUND

This case arises from the police shooting of an unarmed man in Pinal County, Arizona. Manuel Longoria

stole a car while on probation for an assault charge

(Doc. 48, Defs.’ Statement of Facts in Supp. of Defs.’

MSJ (“DSOF”) ¶¶ 1, 6; Doc. 86, Pls.’ Resp. to DSOF and

Controverting Statement of Facts (“PSOF”) ¶ 1.) The

Eloy Police Department (“Eloy PD”) attempted to stop

Mr. Longoria and a chase ensued after he failed to

yield. (DSOF ¶ 2; PSOF ¶ 2.) The Eloy PD chased Mr.

Longoria for over an hour. (PSOF ¶¶ 2, 35, 55.) The

parties dispute whether the Eloy PD sought the assistance of the Pinal County Sheriff ’s Office (“PCSO”) or

if the Eloy PD only asked the PCSO to be on “standby.”

App. 26

(DSOF ¶ 5; PSOF ¶ 5.) Defendant Heath Rankin, a

PCSO officer, independently monitored the Eloy PD frequency. (DSOF ¶ 4; PSOF ¶ 4.) The PCSO dispatcher

stated that the “driver has a weapon,” the “driver is

armed,” and the subject “may have a gun.” (DSOF ¶ 6;

PSOF ¶¶ 6, 43.) Mr. Longoria stopped several times

during the pursuit but did not comply with requests to

show both hands or turn himself in. (DSOF ¶¶ 6, 7;

PSOF ¶¶ 7, 33, 48, 50.) On one such occasion, Mr.

Longoria allegedly drove past Defendant Rankin with

something pointed outside the driver-side window and

said, “[s]hoot me [expletive], I’m going to kill you.”

(DSOF ¶ 8; PSOF ¶ 8.) Mr. Longoria was observed to

be driving “about 50” in a residential area and was

driving “very erratic.” (DSOF ¶ 9; PSOF ¶ 9.)

Later in the pursuit, Defendant Rankin was told

to set up a perimeter. (DSOF ¶ 10; PSOF ¶ 10.) The

parties dispute whether Defendant Rankin knew that

the PCSO was previously called off the pursuit. (See

DSOF ¶¶ 10-11; PSOF ¶¶ 10-11.) Mr. Longoria was

eventually stopped after an unmarked police cruiser

rammed his car. (PSOF ¶ 11.) As Mr. Longoria exited

the car it appeared that he held something behind his

back. (DSOF ¶¶ 11, 15; PSOF ¶¶ 11, 15.) Mr. Longoria

was given orders to raise both hands and he did not

comply. (DSOF ¶ 14; PSOF ¶ 14.) The parties dispute

whether Defendant Rankin heard Eloy Detective Salazar order the use of “less lethal” methods. (Doc. 96,

Defs.’ Supp. and Controverting Statement of Facts

(“DSSOF”) ¶¶ 6, 14; PSOF ¶ 14.) Mr. Longoria was shot

with beanbag rounds and a Taser. (DSOF ¶ 16; PSOF

¶ 16.) After being shot with the bean bag rounds, Mr.

App. 27

Longoria began waving his arms around; the parties

dispute whether this action was done in an aggressive

or defensive manner. (DSOF ¶ 17; PSOF ¶¶ 15, 17.)

When Mr. Longoria turned towards officers on the

same side as Defendant Rankin, some officers and Defendant Rankin ducked. (DSOF ¶¶ 21-22; PSOF ¶ 21.)

Both Mr. Longoria’s hands were visible for a moment

before he was shot. (DSOF ¶¶ 19-20; PSOF ¶ 19.) Defendant Rankin fired two shots at Mr. Longoria, both

of which hit Mr. Longoria in the back. (DSSOF ¶ 22;

PSOF ¶ 22.) Mr. Longoria died as a result of his injuries. (DSOF ¶ 26.)

Plaintiffs filed this lawsuit bringing a state law

wrongful death claim; a federal civil rights claim under

42 U.S.C. § 1983 against Defendant Rankin, based on

a violation of Mr. Longoria’s Fourth Amendment right

to be free from the use of excessive force; and a Monell

claim against Defendants Pinal County and Babeu,

alleging that the Pinal County’s unconstitutional policies and procedures and inadequate training and supervision regarding the use of deadly force led to Mr.

Longoria’s Fourth Amendment rights being violated.

(Doc. 14, First. Am. Compl. ¶¶ 30-38.) Defendants now

move for summary judgment on all of Plaintiffs’ claims

arguing that Defendant Rankin did not violate Mr.

Longoria’s constitutional rights and, alternatively, the

rights were not clearly established. (Defs.’ MSJ at 1.)

Plaintiffs have filed a cross-motion for partial summary judgment on the issue of whether Defendants are

entitled to qualified immunity, arguing that Defendant

Rankin’s actions were unreasonable because he failed

App. 28

to use lesser alternatives to deadly force. (Pls.’ Resp. to

MSJ and WPSJ at 16.)

II.

LEGAL STANDARD AND ANALYSIS

Under Federal Rule of Civil Procedure 56, summary judgment is properly granted when: (1) there is

no genuine dispute as to any material fact; and (2) after viewing the evidence most favorably to the nonmoving party, the movant is clearly entitled to prevail

as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins.

Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). A

fact is “material” when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

genuine dispute of material fact arises if “the evidence

is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. In considering a motion for

summary judgment, the court must regard as true the

non-moving party’s evidence if it is supported by affidavits or other evidentiary material, and “all inferences are to be drawn in the light most favorable to the

non-moving party.” Eisenberg, 815 F.2d at 1289; see

also Celotex, 477 U.S. at 324. However, the non-moving

party may not merely rest on its pleadings; it must produce some significant probative evidence tending to

contradict the moving party’s allegations, thereby creating a material question of fact. Anderson, 477 U.S. at

256-57 (holding that the plaintiff must present affirmative evidence to defeat a properly supported motion

App. 29

for summary judgment); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

A. 42 U.S.C. § 1983 Claims

1. Defendant Rankin

Defendants argue that Defendant Rankin is entitled to qualified immunity on Plaintiffs’ § 1983 claim

because his conduct did not violate Mr. Longoria’s

Fourth Amendment right and because the right was

not clearly established at the time of the alleged violation. (See Defs.’ MSJ at 7, 14.) In evaluating whether a

defendant is entitled to qualified immunity, the Court

must consider (1) whether the facts alleged show the

officer’s conduct violated a constitutional right and

(2) whether the right was clearly established at the

time of the alleged violation, such that a reasonable officer would have known that he was acting unlawfully.

Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer

to both inquiries is yes, then the officer is not entitled

to qualified immunity. Davis v. City of Las Vegas, 478

F.3d 1048, 1053 (9th Cir. 2007). If either answer is no,

then the officer is entitled to qualified immunity. See

Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009).

Plaintiffs argue that Defendant Rankin violated

the Fourth Amendment because he used excessive

force in shooting Mr. Longoria when he was unarmed.

(Pls.’ Resp. to MSJ and MPSJ at 8.) In order to determine if a shooting constitutes excessive force that violates the Fourth Amendment, a court should consider

the objective reasonableness of the officer’s behavior

App. 30

considering the totality of the circumstances including

the severity of the crime, the immediate threat of harm

to the officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest

by flight. Graham v. Connor, 490 U.S. 386, 396 (1989).

“The immediacy of the threat posed by the suspect is

the most important factor.” Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (en banc). A

court should not conduct a hindsight analysis of an officer’s actions, but must determine the reasonableness

of the officer’s action at the time with the knowledge

he had. Id.

a. Severity of the crime

Mr. Longoria stole a car and failed to yield to police

efforts to stop him. (Doc. 851, Ex. 1, Narrative Report

of Eloy Police Officer Maestas at 10.)1 Stealing a

1

Defendants have raised relevance and hearsay objections

to Plaintiffs’ citation to interviews of Eloy police officers. (DSSOF

¶¶ 33-42, 44-48, 50-51.) Plaintiffs argue that these objections are

unfair because Defendants sought and was [sic] awarded limited

discovery, which limited Plaintiffs’ ability to obtain depositions of

the officers and that the interviews are nevertheless admissible

under Federal Rule of Evidence 807. (Doc. 107, Pls.’ Reply to

DSSOF at 1-3.) The Court concludes that the reports are admissible subject to specific relevance exceptions under Federal Rule

of Evidence 807 because the statements are likely trustworthy as

they were completed soon after the incident; are offered for evidence of material fact; are more probative on points than other

evidence offered, particularly they provide third-party verification for Defendant Rankin’s version of the facts; and admitting

them will serve the purpose of the rules and the interests of justice, particularly because Defendants obtained a ruling that precluded Plaintiffs from pursuing depositions of the officers and

App. 31

vehicle is a felony. A.R.S. § 12-1802(G); see Coles v.

Eagle, 704 F.3d 624, 628-29 (9th Cir. 2012) (noting that

a felony-grade offense weighs in favor of defendants on

the severity of the crime prong). During the attempt to

stop Mr. Longoria, Mr. Longoria threatened police officers. (Doc. 85-1, Narrative Reports of Eloy Police Officers Dean, Young, and Quintana at 37, 48, 51.) Mr.

Longoria also refused to show one of his hands and told

at least one officer that he had a gun. (PSOF ¶ 51.)

Both the Eloy PD and the PCSO reported that Mr. Longoria had a gun. (DSOF ¶ 6; PSOF ¶ 43.) The fact that

Mr. Longoria was committing a felony while threatening officers during the course of over an hour long pursuit weighs in favor of finding that Defendant Rankin’s

use of force in this case was not excessive. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“[I]f the suspect

threatens the officer with a weapon . . . deadly force

may be used if necessary to prevent escape . . . ”).

b. Threat of harm

Plaintiffs argue that Mr. Longoria was unarmed

and therefore use of deadly force was a violation of

his Fourth Amendment rights. (Pls.’ Resp. to MSJ and

MPSJ at 8.) Plaintiffs also argue that if Defendant

applicable case law requires weighing the testimony of the accused officer with that of others in the area. (See Doc. 70, Sept.

18, 2015 Order (staying discovery except as to the interview of

Defendant Rankin)); Cruz v. City of Anaheim, 765 F.3d 1076, 1079

(9th Cir. 2014) (noting that a judge should examine all evidence

in the record to determine whether the officer’s story is internally

consistent and consistent with other known facts).

App. 32

Rankin was mistaken about Mr. Longoria having a

weapon, that mistake was objectively unreasonable.

(Id. at 9.) Defendants argue that Defendant Rankin

thought that Mr. Longoria was holding a weapon and

pointed it at him and that belief is supported by other

officers near him also ducking moments before he fired

at Mr. Longoria. (Defs.’ MSJ at 9-10.) Plaintiffs dispute

that Mr. Longoria pointed any object at the officers

once he was stopped. (Id.) Both parties have submitted

video evidence of the incident, Plaintiffs’ from a police

cruiser dash camera video and Defendants’ from a bystander iPhone recording.2 (Doc. 92, Notice of Filing

Non-Electronic Ex. PSOF, Ex. 27(m).). The dash camera video shows Mr. Longoria exiting his vehicle with

one hand behind his back with some object in it. (Id.)

Mr. Longoria goes out of frame but is visible in the car

reflection when Defendant Rankin runs onto the

scene.3 (Id.) Mr. Longoria reenters the frame facing Defendant Rankin with both arms up and slightly bent.

(Id.) Mr. Longoria’s hands go down again and come up

2

Plaintiffs’ dispute the enhanced still photos of Defendants’

iPhone recording, claiming that the video from 200 feet away is

less clear than the dash camera video. (PSOF ¶¶ 19-21.) Plaintiffs

appear to dispute what the video shows, but do not object to the

admissibility of the video. (Id.)

3

The narration of events that follows is generated from the

still frames of Pls.’ Ex. 27(m) 15h49m51s29 through 16h38m00s61.

There appear to be gaps in the still photos sequence, for example

they jump from 16h25m40s51 to 16h36m47s51 making it unclear

how much time the entire confrontation took. Based on a full

speed version of the dash camera video, the stop took about 30

seconds from Mr. Longoria exiting the car to Defendant Rankin’s

shots. (Doc. 108, Notice of Re-filing of Non-Electronic Ex., PSOF,

Ex. 27(p).)

App. 33

from his waist with him holding something in one of

his hands. (Id.) Though Mr. Longoria goes out of frame

again you can see a reflection of his hands in the air

followed by one hand sliding down the side of the car.

(Id.) A stabilized iPhone recording of the incident

shows Mr. Longoria with one hand behind his back.

(Pls. Ex. 27(1).) He turns toward Defendant Rankin after two loud pops. (Id.) His arms swing up bent, go

down toward his waist, and then come back up to about

chest height. (Id.) Mr. Longoria then turns with his

hands above his head and is shot twice. (Id.) The time

stamp shows that only a few seconds elapsed between

Mr. Longoria raising his hands to chest height and him

turning around and being shot. (See Ex. 27(p) Timestamp 1:10:25 to 1:10:29.)

Whether a suspect is actually armed with a deadly

weapon is not dispositive for whether the use of deadly

force is reasonable, “the critical inquiry is what [the officer] perceived.” Wilkinson v. Torres, 601 F.3d 546, 551

(9th Cir. 2010). Defendant Rankin asserts that he saw

Mr. Longoria with his hand concealed behind his back,

Mr. Longoria pointed an object toward him, he and

some other officers ducked, and when he came up he

shot Mr. Longoria. (Doc. 48-2, Rankin Interview at 7172.) The uncontroverted video evidence shows that Mr.

Longoria came up with both hands in front of him facing Defendant Rankin’s direction. (Pls.’ Ex. 27(m).) He

had also threatened to kill officers and drove off during

one of the earlier pauses in pursuit with a community

App. 34

member hanging out of his car.4 (Doc. 85-1, Salazar Interview at 25; Maestas Interview at 11.) No matter

Mr. Longoria’s reasons for speeding, threatening to

shoot officers and driving with a person holding onto

the vehicle are objectively harmful. See Scott v. Harris,

550 U.S. 372, 384 (2007) (finding that an officer did not

violate the Fourth Amendment when he rammed the

car of a fugitive who posed an actual and imminent

threat to the lives of pedestrians, motorists, and officers involved in a chase); Brosseau v. Haugen, 543 U.S.

194, 197 (2004) (noting that an officer did not violate

clearly established law when she shot a fleeing suspect

out of fear that he endangered other officers, occupied

vehicles in his path, and any other citizens who might

be in the area); Smith v. City of Hemet, 394 F.3d 689,

704 (9th Cir. 2005) (“[W]here a suspect threatens an

officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.”). This factor

also favors not finding that the use of force in this case

was not unconstitutionally excessive.

4

Plaintiffs argue that Mr. Longoria’s threats to Defendant

Rankin before the final stop are irrelevant. (PSOF ¶ 8.) Defendants argue that the threats are relevant when considering if a

shooting officer is entitled to qualified immunity. (DSSOF ¶ 8.)

The Court agrees. See Mullinex v. Luna, 136 S.Ct. 306, 312 (2015)

(noting that the suspect had previously threatened to kill police

officers and was racing towards an officer at the time of the shooting).

App. 35

c. Resisting or attempting to evade

arrest

Both parties presented evidence demonstrating

that Mr. Longoria was non-responsive to verbal commands throughout the chase. (Doc. 48-2, Rankin Interview at 66; Doc. 85-1, Dean, Young, and Quintana

Interviews at 37, 48, 51.) Mr. Longoria had more than

one encounter with officers before the final stop and

refused to show his hands or surrender. (Doc. 85-1,

Salazaar [sic] Interview at 25, 28.) Plaintiffs do not dispute that Mr. Longoria engaged in at least an hourlong chase, had conversations with officers where he

did not surrender, or that he stated “I have a gun. I’m

going to kill you unless you kill me first.” (See id. at

25.) Assuming facts most favorable to Plaintiffs, his nonresponsiveness to less lethal tactics could justify the

use of deadly force. See Forrett v. Richardson, 112 F.3d

416, 420 (9th Cir. 1997), superseded on other grounds

by Chroma Lighting v. GTE Products Corp, 127 F.3d

1136 (9th Cir. 1997) (stating that the Fourth Amendment “does not require law enforcement officers to exhaust every alternative before using justifiable deadly

force”). Plaintiffs dispute that Mr. Longoria was nonresponsive to the beanbag rounds the Eloy offices [sic]

shot, but both Eloy and PCSO officers stated and the

video shows that Mr. Longoria appeared unfazed by at

least five beanbag rounds. (See Pls.’ Resp. to MSJ and

MPST at 11-12; Doc. 85-1, Dean, Young, and Quintana

Interviews at 37, 48, 51; Pls.’ Exs. 27(k) & (1).) Considering Mr. Longoria’s lack of compliance with directives,

threats to officers, the ineffectiveness of less lethal

App. 36

methods, and the unknown object in Mr. Longoria’s

hand, this factor also weighs against the conclusion

that Defendant Rankin’s use of force in this case

was not unconstitutionally excessive. See Sandberg

v. City of Torrance, 456 Fed. App’x 711, 713 (9th Cir.

2011) (noting that an officer did not violate the Fourth

Amendment when he shot a suspect who held a

weapon and threatened officers). Because there is

insufficient evidence in the record from which a reasonably jury could conclude that Defendant Rankin’s

use of force was unconstitutionally excessive, the Court

grants summary judgment in favor of Defendant Rankin on Plaintiffs’ § 1983 claim and denies Plaintiffs’

motion for partial summary judgment on the issue of

qualified immunity.

2. Defendants Pinal County and Paul

Babeu

Defendants also argue that Plaintiffs cannot succeed on their Monell claim because there is insufficient evidence in the record to demonstrate a Fourth

Amendment violation occurred. (Defs.’ MSJ at 18); see

Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694

(1978) (stating that a municipality may be liable for

causing a constitutional violation under § 1983 by implementing “policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly

be said to represent official policy”). A Monell claim

cannot survive without an underlying constitutional

violation. Tatum v. City and Cnty. of San Francisco,

441 F.3d 1090, 1100 (9th Cir. 2006) (“Absent a

App. 37

constitutional deprivation, neither [supervising officers] nor the City and County of San Francisco may be

held liable under § 1983.”). Because the Court has concluded that Defendant Rankin did not violate Mr. Longoria’s Fourth Amendment rights, the Court grants

summary judgment in favor of Defendants Pinal

County and Babeu on Plaintiffs’ Monell claim.

B. Wrongful Death Claim

1. Defendant Rankin

Defendants argue that for the same reasons that

Defendant Rankin did not violate Mr. Longoria’s

Fourth Amendment rights, he is not liable for his use

of deadly force under Arizona law. (Defs.’ MSJ at 16.)

Defendants specifically argue that Deputy Rankin reasonably believed it was necessary to use force to defend

himself or third persons. (Id.) Plaintiffs do not dispute

that if the Court concludes that Defendant Rankin’s

use of force was not unconstitutionally excessive, then

his actions were also justified under Arizona law and,

therefore, he is not liable under Plaintiffs’ wrongful

death claim. (See Pls.’ Resp. to MSJ and MPSJ at 15);

see Hulstedt v. City of Scottsdale, 884 F. Supp. 2d 972,

1016 (D. Ariz. 2012) (“Arizona’s justification statutes

mirror the Fourth Amendment standard for the use of

deadly force.”). Further, under Arizona law the use of

deadly force is expressly justified when an officer reasonably believes that it is necessary to defend himself

or a third person from the use of deadly physical force

or to effect an arrest of a person whom the officer

App. 38

reasonably believes has committed or is attempting to

commit a felony involving the use or a threatened use

of a deadly weapon. A.R.S. § 13-410(C). There is no dispute that the officers were attempting to arrest Mr.

Longoria for the commission of a felony. (Doc. 85-1,

Maestas Interview at 1.) As noted above, Mr. Longoria

put bystanders and officers at risk with his actions. Mr.

Longoria threatened to kill officers, stated he had a

gun, operated a motor vehicle with another person

hanging off of it, and repeatedly acted as if he was concealing a weapon. (Doc. 85-1, Salazaar [sic] Interview

at 25; Maestas Interview at 11; Garrison Interview at

15; Huffman Interview at 18.) Defendant Rankin’s use

of deadly force was justified under Arizona law. The

Court grants summary judgment in favor of Defendant

Rankin on Plaintiffs’ wrongful death claim.

2. Defendants Pinal County and Paul

Babeu

Plaintiffs also allege a wrongful death claim

against Defendants Pinal County and Sheriff Babeu

based on a respondeat superior theory of vicarious

liability. (Am. Compl. ¶¶ 6-7.) Defendants argue that

where no liability can be attributed to the acts and

omissions of the employee, there can be no vicarious

liability. (Defs.’ MSJ at 18.) When a plaintiff cannot establish a claim against the acting officer summary

judgment in favor of the town is proper. Hansen v. Garcia, Fletcher, Lund and McVean, 713 P.2d 1263, 126566 (Ariz. Ct. App. 1985). Because Defendant Rankin

was justified in his use of deadly force, no party can be

App. 39

liable for his use of deadly force. Therefore, Defendants’ Motion is granted as it relates to state law claims

against Defendants Pinal County and Babeu.

III. CONCLUSION

The Court grants summary judgment in favor of

Defendants because, based on the evidence in the record, no reasonable jury could conclude that Defendant

Rankin’s use of force was unconstitutionally excessive

or not justified under Arizona law.

IT IS ORDERED granting Defendants’ Motion

for Summary Judgment (Doc. 53).

IT IS FURTHER ORDERED denying Plaintiffs’

Cross-Motion for Summary Judgment (Doc. 85).

IT IS FURTHER ORDERED directing the Clerk

to enter judgment for Defendants.

Dated this 17th day of March, 2016.

/s/

Susan R. Bolton

Susan R. Bolton

United States District Judge

App. 40

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APPENDIX C

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN LONGORIA, a

single man, on behalf of himself

as son of decedent Manuel O.

Longoria, on behalf of all

statutory beneficiaries of

decedent Manuel O.

Longoria; et al.,

No. 16-15606

D.C. No.

2:15-cv-00043-SRB

District of Arizona,

Phoenix

ORDER

Plaintiffs-Appellants, (Filed Nov. 21, 2017)

v.

PINAL COUNTY, a political

subdivision of the State of

Arizona; et al.,

Defendants-Appellees.

Before: REINHARDT and KOZINSKI, Circuit Judges,

and BERG,* District Judge.

The panel has voted unanimously to deny the petition for panel rehearing. Judge Reinhardt and Judge

Kozinski voted to deny the petition for rehearing en

banc, and Judge Berg so recommended.

The full court was advised of the petition for rehearing en banc and no judge has requested a vote on

* The Honorable Terrence Berg, United States District

Judge for the Eastern District of Michigan, sitting by designation.

App. 41

whether to rehear the matter en banc. Fed. R. App. P.

35.

The petition for panel rehearing and the petition

for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.

App. 42

----------------------------------------------------------------------

APPENDIX D

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U.S. Const. amend. IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

42 U.S.C. § 1983

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.

For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.