ERNEST FOSTER, SR., as personal representative of Ernest Foster, Jr.; R. F., minor, by and through his Guardian Ad Litem Raymond Foster; A. F., minor, by and through her Guardian Ad Litem Raymond Foster; RAYMOND FOSTER, individually, and as successors in interest to Ernest Foster, Jr., deceased v. CITY OF INDIO; RICHARD P. TWISS, individually and in his capacity as Indio Police Chief; DOES, 1 through 10, inclusive; and JEREMY HELLAWELL, individually and in his capacity as an officer of the Indio Police Department
No. 17-55167
United States Court of Appeals, Ninth Circuit
November 20, 2018
D.C. No. 5:15-cv-01175-FMO-DTB
OPINION
Argued and Submitted March 6, 2018 Pasadena, California
Filed November 20, 2018
Before: A. Wallace Tashima, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.
Per Curiam Opinion; Dissent by Judge Ikuta
SUMMARY*
Civil Rights
The panel dismissed in part an appeal from the district court‘s order denying qualified immunity, and reversed in part the order, in an action brought pursuant to
The panel held that it lacked jurisdiction, on interlocutory review, to consider questions of evidentiary sufficiency as to
Addressing plaintiffs’ claim that the officer violated Foster‘s Fourth Amendment rights by making an investigative stop of Foster and by approaching him with an unholstered gun, the panel held that it had jurisdiction to consider the claims because the facts were undisputed and the appeal raised a purely legal issue. The panel held that the officer did not violate clearly established law when he concluded, based on the 911 call, that he had reasonable suspicion to stop and investigate Foster. The panel further held that a reasonable officer in defendant‘s position could reasonably conclude that unholstering a gun during the stop did not constitute a violation of Foster‘s right to be free from excessive force.
Dissenting, Judge Ikuta stated that she disagreed with the majority‘s conclusion that it lacked jurisdiction to consider the district court‘s denial of qualified immunity as to plaintiffs’ Fourteenth Amendment claim. Judge Ikuta wrote that, viewing the evidence in the light most favorable to the plaintiffs, no reasonable jury could find that the officer acted with a purpose to harm Foster for reasons unrelated to legitimate law enforcement objectives.
Konrad Muth Rasmussen (argued) and John P. McCormick, McCormick Mitchell & Rasmussen, San Diego, California, for Defendant-Appellant.
Justin Palmer (argued), Filer Palmer LLP, Long Beach, California; NaShaun Neal and Peter L. Carr IV, Sias Carr LLP, Los Angeles, California; for Plaintiffs-Appellees.
OPINION
PER CURIAM:
Officer Jeremy Hellawell was dispatched to investigate a 911 call from a citizen who reported that a man matching Ernest Foster‘s description was walking toward a shopping plaza armed with a concealed handgun. As the incident unfolded, Hellawell approached Foster at the shopping plaza to investigate the report, Foster fled, and Hellawell ultimately shot Foster fatally three times in the back. Foster‘s family (the plaintiffs) claim that Hellawell violated Foster‘s Fourth Amendment rights and the plaintiffs’ Fourteenth Amendment rights. The district court denied Hellawell‘s motion for summary judgment based on qualified immunity. Because we lack jurisdiction to consider questions of evidentiary sufficiency on interlocutory review, we dismiss Hellawell‘s appeal of the court‘s order with respect to the claims that the shooting violated Foster‘s Fourth Amendment right and plaintiffs’ Fourteenth Amendment rights. We reverse the district court‘s denial of qualified immunity on Foster‘s other Fourth Amendment claims, because Hellawell‘s actions
I
Because this case arises from the denial of Officer Hellawell‘s motion for summary judgment, we view the facts in the light most favorable to the nonmoving party, here, Foster‘s father and minor children (collectively, the “plaintiffs“).1 On July 4, 2013, at around 1:30 p.m., the City of Indio Police Department received an anonymous 911 call reporting an individual carrying a gun. The caller stated that a man “with a brown hat, aqua shirt, a blue aqua shirt, [and] black blue jeans” was “walking down Highway 111 toward subways and smoke shops with a handgun, with a . . . gun in his right side pocket.” The caller also described the man as a “55-year-old African-American gentleman weighing about 250 pounds with a hand gun in his right side pocket” and a “baby brown or beige ball cap.” The caller further stated that the man did not point the gun at him, but “walked out of the liquor store” and “just opened the gun.” The caller further stated that the man “was no stress to me, but . . . he wants to let people know who he is.”
The information provided by the caller was immediately dispatched over the police radio. Officer Hellawell received information that “a Black male wearing a tan hat, a[n] aqua-colored shirt, and dark-colored pants with a handgun in his pocket” was “last seen going towards Subway.” Hellawell, who was wearing his police uniform, drove to the Indio Shopping Plaza near Highway 111, where the Subway was located. Because the Subway and Payday Advance Money
As Hellawell pulled into the parking lot near the Subway, he saw “a Black male wearing a[n] aqua-green shirt, wearing a tan hat and dark-colored pants” near the Subway. The man matched the description of the 911 call and, according to Hellawell, appeared nervous. The man, Ernest Foster, was standing against the wall next to the smoke shop adjacent to Subway. Hellawell exited his vehicle about ten feet from Foster. Hellawell did not see a gun in Foster‘s hands or on his person. Hellawell identified himself as a police officer and stated: “Let me see your hands. Keep your hands where I can see them. I just need to talk to you for a minute.” At that point, Foster started running away from Hellawell. Hellawell gave chase. According to Hellawell, he might have drawn his gun either when Foster made a movement or started to run.2 Hellawell subsequently re-holstered the gun, because he would not run with a gun in his hand.
Hellawell chased Foster through the shopping plaza then down an alley between two stores. According to Hellawell, throughout the pursuit, Hellawell told Foster to “stop,” and to “show me your hands.” Hellawell yelled: “I believe you have a gun. Stop or I am going to shoot.” Hellawell testified that Foster‘s left hand was visible, but his right hand appeared to be holding something against his body. Hellawell did not see Foster holding a gun. At one point, Hellawell shot Foster
As the chase went on, Hellawell shot Foster with his service firearm either just before or shortly after Foster rounded the corner of a nearby store. According to Hellawell, he shot Foster when he was turning toward him with a gun in his hand. This account was corroborated by Officer Felipe Escalante and a civilian witness, Daniel Kelley. Escalante had driven to the shopping center in response to Hellawell‘s report of foot pursuit. He testified that he saw Foster turn towards Hellawell and that Foster might have had “something” in his hands, but Escalante could not tell for sure. In a March 31, 2016 declaration, Kelley testified that he was smoking a cigarette outside of the Jack-in-the-Box, and saw Hellawell chase Foster behind the restaurant. He stated that as Foster ran by him, he saw Foster holding something in his hand. Kelley followed Hellawell, and saw Foster lying on the ground with a gun next to him.
Other witnesses offered differing accounts. Jaime Perez, who was waiting in his car in the parking lot, stated in his initial declaration on April 1, 2016, that he “saw a male running around the northeast corner of the AutoZone grasping an object up against his chest.” He “watched the man go down” and he “noticed an object fall from his hand and land on the ground two feet in front of him.” He stated that the object was a handgun. But in a second declaration on August 31, 2016, he stated that he had previously testified that he saw a gun fall from Foster‘s hands only because the police officers who interviewed him said they had found a gun and he was scared and nervous during his interview. In the August 31st declaration, Perez stated, “I did not see a gun.
A third witness, John-David Vallesillo, witnessed the chase from his car. In his interview with the police on the day of the shooting, Vallesillo stated that he heard a volley of shots, after which he turned his head and saw Foster “facing away from [Hellawell], falling forward onto his face onto the ground.” Vallesillo further explained that from his perspective, “I didn‘t see a gun in [Foster‘s] hands at any point and it looked like he was, he got shot in the back.” In a later declaration, dated August 31, 2016, Vallesillo again explained: “I heard a volley of shots coming from [the] general direction [of the police chase]. I also saw Mr. Foster fall face down onto the concrete.” Vallesillo added that he “did not see Mr. Foster turn or bend towards the police officer” before the gunshots, “did not see Mr. Foster with a gun in his hand,” and “did not see a gun on the sidewalk after the police officer shot him in the back.”
Finally, Jose Flores, who observed the chase from his mother‘s car, testified that Foster did not turn toward Hellawell during the chase. Flores saw Foster “lying face down on the concrete,” but “did not see a gun in [Foster‘s] hands or on the ground.”
Foster was treated on the scene and later died at the hospital. The plaintiffs brought suit under
The court denied Hellawell‘s summary judgment motion on the majority of plaintiffs’ Fourth and Fourteenth Amendment claims. The court concluded that a genuine issue of material fact existed as to (1) whether Hellawell violated Foster‘s Fourth Amendment rights in making the investigative stop without reasonable suspicion; (2) whether Hellawell violated Foster‘s Fourth Amendment right to be free from excessive force by drawing his firearm during the investigatory stop; (3) whether Hellawell violated Foster‘s Fourth Amendment right to be free from excessive force by fatally shooting him; and (4) whether Hellawell violated the plaintiffs’ Fourteenth Amendment rights because a reasonable jury could find that Hellawell shot Foster with a purpose to harm him without regard to legitimate law enforcement objectives.3
II
The Supreme Court has held that “pretrial orders denying qualified immunity generally fall within the collateral order doctrine,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014), and therefore, in the qualified immunity context, “we have jurisdiction over the denial of summary judgment, an interlocutory decision not normally appealable,” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). “This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost.” Plumhoff, 134 S. Ct. at 2019.
Despite this general rule, “the scope of our review over the appeal [in this context] is circumscribed.” George, 736 F.3d at 834. A public official may not immediately appeal “a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 307 (1995). In other words, where “a portion of a district court‘s summary judgment order” in a qualified immunity case “determines only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial,” it is not a final decision under
To the extent the district court‘s order denies summary judgment on purely legal issues, however, we do have jurisdiction. As Plumhoff explained, defendants’ contention that their conduct “did not violate the Fourth Amendment and, in any event, did not violate clearly established law,” raises legal issues that are “quite different from any purely factual issues that the trial court might confront if the case were tried.” 134 S. Ct. at 2019. Deciding such legal issues “is a core responsibility of appellate courts, and requiring appellate courts to decide such issues is not an undue burden.” Id. Therefore, we may address them on interlocutory appeal.
In deciding such legal claims, we apply the Supreme Court‘s qualified immunity standard. “Qualified immunity attaches when an official‘s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Although we do “not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting Pauly, 137 S. Ct. at 551). We may not “define clearly established law at a high level of generality.” Id. at 1152 (quoting City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015)). Rather, the clearly established law at issue “must be ‘particularized’ to the facts of the case.” Pauly, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (“The dispositive question is ‘whether the violative nature of particular conduct is clearly established.‘“) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). An officer cannot “have violated a clearly established right unless the right‘s contours were sufficiently definite that any reasonable official in the defendant‘s shoes would have understood that he was violating it.” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff, 134 S. Ct. at 2023). “In other words, immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” Pauly, 137 S. Ct. at 551 (quoting Mullenix, 136 S. Ct. at 308).
III
We turn first to Hellawell‘s appeal of the district court‘s denial of summary judgment on plaintiffs’ claims that the fatal shooting of Foster violated his Fourth Amendment rights and plaintiffs’ Fourteenth Amendment rights. The district court here concluded that genuine issues of material fact precluded summary judgment on both the Fourth and Fourteenth Amendment claims, because a reasonable jury could find that Hellawell shot Foster in the back while Foster was running away from him; that Foster was unarmed; and that Foster did not turn, bend, or look back at Hellawell in a manner that could make a reasonable officer fear being shot.
In the Fourteenth Amendment context, it has been clearly established since 1998 “that a police officer violates the Fourteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a legitimate law enforcement objective.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 450 (9th Cir. 2013). Legitimate law enforcement objectives include, among others, arrest, self-protection, and protection of the public. See id. at 454. A police officer lacks such legitimate law enforcement objectives when the officer “had any ulterior motives for using force against” the suspect, see Gonzalez, 747 F.3d at 797, such as “to bully a suspect or ‘get even,‘” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)), or when an officer uses force against a clearly harmless or subdued suspect, Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1170 (9th Cir. 2013); see also Zion v. Cty. of Orange, 874 F.3d 1072, 1077 (9th Cir. 2017) (holding that an officer may have violated the Fourteenth Amendment when, after shooting the suspect multiple times at close range, the officer took “a running start” and stomped on the suspect‘s head multiple times in succession), cert. denied, 138 S. Ct. 1548 (2018).
Rather than claim that an officer in Hellawell‘s position could have reasonably thought it was lawful to shoot a fleeing, unarmed suspect in the back, Hellawell argues that the evidence was insufficient to create a genuine issue of material fact regarding the plaintiffs’ Fourth and Fourteenth Amendment claims. According to Hellawell, the district court erred by considering the evidence supporting plaintiffs’ version of events. Hellawell argues that Vallesillo‘s testimony was immaterial because he was not in a position to see whether or not there was a gun and his declaration contradicted his initial statement to the police that he did not see the shots fired.4 Likewise, Hellawell argues that Perez‘s
Instead of relying on these witnesses, Hellawell argues, the court should have relied on Hellawell‘s testimony. Hellawell contends that his statement that he saw a gun in Foster‘s hand is effectively undisputed, because the witnesses’ testimony that they did not see a gun in Foster‘s possession does not mean there was no gun. According to Hellawell, he did not violate the Fourth Amendment, let alone any clearly established law, where he reasonably believed Foster posed a threat of serious physical harm. On the Fourteenth Amendment claim, Hellawell argues that he was engaged in a fast-moving situation and fired his gun when he believed Foster was turning toward him to shoot him. Thus, according to Hellawell, because his actions undisputedly served a legitimate governmental objective of defending himself and preventing an armed suspect‘s escape, there was no genuine issue of material fact regarding whether he had violated plaintiffs’ Fourteenth Amendment rights.
We have previously rejected similar arguments. See George, 736 F.3d at 834–35. George involved a
We decline review of Hellawell‘s arguments for the same reason. As in George, Hellawell challenges the sufficiency of the plaintiffs’ evidence; he argues that plaintiffs will not be able to prove at trial that he shot an unarmed suspect in the back without any provocation in violation of the Fourth and Fourteenth Amendments. But this sort of “evidence sufficiency” claim does not raise a legal question. Johnson, 515 U.S. at 314. We may not reweigh the evidence to evaluate whether the district court properly determined there
Therefore, under George, we lack jurisdiction to consider Hellawell‘s argument that we should reverse the district court‘s determination that there was a genuine issue of material fact regarding plaintiffs’ Fourth and Fourteenth Amendment claims relating to Hellawell‘s fatal shooting of Foster. See George, 736 F.3d at 835. We therefore dismiss Hellawell‘s appeal of these claims.
IV
We now turn to the plaintiffs’ claims that Hellawell violated Foster‘s Fourth Amendment rights by making an
A
A law enforcement officer may, consistent with the Fourth Amendment, conduct a “brief investigatory stop” of a suspect when the officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18 (1981); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968). The “reasonable suspicion” necessary to justify such a Terry stop depends “upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). In applying this standard, we take into account the “totality of the circumstances.” Id. (quoting Cortez, 449 U.S. at 417).
For an anonymous tip to provide reasonable suspicion, the tip must contain “sufficient indicia of reliability,” White, 496 U.S. at 327, that “criminal activity may be afoot,” Terry, 392 U.S. at 30 (internal quotations omitted). Thus, we must consider, based on the undisputed facts, whether it was clearly established at the time of the incident that the tip in this case: (1) was not sufficiently reliable and (2) did not provide information on potential illegal activity.
First, a reasonable officer in Hellawell‘s position could have concluded that the 911 call in this case demonstrated
The tip in this case had several indicia of reliability. First, the tipster made a recorded 911 call. See id. at 1175–76. The tipster also claimed eyewitness knowledge of the concealed handgun and provided explicit detail about his observations, including that he personally observed the suspect taking out his gun in a manner “let[ting] people know who he is.” See Gates, 462 U.S. at 234. Finally, the tipster stated that the suspect was walking down Highway 111 in the direction of the Subway and the smoke shops. Whether this was a prediction or merely an observation is unclear, but Hellawell corroborated this statement when he encountered the suspect at the specified location. See White, 496 U.S. at 331-32.
The plaintiffs argue that Florida v. J.L. clearly establishes that a reasonable officer should not have relied on the 911 call in this case because it lacked the necessary indicia of reliability. In J.L., the police received an anonymous tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S. at 268. An officer arrived at the bus stop, frisked J.L., and seized a gun from his pocket. Id. The Court held that the tip lacked “the moderate indicia of reliability” necessary to give rise to reasonable suspicion. Id. at 271. In reaching this conclusion, the Court noted that “[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” Id. at 271. Moreover, the tip itself consisted merely of “[a]n accurate description of a subject‘s readily observable location and appearance” and did not “show that
Given the body of Supreme Court case law in existence at the time of the incident here, we cannot say that J.L. would have made it clear to a reasonable officer in Hellawell‘s position that the 911 call regarding Foster lacked sufficient indicia of reliability or placed this question “beyond debate.” See Kisela, 138 S. Ct. at 1152 (quoting Pauly, 137 S. Ct. at 551). J.L. emphasized that the tipster in that case had not indicated the basis for his tip and had reported mere observations. 529 U.S. at 271. But here the tipster explained the basis of his knowledge, predicted the suspect‘s route, and made the tip via a recorded 911 call. A reasonable officer could rely on these facts when assessing the tip‘s reliability. See J.L., 529 U.S. at 274–76 (Kennedy, J., concurring); Terry-Crespo, 356 F.3d at 1175–76. Further, in J.L. “the record did not indicate how long the police waited before responding to the tip,” United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 n.3 (9th Cir. 2003) (discussing J.L., 529 U.S. at 268); in contrast, here Hellawell responded within minutes.
Accordingly, although the facts in J.L. are similar to the facts in this case, they are not identical, and other Supreme Court decisions provide a basis for a reasonable officer to conclude that the 911 call in this case had sufficient indicia of reliability. This conclusion is confirmed by the Supreme Court‘s subsequent determination in Navarette v. California, which distinguished J.L. on similar grounds to the ones at issue here. 572 U.S. 393, 397–400 (2014). In Navarette, the Court held that an anonymous tip has sufficient indicia of reliability to provide reasonable suspicion when the tipster accurately predicts a direction of travel, the tip is made
Second, a reasonable officer in Hellawell‘s position could have concluded that the tip in this case provided information on potential illegal activity. Where state law makes it generally unlawful to carry a concealed weapon without a permit, a tip that a person is carrying a concealed firearm raises a reasonable suspicion of potential criminal activity, even if the tip does not state that the person is carrying the firearm illegally or is about to commit a crime. See United States v. Woods, 747 F.3d 552, 556 (8th Cir. 2014) (“Considering Missouri law, and based on the call that there was an individual carrying a concealed weapon that had exited the bus, the officers had reason to believe criminal activity was afoot.“); United States v. Gatlin, 613 F.3d 374, 378 (3rd Cir. 2010) (“[W]e hold that reasonable suspicion existed in this case based solely on the reliable tip from a known informant because carrying a concealed handgun is presumptively a crime in Delaware.“).6
Accordingly, although a person exiting a liquor store with a concealed handgun in his right-hand pocket, walking in the direction of stores that had previously been robbed, may have had a concealed carry permit and been engaged in innocent activities, it would not violate clearly established law for a reasonable officer in Hellawell‘s position to conclude that the tip, corroborated by his own observations, gave rise to a reasonable suspicion that the man was engaged in criminal conduct.9 Therefore, we determine that Hellawell did not
B
We next turn to the plaintiffs’ claim that Hellawell violated Foster‘s Fourth Amendment rights in approaching him with a drawn gun.
In his deposition, Hellawell testified as follows:
I don‘t recall drawing my gun, but I do remember fumbling with my holster as I ran behind Jack in the Box or on the side of Jack in the Box. I honestly can‘t sit there and tell you when I drew it. . . . Whether I drew it when he started to run or when he made some type of a movement as he began to run, I might have. I don‘t remember. But I do remember as we ran along the west side of Jack in the Box, I remember fumbling with my holster because I will not run with my gun in my hand. So that‘s all I can recall on that subject.
Similarly, in his initial interview with the police investigator, Hellawell stated that “I initially had my gun out when he first started running because I believed he had a gun
Based on this record, the district court erred in finding a genuine dispute as to whether Hellawell approached Foster with his gun drawn.10 The bare allegation alone, without any evidence in the record, is insufficient to conclude that Hellawell did anything more than unholster his gun during the initial encounter with Foster. The parties have not cited any case holding that merely unholstering a gun without pointing it at the suspect constitutes excessive force. We have held only that “pointing a loaded gun at a suspect, employing the threat of deadly force” may constitute excessive force. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (emphasis added); see also Tekle v. United States, 511 F.3d 839, 845 (9th Cir. 2007) (“We have held that the pointing of a gun at someone may constitute excessive force, even if it does not cause physical injury.“); Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th Cir. 2002) (en banc) (recognizing “as a general principle that
Because a reasonable officer in Hellawell‘s position could reasonably conclude that unholstering a gun during the stop did not constitute a violation of Foster‘s right to be free from excessive force, we reverse the district court‘s conclusion that Hellawell was not entitled to qualified immunity on this point.
V
Because we lack jurisdiction to review Hellawell‘s claim that the district court erred in denying him qualified immunity for the fatal shooting of Foster, we dismiss Hellawell‘s appeal of this portion of the district court‘s ruling. We conclude that Hellawell is entitled to qualified immunity for his initial stop of Foster, and therefore reverse the district court‘s denial of summary judgment on these Fourth Amendment claims.11
DISMISSED IN PART AND REVERSED IN PART.
I disagree with the majority‘s conclusion that we lack jurisdiction to consider Hellawell‘s appeal of the district court‘s denial of qualified immunity for the plaintiffs’ Fourteenth Amendment claim. Here, viewing the evidence in the light most favorable to the plaintiffs, no reasonable jury could find that Hellawell acted with a “‘purpose to harm’ [Foster] for reasons unrelated to legitimate law enforcement objectives.” Gonzalez v. City of Anaheim, 747 F.3d 789, 797 (9th Cir. 2014) (en banc) (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)).
Because Foster matched the description of an individual reportedly carrying a firearm in the area, there is no genuine issue of triable fact as to whether Hellawell believed Foster to be armed. The evidence in the record is consistent with Hellawell‘s testimony that he used deadly force because he believed Foster was a fleeing and dangerous suspect in a crowded area on the Fourth of July.
Moreover, the plaintiffs have produced no evidence that Hellawell had “any ulterior motives for using force against” Foster, Gonzalez, 747 F.3d at 798, that Hellawell “did not believe he was responding to an emergency,” Bingue v. Prunchak, 512 F.3d 1169, 1177 (9th Cir. 2008), or that Hellawell intended to “get even” with Foster, Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)). Any “speculation” regarding “improper motive does not rise to the level of evidence sufficient to survive summary judgment.” See Gonzalez, 747 F.3d at 798 (quoting Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003)).