S. B. v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

S. B., a minor, individually and as No. 15-56848
Successor in Interest to David Lee
Brown, deceased, by and through his D.C. No.
Guardian Ad Litem, Angela Caruso; 3:14-cv-00072-
M. B., a minor, individually, by and JAH-WVG
through her Guardian Ad Litem,
Angela Caruso; ANGELA CARUSO,
Plaintiffs-Appellees, OPINION

v.

COUNTY OF SAN DIEGO, a municipal
entity; ADRIAN MOSES, Deputy,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding

Argued and Submitted February 17, 2017
Pasadena, California

Filed May 12, 2017
2 S.B. V. COUNTY OF SAN DIEGO

Before: Milan D. Smith, Jr. and John B. Owens, Circuit
Judges, and Edward R. Korman, * District Judge.

Opinion by Judge Owens

SUMMARY **

Civil Rights

The panel reversed the district court’s order, on summary
judgment, denying qualified immunity to a San Diego
Sheriff’s deputy, and remanded, in an action brought under
42 U.S.C. § 1983 alleging that the deputy used excessive
force when he shot and killed David Brown in his home.

The panel agreed with the district court that, reviewing
the facts in the light most favorable to plaintiffs, a reasonable
juror could find that the deputy’s use of deadly force was not
objectively reasonable, and therefore that he violated
Brown’s Fourth Amendment right against excessive force.
The panel disagreed, however, with the district court that it
was clearly established on August 24, 2013, that using
deadly force under the circumstances, even viewed in the
light most favorable to plaintiffs, would constitute excessive
force under the Fourth Amendment. The panel held that the
district court did not have the benefit of White v. Pauly, 137
S. Ct. 548, 551 (2017), and the cases that plaintiffs cited did

*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 S.B. V. COUNTY OF SAN DIEGO 3

not satisfy White’s exacting standard. Nor did the present
case involve an “obvious” or “run-of-the-mill” violation of
the Fourth Amendment under Graham v. Connor, 490 U.S.
386, 396–97 (1989), and Tennessee v. Garner, 471 U.S. 1
(1985). The panel therefore held that the deputy was
immune from liability under section 1983 for his use of
deadly force.

Because this was an interlocutory appeal, the panel did
not address plaintiffs’ claim for wrongful death under
California law, but noted that its conclusion that deadly force
was not objectively reasonable as a matter of law supported
the district court’s denial of summary judgment on plaintiffs’
state law claim.

COUNSEL

James Chapin (argued), Senior Deputy County Counsel;
Thomas E. Montgomery, County Counsel; Office of County
Counsel, San Diego, California; for Defendants-Appellants.

Megan R. Gyongyos (argued) and Bryan T. Dunn, The
Cochran Firm California, Los Angeles, California, for
Plaintiffs-Appellees.
4 S.B. V. COUNTY OF SAN DIEGO

OPINION

OWENS, Circuit Judge:

Defendants San Diego Sheriff’s Deputy Adrian Moses
and the County of San Diego (defendants) appeal
interlocutorily from the district court’s denial of qualified
immunity. The heirs of David Brown (plaintiffs) sued
defendants for shooting and killing Brown in his home.
While we agree with the district court that plaintiffs
established a triable issue as to the reasonableness of the
shooting, we disagree about the application of qualified
immunity. We therefore reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

A. The Death of David Brown

On the early evening of August 24, 2013, Deputies
Moses and Vories each overheard a “5150” radio call for a
house in San Marcos, California. 1 The radio call stated that
family members were concerned about their safety because
an individual (Brown), who had mental health issues and
was intoxicated, had been acting aggressively. The family
members had left the house for a nearby fire station to report
the situation.

At the fire station, the family told Moses and Vories that
Brown was bipolar, schizophrenic, diabetic, and under the
influence of Valium and alcohol. Brown had been “acting
aggressively” all day, and had warned that “someone was

1
5150 is a well-recognized code for a person who is potentially a
danger to themselves or others due to mental illness and/or being under
the influence of alcohol or drugs.
 S.B. V. COUNTY OF SAN DIEGO 5

gonna get hurt” if he did not get alcohol. Other than typical
kitchen knives, Brown did not have access to any weapons
(though in the past he had carried a pocket knife). The
family did not know if Brown had any knives on his person
that day.

Moses and Vories went to Brown’s house, and Deputy
Billieux met them there. 2 One of Brown’s relatives, working
on a car in the driveway, told the officers that Brown was
inside the house, had been drinking and taking medications
all day, and had been “acting strangely all day,” “ranting and
raving,” and not making “sense.” And, Brown “wouldn’t be
happy” if he knew the officers were there.

Moses and Vories then entered the front door of the
house, and Billieux covered the door leading from the garage
into the house. Moses had his gun drawn, and Vories had
his Taser ready to go, so the officers had both non-lethal and
lethal force options. The officers did not see Brown
immediately, but heard cabinets or drawers opening and
closing in the kitchen area. Moses then announced
“Sheriff’s Department” and called for Brown by name. A
small wall separated the kitchen and living room, with open
entryways on either side. Moses and Vories entered the
kitchen from different sides of the wall. Moses told Brown
that he wanted to speak with him.

After Moses and Vories rounded the dividing wall, they
saw that Brown had kitchen knives sticking out of his
pockets. Vories yelled “knife,” radioed the same, drew his
gun, and holstered his Taser. Appearing under the influence,
Brown was staggering and stumbling over his words, had

2
Billieux previously had worked with the Sheriff’s Psychiatric
Emergency Response Team, which responded to 5150 calls like this one.
6 S.B. V. COUNTY OF SAN DIEGO

difficulty standing up straight, was swaying side to side, and
had a glassy eyed stare and could not focus on Moses.

Moses pointed his gun at Brown and ordered him to raise
his hands, but Brown initially did not do so. Moses repeated
the order, and Brown raised his hands to his shoulders.
Brown asked Moses why he was pointing his gun at him, and
Moses replied that Brown had knives on his person. Brown
said he would put the knives on the table, but Moses told him
not to do so. Brown was rambling a lot, repeating things like
“Just shoot me” and “I can’t bring him back. He’s gone.”
Moses continued talking to Brown, and when Brown would
drop his hands, Moses would tell Brown to raise them again.
Vories heard Moses saying that “If you go for the knife, you
will be shot.” The officers ordered Brown to drop to his
knees, and Brown complied.

The three officers’ deposition testimony regarding the
next moments before the shooting, summarized below, was
consistent in many respects, but different in others.

Moses: Moses saw Vories standing to his left, about
three to five feet from Brown. Once Brown was on his
knees, Vories moved towards Brown to handcuff him.
Brown looked at Vories, lowered his arm and pointed it at
Vories, and said “Get the fuck away from me.” Vories
stepped back.

Brown then looked at Vories, “reached back with his
right hand and produced a knife” with a six-to-eight-inch
blade. Brown moved as if he were going to get up, and
pointed the knife at Vories. Moses could see Vories clearly
in his peripheral vision. Believing that Vories was in
imminent danger, Moses shot Brown three or four times, less
than one second after Brown grabbed the knife. About five
 S.B. V. COUNTY OF SAN DIEGO 7

minutes elapsed between when Moses first saw the knife in
Brown’s pocket and the shooting.

Vories: After Brown kneeled, Vories holstered his gun
and drew his Taser. Brown saw the Taser’s red light on his
body and said “I’ve been tased before. Just tase me.” Vories
stepped closer, and Brown began screaming and grabbing
his face, and yelled something like “I can’t handle it
anymore.” Brown then reached for the knife in his right back
pocket. Moses said “Don’t do it. Don’t do it.”

As Brown started to rise with the knife “in one fluid
motion,” Vories heard three to six shots come from Moses.
Brown’s knees were about an inch off the ground when he
was shot, with his left hand on the floor and the knife in his
right hand. Brown had made eye contact with Vories, and
was in the process of standing up from his kneeling position.
Moses shot Brown “almost instantaneous[ly]” as Brown
grabbed the knife. “When his hand touched the knife, the
first round came out.”

When the shots were fired, Vories was switching from
his Taser to his gun. Vories could not see Moses, and
believed that the wall prevented Moses from seeing him.
Brown was closer to Vories than Billieux when the shots
were fired.

Billieux: After Brown got down on his knees, Billieux
joined Vories so they could handcuff Brown while Moses
kept his gun on Brown. Billieux told Brown to put his hands
on his head, and he did.

When Billieux and Vories took a step closer to Brown,
Brown “got quiet[,] . . . unclasped his fingers from his
head[,] and started to slowly bring his hands back down.”
Billieux again told Brown to keep his hands on his head, and
8 S.B. V. COUNTY OF SAN DIEGO

she pulled Vories back to give Brown room. Vories was now
six to eight feet from Brown.

Brown slowly lowered his hands about halfway, and then
extremely quickly grabbed a knife from his right back pocket
and held it in front of him. Brown was still on his knees, but
started to move as if he were going to stand, and then
Billieux heard three to six shots. She opined that Brown was
trying to stab Vories, was close enough to do so, and that
either she or Vories would have been stabbed had Moses not
fired. She said that Vories was three to four feet away from
Brown when Moses fired (though she did not know if Vories
moved closer to Brown after she pulled him away). She
could not see Moses when he fired the fatal shots.

B. District Court Proceedings

In January 2014, plaintiffs filed this action against
defendants, which alleged: (1) a 42 U.S.C. § 1983 claim for
excessive force in violation of the Fourth Amendment; and
(2) wrongful death under California law. In August 2015,
the district court held a hearing on defendants’ motion for
summary judgment. During the hearing, counsel for
plaintiffs twice acknowledged that the case was “close,” but
urged the court to permit a jury to decide whether the officers
were liable due to the inconsistencies in the officers’
testimony.

The district court agreed, and specifically found three
material inconsistencies that required a jury trial:
(1) whether Brown was on his knees or attempting to stand
when he grabbed the knife and was shot; (2) whether Moses
could see the other officers clearly when he fired his weapon;
and (3) the distance between Brown and Vories when Brown
grabbed the knife. These same inconsistencies also created
a triable dispute over whether Moses’s conduct violated
 S.B. V. COUNTY OF SAN DIEGO 9

clearly established law, so qualified immunity was not
appropriate. The district court did not identify what clear
precedent barred Moses from using deadly force under the
circumstances, and did not discuss the standards set out in
City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,
1774–76 (2015).

Defendants then filed this timely interlocutory appeal
over the denial of qualified immunity to Moses.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary
judgment. Glenn v. Washington County, 673 F.3d 864, 870
(9th Cir. 2011). We also review de novo a defendant
officer’s entitlement to qualified immunity. Id.

III. ANALYSIS

“In determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct.” C.V. by & through Villegas v. City of
Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal
v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)). “While
we have discretion to decide which prong to address first,
here we address both.” Id.

A. Whether A Constitutional Right Was Violated

The Fourth Amendment permits law enforcement to use
“objectively reasonable” force. Graham v. Connor,
490 U.S. 386, 396–97 (1989). Factors for evaluating
reasonableness include, but are not limited to: (1) the
severity of the crime at issue; (2) whether the suspect posed
10 S.B. V. COUNTY OF SAN DIEGO

an immediate threat to the safety of the officers or others;
and (3) whether the suspect actively resisted arrest or
attempted to escape. Id. at 396; see also George v. Morris,
736 F.3d 829, 837–38 (9th Cir. 2013) (discussing Graham
and Tennessee v. Garner, 471 U.S. 1 (1985)). “Other
relevant factors include the availability of less intrusive
alternatives to the force employed, whether proper warnings
were given and whether it should have been apparent to
officers that the person they used force against was
emotionally disturbed.” 3 Glenn, 673 F.3d at 872. Of all
these factors, the “most important” one is “whether the
suspect posed an immediate threat to the safety of the
officers or others.” George, 736 F.3d at 838 (quoting Bryan
v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (internal
quotations omitted)).

We must judge the reasonableness of a particular use of
force “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” and
allow “for the fact that police officers are often forced to
make split-second judgments – in circumstances that are
tense, uncertain, and rapidly evolving – about the amount of
force that is necessary in a particular situation.” Graham,
490 U.S. at 396–97. Nonetheless, summary judgment
should be granted “sparingly” in excessive force cases,
particularly “where the only witness other than the officers
was killed during the encounter.” Gonzalez v. City of
Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc)

3
“Even when an emotionally disturbed individual is ‘acting out’ and
inviting officers to use deadly force to subdue him, the governmental
interest in using such force is diminished by the fact that the officers are
confronted, not with a person who has committed a serious crime against
others, but with a mentally ill individual.” Deorle v. Rutherford,
272 F.3d 1272, 1283 (9th Cir. 2001).
 S.B. V. COUNTY OF SAN DIEGO 11

(citation omitted). “Because the person most likely to rebut
the officers’ version of events – the one killed – can’t testify,
[t]he judge must carefully examine all the evidence in the
record . . . to determine whether the officer’s story is
internally consistent and consistent with other known facts.”
Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014)
(citation and internal quotation marks omitted).

Reviewing the facts in the light most favorable to
plaintiffs, Glenn, 673 F.3d at 870, we agree with the district
court that a reasonable juror could find a Fourth Amendment
violation. While the officers’ testimony is consistent on
many key points – Brown grabbed his knife despite orders
to place his hands on his head – the officers’ sworn
testimony differs on other important facts. As the district
court noted, there were discrepancies regarding: (1) whether
Brown was on his knees or attempting to stand when he
grabbed the knife and was shot; (2) whether Moses could see
the other officers clearly when he fired his weapon; and
(3) the distance between Brown and Vories when Brown
grabbed the knife. The scope of our review on an
interlocutory appeal from the denial of qualified immunity is
limited to questions of law, and “[a]ny decision by the
district court that the parties’ evidence presents genuine
issues of material fact is categorically unreviewable.”
George, 736 F.3d at 834 (citation and internal quotation
marks omitted). Moreover, defendants ignore testimony in
plaintiffs’ favor in arguing that there were no discrepancies.

At this stage, “all justifiable inferences are to be drawn
in [the plaintiffs’] favor.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Here, a reasonable jury could
conclude that: (1) the three officers, responding to a call
about a mentally ill and intoxicated individual “acting
aggressively,” entered Brown’s house and saw that he had
12 S.B. V. COUNTY OF SAN DIEGO

knives in his pockets; (2) after Brown complied with the
officers’ orders to kneel, Brown grabbed a knife with a six-
to-eight-inch blade from his back pocket; (3) Moses shot
Brown as soon as his hand touched the knife; (4) Brown was
on his knees when he was shot; (5) when he grabbed the
knife, Brown was approximately six to eight feet away from
Vories; (6) Moses could not see the other officers at the time
Brown grabbed the knife; (7) after Brown went for the knife,
the officers did not order him to drop the knife or warn that
he was about to be shot; and (8) Vories had a non-lethal
option – a Taser gun. Viewing the facts in this light, Moses’s
use of deadly force was not objectively reasonable, and
therefore violated Brown’s Fourth Amendment right against
excessive force. Our holding mirrors those in similar cases. 4

B. Whether The Constitutional Right Was Clearly
Established

But that is not all. Under the second prong of the
qualified immunity test, we decide if the alleged violation of
Brown’s Fourth Amendment right against excessive force

4
See, e.g., Hughes v. Kisela, 841 F.3d 1081, 1085–87 (9th Cir. 2016)
(reversing grant of summary judgment on excessive force claim where
an officer shot, but did not kill, an emotionally disturbed individual
holding a large kitchen knife in her driveway after she walked toward
another woman and did not comply with orders to drop the knife); Glenn,
673 F.3d at 871–78 (reversing grant of summary judgment on excessive
force claim where officers shot and killed an emotionally disturbed and
intoxicated individual who did not comply with orders to put down a
pocketknife for approximately three minutes); see also Hayes v. County
of San Diego, 736 F.3d 1223, 1227–28, 1233–35 (9th Cir. 2013)
(reversing grant of summary judgment on California wrongful death
claim, which uses same standard as Fourth Amendment, where officers
shot and killed an emotionally disturbed individual inside his home who
held a large knife pointed downward and took one to two steps toward
an officer but was still six to eight feet away).
 S.B. V. COUNTY OF SAN DIEGO 13

“was clearly established at the time of the officer’s alleged
misconduct.” C.V., 823 F.3d at 1255 (quoting Lal, 746 F.3d
at 1116). If not, the officer receives qualified immunity. To
be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand
that what [the official] is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “We do
not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)). Further, the clearly established inquiry
“must be undertaken in light of the specific context of the
case, not as a broad general proposition,” especially in the
Fourth Amendment context, where “[i]t is sometimes
difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual
situation the officer confronts.” Id. (citations and internal
quotation marks omitted). Put another way, only the
“plainly incompetent” officer will not enjoy qualified
immunity. Id. (citation omitted).

In analyzing this question, we acknowledge the Supreme
Court’s recent frustration with failures to heed its holdings.
The Supreme Court has “repeatedly told courts – and the
Ninth Circuit in particular – not to define clearly established
law at a high level of generality.” Sheehan, 135 S. Ct. at
1775–76 (citation omitted). Our court lacks a monopoly
over such immunity missteps. When recently reversing the
Tenth Circuit, the Supreme Court wrote: “In the last five
years, [the Supreme Court] has issued a number of opinions
reversing federal courts in qualified immunity cases.” White
v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (citing
Sheehan, 135 S. Ct. at 1774 n.3 (collecting cases)). “The
Court has found this necessary both because qualified
14 S.B. V. COUNTY OF SAN DIEGO

immunity is important to ‘society as a whole,’ and because
as ‘an immunity from suit,’ qualified immunity ‘is
effectively lost if a case is erroneously permitted to go to
trial.’” Id. (citations omitted).

We hear the Supreme Court loud and clear. Before a
court can impose liability on Moses, we must identify
precedent as of August 24, 2013 – the night of the shooting
– that put Moses on clear notice that using deadly force in
these particular circumstances would be excessive. General
excessive force principles, as set forth in Graham and
Garner, are “not inherently incapable of giving fair and clear
warning to officers,” but they “do not by themselves create
clearly established law outside an obvious case.” Id. at 552
(citations and internal quotation marks omitted). Instead, we
must “identify a case where an officer acting under similar
circumstances as [Moses] was held to have violated the
Fourth Amendment.” Id. We cannot locate any such
precedent.

Our most similar case which pre-dates Moses’s use of
deadly force is Glenn, where officers fatally shot a suicidal
and intoxicated individual in his driveway who did not
comply with orders to put down a pocketknife. See 673 F.3d
at 867–69. But in Glenn, the individual “did not brandish
[the pocketknife] at anyone, but rather held [it] to his own
neck.” Id. at 873. Brown’s grabbing the knife from his
pocket despite orders to place his hands on his head was
more threatening. See George, 736 F.3d at 838 (stating that
while “the fact that the suspect was armed with a deadly
weapon does not render the officers’ response per se
reasonable under the Fourth Amendment, . . . [i]f the person
is armed . . . [then] a furtive movement, harrowing gesture,
or serious verbal threat might create an immediate threat”
(citation and internal quotation marks omitted)). As such,
 S.B. V. COUNTY OF SAN DIEGO 15

the facts of Glenn are not sufficiently analogous to give
Moses fair notice that it was objectively unreasonable to use
lethal force against Brown. 5

Plaintiffs argue that two district court decisions (within
the Ninth Circuit but outside of California) provided clear
warning to Moses. However, “district court decisions –
unlike those from the courts of appeals – do not necessarily
settle constitutional standards or prevent repeated claims of
qualified immunity.” Hamby v. Hammond, 821 F.3d 1085,
1095 (9th Cir. 2016) (quoting Camreta v. Greene, 563 U.S.
692, 709 n.7 (2011)). Moreover, even if district court
decisions could clearly establish the law for purposes of
qualified immunity, the cases on which plaintiffs rely are
insufficient. Herrera is distinguishable because, viewing the
evidence in the plaintiffs’ favor, officers fatally shot an
emotionally disturbed individual who “was merely standing
with the knife pointed skyward, stunned, for nearly a full
minute.” Herrera v. Las Vegas Metro. Police Dep’t, 298 F.
Supp. 2d 1043, 1050 (D. Nev. 2004). And Davis is
distinguishable because, viewing the evidence in the
plaintiff’s favor, the emotionally disturbed plaintiff was

5
Our decision in Deorle is also not sufficiently analogous because
that emotionally disturbed individual was unarmed at the time an officer
shot him in the face with a beanbag gun. See 272 F.3d at 1275; see also
Sheehan, 135 S. Ct. at 1776 (stating that Deorle was distinguishable
because, among other reasons, it involved an unarmed individual). We
recognize that in Hughes, which like here involved an emotionally
disturbed individual with a kitchen knife, we relied on Deorle as
supporting a clearly established right. See Hughes, 841 F.3d at 1089–
90. However, unlike here, in Hughes it was disputed whether the officer
“was reasonable in believing that the kitchen knife,” – “which has a
perfectly benign primary use” and was being held “down at her side” –
“was a weapon.” Id. at 1089–90.
16 S.B. V. COUNTY OF SAN DIEGO

holding the knife downward when he was shot, and the
officer shot him in the back after he had fallen to the ground.
Davis v. Clark, No. CV07-435-S-EJL, 2010 WL 679037, at
*9 (D. Idaho Feb. 23, 2010). Here, as noted, Brown’s
actions were more threatening because he grabbed a knife
from his pocket.

We disagree with the district court that it was clearly
established on August 24, 2013, that using deadly force in
this situation, even viewed in the light most favorable to
plaintiffs, would constitute excessive force under the Fourth
Amendment. 6 The district court did not have the benefit of
White, and the cases that plaintiffs cite do not satisfy White’s
exacting standard. Nor does this case involve an “obvious”
or “run-of-the-mill” violation of the Fourth Amendment
under Graham and Garner. White, 137 S. Ct. at 552. Moses
is therefore immune from liability under section 1983 for his

6
Cf. Brosseau v. Haugen, 543 U.S. 194, 200–01 (2004) (per curiam)
(holding that officer was entitled to qualified immunity where the cases
relied on by plaintiffs did not “squarely govern[]” the constitutionality
of shooting a “disturbed felon, set on avoiding capture through vehicular
flight, when persons in the immediate area [were] at risk from that
flight”); C.V., 823 F.3d at 1257 (holding that officer was entitled to
qualified immunity because it was not “clearly established” that use of
deadly force violated the Fourth Amendment, even though there was a
triable dispute whether the deadly force in fact violated the Fourth
Amendment); Blanford v. Sacramento County, 406 F.3d 1110, 1119 (9th
Cir. 2005) (holding that officers were entitled to qualified immunity
because they “would not have found fair warning in Garner, Graham, or
any other Supreme Court or circuit precedent at the time that they could
not use deadly force to prevent someone with an edged sword, which
they had repeatedly commanded him to drop and whom they had
repeatedly warned would otherwise be shot, from accessing a private
residence where they or people in the house or yard might be seriously
harmed”).
 S.B. V. COUNTY OF SAN DIEGO 17

use of deadly force, so we reverse the denial of summary
judgment on the Fourth Amendment claim. 7

REVERSED AND REMANDED.

The parties shall bear their own costs on appeal.

7
Because this interlocutory appeal concerns only the denial of
qualified immunity on plaintiffs’ Fourth Amendment claim, we do not
address plaintiffs’ claim for wrongful death under California law.
However, our conclusion that deadly force was not objectively
reasonable as a matter of law supports the district court’s denial of
summary judgment on plaintiffs’ state law claim. See Hayes, 736 F.3d
at 1232, 1235–36 (stating that “[c]laims of excessive force under
California law are analyzed under the same standard of objective
reasonableness used in Fourth Amendment claims,” but noting that
under California law an officer’s duty of reasonable care extends to his
pre-shooting conduct); see also Johnson v. Bay Area Rapid Transit Dist.,
724 F.3d 1159, 1171 (9th Cir. 2013) (“[T]he doctrine of qualified
immunity does not shield defendants from state law claims.”).