FILED
NOT FOR PUBLICATION
OCT 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER PHELPS, Personal No. 20-35179
Representative For the Estate of Bodhi
Phelps, D.C. No. 3:18-cv-00854-IM
Plaintiff-Appellee,
MEMORANDUM*
v.
KEVIN CARLSON; GAVIN SASSER,
Defendants-Appellants,
and
CITY OF GRESHAM, by and through the
Gresham Police Department,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Argued and Submitted October 26, 2020
Portland, Oregon
Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants Kevin Carlson and Gavin Sasser ("Defendants"), who are police
officers in Gresham, Oregon, timely appeal the denial of summary judgment on the
ground of qualified immunity in Plaintiff Christopher Phelps’s lawsuit brought
under 42 U.S.C. § 1983, which stems from Defendants’ fatal shooting of Bodhi
Phelps ("Phelps"), Plaintiff’s son. Reviewing the district court’s determination of
official immunity de novo and viewing the facts in the light most favorable to
Plaintiff, Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th Cir. 2019) (per curiam),
we reverse.
1. To the extent that Defendants ask us to decide "whether or not the
evidence in the pretrial record was sufficient to show a genuine issue of fact for
trial," we lack jurisdiction. Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir.
2018) (per curiam) (quoting Johnson v. Jones, 515 U.S. 304, 307 (1995)). But
Defendants also ask us to decide, after resolving all factual disputes in Plaintiff’s
favor, whether they violated clearly established law. On that second, and
dispositive, issue, our jurisdiction is beyond challenge. Plumhoff v. Rickard, 572
U.S. 765, 773 (2014).
2. Even if a reasonable jury could conclude that Defendants fired too
quickly and, thereby, used lethal force unjustifiably, no clearly established law
gave Defendants notice that what they did violated Phelps’s Fourth Amendment
2
right against excessive force. On May 24, 2016, the date of the shooting, clearly
established law did not put every reasonable officer on notice that it was
unreasonable to shoot a suspect fleeing from a violent crime after that suspect
stopped at a dark dead end and then displayed a "shiny object" in his hand, even if
that object turned out to be a cell phone.1 See S.B. v. Cnty. of San Diego, 864 F.3d
1010, 1015 (9th Cir. 2017) (holding that, although the law "do[es] not require a
case directly on point, . . . existing precedent must have placed the statutory or
constitutional question beyond debate" (quoting Mullenix v. Luna, 577 U.S. 7, 11
(2015) (per curiam))). The only cases that Plaintiff cites—Tennessee v. Garner,
471 U.S. 1, 3–4 (1985), in which police shot and killed an unarmed, fleeing
burglary suspect to prevent his escape, and Graham v. Connor, 490 U.S. 386, 389
(1989), in which police used physical force on a diabetic in need of sugar after
mistaking him for a drunken man—involved facts quite different from those here.
See S.B., 864 F.3d at 1015 (holding that Garner and Graham do not create clearly
1
Because of this case’s procedural posture, we cannot "simply accept"
Defendants’ testimony that Phelps moved toward Carlson and raised at least one
knife. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). We also must view in
the light most favorable to Plaintiff witnesses’ testimony that they either saw
Phelps with a different knife that night or heard Defendants say "drop the knife"
before or after the shooting. Tuuamalemalo, 946 F.3d at 476.
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established law "outside an obvious case" (quoting White v. Pauly, 137 S. Ct. 548,
552 (2017))).
Moreover, Plaintiff presented at summary judgment only argument and
speculation, rather than material that could be "presented in a form that would be
admissible in evidence," Fed. R. Civ. P. 56(c)(2), to undermine the official ballistic
and autopsy reports. Even within the confines of our constrained review, that is
insufficient. See Foster, 908 F.3d at 1217–18 (holding that a "bare allegation
alone, without any evidence in the record," cannot support a denial of summary
judgment on the ground of qualified immunity).
We hold that Defendants are entitled to qualified immunity and, therefore, to
a judgment in their favor.
REVERSED AND REMANDED.
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