NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA HERNANDEZ, individually and No. 18-56127
as a successor in interest to Steven Schiltz,
deceased, D.C. No.
8:17-cv-01257-AG-KES
Plaintiff-Appellant,
v. MEMORANDUM*
CITY OF HUNTINGTON BEACH; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and SILVER,** District
Judge.
Steven Schiltz’s mother (“Plaintiff”) brought a lawsuit against Huntington
Beach police officers Trevor Jackson and Casey Thomas (“Defendants”) alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
that their fatal shooting of Schiltz violated federal and state law. The district court
granted summary judgment for Defendants on all claims. We affirm in part and
reverse in part.
1. Summary judgment was appropriate on Plaintiff’s Fourth Amendment
excessive force claim. Schiltz was bloody, and was wielding a sharp stick1 and
haphazardly moving at people on the soccer field, including children. His actions
were frightening enough that parents were attempting to stop Schiltz with branches
and a goal post. Schiltz was holding the sharp stick while he was on the soccer
field and after he climbed the bleachers near a mother and her son, and was still
holding it at the time of the shooting. Even assuming the stick was sharp and that
Schiltz’s conduct on the field had caused fright, a jury could find that Defendants
violated the Fourth Amendment by shooting Schiltz when, viewing the evidence in
the light most favorable to Plaintiff, Schiltz was sitting or kneeling and was too far
away from bystanders and Defendants to immediately hurt them with the stick he
was brandishing. See S.B. v. County of San Diego, 864 F.3d 1010, 1014 (9th Cir.
2017) (holding a jury could find a deputy used excessive force when the deputy
shot a man who was kneeling several feet away from another deputy as soon as the
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Jackson testified that Schiltz appeared to be holding a sharp stick. Because
Plaintiff has failed to present any specific evidence to the contrary or raise real
doubts about Jackson’s credibility, we treat it as uncontested that the stick was
sharp. Although Defendants’ counsel stated at oral argument that he believes
pictures of the stick were taken, none of these pictures are in the record.
2
man grabbed a knife from his back pocket).
But at the time of the shooting, it was not clearly established that Defendants
violated the Constitution by shooting Schiltz when he was holding a sharp stick in
a threatening manner2 several feet away from bystanders. Defendants shot Schiltz
after he had disobeyed Jackson’s orders, and had moved toward people on the
soccer field while bloody, creating a situation that eyewitnesses later described as
frightening, especially in light of the fact that children were present. Our decision
in S.B., which was issued after the shooting in this case occurred, concluded that it
was not clearly established that conduct similar to Defendants’ violated the Fourth
Amendment. See 864 F.3d at 1015-17. Without any other case that could have put
Defendants on notice that their use of force was excessive, we follow S.B. and hold
that Defendants are entitled to qualified immunity.
2. The district court did not err in granting summary judgment on Plaintiff’s
Fourteenth Amendment familial association claim. Because Defendants made
“snap judgment[s] . . . [in] an escalating situation,” Plaintiff can only prevail on her
Fourteenth Amendment claim by showing that Defendants “act[ed] with a purpose
2
The eyewitness whose testimony is most favorable to Plaintiff testified
that, before the first round of shots, Schiltz was holding the stick in a “threatening
manner.” With respect to the second round of shots, the only specific testimony
about Schiltz’s handling of the stick is from Defendants. The testimony most
favorable to Plaintiff is that Schiltz was holding the stick such that it appeared he
might strike bystanders.
3
to harm unrelated to legitimate law enforcement objectives.” Wilkinson v. Torres,
610 F.3d 546, 554 (9th Cir. 2010). There are cases where “a use of force might be
so grossly and unreasonably excessive that it alone could evidence a subjective
purpose to harm.” S.R. Nehad v. Browder, 929 F.3d 1125, 1140 (9th Cir. 2019).
But Defendants’ shooting of Schiltz, who frightened onlookers during an incident
in which he brandished a sharp stick with bystanders nearby, does not rise to that
level, and there is no other evidence here of a subjective purpose to harm. See
Zion v. County of Orange, 874 F.3d 1072, 1076-77 (9th Cir. 2017) (holding that an
officer did not violate the Fourteenth Amendment when he shot an apparently
injured person who was lying on the ground and was “making no threatening
gestures”).
3. The district court erred in granting summary judgment on Plaintiff’s
California law battery and negligence claims. The parties agree that Plaintiff’s
battery claim rises and falls with the question whether Defendants used excessive
force in violation of the Fourth Amendment. See Vos v. City of Newport Beach,
892 F.3d 1024, 1038 (9th Cir. 2018); Ting v. United States, 927 F.2d 1504, 1510-
11, 1514 (9th Cir. 1991). And we have explained that “negligence claims under
California law encompass a broader spectrum of conduct than excessive force
claims under the Fourth Amendment.” Mulligan v. Nichols, 835 F.3d 983, 991
(9th Cir. 2016). Because a jury could find that Defendants violated the Fourth
4
Amendment in shooting Schiltz, a jury could also find Defendants liable for battery
and negligence.
4. Summary judgment was appropriate on Plaintiff’s claim alleging a
violation of California’s Bane Act. To prevail on her Bane Act claim, Plaintiff
must show that Defendants had a “specific intent to violate” the Fourth
Amendment. Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)
(quoting Cornell v. City and County of San Francisco, 225 Cal. Rptr. 3d 356, 384
(Ct. App. 2017)). Defendants’ shooting of Schiltz when he was brandishing a
sharp stick with bystanders nearby does not evince such intent.
AFFIRMED in part, REVERSED in part, and REMANDED. The parties
shall bear their own costs on appeal.
5
FILED
DEC 24 2019
Hernandez v. City of Huntington Beach, No. 18-56127
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Schroeder, Circuit Judge, dissenting in part:
I respectfully dissent from my colleagues’ decision affirming the district
court’s grant of qualified immunity to the officers on the federal claims. The law
has been clearly established for decades that deadly force is justified only when an
individual poses “an immediate threat to the safety of the officers or others.”
Graham v. Connor, 490 U.S. 386, 396 (1989). It is equally well established that
force is not justified when there is no such threat, see, e.g., Price v. Sery, 513 F.3d
962, 971 (9th Cir. 2008), where we said: “Our case law requires that a reasonable
officer under the circumstances believe herself or others to face a threat of serious
physical harm before using deadly force.” These principles are undisputed.
The pertinent facts are clear. There was no deadly weapon. Cf. S.B. v.
County of San Diego, 864 F.3d 1010 (9th Cir. 2017) (knives). Schiltz was armed
at most with a pointed stick, and was at least five feet from any bystander. The
most that can be said is that the decedent frightened bystanders. His conduct did
not rise to the level of an immediate threat. The officers, in my view, should not
be granted immunity on the theory that we do not yet have a decision saying the
obvious.
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