S.R. Nehad v. Neal Browder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

S.R. NEHAD; K.R. NEHAD; ESTATE No. 18-55035
OF FRIDOON RAWSHAN NEHAD,
Plaintiffs-Appellants, D.C. No.
3:15-cv-01386-
v. WQH-NLS

NEAL N. BROWDER; CITY OF SAN
DIEGO; SHELLEY ZIMMERMAN, in OPINION
her personal and official capacity as
Chief of Police,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Argued and Submitted February 27, 2019
Southwestern Law School Los Angeles, California

Filed July 11, 2019

Before: Sidney R. Thomas, Chief Judge, Michael Daly
Hawkins, Circuit Judge, and Dean D. Pregerson,*
District Judge.

Opinion by Judge Pregerson

*
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
2 NEHAD V. BROWDER

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of defendants and
remanded in an action alleging that a City of San Diego
police officer used excessive deadly force when he shot and
killed Fridoon Nehad.

The panel held that there were several genuine disputes of
material fact regarding plaintiffs’ Fourth Amendment claim.
At a broad level, the panel held that a triable issue remained
regarding the reasonableness of the police officer’s use of
deadly force. More specifically, there were genuine disputes
about: (1) the officer’s credibility; (2) whether Nehad posed
a significant, if any, danger to anyone; (3) whether the
severity of Nehad’s alleged crime warranted the use of deadly
force; (4) whether the officer gave or Nehad resisted any
commands; (5) the significance of the officer’s failure to
identify himself as a police officer or warn Nehad of the
impending use of force; and (6) the availability of less
intrusive means of subduing Nehad.

The panel further held that disputed factual questions also
precluded a grant of summary judgment on qualified
immunity grounds, as it was well-established at the time of
the shooting that the use of deadly force under the
circumstances in this case, viewed in the light most favorable
to plaintiffs, was objectively unreasonable.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 NEHAD V. BROWDER 3

The panel held that plaintiffs presented sufficient
evidence of police department customs, practices, and
supervisory conduct to support a finding of entity and
supervisory liability. Furthermore, the district court never
afforded plaintiffs an opportunity to be heard before granting
summary judgment on the negligence and wrongful death
claims sua sponte. The panel therefore reversed the grant of
summary judgment in favor of defendants on plaintiffs’
Fourth Amendment and state law claims.

The panel affirmed the grant of summary judgment in
favor of defendants on plaintiffs’ claim for violation of their
Fourteenth Amendment interest in the companionship of their
child. The panel held that the police officer’s use of force,
even if unreasonable, did not evidence a subjective purpose
to harm.

COUNSEL

Daniel S. Miller (argued), Sean G. McKissick, J. Mira
Hashmall, and Louis R. Miller, Miller Barondess LLP, Los
Angeles, California, for Plaintiffs-Appellants.

George Frederick Schaefer (argued), Assistant City Attorney;
Kathy J. Steinman, Deputy City Attorney; Mara W. Elliott,
City Attorney; Office of the City Attorney, San Diego,
California; for Defendants-Appellees.

Scott J. Street, Baute Crochetiere & Hartley LLP, Los
Angeles, California; Brian Hardingham, Public Justice P.C.,
Oakland, California; Adrienna Wong and Peter Bibring,
ACLU Foundation of Southern California, Los Angeles,
California; for Amici Curiae American Civil Liberties Union
4 NEHAD V. BROWDER

of Northern California, American Civil Liberties Union of
Southern California, American Civil Liberties Union of San
Diego & Imperial Counties, and Public Justice.

Lee H. Roistacher, Daley & Heft LLP, Solana Beach,
California, for Amici Curiae California State Association of
Counties, League of California Cities, and International
Municipal Lawyers Association.

OPINION

PREGERSON, District Judge:

On April 30, 2015, Officer Neal Browder of the San
Diego Police Department responded to a 911 call about a man
making threats with a knife. Browder arrived at the scene,
where he encountered Fridoon Nehad walking at a steady
pace in Browder’s direction. The subsequent series of events,
which is in dispute, culminated in Browder exiting his vehicle
and, less than five seconds later, fatally shooting Nehad.

Appellants brought Fourth Amendment, Fourteenth
Amendment, and state law claims against Browder, San
Diego Chief of Police Shelley Zimmerman, and the City of
San Diego. The district court granted summary judgment to
Appellees on all claims.

We have jurisdiction under 28 U.S.C. § 1291. Reviewing
the district court’s grant of summary judgment de novo, we
affirm with respect to Appellants’ Fourteenth Amendment
claim, reverse with respect to all other claims, and remand.
 NEHAD V. BROWDER 5

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after midnight on April 30, 2015, Andrew Yoon
encountered Fridoon Nehad outside the bookstore where
Yoon worked. Nehad showed Yoon an unsheathed knife and
said that he wanted to hurt people. Nehad was incoherent and
“didn’t seem like he knew what was going on[,]” so Yoon
returned to work inside the store. A few minutes later, Nehad
entered the store without a knife in hand, again said he
wanted to harm people, then left the store via a side door into
an adjoining alley. Yoon called 911 and told the emergency
dispatcher that Nehad had threatened him with a knife.

Around 12:06 a.m., the police dispatcher put out a
“Priority 1” call for a “417 (Threatening w[ith] weapon),” and
indicated that a male in a back lot was threatening people
with a knife.1 San Diego Police Department Officer Neal
Browder volunteered to respond to the call and drove to the
scene in his police cruiser.

Surveillance camera footage shows that Nehad was
walking down the alley behind the bookstore toward the
street before Browder arrived. Browder turned his car from
the street into the alley and turned on his car’s high headlight
beams. Browder did not activate his car’s siren or police
lights. Browder saw two people in a parking lot adjoining the
alley and, soon after turning into the alley from the street, saw
Nehad in the alley. Browder confirmed with dispatch that

1
California Penal Code § 417 provides that anyone who draws or
exhibits a deadly weapon, other than a firearm, “in a rude, angry, or
threatening manner” is guilty of a misdemeanor. Cal. Pen. Code
§ 417(a)(1).
6 NEHAD V. BROWDER

Nehad matched the description of the person brandishing a
knife.

Once in the alley, Browder brought his vehicle to a halt
and opened the driver’s side door. Nehad continued to walk
down the alley toward Browder and the street. Browder’s
vehicle advanced a short distance with the driver’s door open
before again coming to a stop. Nehad continued to walk
toward Browder at a steady pace. Browder did not hear
Nehad say anything, and did not see Nehad change his pace
or make any sudden movements. Approximately twenty-
eight seconds after pulling into the alley and eighteen seconds
after opening his car door, Browder exited his vehicle.
Browder did not activate his body camera.

Eyewitness accounts of what happened next differ. One
witness, Andre Nelson, testified that Nehad was stumbling
forward at a “drunken pace” in a nonagressive manner, “like
he wasn’t all there,” while “fiddling with something in his
midsection.” Nelson could not recall Browder audibly
identifying himself as a police officer, giving any type of
warning, or saying anything at all. Nelson did recall Browder
extending his left hand in a “stop” motion. No such motion
is clearly visible on the surveillance video. Another witness,
Albert Gallindo, testified that he heard Browder say, “Stop,
drop it” two or three times.2 Yoon, who was still on the
phone with the emergency dispatcher when Browder arrived,
recalled hearing Browder say “Stop, drop it” one time, no
more than a “couple seconds” after Browder got out of the
police car. Browder did not recall identifying himself or

2
Gallindo also testified that Browder said, “Throw it down. Throw
it down.” It is unclear, however, whether Gallindo meant that Browder
gave that command in addition to or as a variant of, “Stop, drop it.”
 NEHAD V. BROWDER 7

saying anything to Nehad. Video surveillance shows Nehad
slowed down a few moments after Browder exited his
vehicle, although it is unclear whether Browder perceived or
could have perceived Nehad’s change of pace.

Less than five seconds after exiting his vehicle, Browder
fired a single shot at Nehad, fatally striking him in the chest.
Nehad was approximately seventeen feet away at the time
Browder shot him.

A few hours later, after police investigators arrived at the
scene, they asked Browder whether he saw any weapons and
where in the alley they might be. Browder told the
investigators that he had not seen any weapons. Browder’s
attorney would not allow investigators to ask Browder any
more questions that night. The investigators did not find any
weapons in the alley, and determined that Nehad had been
carrying a metallic blue pen when Browder shot him.3

On May 5, five days after the shooting, Browder and his
attorney met with homicide investigators at a police station.
Police officials provided Browder and his attorney with
surveillance video of the shooting, which Browder and his
attorney reviewed in a police lieutenant’s office for
approximately twenty minutes before an interview
commenced. During the interview, Browder stated that he
first saw Nehad when Nehad was twenty-five to thirty feet
from Browder’s car and that Nehad was “aggressing” the car
and “walking at a fast pace . . . right towards [the] car.”
Browder also stated, for the first time, that he had thought
Nehad was carrying a knife, and that he had fired on Nehad
because he thought Nehad was going to stab him.

3
Investigators did find a knife sheath in the alley.
8 NEHAD V. BROWDER

Appellants, Nehad’s parents and estate, filed suit against
Browder, the City of San Diego, and San Diego Chief of
Police Shelley Zimmerman (collectively, “Appellees”). In
the operative Second Amended Complaint (“SAC”),
Appellants allege 42 U.S.C. § 1983 claims for Fourth and
Fourteenth Amendment violations and Monell and
supervisory liability, two civil rights claims under state
statutes, and common law claims for assault and battery,
negligence, and wrongful death. Appellees filed a motion for
summary judgment on seven of the nine claims, excluding the
SAC’s common law claims for negligence and wrongful
death.

The district court granted Appellees’ motion. The court
granted summary judgment on Appellants’ Fourth
Amendment claim because, according to the district court,
Browder’s use of force was objectively reasonable. The court
granted summary judgment on Nehad’s parents’ Fourteenth
Amendment claim because there was no evidence that
Browder acted with a purpose to harm unrelated to legitimate
law enforcement objectives. The court further concluded that
Browder was entitled to qualified immunity because there
was no clear precedent establishing that Browder’s use of
deadly force would be considered excessive. The court also,
in light of its determination that no constitutional violation
had occurred, dismissed the Monell and supervisory liability
claims against all Appellees. Lastly, the court concluded that,
because Browder’s use of force was objectively reasonable,
Appellees were entitled to summary judgment on “all” state
law claims.

Appellants now appeal the district court’s grant of
summary judgment.
 NEHAD V. BROWDER 9

STANDARD OF REVIEW

We review de novo a grant of summary judgment to
determine whether “a rational trier of fact might resolve the
issue in favor of the nonmoving party.” Blankenhorn v. City
of Orange, 485 F.3d 463, 470 (9th Cir. 2007). In so doing,
we view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party’s favor.
Id. We also review de novo a district court’s grant of
summary judgment on qualified immunity grounds. Id.

ANALYSIS

A. Whether a Jury Could Conclude that Browder’s Use of
Force Was Unreasonable

In Fourth Amendment excessive force cases, we examine
whether police officers’ actions are objectively reasonable
given the totality of the circumstances. Byrd v. Phoenix
Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018); Bryan v.
MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). Our analysis
must balance the nature of the intrusion upon an individual’s
rights against the countervailing government interests at
stake, without regard for the officers’ underlying intent or
motivations. Graham v. Connor, 490 U.S. 386, 396–97
(1989). Whether a use of force was reasonable will depend
on the facts of the particular case, including, but not limited
to, whether the suspect posed an immediate threat to anyone,
whether the suspect resisted or attempted to evade arrest, and
the severity of the crime at issue. Id. at 396. Only
information known to the officer at the time the conduct
occurred is relevant. Cty. of Los Angeles v. Mendez, 137 S.
Ct. 1539, 1546–47 (2017); Glenn v. Washington Cty.,
673 F.3d 864, 873 n.8 (9th Cir. 2011).
10 NEHAD V. BROWDER

1. Whether Nehad Posed a Danger

The most important Graham factor is whether the suspect
posed an immediate threat to anyone’s safety. Mattos v.
Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The
use of deadly force is only reasonable if a suspect “poses a
significant threat of death or serious physical injury to the
officer or others.” Gonzalez v. City of Anaheim, 747 F.3d
789, 793 (9th Cir. 2014) (emphasis added) (internal quotation
omitted).

Here, there is a genuine dispute as to whether Nehad
posed a significant threat to Browder’s safety.4 To be sure,
there is some evidence in the record that Nehad did pose a
threat to Browder. Browder stated that he thought Nehad had
a knife, and two witnesses heard Browder say some variant
of, “Stop, drop it.” Browder further testified that Nehad was
“aggressing” Browder’s vehicle, and that Browder thought
Nehad was going to stab him. The question on summary
judgment, however, is not whether some version of the facts
supports Appellees’ position, but rather whether a trier of
fact, viewing the evidence in the light most favorable to
Appellants, could find in Appellants’ favor. Blankenhorn,
485 F.3d at 470. We therefore proceed by viewing the
evidence in the record through that lens.

4
Although two bystanders were present in a parking lot adjoining the
alley, Browder testified that he did not believe that anyone else was under
threat of immediate bodily harm when he shot Nehad, and there is no
evidence that either bystander was or felt threatened.
 NEHAD V. BROWDER 11

a. Browder’s Credibility

As an initial matter, “summary judgment is not
appropriate in § 1983 deadly force cases that turn on the
officer’s credibility that is genuinely in doubt.” Newmaker v.
City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Here,
approximately three hours after the shooting, Browder told
homicide investigators that he did not see any weapons, and
made no mention of feeling threatened by Nehad. Five days
later, however, after consulting with his attorney and
reviewing surveillance footage inside a police station,
Browder claimed that he thought Nehad had a knife, that
Nehad was “aggressing” the car, and that he thought Nehad
was going to stab him. These possible inconsistencies, along
with video, eyewitness, and expert evidence that belies
Browder’s claim that Nehad was “aggressing,” are sufficient
to give rise to genuine doubts about Browder’s credibility.

b. The Reasonableness of Browder’s Beliefs

Appellees, relying upon an out of context quotation from
Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010),
suggest that when examining the immediacy of the threat a
suspect posed, the “critical inquiry is what the officer
perceived.” Appellees are mistaken. Where, as here, “an
officer’s particular use of force is based on a mistake of fact,
we ask whether a reasonable officer would have or should
have accurately perceived that fact.” See Torres v. City of
Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).5 “[W]hether

5
Wilkinson is not to the contrary. There, the question was whether a
reasonable officer could have believed fellow officers were in danger
where a suspect driver had failed to yield to police sirens or commands
and was accelerating his vehicle in a muddy yard near two disoriented
12 NEHAD V. BROWDER

the mistake was an honest one is not the concern, only
whether it was a reasonable one.” Id. at 1127.

In that regard, Appellees assert that it was not
unreasonable for Browder to mistake a pen for a knife
because Browder knew that someone matching Nehad’s
description had been reported as carrying a knife and there is
evidence that Nehad was “fiddling with something” as he
walked down the alley.6 A reasonable trier of fact could,
however, conclude that Browder’s mistake was not
reasonable. Appellants’ police practices expert opined that
officers are trained to recognize what suspects are carrying
and to distinguish pens from knives, and that Browder had
“very sufficient time to determine that it was not a knife in
Nehad’s hand and, in fact was a pen . . . .” Furthermore, one
of the homicide investigators testified that the lighting in the
alley was sufficient to enable an observer to identify the color
blue in the pen, even taking into account the distance between

police officers. Wilkinson, 610 F.3d at 551. We explained that whether
one of the disoriented officers was, in actuality, out of the suspect’s
vehicle’s trajectory was less important than the shooting officer’s
reasonable perception, uncontradicted by any evidence and supported by
bystander testimony, that his fellow officer had been run over and was in
danger of being hit again. Id. We did not suggest, in Wilkinson or
elsewhere, that the objective reasonableness of an officer’s response is
dependent upon that officer’s subjective perceptions.
6
Simmie Barber, a bouncer at a nearby club, told detectives that he
had heard from Yoon that Nehad had a knife. Nehad showed Barber the
shiny, polished, silver tip of what Barber understood to be a knife. Nehad
did not threaten Barber in any way, and Barber was not worried.
Although none of this information was known to Browder, Barber’s
testimony could support a finding of reasonable mistake, to the extent a
factfinder could conclude that Nehad actually showed Barber the metallic
tip of a pen and that Barber, too, mistook it for a knife.
 NEHAD V. BROWDER 13

Browder and Nehad. Whether Browder reasonably mistook
the pen for a knife is therefore a triable question of fact.

c. Whether, Even if Armed, Nehad Posed a Threat

Even if it were established that Browder reasonably
believed Nehad was carrying a knife, or even if Nehad had
actually been carrying a knife, Browder’s use of lethal force
was not necessarily reasonable as a matter of law. That a
person is armed does not end the reasonableness inquiry.
Glenn, 673 F.3d at 872; see also Hayes v. County of San
Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (“[T]he mere fact
that a suspect possesses a weapon does not justify deadly
force.”) (alteration in original). Indeed, we have often denied
summary judgment in excessive force cases to police officers
who use force against armed individuals. See, e.g., N.E.M. v.
City of Salinas, 761 F. App’x. 698, 699–700 (9th Cir. 2019)
(affirming denial of summary judgment to officers who shot
garden shear-wielding suspect when he turned toward officers
less than nine feet away, after having swung shears at
officers); S.B. v. Cty. of San Diego, 864 F.3d 1010, 1014 (9th
Cir. 2017) (finding triable issue where decedent was armed
with a knife); Hayes, 736 F.3d at 1233–34 (same); Glenn,
673 F.3d at 878–79 (finding triable issue where police used
beanbag rounds on knife-wielding subject prior to using lethal
force); cf. Estate of Lopez v. Gelhaus, 871 F.3d 998, 1017
(9th Cir. 2017) (denying summary judgment where decedent
was holding toy AK-47 rifle).

Here, an eyewitness testified that Nehad “wasn’t
aggressive in nature” and “didn’t make any offensive
motions.” Browder himself testified that Nehad did not say
anything, make any sudden movements, or move the
supposed knife in any way. Browder further testified that he
14 NEHAD V. BROWDER

did not believe anyone else was under threat of immediate
bodily harm when he shot Nehad. When Browder fired on
Nehad, Nehad was seventeen feet away from Browder and
walking at what Appellees’ own expert described as a
“relatively slow pace.” Appellants’ expert, Roger Clark,
explicitly opined that Nehad “was actually not a lethal threat”
to Browder. Under these facts, even if Browder had
reasonably perceived Nehad as holding a knife, a reasonable
factfinder could conclude that Nehad did not pose a danger to
anyone.

d. Browder’s Role in Creating the Danger

Appellees make much of the (asserted) fact that Browder
had less than five seconds between the time he exited his
vehicle and the moment he shot Nehad. We recognize, as we
have often done before, that officers must act “without the
benefit of 20/20 hindsight,” and must often 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.” Gonzalez, 747 F.3d
at 794 (quoting Graham, 490 U.S. at 396–97); see also
Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001).
Sometimes, however, officers themselves may “unnecessarily
creat[e] [their] own sense of urgency.” Torres, 648 F.3d at
1127; see also Porter v. Osborn, 546 F.3d 1131, 1141 (9th
Cir. 2008) (“When an officer creates the very emergency he
then resorts to deadly force to resolve, he is not simply
responding to a preexisting situation.”).7 Reasonable triers of
fact can, taking the totality of the circumstances into account,

7
Although Porter involved a Fourteenth Amendment claim, we
looked to “analogous jurisprudence” involving Fourth Amendment
excessive force claims. Porter, 546 F.3d at 1141.
 NEHAD V. BROWDER 15

conclude that an officer’s poor judgment or lack of
preparedness caused him or her to act unreasonably, “with
undue haste.” Torres, 648 F.3d at 1126.

Here, evidence in the record could support such a
determination. As described above, Nehad was walking
down the alley at a relatively slow pace without saying
anything or threatening anyone. The lighting was sufficient
to allow an observer to identify the color of a pen at a
distance of seventeen feet, yet Browder, responding to a call
about a man brandishing a knife, drove his car several car
lengths into the alley, opened his door, then drove further
toward Nehad before exiting his vehicle.8 Although Browder
himself testified that it is important that police officers
identify themselves because people may respond differently
once they know they are interacting with a police officer, it is
undisputed that Browder never identified himself as a police
officer or warned Nehad that he was going to shoot. Two
witnesses, including Browder himself, could not recall
Browder giving any verbal command or saying anything at
all. Video surveillance shows that as Nehad continued to
walk toward Browder, Browder stepped out sideways from
the protection of his vehicle door, closed the door, and, less
than two seconds later, fired.

Appellants’ expert emphasized that Browder had “a lot of
time” to determine what to do before shooting Nehad, but
“squandered all the opportunities tactically.” Appellants’
expert further elaborated, “It is not a five second decision[,]”

8
Nelson, who was facing away from Nehad until approximately ten
seconds prior to the shooting, was able to see Nehad “fiddling with
something in his midsection” from his position five to ten feet behind
Browder.
16 NEHAD V. BROWDER

and, “[Browder] had all the time he wanted to take . . . .”9
Given such evidence, a reasonable factfinder could conclude
that any sense of urgency was of Browder’s own making.

2. The Severity of the Crime at Issue

Also relevant to the reasonableness inquiry is the severity
of the crime at issue. Graham, 490 U.S. at 396. We have
applied this factor in two slightly different ways. In Miller v.
Clark County, 340 F.3d 959 (9th Cir. 2003), for example, we
emphasized the government’s interest in apprehending
criminals, and particularly felons, as a factor “strongly”
favoring the use of force. Miller, 340 F.3d at 964. Under our
logic in Miller, a particular use of force would be more
reasonable, all other things being equal, when applied against
a felony suspect than when applied against a person suspected
of only a misdemeanor. Here, police dispatch records suggest
that Browder was assigned a “Priority 1” call regarding a
“417 (Threatening w[ith] weapon)” offense. Because
brandishing a knife in violation of California Penal Code
§ 417 is only a misdemeanor, a strict application of Miller’s

9
Appellees make several references to the “21-foot rule that a suspect
can close a 21-foot distance before an officer can react.” Although a
suspect’s distance from an officer is undoubtedly a relevant factor in a
reasonableness analysis, there is evidence in the record calling into
question the applicability of the “21-foot rule” here. As Appellees’ expert,
Geoffrey T. Desmoulin, acknowledged, Browder had more time than
average to react because, although the average time for an officer to
remove his gun, aim, and shoot is 1.5 seconds, Browder had already
unholstered his weapon, and took only 0.83 seconds to raise his weapon,
aim, and fire. Furthermore, even if the “rule” were applicable, that fact
would have to be balanced against Browder’s potential role in creating the
urgent circumstances that made the rule applicable. Torres, 648 F.3d at
1127.
 NEHAD V. BROWDER 17

reasoning would provide little, if any, basis for a use of
deadly force.

Perhaps recognizing this (notwithstanding their citation to
Miller), Appellees argue that the police dispatcher’s decision
to characterize Yoon’s 911 call as a “417” misdemeanor
should not be dispositive because Nehad’s reported conduct
“posed a serious threat” and could have been characterized as
felonious. This argument reflects the second way in which
we have sometimes applied the severity of the crime factor.
Although the danger a suspect posed is a separate Graham
consideration, courts, including this one, have used the
severity of the crime at issue as a proxy for the danger a
suspect poses at the time force is applied. See, e.g., Lowry v.
City of San Diego, 858 F.3d 1248, 1257 (9th Cir. 2017)
(holding, where officer reasonably concluded that a burglary
might be in progress, severity-of-crime factor weighed in
favor of use of force because burglary is “dangerous” and
“can end in confrontation leading to violence”), cert. denied
sub nom. Lowry v. City of San Diego, Cal., 138 S. Ct. 1283
(2018); Smith v. City of Hemet, 394 F.3d 689, 702–03 (9th
Cir. 2005) (en banc) (holding, where suspect had physically
assaulted his wife but was standing alone on his porch when
officers arrived,“the nature of the crime at issue provid[ed]
little, if any, basis” for the use of force); Conatser v. City of
N. Las Vegas, No. 206CV01236PMPLRL, 2009 WL
10679150, at *6 (D. Nev. Nov. 9, 2009) (finding severity of
the crime “very low” where no crime was in progress when
police arrived, even though suspect might have threatened his
mother before police arrived).

This severity-of-crime as proxy-for-danger approach,
however, does little to support Appellees’ arguments here.
Even if Nehad had made felonious threats or committed a
18 NEHAD V. BROWDER

serious crime prior to Browder’s arrival, he was indisputably
not engaged in any such conduct when Browder arrived, let
alone when Browder fired his weapon. A jury could,
therefore, conclude that the severity of Nehad’s crimes,
whether characterized as a misdemeanor or an already
completed felony, did not render Browder’s use of deadly
force reasonable. See Harris v. Roderick, 126 F.3d 1189,
1203 (9th Cir. 1997) (“[T]he fact that [the suspect] had
committed a violent crime in the immediate past is an
important factor but it is not, without more, a justification for
killing him on sight.”).10

3. Whether Nehad Was Resisting or Seeking to Evade
Arrest

In analyzing whether a use of force was reasonable, we
also look to whether the suspect was resisting arrest.
Graham, 490 U.S. at 396. Here, video of the incident clearly
shows that Nehad made no attempt to flee from Browder.
Appellees argue, nevertheless, that Nehad resisted by failing
to obey Browder’s command to, “Stop, drop it.” As
discussed above, although two witnesses heard Browder give
a command a few seconds before firing, neither Nelson nor
Browder himself had any such recollection. Thus, whether
Nehad resisted arrest by ignoring Browder’s command is, at
best, a disputed issue of fact.

10
We applied this principle in Harris notwithstanding the fact that the
suspect had fired upon, and possibly killed, a federal agent—a crime far
more serious than Nehad’s suspected offense. See Harris, 126 F.3d
at 1193.
 NEHAD V. BROWDER 19

4. Other Factors

Other factors, in addition to the three Graham factors,
may be pertinent in deciding whether a use of force was
reasonable under the totality of the circumstances. Smith,
394 F.3d at 701; see also Franklin v. Foxworth, 31 F.3d 873,
876 (9th Cir. 1994). Here, we consider whether Browder
provided Nehad appropriate warnings and whether less
intrusive alternatives to deadly force were available.

a. Failures to Warn

i. Failure to Order to Halt

In some cases, the absence of a warning or order to halt
prior to deploying forceful measures against a suspect may
suggest that the use of force was unreasonable. Deorle v.
Rutherford, 272 F.3d at 1283–84. In Deorle, for example, we
determined that “[s]hooting a person who is making a
disturbance because he walks in the direction of an officer at
a steady gait with a can or bottle in his hand is clearly not
objectively reasonable” where “the officer neither orders the
individual to stop nor drop the can or bottle . . . .” Id. at 1284
(finding use of beanbag round unreasonable). We recognize,
of course, that it may not always be feasible for an officer to
warn a suspect prior to deploying force. Here, however, as
discussed above, there is evidence that, like the suspect in
Deorle, Nehad was walking toward Browder at a slow, steady
pace, with no indication of violent intent. And here, as in
Deorle, there is evidence that Browder never ordered Nehad
to halt or to drop whatever he was carrying. Such facts could
support a conclusion that Browder’s decision to shoot Nehad
was unreasonable.
20 NEHAD V. BROWDER

ii. Failure to Warn that Failure to Comply
Would Result in the Use of Deadly Force

Whether an officer warned a suspect that failure to
comply with the officer’s commands would result in the use
of force is another relevant factor in an excessive force
analysis. Deorle, 272 F.3d at 1284. The seemingly obvious
principle that police should, if possible, give warnings prior
to using force is not novel, and is well known to law
enforcement officers. Indeed, it was already common police
practice to warn recalcitrant suspects of imminent forceful
measures when we decided Deorle nearly two decades ago.
Id. (“Appropriate warnings comport with actual police
practice. Our cases demonstrate that officers provide
warnings, where feasible, even when the force used is less
than deadly.”); see also Glenn, 673 F.3d at 864 (holding that
an officer’s use of a beanbag round without an appropriate
prior warning weighed against reasonableness, even though
officers had earlier warned the suspect that they would use
lethal force and the shooting officer did yell “beanbag,
beanbag” before firing).11 A prior warning is all the more
important where, as here, the use of lethal force is
contemplated. Even assuming Browder did command Nehad
to “Stop, drop it,” there is no dispute that Browder never
warned Nehad that a failure to comply would result in the use
of force, let alone deadly force.12 A jury could consider

11
Although Appellees assert that Browder did not have time to give
a warning, whether a warning was feasible here is also a triable issue.
12
A suspect’s refusal to comply with police commands despite
warnings of serious or deadly consequences, could, of course, weigh in
favor of the use of force, either as an “other” factor or as an indication of
the threat posed by the suspect. Conversely, a jury could view a suspect’s
behavior, including failure to comply with police commands, as innocuous
 NEHAD V. BROWDER 21

Browder’s failure to provide such a warning as evidence of
objective unreasonableness.

iii. Failure to Identify as a Police Officer

Although not specifically discussed by the parties, we
have also considered as relevant a police officer’s failure to
identify himself or herself as such. See, e.g., McKenzie v.
Lamb, 738 F.2d 1005, 1010–11 (9th Cir. 1984); see also, e.g.,
Vlasak v. Las Vegas Metro. Police Dep’t, 213 F. App’x 512,
514 (9th Cir. 2006) (unpublished disposition); Bluestein v.
Groover, 940 F.2d 667, 1991 WL 136179, at *2 (9th Cir.
1991) (unpublished disposition); Kiles v. City of N. Las
Vegas, No. 2:03CV01246 KJDPAL, 2006 WL 1967469,
at *2, 4 (D. Nev. July 12, 2006), aff’d, 276 F. App’x 620 (9th
Cir. 2008). Here, Browder acknowledged he was trained to
identify himself as a police officer and that it is important to
do so, particularly before using force. However, it is
undisputed that Browder never verbally identified himself as
a police officer or activated his police lights or siren. A jury
could consider those failures in assessing Nehad’s response
to Browder and in determining whether Browder’s use of
force was reasonable.

b. Failure to Use Less Intrusive Alternatives

Another relevant factor is “the availability of alternative
methods of capturing or subduing a suspect.” Smith,
394 F.3d at 703 (citing Chew v. Gates, 27 F.3d 1432, 1441
n.5 (9th Cir. 1994)). Police need not employ the least
intrusive means available; they need only act within the range

where an officer gave no indication of any possible, let alone deadly,
consequences.
22 NEHAD V. BROWDER

of reasonable conduct. Glenn, 673 F.3d at 876 (citing Scott
v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). “However,
‘police are required to consider [w]hat other tactics if any
were available,’ and if there were ‘clear, reasonable and less
intrusive alternatives’ to the force employed, that ‘militate
against finding [the] use of force reasonable.’” Id.
(alterations in original) (quoting Bryan v. MacPherson,
630 F.3d 805, 831 (9th Cir. 2010)) (internal quotation marks
omitted).

Here, Browder carried a taser, mace, and a collapsible
baton in addition to his firearm. Appellants’ expert described
these less-lethal alternatives as “obvious,” and it is
undisputed that, at the time of the shooting, Nehad was within
the taser’s effective range. However, Browder admitted he
never considered any of the available alternatives. Although
Appellees contend the alternatives were not practical for
various reasons, that is a question of fact best resolved by a
jury. See id. at 877 (questions of fact precluded summary
judgment where plaintiff’s expert testified that taser, rather
than beanbag round, was the “‘ideal less-lethal option to
temporarily disable the decedent, at approximately 15 feet
away’”).

5. Conclusion

Viewing the evidence in the light most favorable to
Appellants, we conclude that a rational trier of fact could find
that Browder’s use of deadly force was objectively
unreasonable.
 NEHAD V. BROWDER 23

B. Fourteenth Amendment

Nehad’s parents also assert a claim for violation of their
Fourteenth Amendment interest in the companionship of their
child. Police action sufficiently shocks the conscience, and
therefore violates substantive due process, if it is taken with
either “(1) deliberate indifference or (2) a purpose to harm[,]
unrelated to legitimate law enforcement objectives.” A.D. v.
California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013)
(internal quotation marks omitted). Here, Appellants argue
Browder’s shooting satisfies the purpose to harm standard
because Nehad assertedly posed no danger to Browder or
anyone else.13

“The purpose to harm standard is a subjective standard of
culpability.” Id. It is well established that a use of force
intended to “teach a suspect a lesson” or “get even” meets
this standard. Id. at 1141. For example, in A.D., we affirmed
the denial of the defendant officer’s motion for judgment as
a matter of law in light of evidence that the decedent posed no
danger to anyone and repeatedly insulted the officer before
the officer shot her twelve times, even though no other officer
opened fire and a supervisor had ordered the officer to stop.
A.D., 712 F.3d at 451. We have also reversed a grant of
summary judgment where a police officer, who had
reasonably fired eighteen shots at a suspect who had just
stabbed another officer, walked in a circle around the suspect
and then took a running start before stomping on the suspect’s

13
“The lower ‘deliberate indifference’ standard applies to
circumstances where actual deliberation is practical.” A.D., 712 F.3d
at 453 (internal quotation marks omitted). Although Appellants suggest
in a brief footnote that the deliberate indifference standard “may apply,”
we limit our analysis to the argument Appellants actually raise.
24 NEHAD V. BROWDER

head three times. Zion v. County of Orange, 874 F.3d 1072,
1077 (9th Cir. 2017).

The circumstances here are distinguishable from those in
A.D. and the like. While those cases, like this case, did
involve some evidence that a suspect posed no danger, they
also involved some additional element suggesting an
improper motive on the part of the shooting officer. Here,
there is no evidence that Browder fired on Nehad for any
purpose other than self-defense, notwithstanding the evidence
that the use of force was unreasonable.

Although “[o]bjective reasonableness is one means of
assessing whether” conduct meets the “shocks the
conscience” standard, an unreasonable use of force does not
necessarily constitute a Fourteenth Amendment substantive
due process violation. Brittain v. Hansen, 451 F.3d 982, 991
n.1 (9th Cir. 2006) (citing Moreland v. Las Vegas
Metropolitan Police Dep’t, 159 F.3d 365, 371 n.4 (9th Cir.
1998) (“[I]t may be possible for an officer’s conduct to be
objectively unreasonable yet still not infringe the more
demanding standard that governs substantive due process
claims.”)). In Gonzalez, for example, we reversed a grant of
summary judgment in officers’ favor on a Fourth Amendment
excessive force claim, but nevertheless affirmed the grant of
summary judgment on a Fourteenth Amendment claim
because “plaintiffs produced no evidence that the officers had
any ulterior motives for using force . . . .” 747 F.3d at
797–98; see also Hayes, 736 F.3d at 1231.

We acknowledge that some district courts have indeed
denied summary judgment on Fourteenth Amendment claims
in the absence of evidence of bad intent separate and apart
from evidence of an objectively unreasonable use of force.
 NEHAD V. BROWDER 25

See, e.g., F.C., III v. Cty. of Los Angeles, No. CV 10-169
CAS (RZX), 2011 WL 13127347, at *4 (C.D. Cal. Sept. 13,
2011); Ramirez v. Cty. of San Diego, No. 06 CV 1111JM
(JMA), 2009 WL 1010898, at *6–7 (S.D. Cal. Apr. 15, 2009).
The circumstances of those cases, however, are easily
distinguished from those presented here. In FC, III, for
example, there was evidence that two officers shot a fleeing
suspect in the back. 2011 WL 13127347, at *2. In Ramirez,
there was evidence that an officer shot a fleeing robbery
suspect twice in the leg and then, while the suspect was on
the ground and possibly raising his hands in surrender,
reloaded and shot the suspect six more times in the chest.
2009 WL 1010898, at *2.

Thus, although most meritorious purpose to harm claims
will involve evidence of ulterior motive or bad intent separate
and apart from evidence of an unreasonable use of force, we
decline to hold that such evidence is required as a matter of
law. In some cases, a use of force might be so grossly and
unreasonably excessive that it alone could evidence a
subjective purpose to harm. Here, Browder’s use of force,
even if unreasonable, does not present such a case. We
therefore affirm the district court’s grant of summary
judgment on the Fourteenth Amendment claim.

C. Qualified Immunity

A government official’s entitlement to qualified immunity
depends on “(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.”
Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).
Courts may examine either prong first, depending on the
26 NEHAD V. BROWDER

relevant circumstances. Id. Here, the district court granted
Browder qualified immunity on the second prong.

A review of the district court’s order, however, reveals
that the court construed the facts in the light most favorable
to Browder, asserting as established fact not only Browder’s
version of events, but also other facts favorable to Browder,
such as the disputed fact that Browder verbally warned Nehad
to “Stop[,] Drop it.” “[W]hen there are disputed factual
issues that are necessary to a qualified immunity decision,
these issues must first be determined by the jury before the
court can rule on qualified immunity.” Morales v. Fry,
873 F.3d 817, 824 (9th Cir. 2017) (citing commentary to
Ninth Circuit Model Civil Jury Instruction 9.34 (2017)); see
also Espinosa v. City & Cty. of San Francisco, 598 F.3d 528,
532 (9th Cir. 2010). As discussed above, there are numerous
genuine disputes of material fact, which preclude a grant of
summary judgment on qualified immunity.

Appellees argue that even if, under the Appellants’
version of the facts, a constitutional right was violated, that
right was not clearly established at the time of the shooting.
That argument is unconvincing. In determining whether
Browder’s mistake as to what the law requires was
reasonable, and thus whether he is entitled to qualified
immunity under the clearly-established prong, we “assume
[]he correctly perceived all of the relevant facts and ask
whether an officer could have reasonably believed at the time
that the force actually used was lawful under the
circumstances.” Torres, 648 F.3d at 1127 (internal quotation
marks omitted). This analysis must be made “in light of the
specific context of the case, not as a broad general
proposition.” S.B., 864 F.3d at 1015. There need not be a
prior case “directly on point,” so long as there is precedent
 NEHAD V. BROWDER 27

“plac[ing] the statutory or constitutional question beyond
debate.” Id.

Under Appellants’ version of the facts, Browder
responded to a misdemeanor call, pulled his car into a well-lit
alley with his high beam headlights shining into Nehad’s
face, never identified himself as a police officer, gave no
commands or warnings, and then shot Nehad within a matter
of seconds, even though Nehad was unarmed, had not said
anything, was not threatening anyone, and posed little to no
danger to Browder or anyone else. Appellees cannot credibly
argue that the prohibition on the use of deadly force under
these circumstances was not clearly established in 2015.
Torres, 648 F.3d at 1128 (“[F]ew things in our case law are
as clearly established as the principle that an officer may not
‘seize an unarmed, nondangerous suspect by shooting him
dead’ in the absence of ‘probable cause to believe that the []
suspect poses a threat of serious physical harm . . . .’”
(quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985))).
Indeed, nearly twenty years ago, we explained that it was
sufficiently established that a police officer could not
reasonably use a beanbag round on “an unarmed man who:
has committed no serious offense, . . . has been given no
warning of the imminent use of such a significant degree of
force, poses no risk of flight, and presents no objectively
reasonable threat to the safety of the officer or other
individuals.” Deorle, 272 F.3d at 1285.

Although Appellees attempt to distinguish Deorle because
the suspect there was suicidal and officers took several
minutes to observe him before using less than lethal force,
those facts, to the extent they are distinguishing, weigh
against qualified immunity in this case. Here, there is no
evidence that any eyewitness to the shooting considered
28 NEHAD V. BROWDER

Nehad to be a threat. In light of the evidence that Browder
could have taken more time to evaluate the situation,
Browder’s brief observation of Nehad before using lethal
force only makes Browder’s conduct less reasonable.
Browder is therefore not entitled to qualified immunity under
the clearly established prong.

D. Monell and Supervisory Liability

The district court granted summary judgment in favor of
Zimmerman and the City on Appellants’ Monell claim and in
favor of Zimmerman on Appellants’ supervisory liability
claim on the grounds that (1) there was no constitutional
violation, and (2) Appellants presented no evidence that “any
policy or deficient training was a ‘moving force’ behind the
shooting.”14 As discussed above, there are genuine disputes
of material fact regarding the first basis for the district court’s
decision.

The record also belies the district court’s second
conclusion. As an initial matter, Appellants need not show
evidence of a policy or deficient training; evidence of an
informal practice or custom will suffice. See Los Angeles
Cty. v. Humphries, 562 U.S. 29, 30, 36 (2010); Trevino v.
Gates, 99 F.3d 911, 918 (9th Cir. 1996). Appellants

14
A local government is liable for a constitutional violation if its
policies, official decisions, or informal customs cause the violation. See
City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988). “A defendant
may be held liable as a supervisor under [42 U.S.C.] § 1983 if there exists
either (1) his or her personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the supervisor’s wrongful
conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011) (internal quotation marks omitted); see also Larez v.
City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
 NEHAD V. BROWDER 29

submitted evidence that: (1) 75% of the San Diego Police
Department’s officer-involved shootings were avoidable;
(2) the Nehad shooting was approved by the department,
which took no action against Browder; and (3) the department
looks the other way when officers use lethal force. Indeed,
Chief Zimmerman explicitly affirmed that Browder’s
shooting of Nehad “was the right thing to do,” and the
department identified Browder as the victim of the incident
and conducted his interview several days after the shooting,
once Browder had watched the surveillance video with his
lawyer. This evidence is sufficient to create a triable issue at
least as to the existence of an informal practice or policy and,
thus, Monell and supervisory liability.

E. State Law Claims

1. Triable Issues of Fact Preclude Summary Judgment

The district court concluded that because Browder’s use
of force was objectively reasonable, Appellees were entitled
to summary judgment “on all state law claims.” This
included not only Appellants’ state civil rights claims under
California Civil Code §§ 52.1 and 52.3 and Appellants’
assault and battery claim, but also two claims, for negligence
and wrongful death, on which Appellees never sought
summary judgment. As discussed at length above, whether
Browder’s use of force was objectively reasonable is a
disputed issue of fact. We therefore reverse the district
court’s grant of summary judgment on all state law claims.15

15
Appellees also argue, briefly, that Appellants’ state civil rights
claims under California’s Bane Act require threats or intimidation other
than an underlying use of excessive force. We have squarely rejected that
argument, as has the California Court of Appeal. See Reese v. Cty. of
30 NEHAD V. BROWDER

2. Sua Sponte Grant of Summary Judgment on
Negligence and Wrongful Death Claims

Appellees do not dispute that Appellants’ state law claims
for negligence and wrongful death were not the subject of
Appellees’ motion for summary judgment and were not
briefed to the district court. A district court may only grant
summary judgment sua sponte if the losing party has
reasonable notice that the claims are at issue and an
opportunity to be heard. Norse v. City of Santa Cruz,
629 F.3d 966, 971–72 (9th Cir. 2010). Here, Appellants were
not provided with such notice or opportunity. We therefore
reverse the district court’s grant of summary judgment on
Appellants’ negligence and wrongful death claims for that
additional reason.16

CONCLUSION

We conclude that there are several genuine disputes of
material fact regarding Appellants’ Fourth Amendment claim.

Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (discussing Cornell v.
City & Cty. of San Francisco, 17 Cal. App. 5th 766 (2017)). Although
Bane Act claims do require the specific intent to deprive a person of
constitutional rights, such intent can be proven by evidence of
recklessness. Id. at 1045.
16
Appellants raise the additional argument that summary judgment
was improper because state law negligence claims are judged by different
standards than federal constitutional claims. We have observed that state
negligence law is indeed broader than federal Fourth Amendment law.
See Vos v. City of Newport Beach, 892 F.3d 1024, 1037–38 (9th Cir.
2018). Because, however, we reverse the district court’s grant of
summary judgment on Appellants’ state law claims for the reasons
discussed above, we need not and do not reach any question regarding the
potential differences between state law and constitutional claims.
 NEHAD V. BROWDER 31

At a broad level, a triable issue remains regarding the
reasonableness of Browder’s use of deadly force. More
specifically, there are genuine disputes about: (1) Browder’s
credibility; (2) whether Nehad posed a significant, if any,
danger to anyone; (3) whether the severity of Nehad’s alleged
crime warranted the use of deadly force; (4) whether Browder
gave or Nehad resisted any commands; (5) the significance of
Browder’s failure to identify himself as a police officer or
warn Nehad of the impending use of force; and (6) the
availability of less intrusive means of subduing Nehad. These
disputed factual questions also preclude a grant of summary
judgment on qualified immunity grounds, as it was well-
established at the time of the shooting that the use of deadly
force under the circumstances here, viewed in the light most
favorable to Appellants, was objectively unreasonable.
Appellants have also presented sufficient evidence of police
department customs, practices, and supervisory conduct to
support a finding of entity and supervisory liability.
Furthermore, the district court never afforded Appellants an
opportunity to be heard before granting summary judgment
on the negligence and wrongful death claims sua sponte.
We therefore reverse the grant of summary judgment
on Appellants’ Fourth Amendment and state law claims.
We affirm, however, the grant of summary judgment on
Appellants’ Fourteenth Amendment claims.

AFFIRMED IN PART; REVERSED IN PART; and
REMANDED.

Each party to bear its own costs on appeal.