NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSIE LEE JETMORE STODDARD- No. 18-16403
NUNEZ, individually and as the successor-
in-interest of Shawn Joseph Jetmore D.C. No. 4:13-cv-04490-KAW
Stoddard-Nunez,
Plaintiff-Appellant, MEMORANDUM*
v.
CITY OF HAYWARD, a municipal entity;
MANUEL TROCHE, individually and in his
official capacity as a Police Officer for the
City of Hayward,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Kandis A. Westmore, Magistrate Judge, Presiding
Argued and Submitted February 6, 2020
San Francisco, California
Before: PAEZ and BEA, Circuit Judges, and ADELMAN,** District Judge.
Jessie Stoddard-Nunez (“Jessie”) appeals the district court’s grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
summary judgment to defendants City of Hayward and Officer Manuel Troche on
the merits of his excessive force claim under 42 U.S.C. § 1983. The district court
also ruled that even if Officer Troche had used excessive force, he was entitled to
qualified immunity because the law was not clearly established. Because Jessie
could not prevail on his excessive force claim, the district court granted summary
judgment on his wrongful-death claim under California law.1 We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
1. The district court erred in granting summary judgment to defendants on
Jessie’s § 1983 excessive force claim. To determine whether Officer Troche’s use
of force was objectively reasonable, we balance “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386,
396 (1989) (internal quotation marks and citations omitted). The parties do not
dispute that Officer Troche fired nine shots at Shawn or that firing a gun
constitutes deadly force. See Tennessee v. Garner, 471 U.S. 1, 3–5 (1985).
The strength of the government’s interest is measured by reference to three
factors: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an
immediate threat to the safety of the officers or others,” and (3) “whether [the
1
Jessie brings his claim on behalf of his brother, Shawn Stoddard-Nunez
(“Shawn”), as the personal representative of Shawn’s estate.
2
suspect] is actively resisting arrest or attempting to evade arrest by flight.” A.K.H.
ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (internal
quotation marks and citation omitted). This list is “non-exhaustive”; “[c]ourts still
must ‘examine the totality of the circumstances and consider whatever specific
factors may be appropriate in a particular case, whether or not listed in Graham.’”
Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017)
(quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)).
Officer Troche testified that Arthur Pakman’s (“Pakman”) Honda Civic
veered toward him, he opened fired only after he perceived the swerve, and he did
not continue to shoot at the vehicle as it drove away. But there remain genuine
issues of material fact with respect to Officer Troche’s account of the incident,
which inform whether Officer Troche’s use of deadly force against Shawn was
reasonable and whether the car posed an immediate threat to Officer Troche’s or
Russell McLeod’s (“McLeod”) safety. See Fed. R. Civ. P. 56(c).
First, in a video interview taken shortly after the incident, Pakman stated, “I
didn’t drive at [Officer Troche]. I didn’t drive at anybody. I wasn’t trying to run
anybody over.” Pakman’s video interview included more than “undisclosed
motivations,” Ans. Br. 19; he directly stated he did not drive toward Officer
Troche.
Second, the coroner’s report states that “[McLeod] had been sitting in the
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passenger seat with the door open and sustained minor injuries. TROCHE
continued to fire his handgun at the car as it went past him.” Firing the gun “as
[the car] went past him” is inconsistent with Officer Troche’s statement that he
fired at the vehicle only as it approached him.
Third, and critically, the coroner noted that the fatal bullet entered Shawn’s
right shoulder and passed through the left side of his neck, and photographs of the
front and rear passenger doors of the Honda Civic show bullet holes in the side and
rear of the car. The district court disregarded the photographs because “absent an
expert report, there is no information as to what conclusions a jury could draw
from [the photographs].” But expert evidence is not needed to assist a trier of fact
in drawing an obvious inference. See Salem v. U.S. Lines Co., 370 U.S. 31, 35
(1962). A reasonable trier of fact could examine the photographs and conclude
that Officer Troche fired his gun from the side and rear of Pakman’s car. One of
the photographs shows a bullet hole passing directly into the passenger door and
another shows a bullet pointing toward the front of the car, lodged into the frame
of the passenger door. Drawing all reasonable inferences in Jessie’s favor, a jury
could conclude that at least one of the photographs depicts bullet holes inconsistent
with Officer Troche’s account that he fired his gun at only the front of the car.
Resolution of these outstanding material factual issues is essential for
determining the reasonableness of Officer Troche’s use of deadly force, and must
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be resolved by a trier of fact. We do not decide whether any of the evidence
submitted by Jessie would be admissible at trial; at the summary-judgment stage,
“we do not focus on the admissibility of the evidence’s form. We instead focus on
the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003).
We vacate the district court’s grant of the defendants’ summary-judgment
motion on Jessie’s excessive-force claim under 42 U.S.C. § 1983 and remand for
further proceedings.
2. The district court erred when it determined that Officer Troche was
entitled to qualified immunity on Jessie’s excessive-force claim. To determine
whether a police officer is entitled to qualified immunity, we consider whether (1)
the defendant’s conduct violated a constitutional right, and (2) that constitutional
right was clearly established at the time of the alleged violation. Saucier v. Katz,
533 U.S. 194, 201 (1994), overruled on other grounds by Pearson v. Callahan, 555
U.S. 223, 236–42 (2009). The “clearly established law should not be defined at a
high level of generality”; it must be “particularized” to the facts of the case. White
v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks and citations
omitted). The district court granted qualified immunity to Officer Troche because
Jessie failed to demonstrate that Officer Troche violated a clearly established
constitutional right.
5
It is well established that deadly force may be used only if it is necessary to
prevent the escape of a suspect and “the officer has probable cause to believe that
the suspect poses a significant threat of death or serious physical injury to the
officer or others.” Garner, 471 U.S. at 3. In Acosta v. City and County of San
Francisco, 83 F.3d 1143 (9th Cir. 1996), we held that an officer’s use of deadly
force violated the Fourth Amendment in circumstances similar to those present
here. The defendant-officer was standing in front of the suspect’s car “closer to the
side than dead-center,” id. at 1146, and the car was “moving or rolling very slowly
from a standstill” as it approached him. Id. at 1147. We stated that the car was
moving sufficiently slowly that the officer could have just stepped to the side,
making his use of deadly force unreasonable. Id. at 1146. We recently affirmed
Acosta’s holding, emphasizing that “an officer lacks an objectively reasonable
basis for believing that his own safety is at risk when firing into the side or rear of
a vehicle moving away from him.” Orn v. City of Tacoma, 949 F.3d 1167, 1178
(9th Cir. 2020).
As long as Jessie’s version of events is not “‘blatantly contradicted by the
record, so that no reasonable jury could believe it,’ we must assume that a jury
could find [Jessie’s] account of what happened credible.” Id. at 1171 (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007)). Under Jessie’s version of the
encounter, Pakman did not drive toward Officer Troche; Officer Troche shot into
6
the side or rear of the Civic, as it drove away from the lot and from him; and the
Civic posed no threat to officer safety and, at best, a minimal threat to the public.
Officer Troche stated at various points in his deposition there were virtually no
other individuals in the vicinity or on the roads that evening: there was “very
limited traffic on the road at that time,” and “pretty much nobody out” on the
roads, because it was 3:00 AM. “All I remember,” he stated, is “the two of us.”
There were no indications that Pakman or Shawn were armed.
At the time of the incident, it was clearly established that officers are not
entitled to qualified immunity for shooting at an individual in a fleeing vehicle that
does not pose a danger to them or to the public. Acosta, 83 F.3d at 1146; see also
Adams v. Speers, 473 F.3d 989, 992–93 (9th Cir. 2007); Garner, 47 U.S. at 3.
Therefore, Officer Troche is not entitled to qualified immunity under Jessie’s
version of events, and we reverse the district court’s grant of qualified immunity.
3. The district court erred by granting summary judgment on Jessie’s state
law wrongful death claim. Jessie argues that the district court erred by grouping
his wrongful-death claim with the dismissal of his state-law assault and battery
claims.2 The district court dismissed the three claims together, citing to an
unpublished Northern District of California case, which states: “the California
2
To the extent Jessie argues that the district court erred in granting summary
judgment in favor of defendants on his state-law battery and assault claims, Jessie
has waived that argument by failing to raise it in the opening brief.
7
Court of Appeal has held that a determination that an officer’s use of deadly force
is objectively reasonable under § 1983 precludes negligence, assault, and battery
claims.” Watkins v. City of San Jose, No. 15-cv-5786, 2017 WL 1739159, at *20
(N.D. Cal. May 4, 2017). In making this statement, the court relied upon two
decisions by the California Court of Appeal, one from 2004 and the other from
2009.
But, as Jessie correctly notes, the California Supreme Court has since
clarified that similar language in other cases “can be misunderstood,” and stated
that “state negligence law . . . is broader than federal Fourth Amendment law,
which tends to focus more narrowly on the moment when deadly force is used.”
Hayes v. Cty. of San Diego, 305 P.3d 252, 263 (Cal. 2013). California state
negligence law “considers the totality of the circumstances surrounding any use of
deadly force”; “the state and federal standards are not the same.” Id.
Because the district court applied an outdated standard, we vacate the district
court’s grant of summary judgment to the defendants on Jessie’s state wrongful-
death claim and remand for further proceedings.
REVERSED and REMANDED.
8