FILED
NOT FOR PUBLICATION
JAN 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WARREN PROSTROLLO, on behalf of No. 14-16921
himself and the statutory beneficiaries of
Jason Prostrollo and as the personal D.C. No. 2:12-cv-01815-SMM
representative of the Estate of Jason
Prostrollo,
MEMORANDUM*
Plaintiff-Appellant,
v.
CITY OF SCOTTSDALE, a municipality
organized under the laws of the State of
Arizona, and RONALD BAYNE, in his
individual and official capacities as a
Lieutenant with the City of Scottsdale
Police Department,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted November 15, 2016
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.
The district court properly granted summary judgment in favor of
defendants. Viewing the facts in the light most favorable to plaintiff, no
reasonable jury could conclude that Lt. Bayne’s use of deadly force was
objectively unreasonable. It is undisputed that the decedent, Jason Prostrollo, had
threatened two people with a knife earlier in the evening. It is also undisputed that
when Prostrollo emerged from the house, he was armed with a potentially deadly
weapon (two halves of a pool cue), and that he disregarded officers’ warnings to
halt his advance. Lt. Bayne did not know whether Prostrollo still had the knife on
his person as he continued to advance. Lt. Bayne fired only when Prostrollo had
advanced within 21 feet of the other officers, the distance officers are taught can be
closed by an attacker before an officer can react to protect himself.
The main disputed fact—where the police dog was when Lt. Bayne
fired—does not preclude summary judgment. Even if the dog had been released
and was attempting to subdue Prostrollo at the time Lt. Bayne fired, that would not
render his use of force unreasonable. Officers do not need to avail themselves of
the least intrusive means of responding to a threat; the Fourth Amendment requires
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
Page 3 of 3
only that their conduct be reasonable. See Billington v. Smith, 292 F.3d 1177,
1188–89 (9th Cir. 2002). Here, Prostrollo was armed with a potentially deadly
weapon and had refused the officers’ commands to halt his approach. Lt. Bayne
was not required to wait until Prostrollo was within striking distance of the officers
given the threat he posed at the time Lt. Bayne fired.
Because Lt. Bayne’s use of force was objectively reasonable under the
circumstances, plaintiff’s claims under the Fourth and Fourteenth Amendments
fail. See Wilkinson v. Torres, 610 F.3d 546, 553–54 (9th Cir. 2010). In the
absence of a constitutional violation, plaintiff’s claim under Monell v. Department
of Social Services of N.Y., 436 U.S. 658 (1978), was properly dismissed. See City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). And plaintiff’s
state law claims were also properly dismissed because Arizona’s justification
statutes permit the use of deadly force when an officer reasonably believes the
suspect is likely to endanger human life. See Ariz. Rev. Stat. §§ 13-410, 13-413;
Marquez v. City of Phoenix, 693 F.3d 1167, 1176 (9th Cir. 2012).
AFFIRMED.
FILED
Prostrollo v. City of Scottsdale, No. 14-16921
JAN 24 2017
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In my view, this is not a case that can be resolved at the summary judgment
stage. A reasonable jury could conclude that the events leading up to the fatal
shooting of Jason Prostrollo unfolded as follows: Prostrollo had consumed a large
amount of alcohol on the night in question and was staggering toward the officers
in slow motion. The officers could see that he held only a short stick in each
hand—what turned out to be the two halves of a pool cue. When he was still more
than 20 feet from the officers—a distance at which the two sticks could not have
posed a threat of any significance—one of the officers released the police dog to
subdue Prostrollo. The dog had bitten Prostrollo in the chest area and was in the
process of subduing him when Lt. Bayne fired two shots in rapid succession. The
first shot struck the dog in the back of the neck; the second shot struck Prostrollo in
the chest and killed him.
On these facts, a reasonable jury could conclude that Lt. Bayne’s use of
deadly force was unjustified. The jury could find that, at the time Lt. Bayne fired,
the police dog had halted Prostrollo’s advance and neutralized whatever potential
threat he might have posed. Prostrollo was still 17 feet from the officers when he
died, armed only with two halves of a pool cue. A jury could reasonably conclude
that at that distance, with a trained police dog attacking him, Prostrollo did not
Page 2 of 2
pose an immediate threat of death or serious physical injury to the officers or
anyone else. In the absence of such a threat, the Fourth Amendment prohibits the
use of deadly force. See Tennessee v. Garner, 471 U.S. 1, 3 (1985).
I would reverse and allow the jury to decide whether Prostrollo’s father is
entitled to prevail on the Fourth Amendment excessive force claim.