Rosalina Calonge v. City of San Jose, 104 F.4th 39

Several San Jose police officers responded to 911 calls about a man (Francis Calonge) carrying what appeared to be a firearm near a high school.
Calonge had a BB gun in his waistband, and officers began issuing commands as he walked down the street.
Officer Carboni shot Calonge in the back after about a minute of following him, resulting in Calonge's death.
Most of the officers’ commands, recorded on body cameras, were conflicting—Calonge was told alternately to "drop it" and "don’t reach for it;" no clear stop or get-on-the-ground command was given.
There was conflicting testimony and camera evidence regarding whether Calonge made a threatening move or if bystanders were present near him.
Calonge’s mother sued under 42 U.S.C. § 1983 for excessive force and challenged Officer Carboni’s qualified immunity; the district court granted summary judgment for Carboni finding no clearly established violation, which was appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was use of deadly force a Fourth Amendment violation?	Calonge did not pose an immediate threat, made no threatening motion, and was given conflicting commands	Calonge was a possible threat due to the visible gun and proximity to students, and may have reached for his weapon	A reasonable jury could find no immediate threat; deadly force was not justified under these facts.
Was the law clearly established at the time?	Precedent clearly prohibited deadly force when suspect poses no immediate threat or makes no furtive move	Law was not clearly established because similar cases were not cited below and Calonge’s conduct was ambiguous	Precedents clearly established the unlawfulness of the conduct; qualified immunity denied.
Did conflicting commands affect noncompliance analysis?	Conflicting commands made it impossible for Calonge to comply, so duration of noncompliance was very brief	No specific argument on this (primarily disputed underlying facts)	Court finds noncompliance significant only after unequivocal commands; here, commands were conflicting.
Did plaintiff forfeit arguments about clearly established law?	Law was obvious or could be supplied on appeal; later cited relevant precedent	Any argument was forfeited by failing to cite analogous cases below	Under Elder v. Holloway, appeals court must consider all relevant law; no forfeiture.

Tennessee v. Garner, 471 U.S. 1 (use of deadly force must be reasonable under the Fourth Amendment)
Graham v. Connor, 490 U.S. 386 (objectively unreasonable force violates the Fourth Amendment)
Cruz v. City of Anaheim, 765 F.3d 1076 (deadly force unreasonable where suspect with possible weapon makes no threatening gesture)
George v. Morris, 736 F.3d 829 (mere possession of gun, without threatening movement, does not justify deadly force)
Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998 (deadly force not justified by failure to comply for a few seconds with command to drop weapon)
A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005 (continuing to walk is not fleeing under the Fourth Amendment)
Elder v. Holloway, 510 U.S. 510 (appellate court must consider all relevant precedents in qualified immunity review)