Estate of Lopez Ex Rel. Lopez v. Gelhaus

departure inform Chavez-Garcia that his constitute a of his previously

would waiver right appeal

reserved to the BIA ren- purported

ders Chavez-Garcia’s waiver in- Therefore, petition granted.

valid. proceed-

The case is remanded for further

ings before the BIA. GRANTED;

PETITION REMAND-

ED.

OWENS, Judge, dissenting: Circuit view, respectfully my

I dissent.

February 2013 letter from Chavez- lawyer—which

Garcia’s own asked for his

immediate removal and stated that Cha-

vez-Garcia did “not to appeal” intend the' decision—supports

IJ’s the BIA’s decision appeal grounds.

to dismiss the on waiver Andy LOPEZ,

ESTATE OF BY AND interest,

THROUGH successors Ro

drigo Sujay Cruz; LOPEZ and Rodri

go Lopez; Sujay Cruz, Plaintiffs-Ap

pellees, GELHAUS; County

Erick Sonoma,

Defendants-Appellants.

No. 16-15175

United States Appeals, Court of

Ninth Circuit.

Argued May and Submitted Pasadena, California

Filed September jurisdiction pursuant to 28 U.S.C. affirm.

§ and we AND FACTUAL PROCEDURAL

BACKGROUND by Andy Lopez Licea A. Jose Drives Shooting Prior to the 22, 2013, approximately On October Licea, a civilian with no p.m., 3:15 Jose parties to this connection driving northbound on litigation, was Rosa, in Moorland Avenue Santa Califor- person a later identified as nia. He noticed Andy Lopez1 walking on sidewalk in few hundred feet front of him. Licea Andy’s age, couldn’t tell “but (argued) and James Noah G. Blechman figuring was it was a kid.”2 height, [Licea] III, Beatty Ney McNamara Fitzgerald V. LLP, got approximately within Slattery Borges & Ambacher Walnut When Licea California; Ruiz, Creek, F. Robinson Andy Jesse Andy, 150 feet of he saw Jose, California; Inc., for & Wood San an AK- holding object an that looked like Defendants-Appellants. hand, Andy’s 47. was in left The pointed ground, and barrel was Law Office of (argued), P. Peters

Gerald just swinging.” see it Licea Licea “could Oaks, Peters, Philip Thousand Cali- Gerald in was odd: “at that time thought this fornia, Plaintiffs-Appellees. for know, afternoon, walking you someone WALLACE, Before: J. CLIFFORD me, AK-47, just—I an around with CLIFTON, and MILAN D. RICHARD R. Indeed, that.” somebody doing couldn’t see SMITH, JR., Judges. Circuit said, day,” he “some- time of “th[at] carrying a real going one is not be by Judge Dissent Wallace rifle.” OPINION approximately got Licea within When SMITH, Judge: M. Circuit down to look Andy, he slowed fifty feet it, thought “it he saw he gun. at the When Deputy County Sheriffs Sonoma BB it was a suspected fake.” He look[ed] deny- appeal Erick from order Gelhaus had seen his mother-in-law gun because summary judgment their motion for ing in area sever- with them the some children immunity in an defense of not fear for his earlier. Licea did al weeks ex- deployed that Gelhaus alleging action he continued on his police; life or call the fatally shot thirteen- force when he cessive way. Andy Lopez in October 2013. We year-old or, times, decedent, simply lectively "defendants” Andy Lopez, as as We to the refer "Andy” with the district to be consistent "Gelhaus.” as plaintiffs-appel- We to the court’s order. refer lees—Andy's Andy's parents, Ro- Estate and Andy was estimated that 2. Another witness Cruz—collectively drigo Lopez Sujay old,” him as years and described “11 or 12 defendants-appel- "plaintiffs.” We refer than five feet.” guy,” “no more "the little lants, County, and Sonoma col- Erick Gelhaus Deputies

B. Gelhaus and yards Schemmel to direct put the individuals to Andy

See guns. down their suspects complied, and the incident was resolved without time, At the same County Sonoma Sher- charges. Deputies iffs Erick Gelhaus and Michael Schemmel were on in patrol routine holding saw in his police marked car driving northbound on hand, “by pistol grip, left down at his Moorland training Avenue. Gelhaus was side,” with the muzzle towards the just Schemmel because Schemmel had ground. reported Schemmel he saw transferred to Sonoma from a nearby po- holding hand, right lice department. Gelhaus was aware that subsequent Schemmel’s declaration does they were patrolling part county specify not which hand the gang activity known for and violent crime. held. As walking, “the Still, he had worked area somewhat,” swing would but Gelhaus could years, last few middle of the not see if Andy’s finger was on trigger. day, activity and there was no Once Gelhaus noticed he radio. quickly Schemmel, alerted then called With Schemmel at the wheel and Gel- 20,” request “Code which is used to that all seat, passenger haus in the the officers report immediately units available on an West) approached a stop sign at Robles emergency basis. Drive. That is when Andy Gelhaus noticed walking away in a direction from the offi- The C. Incident along cers the west"sidewalk on Moorland As Schemmel trained his attention on Andy Avenue. “[wjalking was at a normal Andy, past stop he drove the sign and and, speed” Gelhaus, according to his mo- crossed the intersection with West Robles appear aggressive. tions did not Andy was Drive. Simultaneously, he flipped on the “trying get us,” not to away from Gelhaus emergency lights “chirped” and patrol the recounts, just “he was walking away from car’s siren. Schemmel he believes saw us.” Andy “briefly glance backwards” over his Gelhaus could not Andy’s determine right shoulder at this point. Gelhaus did age—Andy was about 100 away feet' and turn, Andy see make such nor wearing was a hooded sweatshirt. To Gel- hearing does he recall ever patrol car’s haus, Andy appeared nonetheless to be “chirp.” “[sjomebody teens,” in their mid to late intersection, Once Schemmel cleared the appear and did not gang to be a member. (cid:127) he veered into the southbound lane and Gelhaus Andy’s gun, noticed which he stopped forty-five at a degree angle with believed to be AK-47. Gelhaus believed the west sidewalk. As the car was slowing in part this because he previously had down, seatbelt, Gelhaus removed his drew confiscated an AK-47 within one mile of pistol, his opened passenger and side said, location. That he had never deputies door. The parked approxi- were person seen a walk down the street mately forty feet Andy behind broad daylight carrying an AK-47. More- point. stopped, Gelhaus him- situated Once over, he had also confiscated what turned door, open self the V of his and knelt on toy guns out to be on prior three occasions ground. while patrol. During the most recent of outside, occasions, those Now Gelhaus aimed responded pistol Gelhaus his to a call involving subjects Andy yelled time, and park. loudly with rifles at least one He used loudspeaker from a “Drop gun!” Andy distance of walking had been evidence alone cannot be time, sixty-five physical “[i]t so he was about this whole jf shout- ... held in [rifle] the officers when Gelhaus determined was feet from paused drop gun; he Andy right or hand ... or if [rifle] ed. the left body rotate his began and a few seconds elevated or at the officers come then “saw clockwise. Gelhaus shooting.” prior par- Andy’s torso turned. around” as driver, he Because Schemmel was next. happened what dispute ties get into insists he was unable declaration, According to Gelhaus’s already stopped firing. until had Gelhaus [Andy’s] left weapon- still “[w]ith declaration, According to Schemmel’s and of- swinging [the around toward hand “[Andy] right turned to his with his whole ficers], and with the barrel of us, so, body and as he did toward eight fired shots coming up,” Gelhaus raising him turning with and was succession, Andy. hit seven which rapid depo- toward us.” in his turning Asked however, Gel- videotaped deposition, In his however, sition, if any time before “[a]t Andy “didn’t turn towards haus stated [Andy’s] gunshots, heard [he] [he saw] left I shot him.”3 Gelhaus shot me when move,” “I responded, hand Schemmel don’t chest, Andy facing the offi- so recall.” opened fire. Gelhaus cers when Gelhaus Dep- after Andy collapsed the shots not know where that he does concedes remained uties Gelhaus Schemmel at the time pointing the rifle Andy was car doors. Once oth- crouched behind their does Gelhaus know that he was shot. Nor arrived, two other deputies er Gelhaus and actually pointed at Andy’s gun was ever guns with their approached officers him. standing Andy, over pulled. As he was Gelhaus was asked deposition, At his time that the realized for the first holding how reenact that of a coloring was different from gun’s motion,” saw you and “what turning “his weapon AK-47. he moved the real When the depicts him do.” The video Andy’s away, he also noticed that and at his fully-extended arm Gelhaus’s Andy It turns out that lighter. much turns, consistently pointed as he side replicate to holding gun designed plastic ground.4 down towards the straight toy orange not have an an AK-47. The did that it experts opined The defendants’ barrel, and defen- end of the tip at the Andy raised” “likely” “partially possi- that it experts submit dants’ They experts disagreed. Plaintiffs’ gun. distinguish visually to ble for Gelhaus models three-dimensional created AK-47 at the Andy’s weapon from a real movements, of the re- each Andy’s in this case. distance involved pointed creations, Andy’s gun barrel shooting, Andy was At the time of the Andy’s ground throughout down at in a residen- open to an field standing that from next further insisted expert turn. One gun, so it is not clear room to deposition, contradict- been raise in the Gelhaus 3. Later blocking. It could path the table was ed this statement. what torso, Andy’s turn of motion have been regarding ambiguous the extent 4. The video is Andy moved as he was or how modeling Andy's total which Gelhaus was to weapon Notably, rose he fell. if the shot or as "I Gelhaus remarks: saw movements. threatening, objectively that was in a manner around, with I think with the torso come eager that Gelhaus would be one would think Then, moments was this.” a few it.... later, It upward Gelhaus’s demonstrate the motion. adds, blocking table he "with the does not do so. reenactment video, appears path.” there In the neighborhood. tial The site of the shooting position pointed where it was down at the is also to three close schools ground, it could have been raised to a shooting occurred when school was out of slightly-higher posing any level without people no other pres- session. There were threat to the officers.” Id. In of that shooting. ent There were a few indi- finding, the record compel surrounding neigh- viduals outside in the conclusion that Gelhaus was threatened walking borhood. had been with imminent harm. The court distin- general direction of several houses before guished authority as involving shouted, Gelhaus and Gelhaus submits (1) suspects who physically either assault- that he did not want to let get near (2) officer, ed an weapon them. (3) others, officers or made a sudden Gelhaus stated that he was aware at the movement towards what officers believed shooting time that rounds from an (4) weapon, to be a or exhibited some other Thus, penetrate assault rifle can car doors. threatening, aggressive, or erratic behav- fired, when Gelhaus he did not believe ior. Id. any protection. he had cover or Having plaintiffs concluded that Finally, the total elapsed time from the could show a constitutional deprivation, the “chirp” to approximately the shots was court step turned to two. It asked “wheth- twenty seconds. died on site from his er the law was established such wounds. that an officer would know that the use of deadly force is unreasonable where the History D. Procedural suspect appears AK-47,” carrying to be brought estate suit on November but where “officers have received no re- 4, 2013, asserting, among things, other ports of the suspect using or against pursuant claim expressing an intention to weap- use the § U.S.C. 1983 for a Fourth Amendment on,” suspect “the point does not the weap- violation. County Gelhaus and Sonoma. on at the officers or otherwise threaten summary judgment filed motion for on it,” suspect them with “the does not ‘come qualified immunity. the basis of The dis- at’ the officers or make sudden move- trict court denied the motion in relevant officers,” ments towards the and “there part January 2016. See Estate of erratic, are no reports of aggressive, or Gelhaus, Lopez 149 F.Supp.3d threatening behavior.” 1164. The (N.D. 1158-65 Cal. court clearly said that the law was estab- At step qualified the first of the immuni- lished that “specific under those circum- ty analysis, the district court held stances,” the of deadly use force was un- jury could find that Gelhaus acted unrea- reasonable. Id. at 1164-65. The court did sonably viewing when the evidence in the directly identify precedent put light Andy.5 most favorable to at Id. 1162. Gelhaus on notice that his conduct was In particular, after reviewing the relevant unconstitutional. evidence, the court held that it could “con- timely clude that the rifle barrel Gelhaus filed a begin- appeal notice of rise; ning given 4, and that it February started a on 2016. Specifically, incorporated the court By its earli- force sending was reasonable.” it analysis summary that, er judg- jury, of the motion for necessarily the court held There, ment on the Fourth viewing Amendment claim. when the evidence in the most it held that Andy, "there remains a triable jury issue of favorable to a reasonable could fact as to whether defendant Gelhaus' use of find unreasonably. that Gelhaus acted

1005 Additionally, REVIEW Fourth Amendment. STANDARD OF the al leged violation of Fourth Amend summary judgment We review right clearly ment established at the v. determinations de novo. Glenn Wash. time of Gelhaus’s conduct. (9th 2011). 864, 870 We Cty., 673 F.3d Cir. a defendant officer’s also review de novo Step I. One—Whether a constitu- immunity. qualified entitlement to Id. right tional was violated. ANALYSIS Plaintiffs assert that Gelhaus de ployed qualified immu excessive force violation of “The doctrine nity government officials ‘from li protects Fourth Amendment. gov This claim is damages their ability for civil insofar as “objective erned reasonableness clearly conduct does not violate established standard,” requires which a “careful bal statutory rights or constitutional of which ancing of quality the nature and of the ” person a reasonable would have known.’ intrusion individual’s Fourth 223, 231, Callahan, v. 555 U.S. Pearson against Amendment interests the counter (2009) 808, 129 S.Ct. vailing governmental at interests stake.” (quoting Fitzgerald, Harlow v. 457 U.S. Connor, 386, 388, 396, Graham v. 490 U.S. 2727, 800, 818, 396 102 S.Ct. 73 L.Ed.2d (1989) 1865, 109 104 S.Ct. L.Ed.2d 443 (1982)). “Qualified immunity gives govern (internal omitted). quotation marks The room to make rea breathing ment officials embody calculus “must allowance for the judgments about sonable but mistaken fact that officers are often forced to properly ap open legal questions. When judgments—in split-second make circum plainly ‘all incom plied, protects but the tense, uncertain, rap stances that are knowingly or those who violate the petent idly evolving—about the amount of force ” al-Kidd, 731, 563 law.’ v. U.S. Ashcroft necessary in a particular situation.” 743, 2074, 1149 131 179 L.Ed.2d S.Ct. 396-97, 1865. We therefore S.Ct. (2011) 475 U.S. (quoting Malley Briggs, v. judge perspec reasonableness “from the 335, 341, L.Ed.2d 271 106 S.Ct. scene, officer on the tive of (1986)). rather than with the vision of hind 20/20 insists he is entitled to 396, 109 sight.” Id. at S.Ct. 1865. qualified immunity plaintiffs’ Fourth Supreme decision in Court’s determining claim. “In wheth Amendment to con Graham identified several factors immu er an officer is entitled to evaluating strength sider when (1) nity, we consider whether there has (1) used: government’s interest right; been a violation of a constitutional (2) issue,” severity “the of the crime (2) right whether an immediate suspect poses “whether at the time of the officer’s al established safety or oth threat to the of the officers California, leged misconduct.”6 Lal (3) ers,” suspect] is “whether [the 2014) (citing F.3d attempting to actively resisting arrest or Pearson, 129 S.Ct. 555 U.S. “ ‘most by flight.” evade arrest Id. The Here, regard must taking the facts as we is wheth important’ factor under Graham interlocutory a rea appeal, them on this an ‘immediate threat suspect posed er the jury could conclude that Gelhaus sonable ” safety of the officers or others.’ deployed excessive force violation of 1252, Anaheim, (9th City 823 F.3d 1255 discretion to decide which v. ”[W]e have of first,” prong and need not neces- to address Cir. sarily by through Villegas reach both. C.V. 1006 (9th Morris, 829,

George v. 736 F.3d 838 “Although we must view the facts 2013) MacPherson, (quoting Bryan Cir. v. light most favorable to the nonmov- (9th 2010)). 805, 630 F.3d 826 ing Cir. These party, when considering qualified im Bryan, factors are non-exhaustive. 630 munity, we are also limited considering F.3d at 826. Courts still must “examine the what facts the officer could have known at totality of the circumstances and consider the time of the incident.” Davis v. United may (9th whatever factors specific appropri- States, 594, 2017) be 854 F.3d 598 Cir. — case, ate in a particular whether or not (citing U.S.—, v. Pauly, White (internal listed in quotation 548, 550, (2017)). Graham.” Id. S.Ct. 196 L.Ed.2d 463 omitted). marks “Other relevant factors Ultimately, interlocutory appeal, we may availability include the intru- less ask “whether the defendants would be en force, proper sive whether warnings were titled to immunity as a matter of given, law, and whether should have been assuming all factual disputes are re apparent subject' to the officer that the solved, and all reasonable inferences are mentally drawn, force used was disturbed.” in plaintiffs George, favor.” Kisela, (9th Hughes (internal v. 841 F.3d F.3d at 836 quotation marks 2016). “With,respect omitted). Cir. the possibility alteration force, of less intrusive officers need not ' A. employ To assess whether a jury the least intrusive means avail- able[,] could long they so as act within a Fourth Amendment vio- range of find lation, we reasonable conduct.” Id. must resolve several first disputes. factual have held that “summary We Graham, Applying Andy was not judgment granted should be sparingly in committing a serious crime attempting or City excessive force cases.” v. Gonzalez by to evade arrest flight. The first and Anaheim, third weigh clearly factors thus in Andy’s 2014) (en banc). principle “This applies favor. We therefore are left with the “most where,” here, particular with force “the important” factor—whether Andy posed only witness other than the officers was safety “immediate threat to the killed during encounter.” Id. “In such George, officers or others.” 736 F.3d at 838 cases, we must ensure that the officer is (internal omitted). quotation marks To not taking advantage of the fact that the determination, make that we must resolve likely witness most to contradict his sto genuine number of disputes, factual con ry—the person shot dead—is unable to sidering the evidence most (internal testify.” quotation Id. marks nonmoving favorable to the party—here, omitted). “Accordingly, carefully we exam plaintiffs. all record, ine the evidence in the such as reports, medical contemporaneous First, state because Schemmel and Gelhaus ments the officer and disagree the available as to whether “briefly evidence, physical ... tó glance[d] determine wheth right backwards” over his shoul- story er the officer’s internally patrol consis der after the “chirp,” car’s we must tent and consistent with other known assume that Andy briefly glance (internal facts.” quotation Id. marks omit backwards and therefore was unaware that ted). “We must also examine circumstan someone was behind Deputy him until Gel- that, believed, tial evidence would tend “drop haus shouted gun.” Saucier See Katz, discredit the story.” 194, 207, officer’s 533 U.S. 121 S.Ct. (internal omitted). quotation (2001) (“Excessive marks objective right ... are evaluated for rea- clockwise with the in his claims hand, upon based the information opposed dispute sonableness as to his left. The is had when the conduct oc- officer[] also to Deputy material Gelhaus’s account curred.”); Baca, 633, v. 431 F.3d Moreno looking Andy’s right because he was over 2005) (9th (stating may that courts Cir. Yet, shoulder from behind. Gelhaus’s testi- only that were known to consider the facts mony on predicated gun coming is into officer). disputed the defendant This fact is swung view as it around from At the left. light Andy’s on significant because sheds minimum, we must be mindful that Schem- possible turning motivations in to face the provides important mel’s statement an ba- Andy’s In particular, subsequent officers. for a jury question credibility sis to aggressive turn less because he appears accuracy of the officers’ accounts. See to if attempting could have been see he Anaheim, City Cruz v. 765 F.3d call, object was the of the or could have (9th 2014) (“[I]n turning giv- out of startled confusion been context, simply may we cannot what accept only toy gun.7 carrying en that he was self-serving police be a account

Second, dispute there is a factual re- (internal quotation officer.” marks omit- garding the number of times ted)). definitively that shouted. Gelhaus can state Fourth, importantly, and most there is a only If yelled goes

he once. the case dispute regarding the movement of factual trial, jury may hear evidence of addi- Andy’s gun. findings, As with all.faetual we shouts, purposes tional but for of this in- by the district finding are bound terlocutory appeal, we must assume that this critical issue. before, only there was one. As the number interlocutory appeal of a On to our of commands is relevant consider- qualified immunity, denial of our review is how a reasonable officer would ation of “purely legal limited to issues.” Watkins turning motivation in around. view Oakland, shout, City only Andy one Assuming there was take, given, must may wondering “[W]e have been it was direct- Cir. him, process- or he could have been ed facts that the district court assumed when ing order in the three seconds summary judgment (purely for a it denied (internal before he was shot. quotation legal) reason.” omitted). marks and alteration “[W]here Third, dispute regard- there is a factual out explicitly'set the district court does not ing right whether held the upon, facts that it relied we undertake left, says it was the or left hand. Gelhaus record pretrial a review of the says right. it was the We but Schemmel necessary extent to determine what facts this, im- dispute but the cannot resolve court, most favor the district “swinging of the portant. The around” likely nonmoving party, as- vastly look different if turned able would hearing plaintiffs, chirp put on no- Though Gelhaus does not recall officer, anyone, police “chirp,” chirp tice that much less a patrol car's is audible in chirp sought The was emitted recording dispatch call. We there- his attention. chirp analy- a vehicle on the other side of an inter- may account for the in our from fore Harris, 372, 378-81, feet behind section more than a hundred sis. See Scott v. 550 U.S. (2007). Andy. Andy somehow knew that the Even if 127 S.Ct. car, op- recording chirp was from a .as chirp for a fraction of a emitted lasts emergency briefly posed some other kind of vehi- The tone and resem- second. ascends cle, attempting to emergency the car could have been “blip” of an vehicle. bles Drawing make a U-turn or another maneuver. inferences in favor of the (internal quotation sumed.” Id. marks that he holding.”); (stating was id. at 1164 omitted). Andy “point that weapon at the officers or otherwise threaten them with Here, the district court made few explic- it”). it findings, excep- but this issue was the tion. expressly The court found that it “can course, Of opposing “[w]hen only conclude that the rifle barrel was stories, parties tell two different one of rise; beginning given that it started blatantly which is by contradicted the rec in a position pointed where it was down at ord, so that no jury could be ground, it could have been raised to a it; lieve a court should not adopt that slightly-higher level posing any without version of the purposes facts for of ruling threat to the Lopez, officers.” 149 on a summary judgment.” Scott, motion for matter, F.Supp.3d practical at 1162. As a Here, 550 U.S. at 127 S.Ct. 1769. finding this makes sense. Neither officer however, finding the district court’s is am ever stated how much “began” the barrel ply supported by the record. Gelhaus him turn, Andy to rise as commenced his de- Andy self holding reenacted how spite having the opportunity to so.8 do motion,” turning “his and “what [Gel- Moreover, expect one would the barrel to saw him do.” depicts haus] The video rise an inch or so as the momentum of gun in fully-extended arm and at Andy’s clockwise turn moved his left arm turns, his side as he consistently pointed slightly away from his body. But that inci- straight ground. down towards the Gel- dental movement alone would not compel haus also concedes that he does know jury to conclude that Gelhaus faced immi- Andy where pointing the rifle at the danger given nent the starting position of time that he was shot. Nor does Gelhaus Furthermore, gun. interpretation Andy’s know if gun was actually ever is bolstered Gelhaus’s admission that pointed at him. experts Plaintiffs’ exam weapon benignly would “swing some- ined all of the evidence in this case and step Andy what” with each took.9 created three-dimensional models are obligated Because we to view Andy’s the evi- posture positions. In each of dence in the Andy, re-creations, most favorable to Andy’s gun barrel we must assume for purposes pointed of this inter- ground down at the throughout locutory that, appeal as the Andy’s district court against this, turn. Measured found, the barrel of the could inci- experts merely defendants’ opined that it dentally risen, part of the natural “likely” Andy “partially raised” motion, turning And, “to a slightly-higher gun. because the expert reports level pos[e] any [that did threat other, not] contravene each defendants funda (“[D]efen- Id.-, officers.” see also id. at 1158 mentally rely on Gelhaus’s self-serving dants have not Andy established that actu- declaration. But again, where there is no ally threatened the officers with witness, the rifle surviving carefully “we examine ” 8. The district court pointing stressed that the “defen- deputies.’ (empha- at the [it] allege dants do not ever original). sis in anyone rifle at either officer or at else.” Lo- Instead, pez, F.Supp.3d they at 1158. Gelhaus stated that none of motions carefully-phrased language “use to describe walked—including swinging as he actions, Andy's saying only ‘turned gun—appeared aggressive. Licea also testified began point the AK-47 towards the gun] just swinging,” he “could see [the deputies,’ 'bringing or that the bar- but nonetheless never feared for his life dur- weapon up rel of the AK-47 and around in ing the interaction. direction,’ process their or that he was ‘in the if Andy’s gun ... to deter- does not know was the record all the evidence at him. story is inter- ever whether the officer’s mine other (cid:127) and consistent with nally consistent declaration that Gelhaus’s states Gonzalez, 747 F.3d at 795 facts.” known markings were no unusual “[t]here omitted). (internal Bear- quotation marks colorings weapon or which mind, the record fur- ing present that in were visible to me which indicated jury to grounds for a nishes abundant weapon anything that other Deputy Gelhaus’s reasonably question states, than an AK-47.” Licea howev- accuracy: credibility and er, got approxi- he when within mately fifty Andy—which feet of (cid:127) in the video reenactment Gelhaus’s away than Gelhaus stood his statement that he contravenes further when Gelhaus first confronted the barrel of the fired “with Andy—he thought gun “look[ed] coming up.” 10 fake.” (cid:127) Andy Though Gelhaus submits (cid:127) speaking When to homicide investi- hand, gun in his Schem- had left gators, originally Gelhaus described gun reports Andy held mel Andy as a “man.” He later conceded depo- in his right in his hand. Asked thought Andy looked to be that he [he] if time before “[a]t sition late “[s]omebody their mid to [Andy’s] gunshots, [he saw] heard teens.” move,” respond- hand Schemmel left ed, swinging “I don’t recall.” evidence, plaintiffs’ light of the vastly different would look testimony, the inconsistencies Gelhaus’s with the Andy turned clockwise case that the district court’s it is not the hand, to his right opposed in his Andy’s gun posed no threat to finding that left. utterly officers “is so discredited (cid:127) declaration states Gelhaus’s jury could the record that no reasonable him, in his

Andy turned towards but Scott, 380, 550 127 U.S. [believe it].” he stated: videotaped deposition the dis- supports The record S.Ct. 1769. me when “[Andy] conclusion, didn’t turn towards certainly trict him.” I shot jury to conclude to the compel would not Thus, interlocutory ap- (cid:127) in this contrary. that he expressly concedes Gelhaus the district court’s accept we must Andy peal, where does not know that the finding that he factual the rifle at the time pointing any threat to Gel- posed never concedes that he barrel was shot. He also idiosyncratic un erroneously fake to Licea's "own discredit Li- looked The dissent would view, because, testimony approach not derstandings.” in the dissent's The dissent’s cea’s "largely” on "facts and circum it is based the evidence in the fails to "view spec unique to him.” The dissent stances opposing party,” but most favorable Licea, Gelhaus, unlike would ulates Cotton, oversteps Tolan v. its bounds. also assumption AK-47 that the have shared 1861, 1866, -U.S.-, 188 L.Ed.2d 134 S.Ct. fake, though had nev might even be curiam). (2014) summary (per At the person walk down the street er seen a determinations, stage, “[credibility judgment carrying and had daylight an AK-47 broad evidence, drawing and the weighing of the style M-4 assault rifle on confiscated fake jury legitimate from the facts are inferences of functions, additionally previous occasion. The dissent judge.” of a Anderson not those explicitly predicting and faults Licea for not 242, 255, Inc., Lobby, Liberty 477 U.S. facts, preferred relying on the dissent’s 2505, (1986). L.Ed.2d 202 S.Ct. ultimately view that the attributes Licea’s (3) member; haus or Schemmel as turned. a gang See like walking — Cotton, U.S.—, normally Tolan v. 134 S.Ct. and his motions appear (2014) 1861, 1866, (4) (per aggressive; Andy was carrying weap- curiam) (“[C]ourts may genu not resolve AK-47, on that given looked like an but disputes ine of fact in favor of party prior confiscations, “weapon” seeking summary judgment.”); Masson v. Gelhaus knew that possi- there was some Inc., Magazine, New Yorker 501 U.S. (5) bility toy that it gun; was a (1991) 111 S.Ct. holding gun pistol the the grip, down at (“[W]e justifiable must draw all inferences side, his with pointed the muzzle towards in favor of the nonmoving party, including (6) ground; the Andy carrying the questions credibility and of the weight weapon daylight broad in a residential evidence.”).11 particular to be accorded neighborhood at a time when children of age reasonably his expected could be to be B. A jury could a Fourth find (7) playing; parking after Andy, behind viewing Amendment violation when Gelhaus “drop gun” time, shouted the one the most facts favorable and that shout was the first moment that plaintiffs. Andy became aware that someone was be- again, (8) Once step him; our task at seconds, one is to hind Andy began within decide whether plaintiffs the facts that naturally to turn around in a clockwise direction, have shown make out a (9) constitutional vio- holding still the gun; Andy Pearson, lation. 555 U.S. at 129 S.Ct. did not know until he turned that the Viewing 808. the evidence in the light person most who police officer, shouted was a plaintiffs, jury favorable to a reasonable and Gelhaus was aware of that fact be- could come to following the factual conclu- cause he Andy had not seen look back (1) (10) sions: time; the officers came Andy prior turned, across to that as the while patrol, (11) on routine not in response him; to weapon turned with the bar- report crime or a acting of someone might rel slightly raised as (2) erratically; turned, when Deputy Gelhaus given saw but that it posi- started in a Andy, he looked like a teenager, and not tion where arm fully extended Morris, 11. George (9th 736 F.3d 829 drop gun, Cir. commands to the or taken other 2013), provides a threatening useful illustration of these pointing measures such as principles. (internal George, weapon deputies deputies.” three at quota- [the] sheriffs Id. omitted). responded ato domestic tion marks disturbance involv- ing They a firearm. Id. at 832. found the deputies interlocutory appeal filed an standing balcony husband on a second-floor of the district acknowledged court's order. We holding gun in his left hand “with the barrel points that when an individual in an pointing deputy down.” Id. One insisted direction, officer’s "the Constitution undoubt- pointed the husband raised and edly respond entitles the officer to with direction, prompting his deputy to fire. force.” Id. at We acknowledged also here, however, Id. at 833 n.4. Like the record person "[i]f is armed ... a furtive move- question "called into whether [the ment, husband] harrowing gesture, or serious verbal manipulated gun, pointed ever or di- might threat create an immediate threat.” rectly deputies.” at [the] Id. at 833. But, Because given analysis, the district court’s we witness, surviving there was no the district held that interlocutory appeal “[o]n this ... "parsed deputies’ court testimony for in- we deputies’ testimony can neither credit the consistencies," required by Scott. Id. at pointed turned [the husband] his them, 835. It concluded jury that "a reasonable nor assume that [the husband] took could testimony,” disbelieve the officers’ other objectively actions that would have been jury "rely that a could threatening.” on record evidence to similarly Id. We are constrained ignored [the conclude that husband] had not here. 1991) (rejecting summary straight judgment down Cir. suspect never where the had a but where ground, the barrel rose posed any suspect pointing threat to was not it at to a point (12) officers; officers, directly Gelhaus de- facing either of the and was not fire). if knowing ployed deadly opened force without who officer trigger, without Andy’s finger was on Moreover, indisputably had officer, having identified himself as warning, time to issue a but never notified Andy that having ever warned and without upon that he would be fired he (13) used; Andy was deadly force would be drop gun. either turned or failed to See standing open to an field shot while next Rutherford, Deorle v. (14) around, and Gel- people no other with 2001) (holding “warnings to use less intru- possible knew it was haus feasible, given, if the should be when use at the given prior experience sive may injury”). result of force serious park. Lastly, person while it is true that “[i]f facts, jury a reasonable could these On movement, is armed ... a furtive harrow- pose not an “imme conclude that did ing gesture, might or serious verbal threat safety of the officers or threat to diate threat,” a create an immediate (internal others,” George, 736 F.3d at 838 jury naturally could find that turned omitted), marks and that Gel- quotation non-aggressively in of the overall deadly of force therefore was haus’s use 838; at George, context. See 736 F.3d see In involv objectively reasonable. cases not Part also B. infra dan comparable degrees apparent of ing court counters that the district rejected summary judgment ger, we misdiagnosed immediacy of the threat (de Amendment claims. See id. on Fourth “ri- acknowledgment its given summary suspect a nying judgment where beginning to rise.” But Gel- fle barrel in his left hand with the barrel gun held a omits to mention the district court’s haus down, gun not point and did pointing jury that a nonetheless could con- finding threatening engage at the officers or no threat to the gun posed clude that the Kisela, behavior); Hughes v. see also pointed remained at officers and (9th 2016) (reject 1085-87 Cir. F.3d turn. In ground throughout Andy’s a woman ing summary judgment where event, upon cases which Gelhaus relies per another approached was shot as she objective- that his conduct was to establish side, holding a knife down her son while threats to officers ly reasonable involved the knife did but where the woman with and immediate that were far more direct threatening any aggressive or not make by Andy. posed than that not understand what was actions and did In that case a Gelhaus first cites Cruz. yelled for her happening when the officers police informant told the confidential knife); Cty. Hayes v. San drop sold meth- gang “was a member who Cruz (9th 1223, 1233-34 Cir. Diego, 736 F.3d gun.” carried a 765 F.3d amphetamine and 2013) (reversing grant a district lead, “deter- Following police at 1077. ap a victim summary judgment where discharged parolee that Cruz was a mined knife, officers while armed with proached felony included a convictions prior whose charging suspect but where the “was Later, the infor- involving a firearm.” Id. them,” stop,” “had not been ordered to Cruz was locat- police mant told the where warning,” and was not wit given “was no with a nine- that he was armed ed “and erratically weapon); acting nessed with informant at 1077-78.“The millimeter.” Id. Through v. Rid By Curnow Curnow (9th carrying the Police, reported also Cruz 324-25 gecrest and had made it his waistband clear not know where was pointing the ” going prison.’ that ‘he was not back to Id. rifle and does not know if the was ever actually pointed in his police at 1078.After surrounded Cruz with direction. vehicles, “attempted their he to escape, County Next is Mendez v. Ange Los backing his into one of the SUV marked (9th les, 2016), 815 F.3d 1178 Cir. vacated patrol process.” cars in the Id* Once — remanded, U.S.—, 137 S.Ct. stopped, opened Cruz his door and the (2017). There, we police get at him to “shouted sanctioned the use of force where ground emerging as he was from the vehi- barged two officers into a shack and saw a officers, According cle.” Id. Cruz holding gun. man depu Id. 1185. The “ignored their commands and instead “pointed ties testified that the rifle was pants.” reached for the waistband of his them,” and the district court found as a fire, opened killing Id. The officers Cruz. fact that the “was depu Here, ties.” Id. at 1185-86. on the facts as them, regard we must a similar circum We observed that unques- would be “[i]t stance not present.12 tionably police reasonable for to shoot a suspect Cruz’s if he reaches for County, Sacramento Blanford waistband, or even he 2005), F.3d 1110 received reaches there for some other reason.” Id. reports behaving of a man erratically while summary judgment We nonetheless denied carrying cavalry three-foot Civil War-era plaintiffs claim excessive force because saber around a neighborhood. residential threatening evidence of Cruz’s man, finding Id. at 1112. After officers gesture self-serving was the officers’ testi- ordered him to drop the sword and warned mony, and because there was circumstan- shoot,” him saying ‘We’ll and the sus- tial evidence that a permit could reason- pect consciously disobeyed the officers’ or- ably jury to find “that the officers lied.” Id. Then, ders. Id. at 1112-13. after the sus- at 1080. pect house, tried to enter a the officers fire, opened severely injuring the man.

Here, Gelhaus submits that if reaching Here, reports there were no of erratic justifies force, deadly for a then behavior, the officers never Andy warned Andy’s justifies it, turn holding gun while a deadly used, might Andy be circumstances, however, too. were house, never tried to a enter and we can- nearly not as threatening as those involv- not presume Andy consciously dis- more, ing Cruz. What is Gelhaus overlooks obeyed an officer’s order. summary that we denied judgment in Cruz because the a harrowing evidence of Lastly, Russell, v. Anderson 247 F.3d gesture self-serving (4th was the officers’ testi- 2001), 125 Cir. officers were informed mony. See The id. same is true here—the appeared that á man to have a under evidence that the began to rise comes his sweater. Id. at 128. After approaching exclusively almost from Gelhaus and suspect, the officers ordered him to Schemmel. jury might not believe raise his get hands and on his knees. Id. testimony their given hands, suspect Gelhaus does The raised his but then Mendez, Mendez, -U.S.-, plaintiffs 1539, additionally As in con les v. 137 S.Ct. tend pursuant 1543-44, that Gelhaus is (2017). liable to the Plaintiffs’ “provocation doctrine” or basic notions of proximate argument cause because there fails proximate cause. See 815 F.3d at 1193-95. predicate is no Fourth Amendment violation. However, Supreme recently reject Court See id. at 1548-49. provocation ed Cty. Ange rule. See Los of movement, suddenly explana- “without to Anderson’s sudden hand lowered them officers, attempt Andy’s simple turning in an to reach act of was not a tion to the harrowing gesture light to turn off his of the overall pocket his back left into context.13 See threat, radio.” Id. Perceiving a Part B. Walkman infra fire. Id. opened the officers one of sum, viewing the facts plaintiffs, held that the officer most favorable to as we must at The Fourth Circuit immunity stage proceedings, because of the Gelhaus de- entitled to ployed deadly to believe that force while was stand- he “had sound reason armed,” ing holding “act- on the sidewalk a that was was. and therefore Anderson ground. a down at the reasonably by firing on Anderson as Gelhaus also ed having directly observ- shot without warned protective measure before used, Here, at 131. that such force would be and without ing deadly weapon.” Anderson, presume observing any aggressive cannot behavior. Pursu- unlike in we Graham, disobeyed jury ant a reasonable could Andy consciously offi- Moreover, deadly of force was in contrast find Gelhaus’s use cer’s order. Circuit, objectively reasonable. Plaintiffs there- we have held that mere Fourth is insufficient fore can demonstrate constitutional viola- possession force. See Harris assuming, again tion as we must at this justify deadly the use of (9th Roderick, stage proceedings, that factual dis- 126 F.3d Cir. are resolved and reasonable infer- noting putes It worth that a reason- is also that, plaintiffs’ are drawn in favor.14 jury could conclude contrast ences able inquiry easily "tailored to the presses a number of other excessive force 13. George, application 736 F.3d force.” distinguishable precedents in addition to California, at 837. already See Lal v. those discussed. (after (9th 2014) Cir. 746 F.3d Next, that whether his use Gelhaus insists chase, suspect high speed advanced officers pure question of force was reasonable is and was sized rock over his head with football law, court erred in call- and that the district Smith, warned); being Billington v. shot after ing a triable issue of fact. But Gelhaus's 2002) (suspect argument elides two issues. Gelhaus moved officer’s attacked officer and turned summary judgment Amend- on the Fourth for him), Cty. against abrogated part, Los claim, prompting the district court to ment of - Mendez, -, Angeles 137 S.Ct. v. U.S. correctly fact find a triable issue of 1546, (2017); 1539, Reynolds Then, force used. Gel- reasonableness of the 1162, (9th Cty. Diego, 1165 v. San 84 F.3d argue[d]” “separately that he is entitled haus sudden, 1996) (suspect upward made Cir. qualified immunity, prompting the district knife); swing v. Hen at officer with a Scott analyze At separately that defense. court to 912, 1994) rich, (9th (suspect one, Cir. incorporated 39 F.3d 914 step its the district court gun directly "acting crazy” pointed at offi summary analysis for earlier of the motion States, cers); v. United 826 F.2d Garcia judgment Amendment claim. on the Fourth 1987) (suspect violently resisted 808 issue of fact as to Because it found triable approached reasonableness, officer with rock in necessarily arrest and held the court arms). upraised jury could find that Gel- a reasonable when was unconstitutional haus's conduct viewing most favor- objections. the evidence additional 14. Gelhaus raises two (cid:127) First, dis- plaintiffs. The court therefore able to that the district court Gelhaus contends separate section on only step two in its and cussed "erroneously relied more on the outdated immunity. concluded that the law qualified It it did on Graham. Gamer case” than limited Graham, however, con- "clearly that Gelhaus's established” plainly applied The court Thus, the district duct was unconstitutional. event that Ten and we have observed in Garner, legal that Gel- determination court made 471 U.S. 105 S.Ct. nessee (1985), requests. now provides "guidance” for haus L.Ed.2d 1 85 upward swing C. The dissent misconstrues the toward with [the officer] his facts presume purposes we must hand, right which holding knife.” [a] for interlocutory appeal. (quoting Reynolds, Id. at 1159 84 F.3d at (first alteration in original)). Scott proceeds dissent from a different next, came where suspect stood in a starting point consequently and ends with doorway pointed gun directly at two analy- different conclusion. The dissent’s sis, police Scott, however, (citing officers. Id. prem- is flawed because it 914). misreading ised on a The district distinguished district court’s court then factual finding regarding Garcia, the movement of where a suspect drew to an close Andy’s gun. officer and brandished a “rock with upraised Garcia, (quoting arms.” Id. The dissent first rewrites the district 808). Finally, F.2d at the court distin finding. It declares that Lai, guished suspect where a “kept ad “facing the officer and be- [wa]s vancing” at the “holding officers while rise,” ginning to such that Gelhaus was head,” football-sized rock over his forced to fire a circumstance forced them to fire barely when he was rising, where “while had not yard away—a one yet point risen to a where it time when could have the officers deputy.” view, shot either “reasonably the dissent’s suspect] believed that [the duel, Gelhaus was in a and avoided immi- would heave the rock at them.” Id. at 1159- peril only by nent firing just Lal, (quoting 764 F.3d at before fired at him. The dissent also Synthesizing precedents, these the dis- apparently believes that the district court eases, trict court said that in each of these finding, made this factual but then object an directly “used to threaten made the rather inexplicable decision to officer before force was used.” Id. ignore this qualified obvious threat in its contrast, By it found that “Defen- immunity sure, analysis. To be those point dants cannot any similarly-threat- facts, were the it would be hard to see how (em- ening Andy’s part.” behavior on court district could have denied sum- added). phasis finding This debunks the mary judgment on the Fourth Amendment dissent’s version of shooting. But the claim and on immunity. But those district stop court didn’t It express- there. were not the facts the district court found. ly added that was “mindful of the fact contrary, On the the imminent threat officers are often forced to portrays precise dissent is the type of split-second make judgments—in circum- situation the distinguished district court tense, uncertain, stances that are rap- the course of making finding. its factual idly evolving—about the amount of force This conclusion is in light unmistakable necessary situation,” in particular is the cases the district court in discussed its (internal id. at quotation 1162 marks omit- instance, analysis. For distinguished it first ted), and nevertheless found that Gelhaus Billington, which it said involved an immi- was not summary judgment entitled to nent threat suspect because “the was judgment because such a is warranted ‘locked in hand-to-hand combat’ po- with a suspect where a “threatening, ag- exhibits detective,” lice “trying was get to the de- gressive, or erratic behavior” and “this gun,” tective’s getting and “was the upper (em- facts,” case involves none of those id. Lopez, hand.” F.Supp.3d at 1158-59 added). phasis (quoting Billington, 292 F.3d at The court distinguished Reynolds, next The dissent’s misreading where of the district sudden, suspect backhanded, “made a finding court’s for evident at least two First, Andy’s turn gan” the dis- to rise at the start of the duel additional reasons. (when district conflicts with the pointed straight sent envisions it was down at the Andy statement did repeated court’s naturally swings as one’s arm in ground), weapon at the officers or “point not turn, necessarily it did not the course of at them with it.” Id. otherwise threaten whole'interaction, throughout rise and added). course, if we Of (emphasis only raised a “slightly- could have been to and interpretation the dissent’s cast aside higher non-threatening level” that was to with the benefit of the view this statement reading The court’s of Anderson Gelhaus. context, meaning is clear: above its paragraph this. In the immediate- confirms point weapon his the officers—in did it ly preceding finding, distinguished its to the facts of Scott—and contrast by stating possession Anderson that “mere pose Andy’s weapon movement weapon justify of a is not sufficient to con- imminent threat to Gelhaus—in any force,” by concluding use of .and in Billington, circumstances trast to the that, Anderson, unlike suspect Garcia, and Lai. Reynolds, pointed at his “holding weapon down Second, whereas the dissent revises side, merely and turned around re- Andy, finding to assert that district court’s sponse to an officer’s command.” Id. at gun [wa]s the officer and the “facing 1161-62. rise,” the district court distin- beginning to context, appropriate Taken in the Andy’s the movement of guished between duty with our “to determine consonance the turn and instigation court, light the district what facts interaction. the remainder of the during nonmoving party, to the most favorable had- court stressed how the defendants Watkins, assumed,” likely say- “carefully-phrased language ... used instance, proper reading is that the dis- that the barrel was ing only,” for only in their direction” trict could “conclude coming “up and around court Lopez, 149 Andy turned around.” beginning [at “as rifle barrel was rise also knew turn]; at 1158. The court F.Supp.3d Andy’s given it outset of chest, Andy in the had shot that Gelhaus pointed it position in a where was started movement completed had so Andy had his ground [when down at the It focused opened fire. then when Gelhaus officers], it could have been back to the starting position of the directly on the turning natural [by motion] raised officers, Andy had his back to the when posing level without slightly-higher to a obligated that it was emphasized Lopez, officers.” any threat to the most favor- the evidence view differently, Put F.Supp.3d at 1162. light,” plaintiffs. “[I]n able around, could Andy turned only “conclude that the court said it could slightly- “to a incidentally have risen rise; and beginning rifle barrel pos[e] did higher [that not] level- it it in a where given that started officers.” Id. threat to the it could ground, down at the reading of the district This is the best slightly-higher level have been raised to reasons. finding factual for several any threat to the officers.” posing without First, interpretation, unlike the dissent’s finding strips at 1162. The dissent description of the district court’s echoes began to vital context that the Second, in- unlike the dissent’s the event. Andy’s turn. But in connection with rise congruent it with the dis- terpretation, is context, necessary the district that with analysis explicitly distinguish- trict court’s ap- interpretation of the record involving aforementioned cases gun ing if the “be- the five it found that even parent: Third, impending threats. unlike the much began dis- ever stated how the barrel interpretation, explains Andy sent’s it the dis- rise as turned. The dissent’s inter- finding Andy trict court’s that pretation assumption relies on the “point Andy’s the at the gun continuously rising officers or other- interaction, throughout wise threaten them with it.” Id. at 1164 the such that added). (emphasis explains It also imposed forcing dis- an imminent threat Gel- just trict court’s conclusion that Andy’s weapon “defen- haus to shoot before Andy pointed directly dants have established that actu- was at him. Under our ally threatened the summary judgment jurisprudence, officers with the rifle howev- holding.” er, that he required the district court was to as- sume that all factual disputes would be Lastly, unlike the interpreta- dissent’s resolved, and all reasonable inferences tion, the supports reading record this for drawn, plaintiffs’ would be In favor. purposes summary judgment. of Plaintiffs’ evidence, plaintiffs’ of the the record evidence, instance, adduced for that includ- support cannot the dissent’s version of the Andy’s three-dimensional models of ed. event for purposes summary judg- depicting, frame-by-frame, movements ment.15 Andy’s fully-extended how left arm would appeared sum, have he when had his back to the accusations are as dissent’s deputies, they and how the could have been seismic unconvincing. as are More- over, only “slightly-higher raised to a level” analysis the dissent’s is flawed be- Andy’s slightly elbow flexed as he natural- cause it upon misreading rests of the addition, ly turned around. In there was district court’s factual finding regarding video, Gelhaus’s reenactment in the Andy’s gun. Gel- the movement of It bears repeating: haus’s admission had been though even we must assume (and benignly swinging only purposes thus not ris- for interlocutory appeal ing falling) Andy’s but also with “began” natural the barrel to rise as motions, turned, admission he had must also we assume—as the dis- knowledge Andy’s gun no of where expressly trict court it poten- found—that shoot, pointing rose, tially when he elected to and the Andy’s as an incident of turning motion, fact that neither Gelhaus nor only Schemmel “to a slightly-higher level attempt impugn plain- 15. The plaintiffs' dissent's expert movement because the re- unavailing. Regarding tiffs’ evidence is Andy, port shows that must have taken multi- expert report, plaintiffs' posits the dissent ple steps as he turned to face the officers. jury nothing could learn about move- Lastly, strong the dissent would cast aside Andy's gun gun’s position ment of from the circumstantial evidence that Gelhaus had no Andy's body— the moment the bullets entered knowledge Andy’s gun pointing of where gun's position meaningfully as if the could shoot, when he elected to and the fact that changed time that it took the neither Gelhaus nor ever Schemmel stated twenty bullets exit the chamber and travel began how much the barrel to rise as yards. gun’s That does not make sense. However, only turned. where "the witness when the bullets struck is obvi- during other than the officers was killed ously gun’s likely informative move- encounter,” duty courts have a to “examine event, prior ment moment. In that, believed, circumstantial evidence report depicts likely Andy’s movement of would tend to discredit the officer's officers, gun as he turned to face the and how Gonzalez, story.” 747 F.3d at 795. That is could have been raised ato non- precisely what the district court had here. threatening Andy’s slightly level as elbow Therefore, Next, properly this evidence informed flexed with his natural motion. the be- nign swinging summary judgment the district court's deter- with natural steps gun's likely is also informative of the mination.

1017 to the cial’s conduct pos[e] clearly threat violates established not] did [that possi- when, at 1162. Mindful of that officers.” Id. law at the time of the challenged viewing evidence bility, and conduct, right contours of ‘[t]he [a] [are] plaintiffs, to the the district most favorable sufficiently every clear’ that ‘reasonable “point court found official would have understood that what ” at the officers or otherwise threat- doing right.’ Ashcroft, he is violates that (emphasis it.” Id. at 1164 en them with (alteration 741, 563 U.S. at 131 2074 S.Ct. added). why, taking And that is the facts original) (quoting Creigh v. Anderson them, regard jury a reasonable as we must ton, 635, 640, 3034, 107 483 U.S. S.Ct. 97 deployed deadly could find Gelhaus (1987)). L.Ed.2d require 523 “We do not merely standing on force while directly on point, existing prece case but point- that was holding gun the sidewalk placed statutory dent must have or This conclusion ground. down at the ed question beyond constitutional debate.”16 findings, echoes the district court’s which interlocutory By con- appeal. govern — —, Pauly, In White v. U.S. trast, the dissent’s version of the event 548, (2017), S.Ct. 196 L.Ed.2d 463 the Su principle a fundamental of our violates preme recently Court tlie “reiterate[d] summary judgment jurisprudence—that longstanding principle ‘clearly estab resolved, disputes factual are and all “all drawn, high lished law’ should not be defined ‘at a in plain- inferences are ” favor,” Ashcroft, George, generality.’ (quoting tiffs 736 F.3d at 836—and level of 2074). word at face selectively accepts 742, Rather, U.S. at 131 S.Ct. “the to the movement of respect value with clearly ‘particular established law must be thereby contravening Andy’s gun, Cruz. (quoting ized’ to the facts of the case.” Id. (“[I]n 765 F.3d at 1079 See 3034). Anderson, 640, 107 S.Ct. 483 U.S. context, simply accept we cannot force specificity especially important “Such self-serving account may what be a context, the Fourth Amendment where the (internal marks quotation officer.” recognized that is some ‘[i]t Court has omitted)). times difficult for an officer to determine doctrine, legal how the relevant here ex right Step II. Two—Whether force, factual situ apply cessive will clearly established. ” Mullenix v. ation the officer confronts.’ prong the second “Under — 305, 308, Luna, —, U.S. 136 S.Ct. test, immunity we ask wheth qualified (2015) Saucier, (quoting alleged [Andy’s] violation of Fourth er the 205, 121 S.Ct. 533 U.S. against right Amendment excessive instructions, In accordance with these at the time of the established court asked whether the law the district by and alleged officer’s misconduct.” C.V. clearly established such that an officer Anaheim, City through Villegas known would have October 2016) (internal F.3d deadly force was unreason- that the use of omitted). not, marks If quotation appears to be suspect “where the able immunity is entitled to AK-47, offi- carrying [the] but where claim. “A Government offi- excessive force simply no case on all fours acknowledged that because there was 16. Court has "[T]his [also] qualified immunity may prohibiting particular be denied novel manifestation of Deorle, Hughes, at 1088. circumstances.” 841 F.3d conduct.” unconstitutional "Otherwise, escape responsi- officers would bility egregious of conduct for the most forms 1018 reports night, no of the

cers have received the sus- retrieved his and loaded it pect using expressing or an weapon the with ammunition. Id. His wife called 9-1-1 weapon, intention to use the where the recording and could heard on be the ex- suspect point weapon does not the at the claiming “My “No!” and husband has a it, officers or otherwise threaten them with gun!” deputies Id. Three then were “dis- where the does not ‘come at’ the suspect patched to the residence for a domestic any officers or make sudden movements involving disturbance a firearm.” Id. The officers, towards the and where there are door, deputies wife met the at front the erratic, no reports aggressive, of or threat- husband,” advised them “not to scare her ening Lopez, F.Supp.3d behavior.” that patio said he was on the back 1164. The district court held that the law gun.” up “with his Id. The officers set a clearly established that under those after, perimeter backyard. Id. Soon circumstances, deadly Gelhaus’s use of they open saw husband the door to the force was It unreasonable. Id. did not iden- balcony. second-floor ap- Id. “Once he tify specific precedent put that Gelhaus peared in deputies,” view the the offi- on notice his conduct was unconstitu- cers identified themselves as law enforce- tional. ment and instructed the husband to show his using hands. Id. The husband was

The district court failing erred “to walker and—as Gelhaus attests identify acting a case where an officer doing here—was holding in his left under similar circumstances as [Deputy hand pointing “with the barrel down.” Id. was held to have Gelhaus] violated the At point, an officer White, testified Fourth Amendment.” S.Ct. straight husband However, “turn[ed] east George v. Morris serves gun]” “point[ed] it raise[d] [the direct- that function. Harris and Cumow were [him],” ly at prompting the officer to fire. provide also on the books to Gelhaus with However, guidance.17 Id. at 833 n.4. there was reliable support plaintiffs evidence to version A. Taking regard as we must facts event, of the so we did not “credit the interlocutory appeal, them on this deputies’ testimony that [the husband] law was clearly established at turned and at them.” Id. at time shooting that Gelhaus’s 838. We also assumed that the husband did conduct was unconstitutional. not take “other actions that would have George, suspect objectively been sixty-four- threatening.” Id. On those year-old facts, male with terminal brain cancer. where deputies shot the dece- 736 F.3d at 832. He awoke in objective provocation the middle of dent “without while conjures “framing”— 17. The dissent reports suspect using its own ceived no deadly objec- “that the use of force without an expressing or an intention to use the tive threat is unreasonable”—and criticizes weapon, suspect point where the does the use fictitious frame to the extent weapon at the officers or otherwise threaten applies employ here. We no such it, suspect them with where the does not rely general frame. Nor do we on excessive any ‘come at' the officers or make sudden Rather, principles. force we ask whether the officers,” movements towards the where the law was established that the use of "erratic, aggres- officers do not witness deadly force was in a unreasonable situation sive, behavior,” threatening or and where the predicates where the factual enumerated in suspect was not warned that Part I.B are assumed to be true. Somewhat deployed despite having would be the officers distilled, where, among this is a situation oth- ample opportunity Lopez, to do so. things, suspect appears er "the carrying to be F.Supp.3d at 1164. AK-47, but where [the] officers have re- ther, here, walker, George, as alleged- with his the victim he used his trained ly we held that “a held a in his left hand ground,” id. with the Next, weapon pointing fact-finder could conclude barrel of the down. here, use of force was constitution- deputies’ George, of the weap- barrel excessive,” ally id. at 838. position posed any on did not rise to a that the in Lastly, George, threat to officers. as here, George mirrors the facts here, the victim did not take “other actions indeed, involved circumstances that were objectively that would been threaten- threatening than objectively far more bottom, F.3d at At ing.” taking 736 838. words, present case. In other those the we must at regard, facts as them this deadly force alleged Gelhaus’s use of Gelhaus, stage proceedings, like the objectively treasonable than the more deputies, warning, shot without without identified in Fourth Amendment violation objective provocation, and while the instance, in For the officers George. ground. was trained on the Because possible a George responded report to a George “squarely governs” the circum- contrast, By F.3d at 839. Gel- crime. 736 confronted, that stances Gelhaus Gelhaus pa Andy discovered while on routine haus clearly right s violated established And/ responding potential to a trol. He was free of excessive force in this context.18 be him to might crime that have caused be Mullenix, (quotation 136 S.Ct. at 310 Next, safety. concerned for his especially omitted). marks that the hus George the officers knew sufficient, spe Though George is Harris and acting erratically. The wife band was warning that gave them “not to scare her Cumow also cifically warned Here, contrast, objectively deadly husband.” Id. 832. his use of force was not composed Andy Hams, the officers described as FBI agent In an reasonable. non-threatening immediately prior to any to shoot armed male near a instructed Next, shooting. George the the officers at 1202. The particular home. 126 F.3d explicitly as law en identified themselves suspect returning officer saw a that the husband forcement. Id. The notion an FBI home who he believed had killed fairly disobeyed their command thus was previous day. Id. at 1203. While agent Here, shout was the plausible. hill, agent on a shot the perched safely that moment that became aware first op- suspect warning, without without behind him. also did someone was surrender, despite portunity to shouted person not know that the who no threat- suspect fact that the had made officer, certain police and could not be at 1203. ening any movement of kind. Id. call directed at him. that was even that the law was estab- We said here, deadly the use of similarities, lished that George, as As for objectively reason- circumstance was not the victim de- the officers failed to warn may officials Fur- able. Id. “Law enforcement having opportunity to do so. spite holding gun pointed down at the application George while dissent’s gun. "manipulating” the ground amounts to premised because it is on the errone- flawed event, herring. argument red assumption Andy's gun is a barrel was In ous though that the barrel rising throughout Even we must assume continuously the interac- turned, we must Supreme' "began” to rise as heed the tion. The dissent fails to risen, could have a case’s assume that Court’s admonition "not to further define motion, only turning "to imports genuinely part the natural ‘context’ in manner Tolan, pos[e] any slightly-higher not] level did disputed propositions.” [that factual F.Supp.3d Lopez, 149 explain threat to the officers.” at 1866. The dissent also fails to S.Ct. non-aggressively turning naturally and at 1162. how suspects pose not kill who do not an imme- misconstrued the threat allegedly posed by safety safety because, position Andy’s gun diate threat to their or to the of. simply they them, of others because are armed.” regard facts as we must it never 1204. On facts as we must re- posed any rose to a threat to them, gard put that statement Gelhaus on Accordingly, only question the officers. notice that use of force was reasonably is whether Gelhaus could have constitutionally excessive. Andy’s turn “harrowing misconstrued as a (“If gesture.” George, See F.3d Cumow, broke down a person is armed ... a furtive move- suspect’s they front door because believed ment, harrowing gesture, or serious verbal injured suspect had a woman inside. might threat create immediate they 952 F.2d at 323. As entered the threat.”). determination, As to that we house, suspect standing next to an must avoid “the vision of hindsight,” 20/20 (statement weapon. Id. of Mer assault Graham, 396, 1865, 490 U.S. 109 S.Ct. Taylor). cedes An officer outside then shot but remain mindful that “[a] desire re- in suspect police the back as the other quickly potentially solve a dangerous situa- officers entered. Id. We held that “the type governmental tion is not the of inter- reasonably officers could not have that, alone, standing justifies est the use of deadly believed the use of force was lawful may force that injury,” cause serious point because did not [the victim] Deorle, 272 F.3d at 1281. apparently the officers and was not facing they them when shot him the first record, present Based on the Gelhaus time.” Id. at 325. Cumow is not identical reasonably could not have misconstrued present circumstances because the Andy’s “harrowing turn as a gesture.” victim in holding gun. Cumow was not First, Andy Gelhaus describes walking as 323, Still, gave See id. at Gelhaus normally appearing and composed and “fair notice” that the -use of force is non-threatening immediately prior to turn- unreasonable where the victim does not ing. Gelhaus also that Andy believed directly threaten the gun. officer with the looked like a teen and did not look like a Pelzer, 730, 739, Hope See v. 122 536 U.S. gang member. Gelhaus has not described 2508, 153 (2002). S.Ct. L.Ed.2d 666 Andy’s abrupt, turn as and the district expressly Andy court found that Harris, George, In and any “make sudden movements towards the Cumow, taking the facts as we must Lopez, officers.” 149 F.Supp.3d at 1164. regard them at stage proceed this of the because, This makes sense to Gelhaus’s ings, there is no room for Gelhaus to have knowledge, Andy was not aware that made “a reasonable mistake” as to what someone was behind him until Gelhaus Saucier, required. the law See 533 U.S. at “drop gun.” shouted Gelhaus had not (“If 205, 121 S.Ct. 2151 the officer’s mis any report received suggesting take as to what requires the law is reason dangerous or intended to use the ... able the officer is entitled to immu Indeed, weapon. when he came defense.”). across nity Qualified immunity may Andy, the weapon itself was however, apply, also where govern straight ground. down at the ment official Gelhaus nev- makes a reasonable “mistake officer, Pearson, er identified himself as a police of fact.” so 555 U.S. at 129 Ramirez, 808 could (quoting consciously disobeyed S.Ct. Groh v. 540 not have 551, 567, Lastly, Andy U.S. S.Ct. 157 L.Ed.2d law enforcement order. (2004) (Kennedy, J., turn, dissenting)). engaged Here, reasonably Gelhaus could not have barrel posed any never threat to Gel- short, during Andy’s required on the prior regard to and facts as we must haus. turn, not witness them. simply Gelhaus did Thus,

threatening behavior. rea- Ultimately, B. Gelhaus’s entitlement turning inference is that sonable qualified immunity depends on dis- naturally non-aggressively to look at puted that must be resolved facts who from If person shouted behind. jury. expected anything, Gelhaus should have turn, that' qualified for it did not contravene Gel- “While we held im- command, munity is to be determined at the may and it have been an earliest haus’s possible point litigation, we have Turning is also the most comply. effort to n summary judgment also held favor yells someone natural reaction when moving defendants is inappropriate your direction from behind. genuine where a issue of material fact objects analysis, arguing prevents determination of im- “that it has not been established munity until after trial on "the merits.” have to determine law enforcement officers Riverside, Cty. Liston turn angle suspect needs to what 1997) (internal quotation an assault their direction raise omitted). marks and citation Based on the they lawfully can use force.” before record, present applies the latter scenario However, argument this not overlooks here. predicated assuming on two George, but is instance, finds, jury If the for that on this inter- facts that we cannot assume briefly glanced aware backwards First, Andy’s turn locutory appeal: that him, following may that the officers it were aggressive gesture though an even it intentionally disobeyed that he the find sudden; second, that the rose gun, to the that he turned drop order posed that a threat position to aggressively, and that his was not Taking the facts as we must re- officers. facts, ground. at the On those even them, gard pose an immedi- a Fourth if Gelhaus committed Amend ate threat to Gelhaus or Schemmel. violation, likely did not ment his conduct Next, im- Gelhaus insists that the court clearly given law established violate properly placed the burden on him to movement, harrowing gesture, “a furtive allowed his existing precedent show that justify deadly can or serious verbal threat” McKee, conduct, see v. 290 F.3d Sorrels armed. against force someone who is (9th 2002) (explaining that Cir. Conversely, if George, 736 F.3d at 838. proving of the plaintiff bears the burden prevails version of the facts plaintiffs’ clearly right allegedly violated was estab- jury Andy posed concludes that no the violation, at the time of the lished officers, then imminent threat to burden, defendant plaintiff meets Andy’s right to be free of excessive establishing bear's the burden of context was established reasonably defendant believed his conduct id.; conduct. See the time of Gelhaus’s lawful), breathing and failed to afford 1204; Curnow, Harris, 126 F.3d room for Gelhaus to make a reasonable but F.2d judgment. no evidence mistaken There is Gelhaus’s entitlement argument. The lat- Because support the former immunity ultimately depends on qualified of argument ter is foreclosed issues, summary judg disputed no room for factual George, and because there is See presently appropriate. is not “a reasonable mistake” as to what the law ment Hughes, (denying they largely F.3d at 1090 sum- are irrelevant. One critical mary judgment of “application where upward gun— fact—the motion of the fake qualified immunity” “depend[ed] upon the qualified immunity resolves the issue in by jury”); determined facts as Martinez Deputy reaching favor. In (9th Stanford, 323 F.3d 1184-85 conclusion, opposite majority accuses 2003) (the dispute bearing Cir. “facts on making assumption regarding me of question qualified immunity” made improper summary this fact that is at the summary judgment ground inap- on judgment stage. I thing. have done no such Gates, propriate); Santos v. fact, below, majori- I explain is the 2002) (declining grant 855 n.12 ty unsupported by whose immunity qualified “because whether the For purposes, record. contextual and to may be said to have made a ‘rea- officers any contrary implication rebut in the ma- law, may sonable mistake’ of fact or de- jority opinion, explain why I also will pend upon jury’s disputed resolution of Licea, statements Jose who testified facts and inferences it draws there- regarding appearance fake (citation omitted)). from” do not qualified immunity affect the analysis. CONCLUSION AFFIRM the We district court’s order A. denying summary defendants’ motion for concedes, majority As the we must ac-

judgment on the defense of im- cept the district finding munity, and REMAND for trial. Appel- barrel of the beginning “was to rise.” appeal. lants shall bear R. costs Fed. majority accepts also the district 39(a)(2). App. P. finding court’s additional “could have slightly-high- been raised to a WALLACE, Judge, dissenting: Circuit posing any er level without threat to the boy The facts of this case are A tragic. officers.” finding, Based on the latter I life—needlessly, lost his as it turns out. agree majority with the that we must as- know now that he carrying only We was gun pointed sume the was not in fact gun, fake realistic-looking albeit a one. the officers at Deputy the moment Gelhaus Deputies Gelhaus and Schemmel therefore opened majority says, fire. As the' neither any in danger deadly never were real Deputy Deputy Gelhaus nor Schemmel necessary. not force was view of these rose, high gun testified how the barrel but facts, the inclination to Deputy hold Gel- they they both stated that in believed were shooting Andy haus liable for Lopez is danger imminent as a gun’s result of the understandable. But it is a well-settled movement. This evidence shows that the rule may only prece- that a court do so deputies at perceived weap- least that the clearly dent established at the time of the on posed height a threat at the to it which shooting deadly that the use of force had perception then risen. Their is not Deputy circumstances Gelhaus faced was however, dispositive, and there is other objectively I agree unreasonable. do not (and evidence in the record the district majority with the that such a case existed finding) that the day Andy rising, on the while Respectfully, died. I yet therefore had not point dissent. risen to a where it could deputy. agree have shot either I with the I. majority, therefore, precise angle that the majority Andy pointed gun The at which opinion exhaustively disput- re- is a case, me, fact, below, counts the facts of the but explain for ed but as I that fact is immunity to majority not material The itself analysis. finding embraces this as one that “makes So, tell, I majori- sense.” as far as can majority attempts The to discount the ty’s timing'—that concern is one of al- gun that the barrel finding district court’s though may the barrel have begun to rise instance, to For beginning rise. point at some shooting, may before the it light in the summarizing the facts most also Deputy have ceased to rise time for plaintiffs, majority favorable recognize Gelhaus to that says “[Deputy] deployed pose threat. merely while stand- ing holding gun the sidewalk that was position This is difficult to reconcile with ground.” descrip- at the This pointed down finding. the district court’s The district fairly not characterize the situa- tion does gun’s court did not find that barrel Deputy gun tion that Gelhaus faced. A stopped moving beginning after It rise. ground and one that found that the barrel “was beginning rising qualitatively By are different. cast- Lopez, to rise.” F.Supp.3d 1162. To former, majority ing the latter as the majority the extent the believes some am- beyond goes viewing the facts biguity exists as to whether the district plaintiffs ignores favorable to the most gun court found that the still rising accepted a critical fact that must be immediately Deputy before Gelhaus shot and, explain, directly as I will bears true Andy, legal analysis the court’s confirms question on the of whether was my reading. It found “was use of Deputy established that beginning distinguishing rise” while under the deadly force was unreasonable involving shootings preceded by cases ac- majority repeats The circumstances. that, per- tions from the district court’s error when it describes the record as threatening. were more Id. If the spective, showing Andy engaged that “as distinguish court wanted to those district turn, barrel never Andy’s cases on the basis that action was [Deputy] threat Gelhaus” posed sufficiently threatening, it would make gun’s upward a mention of the without barrel little sense to find motion. “beginning to rise” if there was room to majority takes me to task for had find instead barrel “rel[ying] assumption Therefore, rising. the most natural stopped gun continuously rising throughout finding, reading of the district court’s interaction,” that assumption the the one, gun that the only the is majority by the unsupported believes is (i.e., beginning process to rise of for two puzzling record. This criticism is immediately Deputy before Gelhaus rising) First, Deputy I have not taken reasons. Andy. shot value,” as the ma- Gelhaus’s “word face brings us to the second flaw the This done, I and I jority charges. What have majority’s argument, which is that it is majori- impression was under the that the completely unsupported by the record. same, ty accept had done the is the district majority speculates gun may that the The finding gun’s court’s that the fake barrel Deputy rising not have been at the time beginning Lopez to rise.” Estate “was of firing weapon. (N.D. committed to Gelhaus Gelhaus, F.Supp.3d contention, Contrary majority’s only improper Not is it not for Cal. however, us fact, nothing in the record before accept required. me to this it is Wat- majority’s Oakland, The City supports proposition. 145 F.3d this kins v. of pulled trigger reliance on the three-dimensional models when he the and declares by plaintiffs’ expert created the is mis- gun necessarily that “did not rise placed. components Those models are of throughout the whole interaction.” At bot- expert’s analysis Andy’s likely body of tom, then, majority’s argument rests posture by at the time he was struck of evidence bare absence definitive- such, they necessarily bullets. As concern ly disproving the existence of alternate only Deputy what occurred Gelhaus after My facts for which there is no record. first fired his and thus cannot “accusations,” majority “seismic” as the gun’s serve as evidence of the motion even them, straightforward reading calls are a shooting, at the moment of the much less finding. the district court’s Deputy at the time became com- Gelhaus accept novel rule—that we This must as using deadly force. respect mitted to With conclusively disproved by true all facts not Deputy purported admission evidence the record even if those facts “that gun benignly swinging had been evidentiary support have no of their own— motions,” ... Andy’s with natural it is true plainly wrong. is We need “assume Deputy that Gelhaus stated that none the truth of the evidence set during leading “motions” the time forth nonmoving party respect with fact” up aggressive, [a] to the confrontation seemed gun “swing and that the would produced by somewhat” when “direct evidence granting walked. Even that the moving party conflicts with direct evidence moving way gun while produced by nonmoving party.” T.W. away car, walking from the Serv., Elec. Inc. v. Pac. Elec. Contractors however, that fact not tell does us how the Ass’n, 1987) gun stopped walking moved when added). (emphasis The record before us in an engaged entirely different mo- (not contains evidence to mention the dis- tion—namely, turning Deputy to face Gel- trict finding) was be- haus. rise, ginning to showing but no evidence majority has thus identified no evi- that the then stopped rising before the suggests dence that even that the had shooting possibility started. The mere stopped rising Deputy at the time jury might moving party’s disbelieve a resorted to force. This dearth of undisputed not enough evidence is to avoid support might explain why plaintiffs (“[T]he summary judgment. See id. at 630 argu- themselves never made such an nonmoving party may merely state ment, preferring instead to contest wheth- moving party’s it will discredit gun began er the to rise at all. Even the evidence at trial proceed hope majority recognize seems to that the evi- something developed can be at trial in dentiary argument foundation for its claim”). way to support evidence its lacking, as it does not claim that the evi- majority What the has done here is to just dence in fact supports discussed conjure up metaphysical “some doubt as to finding stopped rising. In- step the material facts”—a that not even stead, majority only the asserts that this the district court took—and affirm the de- my evidence is reason to “assump- doubt summary judgment nial of on that basis. (which really tion” nothing is more than a Co., Matsushita Elec. Indus. Ltd. v. Ze- reasonable, reading natural of the district 574, 586, Corp., nith Radio 475 U.S. finding) court’s in the abstract. To reach (1986). S.Ct. conclusion, majority its ultimate the cites attempt This to avoid the conclusion that Deputy Gelhaus’s statement that he did not know where gun pointing gun rising Deputy was the was at the time deadly majority’s argument. to use force is the But decided this altera- Gelhaus unsurprising. also As unpersuasive, but important. tion is What the district court below, of the cases the discussed none actually found was that “the rifle barrel Deputy that majority cites to show Gel- rise; beginning given was that it Andy’s clearly haus violated established position started in a where it pointed was right addressed a situation where the vic- ground, down at the it could have been gun beginning tim’s “was to rise” toward raised to a slightly-higher level without fit, the officer. So to make those cases the posing any Lopez, threat to the officers.” majority must eliminate this crucial differ- 149 F.Supp.3d language 1162. This entiating Perhaps knowing fact. that the paints picture: a different far from con- finding of fact so district court’s cannot further, that cluding gun the could not rise aside, casually majority unper- be cast the the district court found that rising the suasively attempts parse the district necessarily motion was not sufficient to to create a distinction be- language court’s in a put gun where it was initial motion and its con- gun’s tween the then, anything, the officers. If motion and concludes that the dis- tinuing language that the district court actual- finding pertains only trict to the court’s ly used reinforces the notion that it found argument clever leaves the ma- first. This gun moving Deputy when jority any free to attribute conclusion weapon. Gelhaus decided to fire his to some other source— about the second addition, majority’s even under the distort- here, then Deputy Gelhaus’s account—and reading, gun necessarily point- ed misunderstanding rules of chide me for ground ed somewhere between the summary judgment. Unfortunately for the Gelhaus, by Deputy “beginning virtue of it majority, nothing the district court’s having “pointed to rise” after been down at order reflects that it even considered this Therefore, ground.” was not dichotomy, let alone structured its factual it. findings ground” “pointed around “trained on the or down ground” Deputy at the at the time It majority stop But the does not there. pulled trigger majority as the claims. subtly revises the district court’s find- then appear it consistent with ing to make this majority says it deferring The is to the majority, reading. According new findings, but it not. Rath- district is the district court found “the barrel of perform interpretive er than these risen, incidentally could I court at changes, would take the district motion, turning of the natural part appeal its word and decide this slightly-higher ‘to a level did [that not] beginning understanding that the ” to the officers.’ Tell- pos[e] threats Deputy to rise when Gelhaus committed to ingly, majority “only” inserts here deadly force. using (seven exact) nearly every place to be purports quote paraphrase it or this B. finding. seemingly This innocuous insertion majority appreciate also fails to greatly finding way distorts the apparent posed by threat from majority’s argument. supports On Deputy perspective. The record reading, finding the district court made a Deputy Gel- replete with evidence that, Deputy at the time Gelhaus commit- haus did not realize and could not have force, could using ted to carrying a fake discerned that not have risen to a level where it threat- First, AK-47. gun instead of authentic ened the officers. Had the district court missing the finding, support undisputed gun that the was made this it would indeed is bright orange tip required by value, federal law. fake.” “look[ed] Taken at face his 5001(b)(1). § This.tip 15 U.S.C. immediate- gun’s assessment of the fake appearance fake; ly gun would have identified the as a might genuine dispute seem to create a conversely, suggest its absence would to however, material A digging, fact. bit of gun observer was real. reveals that Licea’s perception was based largely on facts unique and circumstances

Second, Gelhaus, Deputy expe- who had to him. example, For he rience as a his state deputy with AK-47s both during serving thought Andy his time in the ment that he carrying United was Army, States testified that gun by he believed BB explaining that someone had carrying a real AK-47 and that recently house, shot a window at his after “[tjhere markings were no unusual or col- which his mother-in-law observed some orings weapon which were visible to children BB guns with in the area. There which indicated that the [him] was was no reason for Deputy Gelhaus to know anything other than an assault AK[-]47 fact, so it should play part no Furthermore, weapon.” he testified that it — analysis. —, Pauly, White v. U.S. shooting, was not until after the when he 550, (2017) 137 S.Ct. was close to the that he able curiam) (“Because (per this case concerns recognize that it was not a real rifle. qualified immunity, the defense of ...

We cannot take simply Deputy Gel- only Court considers the facts that were word, majority haus’s however. As the (em knowable to the defendant'officers” counsels, “carefully we must instead exam added)). phasis ine all the evidence the record ... perception of the fake .Licea’s determine whether story the officer’s by also assumption influenced that no internally consistent and consistent with carrying one would be during an AK-47 other City known facts.” Cruz v. Ana “[Tjhat’s daytime. something for the heim, (9th 2014), 765 F.3d Cir. night,” he asserted. Putting aside the rea- Henrich, quoting Scott assumption sonableness of this gener- aas. 1994). Here, there is expert testi matter, al it is not one that a reasonable mony that it not possible Deputy for officer in Deputy Gelhaus’s would Gelhaus to tell the difference between shared, given the area had a fake and a real AK-47 at the very high weapons-relatéd concentration of distances from which he observed it. Plain violent Deputy crime and Gelhaus himself expert conclusion, tiffs’ does refute this previously had confiscated an authentic opining only that the reenactment video AK-47 within mile of the site of the upon Deputy which Gelhaus’s expért relied shooting. Licea’s assumption therefore necessarily accurately “does not depict the should be discounted as well. Deputy information available to prior to [Andy].” his decision to shoot No reasons, Other than personal these two tably absent is direct evidence that a Licea offered no basis for his conclusion Deputy po officer in gun appeared not to be real. Most sition would have been able to differenti importantly, he identify anything ate between the thing. fake and the real gave about the him that itself impression. only The time he mentioned majority’s factual exposition refers gun’s appearance—which by Licea, is the statements a witness who Jpse information that Deputy observed was available to walking on the sidewalk that, shooting. before the Licea Gelhaus—was a remark that shape testified its he Andy, thought drove he design, particularly respect with

1027 issue, obliged AK-47.” Because material fact on that- it was it look like an clip, “made looked fake is opinion gun that the presume Licea’s to so construe the facts. We that facts, objective rather not in but grounded law, courts district follow United understandings, it idiosyncratic in his own Cervantes-Valenzuela, States v. 931 F.2d genuine dispute of mate- does not create (9th 1991), nothing 29 Cir. and to whether a reason- respect rial fact with suggests record before us the con position in Deputy able officer Gelhaus’s trary is true this case. There is there distinguish to be- would have been able depart fore no reason to from the district a real AK-47. Andy’s replica tween and decision to Deputy assume that reasonably gun is not inconsistent with Gelhaus believed the to This conclusion be reviewing limited role in the denial of our real. immunity summary judgment. sum, reject In I dichotomy the false “[a]ny It is true that decision the dis- majority respect has created with to the pres- parties’

trict court ‘that the evidence gun. movement of the The district court fact is cat- genuine ents issues of material “beginning found that the barrel was to interlocutory egorically unreviewable on ” distinguishing rise” without between Morris, George v. 736 F.3d appeal.’ initial rising and a continuing rising motion (9th 2013), Eng Cooley, quoting Cir. I finding. motion. would adhere to that Furthermore, I emphasize that there is no fact, no such deci- the district court made genuine dispute of material fact as to Deputy abil- respect sion with to Gelhaus’s Deputy whether a reasonable officer in that the was not real. ity to discern recognized Gelhaus’s could have Instead, the district court stated first that Finally, that the was not real. as the aside, setting Lopez, it was that issue concede, it majority plaintiffs is undis- n.l, F.Supp.3d at 1158 and then later drop failed to puted assuming reasonableness of that “even patrol lights car after officers activated quali- gun], the fake was a real [that belief siren, yelled him at least once immunity is still not warranted.” Id. fied facts, I drop gun. Accepting to these court at 1164 n.2. Nowhere did the district question turn to the of established say genuine dispute there was a of law. regarding possibility material fact a fake. there-

identifying We analysis not constrained in our fore are II.

that issue. majority’s I conclusion agree with anything, assump If the district court’s by failing that the district court erred Deputy perception tion that identifying necessary analysis conduct points in the other direction. precedential case or cases believed genuine dispute there is a of mate Where notice put Deputy Gelhaus on would fact, rial the “facts must be viewed in the unconstitutional. that his conduct was nonmoving par light most favorable White, than con- 137 S.Ct. at 552. Rather Harris, 372, 380, 127 ty.” Scott v. 550 U.S. appeal, clude there and decide (2007) 1769, 167 (empha L.Ed.2d 686 S.Ct. majority attempts perform on its own added). Clearly it have been sis would by identifying task the district court’s if plaintiffs Deputy more favorable to the appears of which three cases—not one the fake treasonably perceived order— real, anywhere in the district court’s court gun to be so the district Depu- served as notice genuine dispute purportedly there was a believed ty he could not constitutional- conclusively distinguishes George This fact ly deadly against Andy. use force from the case before us because did manipulate gun—it the beginning to important

More than the district court’s rise deputies toward the as he turned. omission, reversal, which require should is again Here the majority tries unsuccess- plaintiffs that the themselves have never fully to evade the district court’s factual argued clearly that these cases established finding that the gun beginning “was to Andy’s right, either in response Deputy to rise” that it so can also avoid this manipu- motion for summary judgment majority lation issue. Since the is answering wrong or in appeal. their brief on As majority recognizes, point the the first for plaintiff already the reasons “[t]he mentioned, bears the burden of the showing right its point second is a non-issue. clearly at issue was established under this Given the version of the facts it was prong” second immunity assume, required to George the court in McKee, analysis. Sorrels 290 F.3d pass had no occasion to judgment on the majority’s The effort deadly use of force in a situation like the improperly attempts carry plaintiffs’ one Deputy Gelhaus George may faced. yet burden for them. This is another rea- that using deadly established son to reverse the district court. against force an armed individual is unrea- law, In contravening addition to settled sonable when that person does not “ever majority’s the defense of the district manipulate[] id., gun,” the but that rule incomplete holding ultimately un- is says nothing about the use of such force view, my successful on the merits. In all of when someone manipulate gun. does In- distinguishable eases cited are on their deed, our court took pains emphasize facts from the one before us and therefore that we were not considering the officer’s perform cannot the function majority events, version of according to which the them, ascribes even if it appropri- were just n.4, victim had done that. Id. at 833 majority ate for the to attempt to do so. 838. majority’s The attempt to shoehorn the

A. George facts of our case into is further majority primarily relies on our by undercut George’s pronouncement that case, of George case v. Morris. In that officers need “delay not their fire until a victim, defendant officer shot the who was suspect turns his on them” when a armed a pistol reported with and had been person “reasonably suspected of being as acting erratically, after allegedly he movement,” armed” makes “a furtive “grasped gun with both hands” and “harrowing gesture,” or even a “serious “directly at” the officer. 736 F.3d verbal threat.” Id. at passage 838. This n.4. 833 We could not credit the officer’s stands for the proposition that the use of account, however, because the district deadly justified force can be an action court had found it to disputed. be Id. Im- threatening less than pointing gun di- portantly, there was in evidence the record rectly at an Combining princi- officer. question “called into whether vic- [the ple holding with the case’s that deadly ever manipulated gun.” tim] Id. at 833 added). force not an armed (emphasis individ- the most favorable then, light, manipulate ual does not the victim did the use of manipulate gun deadly against person before the officer armed with a resorted to (or (describing reasonably force. See id. at 839 suspected being so armed) victim’s as “trained on ground”). becomes reasonable somewhere 30505(a).1 contrast, By possible § between not of actions along spectrum George threatening. crime was less As pointing manipulating observed, wife, vain, had we victim’s who would search an officer. One call, that made the 911 “was unscathed and not however, point at which to find deputies when arrived.” simply jeopardy was no George. There occurs Furthermore, her George, issue based to reach reason vicinity,” and was required husband “was not the court was assumptions factual couple’s to rear instead “said be Accordingly, George could make. to patio.” Id. Gelhaus on notice put Deputy have thresh- not cross the

Andy’s actions did majority rely George Nor can the may lie—at which the use it old—wherever a rule that the use because it established reasonable. He deadly force becomes of objective an threat deadly of force without assessment, in mistaken may have been unreasonable, framing this com is because it from read- not have known he would but Supreme mits the sin for which the Court ing George. repeatedly has admonished the lower fed understood, eral courts: it established “defme[s] the additional is Once this high generality.” im- at a level of George become law factors of aggravating Ashcroft 731, 742, al-Kidd, Nevertheless, 563 U.S. 131 S.Ct. mention- v. bears material. (2011); 2074, 179 L.Ed.2d 1149 see also understates majority greatly ing that — U.S.—, Luna, 136 S.Ct. per- Mullenix v. danger Andy posed as potential (2015) (“The 305, 309, 193 L.Ed.2d explained, As by Deputy Gelhaus. ceived deadly force re general principle that reasonably believed Deputy Gelhaus hardly a sufficient threat settles quires narrow carrying an AK-47. With Andy was matter”). in operative inquiry is this of such a exceptions, possession a case that would is whether there is Penal Code stead in Cal. a crime California. at the 30605(a). Deputy to given notice Considering undisputed de- § the circumstances AK-47, time of the incident that of capabilities structive sufficiently threatening he faced were not violent weapons-related of prevalence deadly force. the use of See area, local to warrant and the fact that crimes in the White, (reversing denial of 137 S.Ct. weap- to use members were known gang the court immunity because the sus- gain respect, against police ons an officer identify a case where mild. “failed to cannot be considered pected crime as circumstances acting under similar Indeed, enacting prohibition, in violated held to have [the defendant] that “the legislature declared California (emphasis add the Fourth Amendment” weapons and use of assault proliferation ed)). already explained, the reasons health, safety, and For threat to the poses a not such a case.2 George Id. all citizens of security [California].” Callahan, 555 Pearson v. reasonably not do so here. See might have Deputy Gelhaus 1. That 223, 236, committing a non- suspected that 129 S.Ct. U.S. in (2009). bears on the first factor trivial crime also analysis, contrary excessive force the Graham majority’s this factor assertion paragraph objects majority to this 2. The clearly Andy's Because I "weights] favor.” argu- of its employing “fictitious frame” Deputy Gelhaus is entitled conclude alarm, I for however. ment. There is no cause clearly estab- immunity it was not because reading George pointing simply out that am unconstitutional, that his conduct was lished however, general is no more rule establish a more speculate on whether I would not analysis majority's than helpful to the deadly jury find could his use case. actual facts of the unreasonable, objectively and do to be force B. passed 1193-94.“The bullet through door, glass the clear open striking majority, The second case cited head, Vickie in the and after passing Roderick, Harris v. 126 F.3d 1189 her, through hit upper Harris arm 1997), up also fails to live to its announced and chest.” Id. at 1194. billing. Ruby Ridge Harris arose from the siege and involved the use of The facts of our case are far afield from by a Investigation Federal Bureau of Gelhaus, those Harris. Deputy Unlike (FBI) sniper against plaintiff, Harris. sniper the FBI “perched safely on a 126 F.3d at Following 1193-94. a shootout hill” when shooting. he started Unlike between United States Marshals and a Andy, turning Harris was not to face the Harris, group including armed civilians agent but rather fleeing back into the FBI dispatched special “the unit de- cabin at the time Finally, he was shot. signed situations,” to deal with crisis which although armed, Harris was there was no snipers. purposes included Id. at 1193. For any indication that his made move- alone, FBI, of this encounter in collab- ment in sniper’s direction before the Service, oration with the Marshal rewrote Indeed, latter to deadly resorted force. its Engagement. Standard Rules of Id. alleged facts as made it clear that The new displaced requirement rules sniper solely shot Harris because he was that, deadly force only be used when the armed, and that was the rule that the case target “presents an immediate risk of established: “Law enforcement officials great bodily death or harm agent to the or may not kill suspects who do not pose an person” another in favor of an instruction immediate threat safety to their or to the “any armed adult “in male” the vicini- safety simply of others they because are ty of the Weaver cabin could and should be added). (emphasis armed.” Id. at 1204 omitted). (emphasis killed.” Id. We, course, dealing are not with a According complaint, to the the events Deputy situation which Gelhaus shot leading up shooting to the of Harris un- Andy merely because he was armed. day folded as follows. The after the initial Knowing that he could not deadly use shootout, accompanied Harris Randy just holding because a gun Weaver, the owner of the cabin under would tell Deputy not Gelhaus what siege and the person upon whom the Mar- Constitution required Andy, when instead shals attempting were to serve an arrest following drop command to warrant when erupted, the shootout ato turned to face Deputy Gelhaus and the shed on the property help “to minister to began barrel of the rifle to rise. Harris did body son,” of Weaver’s dead who had circumstance, not address such a or even a been killed the shootout. Id. at circumstance, similar and so could not shed, 1203. While Weaver was opening the given Deputy have way Gelhaus notice one FBI sniper an stationed “on a hill over- or the other as to the reasonableness of his looking the Weaver cabin” shot Weaver in actions. It inapposite therefore is the back. Id. at 1193. Harris was armed at question we face hi this case. point, aggressive this but “made no move kind.” Id. at group 1203. The imme- C. cabin, diately ran back to the where Weav- wife, Vickie, majority’s case, er’s final Cumow holding the door ex rel. open. Police,- Id. at v. Ridgecrest 1193. As Harris was Cumow entering F.2d 321 (9th cabin, 1991), sniper “fired a Cir. is helpful second shot even less in this in an effort kill because, both Harris analysis admits, and Vickie.” majority as the in that that the rifle. sufficiently was evidence case These facts are not simi there Harris, unarmed at the time George, victim was lar to the facts of or Cur- at him. at 323. But that began shooting Deputy now to put Gelhaus on notice shooting not all: a witness to the stated is deadly his use of force violated armed, only was not that the victim not Andy’s Fourth Amendment right to be nearby gun for a but had not even reached White, free from excessive force. See an officer shot him the back. Id. when cases, S.Ct. at 552. Without these the ma light, the victim was the most favorable jority only is left with the statement home, merely sitting in his with his back to beginning clearly cites at the of its estab vicinity. A rule the officer and analysis: may lished law deny we deadly force is unreasonable those qualified immunity “in novel circum says nothing pro- about the circumstances Kisela, Hughes stances.” priety person of such force when the is It is doubtful how facing officer and the armed and statement,- much of if any, has sur beginning majority suggests to rise. The Supreme intervening vived the Court’s de “ provided ‘fair notice’ that that this case (stat cision in White. See 137 S.Ct. at 552 the use of force is unreasonable ing that the Tenth Circuit’s observation directly threaten where the victim does “present[ed] unique that the case set of gun.” officer with the Not is this facts and circumstances.... should have George’s with interpretation inconsistent ... important been indication that [the always that officers are not admonition conduct did not violate a officer’s] delay suspect fire until a required “to their (internal right” established citation and them,” his on 736 F.3d at turns omitted)). quotation marks To the extent it 838, because the inappropriate it is also any vitality, likely retains would be con undisputed facts here do establish direct fined to those cases where officer’s Thus, the officer. Curnow is off- threat to violation of a con conduct is an “obvious” point as well. Id., right. quoting Brosseau v. stitutional 194, 596, 199, Haugen, 543 U.S. 125 S.Ct. III. (2004) curiam); (per see disputed majority points facts the 1272, Rutherford, also Deorle v. 272 F.3d Andy looked backwards at to—whether (“When (9th 2001) 1286 Cir. ‘the defen officers, Deputy whether Gelhaus patently conduct is so violative of dant[’s] yelled Andy drop at more than right that reasonable of the constitutional once, chirped car more patrol whether the from guidance ficials would know without once, than whether held the that the action was unconstitu the courts’ hand, angle right his or left and the be- tional, closely analogous pre-existing case Deputy ground tween the and Gelhaus required to show that the law is law is not Andy pointed gun—are simply which ” (quoting Mendoza v. established’ qualified immunity not material 1994))). (9th Block, 1357, 1361 Cir. 27 F.3d analysis. Taking together the district assuredly is not such “an obvious This facts, findings undisputed 199, Brosseau, 125 S.Ct. case.” 543 U.S. deadly case involves the use of force by majority’s painstak- 596. As shown against a hooded individual armed with ing objective reasonable- evaluation replica indistinguishable assault rifle from force, this Deputy Gelhaus’s use of ness one, a real who turned to face' an officer obvious, clearly quite close. case is not but raising while the rifle after the officer had acted unreason- Deputy Whether Gelhaus patrol lights activated his car and siren minute details as how ably turns on such yelled drop at the individual to 1032 risen, had on to

high opposite barrel whether it reach the conclusion are give feasible to might have been warn- materially different from the real facts just aggressive Andy’s ing, and how turn- therefore before us. Those cases could not contrast, By ing cases motion was. found given Deputy notice that us- much to be “obvious” involve clearer con- ing against would vio- See, transgressions. e.g., Hope stitutional right. late Although his constitutional all 730, 734-35, Pelzer, 122 v. S.Ct. U.S. sympathetic family, any- are (2002) (reversing 153 L.Ed.2d be, duty-bound one should I am to con- immunity grant qualified pris- where a provide clude that Deputy we must Gel- “hitching post” to a oner was handcuffed “breathing haus with the room to make without a shirt for seven hours “while the judgments reasonable but mistaken about skin,” during sun burned his which time open legal questions” immu- given “he once or water twice and al-Kidd, nity affords him. 563 U.S. at given no bathroom breaks” reasons, 131 S.Ct. 2074. For these I dis- about guard “taunted his thirst” [him] sent. dogs, giving bringing water to some prisoner, water cooler near and then all the

intentionally spilling water on the

ground). Our is not the “rare” one “in case right at

which the constitutional issue is by a that is so

defined standard ‘obvious’ ... that qualified we must conclude immunity is even without a inapplicable, HOWARD, Plaintiff-Appellant, Janell A.D. directly point.” High- case v. Cal. Patrol, way 2013), Hope, 740-41, quoting U.S. BAY, Oregon CITY OF COOS Mu- Accordingly, 122 S.Ct. 2508. the district nicipal Corporation; Rodg- Craddock immunity court’s denial of cannot be af- er, capacity, in his individual Defen-

firmed on either. this basis dants-Appellees.

IV. 14-35506 No. misjudged Deputy Gelhaus the threat Appeals, United States Court of Andy posed, death is the Ninth Circuit. heartbreaking of that result miscalculation. these, impera- circumstances like it is Argued and Submitted March justice But justice. tive that we do does 2017, Portland, Oregon invariably punishing require the officer. A September Filed reasonable mistake of law or fact is not enough liability. Pearson, to impose

U.S. 808. The law S.Ct. affords transgresses

relief when an officer

boundary precedent established exists, If

at the time he no such acts. case

the officer held cannot be liable even his

conduct, in retrospect, the court believes

may be unreasonable.

This is the situation that we face. majority

facts of the that the cases relies

Case Details

Case Name: Estate of Lopez Ex Rel. Lopez v. Gelhaus

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 22, 2017

Citation: 871 F.3d 998

Docket Number: 16-15175

Court Abbreviation: 9th Cir.