NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANNEL CENTENO et al., No. 17-16830
Plaintiffs-Appellees, D.C. No.
1:16-cv-00653-DAD-SAB
v.
CITY OF FRESNO et al., MEMORANDUM*
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted August 15, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.
In this action brought by the decedents of Freddy Centeno against Fresno
police officers Felipe Miguel Lucero and Zebulon Price and others, Defendants
Lucero and Price timely appeal the district court’s denial of qualified immunity
and the court’s denial of summary judgment on a state-law wrongful death claim.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, Jr., Circuit Judge for the U.S. Court
of Appeals for the Sixth Circuit, sitting by designation.
Reviewing de novo, Kramer v. Cullinan, 878 F.3d 1156, 1161 (9th Cir. 2018), we
hold that Defendants1 are entitled to qualified immunity but we decline to reach the
state-law claim.
1. Defendants are entitled to qualified immunity. At the time that
Defendants shot Centeno, it was clearly established that officers may not use
deadly force to prevent a suspect’s escape unless they have “probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer
or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). It was far from clearly
established, however, that officers may not employ deadly force when a suspect
refuses to comply with orders and pulls a small black object, which officers
reasonably believe to be a handgun, from his pocket. See Graham v. Connor, 490
U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.”). Existing precedent did not give fair warning to
Defendants that their conduct was unconstitutional.
Defendants reasonably believed that Centeno was armed. A credible caller
told dispatch that the suspect was armed with a handgun, and dispatch passed this
information along to the responding officers, including Defendants. Centeno’s
1
For simplicity, we refer throughout this disposition to Officers Lucero and Price
as “Defendants.”
2
conduct reasonably caused Defendants to fear for their own safety. While facing
the officers, Centeno pulled a small black object from his shorts pocket—where the
caller had stated that he was carrying his weapon—after Defendants instructed
Centeno to get on the ground. See Cruz v. City of Anaheim, 765 F.3d 1076, 1078
(9th Cir. 2014) (“It would be unquestionably reasonable for police to shoot a
suspect in Cruz’s position if he reaches for a gun in his waistband, or even if he
reaches there for some other reason.”); George v. Morris, 736 F.3d 829, 838 (9th
Cir. 2013) (“If the person is armed—or reasonably suspected of being armed—a
furtive movement, harrowing gesture, or serious verbal threat might create an
immediate threat.”). We reverse the district court’s denial of qualified immunity to
Defendants Lucero and Price.
2. We lack pendent appellate jurisdiction over the district court’s denial of
summary judgment on Plaintiffs’ state-law wrongful death claim, because that
claim is not “inextricably intertwined” with the qualified immunity claim properly
before us. Kwai Fun Wong v. United States, 373 F.3d 952, 960 (9th Cir. 2004).
REVERSED in part and REMANDED.
3