FILED
NOT FOR PUBLICATION
JUL 7 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARIS HOLLOWAY, Nos. 15-56770
17-55284
Plaintiff-Appellee,
D.C. No.
v. 2:15-cv-03867-CAS-JC
BARTMAN HORN; CITY OF
PASADENA, MEMORANDUM*
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted March 7, 2017
Pasadena, California
Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.
On October 11, 2013, Officer Bartman Horn of the Pasadena Police
Department pursued Paris Holloway on foot after Holloway fled from Horn’s
attempt to talk him. The pursuit ended when Officer Horn shot Holloway multiple
times. One bullet lodged in Holloway’s spinal cord, resulting in immediate and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
permanent paralysis. Holloway later pleaded no contest to violations of Cal. Penal
Code §§ 69 (resisting arrest), 29800 (felon in possession of a firearm), and 30305
(felon in possession of ammunition). He subsequently filed a complaint against
Officer Horn and the City of Pasadena under 42 U.S.C. § 1983 alleging excessive
force and denial of medical care. Defendant-Appellants moved to dismiss on the
basis of qualified immunity, which the district court denied. They now appeal that
denial.
Holloway alleges that Officer Horn pursued him into an alley between the
fenced-in backyards of apartment complexes, where Holloway removed the gun he
was carrying from his pants while facing away from Horn and, without ever
turning towards him, threw the gun over one of the fences.
He further alleges that after the gun was out of his hands and while he was
still facing away from Officer Horn, Horn opened fire. Horn asserts that this
conduct alone would not support a guilty plea under Cal. Penal Code § 69, and that
therefore Holloway must have done something involving “threats, force or
violence,” such as “pointing a gun at an officer,” which would entitle Horn to
qualified immunity.
1. The facts alleged in Holloway’s complaint are not contradicted by his no
contest plea to a violation of Cal. Penal Code § 69. Because this appeal concerns a
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motion to dismiss, we must accept all factual allegations in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, the case may be
dismissed only if it is not possible to construe Holloway’s plea as consistent with
the facts he alleges in his complaint. Here, the plea may be construed as consistent
with those facts.
Under California law, Holloway could have violated the statute either by
attempting to deter Officer Horn from pursuing him “by means of . . . threat,” or by
resisting him “by the use of force or violence,” Cal. Penal Code § 69(a), when he
removed a gun from his pants and threw it over the fence, even if he never pointed
it at Officer Horn. Under California law, the mere brandishing of a weapon in the
open may be “threat[ening]” or “violen[t].” Displaying a weapon, even if only
momentarily, before throwing it over a fence, could plausibly be intimidating to an
officer in pursuit. In Rodriguez v. City of Long Beach, No. SACV 10-00271 DOC,
2011 WL 3757122, *4 (C.D. Cal. Aug. 25, 2011), “the mere refusal to sit on the
curb,” accompanied by profanity directed at a police officer, was held to be
sufficient to support a conviction under § 69. In People v. Brown, 245 Cal. App.
4th 140, 146-47 (2016), a state court agreed without comment that a defendant
could be convicted under § 69 when he fled from police before sitting down and
“swinging his hands” at officers without ever making contact. In short, these cases
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justifying a conviction under § 69 concerned behavior that was far less threatening
or violent than the conduct which Holloway acknowledges he engaged in here:
displaying a weapon and then throwing it over a fence. Thus, his plea is not
inconsistent with the facts alleged in his complaint.
Even if Officer Horn were correct that a conviction under § 69 required that
Holloway point his gun at Horn, that would not change the outcome of this case.
Taking the remaining facts in the light most favorable to Holloway, he threw his
gun over the fence before Officer Horn shot him. Holloway suffered immediate
paralysis upon being shot, yet when other officers arrived, they found his gun on
the other side of a tall wooden fence about ten feet away. Plaintiff had been shot in
the back, including directly in his spinal cord, supporting the inference that he was
not pointing a firearm at Officer Horn at the time that Horn opened fire. This is
sufficient to deny qualified immunity, even under the strict requirement of White v.
Pauly, 137 S. Ct. 548, 551 (2017) (per curiam), that a case exists that places the
constitutional issue “beyond debate.” In Curnow v. Ridgecrest Police, 952 F.2d
321, 322, 325 (9th Cir. 1991), we denied qualified immunity to officers because, at
the time they opened fire, the victim was not pointing his gun at the officers and
was not facing them. Curnow was recently cited with approval in a case denying
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qualified immunity at the summary judgment stage. See Newmaker v. City of
Fortuna, 842 F.3d 1108, 1116-17 (9th Cir. 2016).
Moreover, Holloway alleges that Officer Horn shot him several times when
he was on the ground after he had thrown the gun over the fence. Shooting an
unarmed, injured person who is unmoving and bleeding profusely while lying on
the ground would in itself be sufficient to defeat qualified immunity. See, e.g.,
Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (“This would be a different case
if petitioners had initiated a second round of shots after an initial round had clearly
incapacitated Rickard . . . .”); Ting v. United States, 927 F.2d 1504, 1511 (9th Cir.
1991) (denying qualified immunity where officers shot “an unarmed and injured
felon lying or kneeling on the floor”).
We therefore affirm the district court’s denial of Appellants’ motion to
dismiss.
2. Because we affirm the district court’s denial of the motion to dismiss,
thereby returning the case to the district court to proceed, we do not consider
Appellants’ appeal of the district court’s denial of a motion for written indication
under Federal Rule of Civil Procedure 62.1. While several other circuits have
decided (or assumed) that denial of a motion under Rule 62.1 is an appealable
order in the case of a final appeal, see LFoundry Rousset, SAS v. Atmel Corp., No.
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16-2566-cv, 2017 WL 2210895 (2d Cir. May 19, 2017); Dice Corp. v. Bold Tech.,
556 F. App’x 378, 382-83 (6th Cir. 2014); Ray v. Pinnacle Health Hospitals, Inc.,
416 F. App’x 157, 161 n.3 (3d Cir. 2010), we are not convinced that this court has
jurisdiction to entertain such an appeal in this case.
Rather than unnecessarily decide the issue of jurisdiction, we dismiss the
appeal as moot. As a result of affirming the denial of the motion to dismiss, we
return jurisdiction to the district court, where Appellants may bring a Rule 60(b)
motion. See LFoundry Rousset, 2017 WL 2210895, at *2 (“[O]ur return of the
mandate to the district court rendered the Rule 62.1 motion moot because it was no
longer necessary for the district court’s jurisdiction to consider the concomitant
Fed. R. Civ. P. 60(b) motion.”). Nothing in the Local Rules prevents litigants from
raising issues in a Rule 60(b) motion that were previously raised in a Rule 62.1
motion. See Local Rules – Central District of California, L.R. 7-18 (only
disallowing motions for reconsideration that repeat arguments made in “the
original motion” (emphasis added)). Appellants are therefore free to move in
district court for reconsideration under Rule 60(b) on the basis of the two hearing
transcripts they received after the district court’s denial of their original motion to
dismiss. We express no view on the merits of any such motion.
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The district court’s denial of Appellants’ motion to dismiss in case number
15-56770 is AFFIRMED. Appellants’ appeal of the denial for written indication in
case number 17-55284 is DISMISSED AS MOOT.
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