FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF ANDY LOPEZ, by and No. 16-15175
through successors in interest,
Rodrigo Lopez and Sujay Cruz; D.C. No.
RODRIGO LOPEZ; SUJAY CRUZ, 4:13-cv-05124-
Plaintiffs-Appellees, PJH
v.
OPINION
ERICK GELHAUS; COUNTY OF
SONOMA,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Filed September 22, 2017
Before: J. CLIFFORD WALLACE, RICHARD R.
CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Wallace
2 ESTATE OF LOPEZ V. GELHAUS
SUMMARY *
Civil Rights
The panel affirmed the district court’s order denying
defendants’ motion for summary judgment on the defense of
qualified immunity in an action brought pursuant to 42
U.S.C. § 1983 alleging that Sonoma County Sheriff’s
Deputy Erik Gelhaus deployed excessive force when he
fatally shot thirteen-year-old Andy Lopez.
Gelhaus shot Andy after witnessing Andy walking down
the street with an object that looked like an AK-47 rifle.
Andy did not comply with Gelhaus’s directive to “drop the
gun.” The object turned out to be a plastic gun designed to
replicate an AK-47, with the bright orange tip removed.
The panel held that viewing the facts in the light most
favorable to plaintiffs, as the panel was required to do at this
stage of the proceedings, Gelhaus deployed deadly force
while Andy was standing on the sidewalk holding a gun that
was pointed down at the ground. Gelhaus also shot Andy
without having warned Andy that such force would be used,
and without observing any aggressive behavior. Pursuant to
Graham v. Connor, 490 U.S. 386 (1989), a reasonable jury
could find that Gelhaus’s use of deadly force was not
objectively reasonable.
The panel further held that taking the facts as it was
required to do on interlocutory appeal, Andy did not pose an
immediate threat to law enforcement officials and therefore
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ESTATE OF LOPEZ V. GELHAUS 3
the law was clearly established at the time of the shooting
that Gelhaus’s conduct was unconstitutional. The panel
held that ultimately, Gelhaus’s entitlement to qualified
immunity depended on disputed facts that needed to be
resolved by a jury, and the panel therefore remanded the case
for trial.
Dissenting, Judge Wallace stated that at the time of the
shooting, legal precedent did not clearly establish that the
use of deadly force under the circumstances was objectively
unreasonable.
COUNSEL
Noah G. Blechman (argued) and James V. Fitzgerald III,
McNamara Ney Beatty Slattery Borges & Ambacher LLP,
Walnut Creek, California; Jesse F. Ruiz, Robinson & Wood
Inc., San Jose, California; for Defendants-Appellants.
Gerald P. Peters (argued), Law Office of Gerald Philip
Peters, Thousand Oaks, California, for Plaintiffs-Appellees.
4 ESTATE OF LOPEZ V. GELHAUS
OPINION
M. SMITH, Circuit Judge:
Sonoma County and Sheriff’s Deputy Erick Gelhaus
appeal from an order denying their motion for summary
judgment on the defense of qualified immunity in an action
alleging that Gelhaus deployed excessive force when he
fatally shot thirteen-year-old Andy Lopez in October 2013.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Jose Licea Drives by Andy Lopez Prior to the
Shooting
On October 22, 2013, at approximately 3:15 p.m., Jose
Licea, a civilian with no connection to any of the parties to
this litigation, was driving northbound on Moorland Avenue
in Santa Rosa, California. He noticed a person later
identified as Andy Lopez 1 walking on the sidewalk a few
hundred feet in front of him. Licea couldn’t tell Andy’s age,
“but by the height, [Licea] was figuring it was a kid.” 2
When Licea got within approximately 150 feet of Andy,
he saw that Andy was holding an object that looked like an
1
We refer to the decedent, Andy Lopez, as “Andy” to be consistent
with the district court’s order. We refer to the plaintiffs-appellees—
Andy’s Estate and Andy’s parents, Rodrigo Lopez and Sujay Cruz—
collectively as “plaintiffs.” We refer to the defendants-appellants, Erick
Gelhaus and Sonoma County, collectively as “defendants” or, at times,
simply as “Gelhaus.”
2
Another witness estimated that Andy was “11 or 12 years old,” and
described him as “the little guy,” “no more than five feet.”
ESTATE OF LOPEZ V. GELHAUS 5
AK-47. The gun was in Andy’s left hand, the barrel was
pointed at the ground, and Licea “could see it just swinging.”
Licea thought this was odd: “at that time in the afternoon,
you know, someone walking around with an AK-47, to me,
just – I couldn’t see somebody doing that.” Indeed, at “th[at]
time of the day,” he said, “someone is not going to be
carrying a real rifle.”
When Licea got within approximately fifty feet of Andy,
he slowed down to look at the gun. When he saw it, he
thought “it look[ed] fake.” He suspected it was a BB gun
because his mother-in-law had seen some children with them
in the area several weeks earlier. Licea did not fear for his
life or call the police; he continued on his way.
B. Deputies Gelhaus and Schemmel See Andy
At the same time, Sonoma County Sheriff’s Deputies
Erick Gelhaus and Michael Schemmel were on routine patrol
in a marked police car driving northbound on Moorland
Avenue. Gelhaus was training Schemmel because
Schemmel had just transferred to Sonoma from a nearby
police department. Gelhaus was aware that they were
patrolling a part of the county known for gang activity and
violent crime. Still, he had not worked in the area in the last
few years, it was the middle of the day, and there was no
activity on the police radio.
With Schemmel at the wheel and Gelhaus in the
passenger seat, the officers approached a stop sign at West
Robles Drive. That is when Gelhaus noticed Andy walking
in a direction away from the officers along the west sidewalk
on Moorland Avenue. Andy was “[w]alking at a normal
speed” and, according to Gelhaus, his motions did not appear
aggressive. Andy was not “trying to get away from us,”
Gelhaus recounts, “he was just walking away from us.”
6 ESTATE OF LOPEZ V. GELHAUS
Gelhaus could not determine Andy’s age—Andy was
about 100 feet away and was wearing a hooded sweatshirt.
To Gelhaus, Andy nonetheless appeared to be “[s]omebody
in their mid to late teens,” and did not appear to be a gang
member.
Gelhaus noticed Andy’s gun, which he believed to be an
AK-47. Gelhaus believed this in part because he had
previously confiscated an AK-47 within one mile of Andy’s
location. That said, he had never seen a person walk down
the street in broad daylight carrying an AK-47. Moreover,
he had also confiscated what turned out to be toy guns on
three prior occasions while on patrol. During the most recent
of those occasions, Gelhaus responded to a call involving
subjects with rifles in a park. He used his loudspeaker from
a distance of 100 yards to direct the individuals to put down
their guns. The suspects complied, and the incident was
resolved without charges.
Gelhaus saw Andy holding the gun in his left hand, “by
the pistol grip, down at his side,” with the muzzle pointed
towards the ground. Schemmel reported he saw Andy
holding the gun in his right hand, and Schemmel’s
subsequent declaration does not specify in which hand the
gun was held. As Andy was walking, “the weapon would
swing somewhat,” but Gelhaus could not see if Andy’s
finger was on the trigger. Once Gelhaus noticed Andy’s gun,
he quickly alerted Schemmel, then called in a “Code 20,”
which is used to request that all available units report
immediately on an emergency basis.
C. The Incident
As Schemmel trained his attention on Andy, he drove
past the stop sign and crossed the intersection with West
Robles Drive. Simultaneously, he flipped on the emergency
ESTATE OF LOPEZ V. GELHAUS 7
lights and “chirped” the patrol car’s siren. Schemmel
believes he saw Andy “briefly glance backwards” over his
right shoulder at this point. Gelhaus did not see Andy make
any such turn, nor does he recall ever hearing the patrol car’s
“chirp.”
Once Schemmel cleared the intersection, he veered into
the southbound lane and stopped at a forty-five degree angle
with the west sidewalk. As the car was slowing down,
Gelhaus removed his seatbelt, drew his pistol, and opened
the passenger side door. The deputies were parked
approximately forty feet behind Andy at this point. Once
stopped, Gelhaus situated himself at the V of his open door,
and knelt on the ground.
Now outside, Gelhaus aimed his pistol at Andy and
yelled loudly at least one time, “Drop the gun!” Andy had
been walking this whole time, so he was about sixty-five feet
from the officers when Gelhaus shouted. Andy did not drop
the gun; he paused a few seconds and began to rotate his
body clockwise. Gelhaus then “saw the gun come around”
as Andy’s torso turned. The parties dispute what happened
next.
According to Gelhaus’s declaration, “[w]ith the weapon
still in [Andy’s] left hand swinging around and toward [the
officers], and with the barrel of the weapon coming up,”
Gelhaus fired eight shots in rapid succession, seven of which
hit Andy. In his videotaped deposition, however, Gelhaus
stated that Andy “didn’t turn towards me when I shot him.” 3
Gelhaus shot Andy in the chest, so Andy was facing the
officers when Gelhaus opened fire. Gelhaus concedes that
he does not know where Andy was pointing the rifle at the
3
Later in the deposition, Gelhaus contradicted this statement.
8 ESTATE OF LOPEZ V. GELHAUS
time that he was shot. Nor does Gelhaus know if Andy’s
gun was ever actually pointed at him.
At his deposition, Gelhaus was asked to reenact how
Andy was holding the gun, “his turning motion,” and “what
you saw him do.” The video depicts the gun in Gelhaus’s
fully-extended arm and at his side as he turns, consistently
pointed straight down towards the ground. 4
The defendants’ experts opined that it was “likely” that
Andy “partially raised” the gun. Plaintiffs’ experts
disagreed. They created three-dimensional models of
Andy’s movements, and in each of the re-creations, Andy’s
gun barrel is pointed down at the ground throughout Andy’s
turn. One expert further insisted that from the physical
evidence alone “[i]t cannot be determined . . . if the [rifle]
was held in the left or right hand . . . or if the [rifle] was
elevated or pointed at the officers prior to the shooting.”
Because Schemmel was the driver, he insists he was
unable to get into position until Gelhaus had already stopped
firing. According to Schemmel’s declaration, “[Andy]
turned to his right with his whole body toward us, and as he
did so, the gun was turning with him and it was raising and
turning toward us.” Asked in his deposition, however, if
4
The video is ambiguous regarding the extent to which Gelhaus was
modeling Andy’s total movements. Gelhaus remarks: “I saw the gun
come around, and I think with the torso with it. . . . It was this.” Then, a
few moments later, he adds, “with the table blocking the path.” In the
video, there appears to have been room to raise the gun, so it is not clear
what path the table was blocking. It could have been the turn of Andy’s
torso, the motion of the gun, or how Andy moved as he was shot or as
he fell. Notably, if the weapon rose in a manner that was objectively
threatening, one would think that Gelhaus would be eager to demonstrate
the upward motion. Gelhaus’s reenactment does not do so.
ESTATE OF LOPEZ V. GELHAUS 9
“[a]t any time before [he] heard gunshots, [he saw] [Andy’s]
left hand move,” Schemmel responded, “I don’t recall.”
Andy collapsed after the shots and Deputies Gelhaus and
Schemmel remained crouched behind their car doors. Once
other deputies arrived, Gelhaus and two other officers
approached Andy with their guns pulled. As he was standing
over Andy, Gelhaus realized for the first time that the gun’s
coloring was different from that of a real AK-47. When he
moved the weapon away, he also noticed that Andy’s gun
was much lighter. It turns out that Andy was holding a
plastic gun designed to replicate an AK-47. The toy did not
have an orange tip at the end of the barrel, and defendants’
experts submit that it was not possible for Gelhaus to
visually distinguish Andy’s weapon from a real AK-47 at the
distance involved in this case.
At the time of the shooting, Andy was standing next to
an open field in a residential neighborhood. The site of the
shooting is also close to three schools and the shooting
occurred when school was out of session. There were no
other people present at the shooting. There were a few
individuals outside in the surrounding neighborhood. Andy
had been walking in the general direction of several houses
before Gelhaus shouted, and Gelhaus submits that he did not
want to let Andy get near them.
Gelhaus stated that he was aware at the time of the
shooting that rounds from an assault rifle can penetrate car
doors. Thus, when Gelhaus fired, he did not believe that he
had any cover or protection.
Finally, the total elapsed time from the “chirp” to the
shots was approximately twenty seconds. Andy died on site
from his wounds.
10 ESTATE OF LOPEZ V. GELHAUS
D. Procedural History
Andy’s estate brought suit on November 4, 2013,
asserting, among other things, a claim against Gelhaus
pursuant to 42 U.S.C. § 1983 for a Fourth Amendment
violation. Gelhaus and Sonoma County filed a motion for
summary judgment on the basis of qualified immunity. The
district court denied the motion in relevant part on January
20, 2016. See Estate of Lopez v. Gelhaus, 149 F. Supp. 3d
1154, 1158‒65 (N.D. Cal. 2016).
At the first step of the qualified immunity analysis, the
district court held that a jury could find that Gelhaus acted
unreasonably when viewing the evidence in the light most
favorable to Andy. 5 Id. at 1162. In particular, after
reviewing the relevant evidence, the court held that it could
“conclude only that the rifle barrel was beginning to rise; and
given that it started in a position where it was pointed down
at the ground, it could have been raised to a slightly-higher
level without posing any threat to the officers.” Id. In light
of that finding, the record did not compel the conclusion that
Gelhaus was threatened with imminent harm. The court
distinguished Gelhaus’s authority as involving suspects who
either (1) physically assaulted an officer, (2) pointed a
weapon at officers or others, (3) made a sudden movement
towards what officers believed to be a weapon, or
5
Specifically, the court incorporated its earlier analysis of the
motion for summary judgment on the Fourth Amendment claim. There,
it held that “there remains a triable issue of fact as to whether defendant
Gelhaus’ use of deadly force was reasonable.” By sending it to the jury,
the court necessarily held that, when viewing the evidence in the light
most favorable to Andy, a reasonable jury could find that Gelhaus acted
unreasonably.
ESTATE OF LOPEZ V. GELHAUS 11
(4) exhibited some other threatening, aggressive, or erratic
behavior. Id.
Having concluded that the plaintiffs could show a
constitutional deprivation, the court turned to step two. It
asked “whether the law was clearly established such that an
officer would know that the use of deadly force is
unreasonable where the suspect appears to be carrying an
AK-47,” but where “officers have received no reports of the
suspect using the weapon or expressing an intention to use
the weapon,” “the suspect does not point the weapon at the
officers or otherwise threaten them with it,” “the suspect
does not ‘come at’ the officers or make any sudden
movements towards the officers,” and “there are no reports
of erratic, aggressive, or threatening behavior.” Id. at 1164.
The court said that the law was clearly established that under
those “specific circumstances,” the use of deadly force was
unreasonable. Id. at 1164‒65. The court did not directly
identify a precedent that put Gelhaus on notice that his
conduct was unconstitutional.
Gelhaus filed a timely notice of appeal on February 4,
2016.
STANDARD OF REVIEW
We review summary judgment determinations de novo.
Glenn v. Wash. Cty., 673 F.3d 864, 870 (9th Cir. 2011). We
also review de novo a defendant officer’s entitlement to
qualified immunity. Id.
ANALYSIS
“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
12 ESTATE OF LOPEZ V. GELHAUS
or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments
about open legal questions. When properly applied, it
protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. al‒Kidd, 563 U.S.
731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
Gelhaus insists he is entitled to qualified immunity on
plaintiffs’ Fourth Amendment claim. “In determining
whether an officer is entitled to qualified immunity, we
consider (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.” 6
Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing
Pearson, 555 U.S. at 232). Here, taking the facts as we must
regard them on this interlocutory appeal, a reasonable jury
could conclude that Gelhaus deployed excessive force in
violation of the Fourth Amendment. Additionally, the
alleged violation of Andy’s Fourth Amendment right was
clearly established at the time of Gelhaus’s conduct.
I. Step One—Whether a constitutional right was
violated.
Plaintiffs assert that Gelhaus deployed excessive force in
violation of the Fourth Amendment. This claim is governed
by an “objective reasonableness standard,” which requires a
“[W]e have discretion to decide which prong to address first,” and
6
need not necessarily reach both. C.V. by and through Villegas v. City of
Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016).
ESTATE OF LOPEZ V. GELHAUS 13
“careful balancing of 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, 388, 396 (1989) (internal quotation
marks omitted). The calculus “must embody allowance for
the fact that police officers are often forced to 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.” Id. at 396‒97. We
therefore judge reasonableness “from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396.
The Supreme Court’s decision in Graham identified
several factors to consider when evaluating the strength of
the government’s interest in the force used: (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 suspect] is actively resisting arrest or
attempting to evade arrest by flight.” Id. The “‘most
important’ factor under Graham is whether the suspect
posed an ‘immediate threat to the safety of the officers or
others.’” George v. Morris, 736 F.3d 829, 838 (9th Cir.
2013) (quoting Bryan v. MacPherson, 630 F.3d 805, 826
(9th Cir. 2010)). These factors are non-exhaustive. Bryan,
630 F.3d at 826. Courts 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.” Id. (internal quotation marks omitted). “Other
relevant factors may include the availability of less intrusive
force, whether proper warnings were given, and whether it
should have been apparent to the officer that the subject of
the force used was mentally disturbed.” Hughes v. Kisela,
841 F.3d 1081, 1085 (9th Cir. 2016). “With respect to the
possibility of less intrusive force, officers need not employ
14 ESTATE OF LOPEZ V. GELHAUS
the least intrusive means available[,] so long as they act
within a range of reasonable conduct.” Id.
We have held that “summary judgment should be
granted sparingly in excessive force cases.” Gonzalez v. City
of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc).
“This principle applies with particular force where,” as here,
“the only witness other than the officers was killed during
the encounter.” Id. “In such cases, we must ensure that the
officer is not taking advantage of the fact that the witness
most likely to contradict his story—the person shot dead—
is unable to testify.” Id. (internal quotation marks omitted).
“Accordingly, we carefully examine all the evidence in the
record, such as medical reports, contemporaneous
statements by the officer and the available physical
evidence, . . . to determine whether the officer’s story is
internally consistent and consistent with other known facts.”
Id. (internal quotation marks omitted). “We must also
examine circumstantial evidence that, if believed, would
tend to discredit the police officer’s story.” Id. (internal
quotation marks omitted).
“Although we must view the facts in the light most
favorable to the nonmoving party, when considering
qualified immunity, we are also limited to considering what
facts the officer could have known at the time of the
incident.” Davis v. United States, 854 F.3d 594, 598 (9th
Cir. 2017) (citing White v. Pauly, 137 S. Ct. 548, 550
(2017)). Ultimately, in this interlocutory appeal, we ask
“whether the defendants would be entitled to qualified
immunity as a matter of law, assuming all factual disputes
are resolved, and all reasonable inferences are drawn, in
plaintiff’s favor.” George, 736 F.3d at 836 (internal
quotation marks and alteration omitted).
ESTATE OF LOPEZ V. GELHAUS 15
A. To assess whether a reasonable jury could find a
Fourth Amendment violation, we must first
resolve several factual disputes.
Applying Graham, Andy was not committing a serious
crime or attempting to evade arrest by flight. The first and
third factors thus weigh clearly in Andy’s favor. We
therefore are left with the “most important” factor—whether
Andy posed an “immediate threat to the safety of the officers
or others.” George, 736 F.3d at 838 (internal quotation
marks omitted). To make that determination, we must
resolve a number of genuine factual disputes, considering
the evidence in the light most favorable to the nonmoving
party—here, the plaintiffs.
First, because Schemmel and Gelhaus disagree as to
whether Andy “briefly glance[d] backwards” over his right
shoulder after the patrol car’s “chirp,” we must assume that
Andy did not briefly glance backwards and therefore was
unaware that someone was behind him until Deputy Gelhaus
shouted “drop the gun.” See Saucier v. Katz, 533 U.S. 194,
207 (2001) (“Excessive force claims . . . are evaluated for
objective reasonableness based upon the information the
officer[] had when the conduct occurred.”); Moreno v. Baca,
431 F.3d 633, 642 (9th Cir. 2005) (stating that courts may
consider only the facts that were known to the defendant
officer). This disputed fact is significant because it sheds
light on Andy’s possible motivations in turning to face the
officers. In particular, Andy’s subsequent turn appears less
aggressive because he could have been attempting to see if
he was the object of the call, or could have been turning out
16 ESTATE OF LOPEZ V. GELHAUS
of startled confusion given that he was carrying only a toy
gun. 7
Second, there is a factual dispute regarding the number
of times that Gelhaus shouted. Gelhaus can state definitively
that he yelled only once. If the case goes to trial, the jury
may hear evidence of additional shouts, but for purposes of
this interlocutory appeal, we must assume that there was
only one. As before, the number of commands is relevant to
our consideration of how a reasonable officer would view
Andy’s motivation in turning around. Assuming there was
only one shout, Andy may have been wondering if it was
directed at him, or he could have been processing Gelhaus’s
order in the three seconds before he was shot.
Third, there is a factual dispute regarding whether Andy
held the gun in his right or left hand. Gelhaus says it was the
left, but Schemmel says it was the right. We cannot resolve
this, but the dispute is important. The “swinging around” of
the gun would look vastly different if Andy turned clockwise
with the weapon in his right hand, as opposed to his left. The
dispute is also material to Deputy Gelhaus’s account because
he was looking over Andy’s right shoulder from behind.
Yet, Gelhaus’s testimony is predicated on the gun coming
7
Though Gelhaus does not recall hearing the patrol car’s “chirp,”
the chirp is audible in the recording of the dispatch call. We therefore
may account for the chirp in our analysis. See Scott v. Harris, 550 U.S.
372, 378‒81 (2007). The chirp on the recording lasts for a fraction of a
second. The tone ascends briefly and resembles the “blip” of an
emergency vehicle. Drawing reasonable inferences in favor of the
plaintiffs, the chirp did not put Andy on notice that anyone, much less a
police officer, sought his attention. The chirp was emitted from a vehicle
on the other side of an intersection more than a hundred feet behind
Andy. Even if Andy somehow knew that the chirp was emitted from a
police car, as opposed to some other kind of emergency vehicle, the car
could have been attempting to make a U-turn or another maneuver.
ESTATE OF LOPEZ V. GELHAUS 17
into view as it swung around from the left. At minimum, we
must be mindful that Schemmel’s statement provides an
important basis for a jury to question the credibility and
accuracy of the officers’ accounts. See Cruz v. City of
Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) (“[I]n the
deadly force context, we cannot simply accept what may be
a self-serving account by the police officer.” (internal
quotation marks omitted)).
Fourth, and most importantly, there is a factual dispute
regarding the movement of Andy’s gun. As with all factual
findings, we are bound by the district court’s finding on this
critical issue.
On an interlocutory appeal of a denial of qualified
immunity, our review is limited to “purely legal issues.”
Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir.
1998). “[W]e must take, as given, the facts that the district
court assumed when it denied summary judgment for a
(purely legal) reason.” Id. (internal quotation marks and
alteration omitted). “[W]here the district court does not
explicitly set out the facts that it relied upon, we undertake a
review of the pretrial record only to the extent necessary to
determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed.” Id.
(internal quotation marks omitted).
Here, the district court made few explicit findings, but
this issue was the exception. The court expressly found that
it “can conclude only that the rifle barrel was beginning to
rise; and given that it started in a position where it was
pointed down at the ground, it could have been raised to a
slightly-higher level without posing any threat to the
officers.” Lopez, 149 F. Supp. 3d at 1162. As a practical
matter, this finding makes sense. Neither officer ever stated
how much the barrel “began” to rise as Andy commenced
18 ESTATE OF LOPEZ V. GELHAUS
his turn, despite having the opportunity to do so. 8 Moreover,
one would expect the barrel to rise an inch or so as the
momentum of Andy’s clockwise turn moved his left arm
slightly away from his body. But that incidental movement
alone would not compel a jury to conclude that Gelhaus
faced imminent danger given the starting position of the gun.
Furthermore, this interpretation is bolstered by Gelhaus’s
admission that the weapon would benignly “swing
somewhat” with each step that Andy took. 9 Because we are
obligated to view the evidence in the light most favorable to
Andy, we must assume for purposes of this interlocutory
appeal that, as the district court found, the barrel of the
weapon could incidentally have risen, as part of the natural
turning motion, only “to a slightly-higher level [that did not]
pos[e] any threat to the officers.” Id.; see also id. at 1158
(“[D]efendants have not established that Andy actually
threatened the officers with the rifle that he was holding.”);
id. at 1164 (stating that Andy did not “point the weapon at
the officers or otherwise threaten them with it”).
Of course, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not
8
The district court stressed that the “defendants do not allege that
Andy ever pointed the rifle at either officer or at anyone else.” Lopez,
149 F. Supp. 3d at 1158. Instead, they “use carefully-phrased language
to describe Andy’s actions, saying only that Andy ‘turned and began to
point the AK-47 towards the deputies,’ or that Andy was ‘bringing the
barrel of the AK-47 weapon up and around in their direction,’ or that he
was ‘in the process of pointing [it] at the deputies.’” Id. (emphasis in
original).
9
Gelhaus stated that none of Andy’s motions as he walked—
including the swinging of the gun—appeared aggressive. Licea also
testified that he “could see [the gun] just swinging,” but nonetheless
never feared for his life during the interaction.
ESTATE OF LOPEZ V. GELHAUS 19
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott, 550 U.S. at 380.
Here, however, the district court’s finding is amply
supported by the record. Gelhaus himself reenacted how
Andy was holding the gun, “his turning motion,” and “what
[Gelhaus] saw him do.” The video depicts the gun in
Gelhaus’s fully-extended arm and at his side as he turns,
consistently pointed straight down towards the ground.
Gelhaus also concedes that he does not know where Andy
was pointing the rifle at the time that he was shot. Nor does
Gelhaus know if Andy’s gun was ever actually pointed at
him. Plaintiffs’ experts examined all of the evidence in this
case and created three-dimensional models of Andy’s
posture and positions. In each of the re-creations, Andy’s
gun barrel is pointed down at the ground throughout Andy’s
turn. Measured against this, the defendants’ experts merely
opined that it was “likely” that Andy “partially raised” the
gun. And, because the expert reports contravene each other,
defendants fundamentally rely on Gelhaus’s self-serving
declaration. But again, where there is no surviving witness,
“we carefully examine all the evidence in the record . . . to
determine whether the officer’s story is internally consistent
and consistent with other known facts.” Gonzalez, 747 F.3d
at 795 (internal quotation marks omitted). Bearing that in
mind, the present record furnishes abundant grounds for a
jury to reasonably question Deputy Gelhaus’s credibility and
accuracy:
• Gelhaus’s reenactment in the video contravenes his
statement that he fired “with the barrel of the weapon
coming up.”
• Though Gelhaus submits that Andy had the gun in
his left hand, Schemmel reports that Andy held the
gun in his right hand. Asked in his deposition if “[a]t
20 ESTATE OF LOPEZ V. GELHAUS
any time before [he] heard gunshots, [he saw]
[Andy’s] left hand move,” Schemmel responded, “I
don’t recall.” The swinging of the gun would look
vastly different if Andy turned clockwise with the
gun in his right hand, as opposed to his left.
• Gelhaus’s declaration states that Andy turned
towards him, but in his videotaped deposition he
stated: “[Andy] didn’t turn towards me when I shot
him.”
• Gelhaus expressly concedes that he does not know
where Andy was pointing the rifle at the time that he
was shot. He also concedes that he does not know if
Andy’s gun was ever pointed at him.
• Gelhaus’s declaration states that “[t]here were no
unusual markings or colorings on the weapon which
were visible to me which indicated that the weapon
was anything other than an AK-47.” Licea states,
however, that when he got within approximately fifty
feet of Andy—which is further away than Gelhaus
stood when Gelhaus first confronted Andy—he
thought the gun “look[ed] fake.” 10
10
The dissent would erroneously discredit Licea’s testimony
because, in the dissent’s view, it is based “largely” on “facts and
circumstances unique to him.” The dissent speculates that Gelhaus,
unlike Licea, would not have shared the assumption that the AK-47
might be fake, even though Gelhaus had never seen a person walk down
the street in broad daylight carrying an AK-47 and had confiscated a fake
M-4 style assault rifle on a previous occasion. The dissent additionally
faults Licea for not predicting and explicitly relying on the dissent’s
preferred facts, and ultimately attributes Licea’s view that the gun looked
fake to Licea’s “own idiosyncratic understandings.” The dissent’s
ESTATE OF LOPEZ V. GELHAUS 21
• When speaking to homicide investigators, Gelhaus
originally described Andy as a “man.” He later
conceded that he thought Andy looked to be
“[s]omebody in their mid to late teens.”
In light of the plaintiffs’ evidence, and the
inconsistencies in Gelhaus’s testimony, it is not the case that
the district court’s finding that Andy’s gun posed no threat
to the officers “is so utterly discredited by the record that no
reasonable jury could [believe it].” Scott, 550 U.S. at 380.
The record supports the district court’s conclusion, and
certainly would not compel a jury to conclude to the
contrary. Thus, in this interlocutory appeal, we must accept
the district court’s factual finding that the position of Andy’s
gun barrel never posed any threat to Gelhaus or Schemmel
as Andy turned. See Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (“[C]ourts may not resolve genuine
disputes of fact in favor of the party seeking summary
judgment.”); Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 520 (1991) (“[W]e must draw all justifiable
inferences in favor of the nonmoving party, including
questions of credibility and of the weight to be accorded
particular evidence.”). 11
approach not only fails to “view the evidence in the light most favorable
to the opposing party,” but also oversteps its bounds. Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014) (per curiam). At the summary judgment
stage, “[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not
those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
11
George v. Morris, 736 F.3d 829 (9th Cir. 2013), provides a useful
illustration of these principles. In George, three sheriff’s deputies
responded to a domestic disturbance involving a firearm. Id. at 832.
22 ESTATE OF LOPEZ V. GELHAUS
B. A reasonable jury could find a Fourth
Amendment violation when viewing the facts in
the light most favorable to plaintiffs.
Once again, our task at step one is to decide whether the
facts that plaintiffs have shown make out a constitutional
violation. Pearson, 555 U.S. at 232. Viewing the evidence
in the light most favorable to plaintiffs, a reasonable jury
could come to the following factual conclusions: (1) the
officers came across Andy while on routine patrol, not in
response to a crime or a report of someone acting erratically;
(2) when Deputy Gelhaus saw Andy, he looked like a
teenager, and not like a gang member; (3) Andy was walking
They found the husband standing on a second-floor balcony holding a
gun in his left hand “with the barrel pointing down.” Id. One deputy
insisted that the husband raised and pointed the weapon in his direction,
prompting the deputy to fire. Id. at 833 n.4. Like here, however, the
record “called into question whether [the husband] ever manipulated the
gun, or pointed it directly at [the] deputies.” Id. at 833. Because there
was no surviving witness, the district court “parsed the deputies’
testimony for inconsistencies,” as required by Scott. Id. at 835. It
concluded that “a reasonable jury could disbelieve the officers’
testimony,” and that a jury could “rely on record evidence to conclude
that [the husband] had not ignored commands to drop the gun, or taken
other threatening measures such as pointing the weapon at [the]
deputies.” Id. (internal quotation marks omitted).
The deputies filed an interlocutory appeal of the district court’s
order. We acknowledged that when an individual points a gun in an
officer’s direction, “the Constitution undoubtedly entitles the officer to
respond with deadly force.” Id. at 838. We also acknowledged that “[i]f
the person is armed . . . a furtive movement, harrowing gesture, or
serious verbal threat might create an immediate threat.” Id. But, given
the district court’s analysis, we held that “[o]n this interlocutory appeal
. . . we can neither credit the deputies’ testimony that [the husband]
turned and pointed his gun at them, nor assume that [the husband] took
other actions that would have been objectively threatening.” Id. We are
similarly constrained here.
ESTATE OF LOPEZ V. GELHAUS 23
normally and his motions did not appear aggressive;
(4) Andy was carrying a weapon that looked like an AK-47,
but given Gelhaus’s prior “weapon” confiscations, Gelhaus
knew that there was some possibility that it was a toy gun;
(5) Andy was holding the gun by the pistol grip, down at his
side, with the muzzle pointed towards the ground; (6) Andy
was carrying the weapon in broad daylight in a residential
neighborhood at a time when children of his age reasonably
could be expected to be playing; (7) after parking behind
Andy, Gelhaus shouted “drop the gun” one time, and that
shout was the first moment that Andy became aware that
someone was behind him; (8) within seconds, Andy began
to turn around naturally in a clockwise direction, still holding
the gun; (9) Andy did not know until he turned that the
person who shouted was a police officer, and Gelhaus was
aware of that fact because he had not seen Andy look back
prior to that time; (10) as Andy turned, the weapon turned
with him; (11) the gun barrel might have raised slightly as
Andy turned, but given that it started in a position where
Andy’s arm was fully extended and the gun was pointed
straight down at the ground, the barrel never rose at any point
to a position that posed any threat to either of the officers;
(12) Gelhaus deployed deadly force without knowing if
Andy’s finger was on the trigger, without having identified
himself as a police officer, and without ever having warned
Andy that deadly force would be used; (13) Andy was shot
while standing next to an open field with no other people
around, (14) and Gelhaus knew it was possible to use less
intrusive force given his prior experience at the park.
On these facts, a reasonable jury could conclude that
Andy did not pose an “immediate threat to the safety of the
officers or others,” George, 736 F.3d at 838 (internal
quotation marks omitted), and that Gelhaus’s use of deadly
force therefore was not objectively reasonable. In cases
24 ESTATE OF LOPEZ V. GELHAUS
involving comparable degrees of apparent danger, we have
rejected summary judgment on Fourth Amendment claims.
See id. (denying summary judgment where a suspect held a
gun in his left hand with the barrel pointing down, and did
not point the gun at the officers or engage in threatening
behavior); see also Hughes v. Kisela, 841 F.3d 1081, 1085‒
87 (9th Cir. 2016) (rejecting summary judgment where a
woman was shot as she approached another person while
holding a knife down by her side, but where the woman with
the knife did not make any aggressive or threatening actions
and did not understand what was happening when the
officers yelled for her to drop the knife); Hayes v. Cty. of San
Diego, 736 F.3d 1223, 1233‒34 (9th Cir. 2013) (reversing a
district court’s grant of summary judgment where a victim
approached officers while armed with a knife, but where the
suspect “was not charging them,” “had not been ordered to
stop,” “was given no warning,” and was not witnessed acting
erratically with the weapon); Curnow By and Through
Curnow v. Ridgecrest Police, 952 F.2d 321, 324‒25 (9th Cir.
1991) (rejecting summary judgment where the suspect had a
gun, but where the suspect was not pointing it at the officers,
and was not directly facing the officer who opened fire).
Moreover, Gelhaus indisputably had time to issue a
warning, but never notified Andy that he would be fired
upon if he either turned or failed to drop the gun. See Deorle
v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) (holding
that “warnings should be given, when feasible, if the use of
force may result in serious injury”). Lastly, while it is true
that “[i]f the person is armed . . . a furtive movement,
harrowing gesture, or serious verbal threat might create an
immediate threat,” a reasonable jury could find that Andy
turned naturally and non-aggressively in light of the overall
context. See George, 736 F.3d at 838; see also infra Part B.
ESTATE OF LOPEZ V. GELHAUS 25
Gelhaus counters that the district court misdiagnosed the
immediacy of the threat given its acknowledgment that
Andy’s “rifle barrel was beginning to rise.” But Gelhaus
omits to mention the district court’s finding that a jury
nonetheless could conclude that the gun posed no threat to
the officers and remained pointed at the ground throughout
Andy’s turn. In any event, the cases upon which Gelhaus
relies to establish that his conduct was objectively
reasonable involved threats to officers that were far more
direct and immediate than that posed by Andy.
Gelhaus first cites Cruz. In that case a confidential
informant told the police that Cruz “was a gang member who
sold methamphetamine and carried a gun.” 765 F.3d at
1077. Following the lead, police “determined that Cruz was
a discharged parolee whose prior convictions included a
felony involving a firearm.” Id. Later, the informant told
the police where Cruz was located “and that he was armed
with a nine-millimeter.” Id. at 1077‒78. “The informant
also reported that Cruz was carrying the gun in his waistband
and had made it clear that ‘he was not going back to prison.’”
Id. at 1078. After police surrounded Cruz with their
vehicles, he “attempted to escape, backing his SUV into one
of the marked patrol cars in the process.” Id. Once stopped,
Cruz opened his door and the police “shouted at him to get
on the ground as he was emerging from the vehicle.” Id.
According to the officers, Cruz “ignored their commands
and instead reached for the waistband of his pants.” Id. The
officers opened fire, killing Cruz. Id.
We observed that “[i]t 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.” Id. We nonetheless denied
summary judgment on plaintiff’s excessive force claim
26 ESTATE OF LOPEZ V. GELHAUS
because the only evidence of Cruz’s threatening gesture was
the officers’ self-serving testimony, and because there was
circumstantial evidence that could permit a reasonably jury
to find “that the officers lied.” Id. at 1080.
Here, Gelhaus submits that if reaching for a gun justifies
deadly force, then Andy’s turn while holding a gun justifies
it, too. Andy’s circumstances, however, were not nearly as
threatening as those involving Cruz. What is more, Gelhaus
overlooks that we denied summary judgment in Cruz
because the only evidence of a harrowing gesture was the
officers’ self-serving testimony. See id. The same is true
here—the evidence that the gun began to rise comes almost
exclusively from Gelhaus and Schemmel. The jury might
not believe their testimony given that Gelhaus does not know
where Andy was pointing the rifle and does not know if the
gun was ever actually pointed in his direction.
Next is Mendez v. County of Los Angeles, 815 F.3d 1178
(9th Cir. 2016), vacated and remanded, 137 S. Ct. 1539
(2017). There, we sanctioned the use of deadly force where
two officers barged into a shack and saw a man holding a
gun. Id. at 1185. The deputies testified that the rifle was
“pointed at them,” and the district court found as a fact that
the gun “was pointed at the deputies.” Id. at 1185‒86. Here,
on the facts as we must regard them, a similar circumstance
is not present. 12
12
As in Mendez, plaintiffs additionally contend that Gelhaus is liable
pursuant to the “provocation doctrine” or basic notions of proximate
cause. See 815 F.3d at 1193‒95. However, the Supreme Court recently
rejected the provocation rule. See Cty. of Los Angeles v. Mendez, 137
S. Ct. 1539, 1543‒44 (2017). Plaintiffs’ proximate cause argument fails
because there is no predicate Fourth Amendment violation. See id. at
1548‒49.
ESTATE OF LOPEZ V. GELHAUS 27
In Blanford v. Sacramento County, 406 F.3d 1110 (9th
Cir. 2005), police received reports of a man behaving
erratically while carrying a three-foot Civil War-era cavalry
saber around a residential neighborhood. Id. at 1112. After
finding the man, officers ordered him to drop the sword and
warned him by saying “We’ll shoot,” and the suspect
consciously disobeyed the officers’ orders. Id. at 1112‒13.
Then, after the suspect tried to enter a house, the officers
opened fire, severely injuring the man. Here, there were no
reports of erratic behavior, the officers never warned Andy
that deadly force might be used, Andy never tried to enter a
house, and we cannot presume that Andy consciously
disobeyed an officer’s order.
Lastly, in Anderson v. Russell, 247 F.3d 125 (4th Cir.
2001), officers were informed that a man appeared to have a
gun under his sweater. Id. at 128. After approaching the
suspect, the officers ordered him to raise his hands and get
on his knees. Id. The suspect raised his hands, but then
lowered them suddenly “without explanation to the officers,
in an attempt to reach into his back left pocket to turn off his
Walkman radio.” Id. Perceiving a threat, one of the officers
opened fire. Id.
The Fourth Circuit held that the officer was entitled to
qualified immunity because he “had sound reason to believe
that Anderson was armed,” and therefore “acted reasonably
by firing on Anderson as a protective measure before
directly observing a deadly weapon.” Id. at 131. Here,
unlike in Anderson, we cannot presume that Andy
consciously disobeyed an officer’s order. Moreover, in
contrast to the Fourth Circuit, we have held that mere
possession of a weapon is insufficient to justify the use of
deadly force. See Harris v. Roderick, 126 F.3d 1189, 1204
(9th Cir. 1997). It is also worth noting that a reasonable jury
28 ESTATE OF LOPEZ V. GELHAUS
could conclude that, in contrast to Anderson’s sudden hand
movement, Andy’s simple act of turning was not a
harrowing gesture in light of the overall context. 13 See infra
Part B.
In sum, viewing the facts in the light most favorable to
plaintiffs, as we must at this stage of the proceedings,
Gelhaus deployed deadly force while Andy was standing on
the sidewalk holding a gun that was pointed down at the
ground. Gelhaus also shot Andy without having warned
Andy that such force would be used, and without observing
any aggressive behavior. Pursuant to Graham, a reasonable
jury could find that Gelhaus’s use of deadly force was not
objectively reasonable. Plaintiffs therefore can demonstrate
a constitutional violation assuming, again as we must at this
stage of the proceedings, that factual disputes are resolved
and reasonable inferences are drawn in plaintiffs’ favor. 14
13
Gelhaus presses a number of other easily distinguishable
precedents in addition to those already discussed. See Lal v. California,
746 F.3d 1112, 1114 (9th Cir. 2014) (after high speed chase, suspect
advanced at officers with football sized rock over his head and was shot
after being warned); Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir.
2002) (suspect attacked officer and turned officer’s gun against him),
abrogated in part, Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546
(2017); Reynolds v. Cty. of San Diego, 84 F.3d 1162, 1165 (9th Cir.
1996) (suspect made sudden, upward swing at officer with a knife); Scott
v. Heinrich, 39 F.3d 912, 914 (9th Cir. 1994) (suspect “acting crazy”
pointed gun directly at officers); Garcia v. United States, 826 F.2d 806,
808 (9th Cir. 1987) (suspect violently resisted arrest and approached
officer with rock in upraised arms).
14
Gelhaus raises two additional objections. First, Gelhaus contends
that the district court “erroneously relied more on the outdated and
limited Garner case” than it did on Graham. The court plainly applied
Graham, however, and we have observed in any event that Tennessee v.
Garner, 471 U.S. 1 (1985), provides “guidance” for the excessive force
ESTATE OF LOPEZ V. GELHAUS 29
C. The dissent misconstrues the facts we must
presume for purposes of this interlocutory
appeal.
The dissent proceeds from a different starting point and
consequently ends with a different conclusion. The dissent’s
analysis, however, is flawed because it is premised on a
misreading of the district court’s factual finding regarding
the movement of Andy’s gun.
The dissent first rewrites the district court’s finding. It
declares that Andy was “facing the officer and the gun [wa]s
beginning to rise,” such that Gelhaus was forced to fire his
weapon in a circumstance where Andy’s gun, “while rising,
had not yet risen to a point where it could have shot either
deputy.” In the dissent’s view, Gelhaus was in a duel, and
avoided imminent peril only by firing at Andy just before
inquiry “tailored to the application of deadly force.” George, 736 F.3d
at 837.
Next, Gelhaus insists that whether his use of force was reasonable
is a pure question of law, and that the district court erred in calling it a
triable issue of fact. But Gelhaus’s argument elides two issues. Gelhaus
moved for summary judgment on the Fourth Amendment claim,
prompting the district court to correctly find a triable issue of fact as to
the reasonableness of the force used. Then, Gelhaus “separately
argue[d]” that he is entitled to qualified immunity, prompting the district
court to separately analyze that defense. At step one, the district court
incorporated its earlier analysis of the motion for summary judgment on
the Fourth Amendment claim. Because it found a triable issue of fact as
to reasonableness, the court necessarily held that a reasonable jury could
find that Gelhaus’s conduct was unconstitutional when viewing the
evidence in the light most favorable to plaintiffs. The court therefore
discussed only step two in its separate section on qualified immunity. It
concluded that the law was “clearly established” that Gelhaus’s conduct
was unconstitutional. Thus, the district court made the legal
determination that Gelhaus now requests.
30 ESTATE OF LOPEZ V. GELHAUS
Andy fired at him. The dissent also apparently believes that
the district court not only made this factual finding, but then
made the rather inexplicable decision to ignore this obvious
threat in its qualified immunity analysis. To be sure, if those
were the facts, it would be hard to see how the district court
could have denied summary judgment on the Fourth
Amendment claim and on qualified immunity. But those
were not the facts the district court found.
On the contrary, the imminent threat the dissent portrays
is the precise type of situation the district court distinguished
in the course of making its factual finding. This conclusion
is unmistakable in light of the cases the district court
discussed in its analysis. For instance, it first distinguished
Billington, which it said involved an imminent threat
because “the suspect was ‘locked in hand-to-hand combat’
with a police detective,” was “trying to get the detective’s
gun,” and “was getting the upper hand.” Lopez, 149 F. Supp.
3d at 1158‒59 (quoting Billington, 292 F.3d at 1185). The
court next distinguished Reynolds, where the suspect “made
a sudden, backhanded, upward swing toward [the officer]
with his right hand, which was holding [a] knife.” Id. at 1159
(quoting Reynolds, 84 F.3d at 1164 (first alteration in
original)). Scott came next, where the suspect stood in a
doorway and pointed a gun directly at two police officers.
Id. (citing Scott, 39 F.3d at 914). The district court then
distinguished Garcia, where a suspect drew close to an
officer and brandished a “rock with upraised arms.” Id.
(quoting Garcia, 826 F.2d at 808). Finally, the court
distinguished Lal, where a suspect “kept advancing” at the
officers while “holding a football-sized rock over his head,”
and forced them to fire when he was barely one yard away—
a time when the officers “reasonably believed that [the
suspect] would heave the rock at them.” Id. at 1159‒60
(quoting Lal, 764 F.3d at 1117).
ESTATE OF LOPEZ V. GELHAUS 31
Synthesizing these precedents, the district court said that
in each of these cases, an object was “used to directly
threaten an officer before deadly force was used.” Id. at
1160. By contrast, it found that “Defendants cannot point to
any similarly-threatening behavior on Andy’s part.” Id.
(emphasis added). This finding debunks the dissent’s
version of the shooting. But the district court didn’t stop
there. It expressly added that it was “mindful of the fact that
police officers are often forced to 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,” id. at 1162 (internal
quotation marks omitted), and nevertheless found that
Gelhaus was not entitled to summary judgment because such
a judgment is warranted where a suspect exhibits
“threatening, aggressive, or erratic behavior” and “this case
involves none of those facts,” id. (emphasis added).
The dissent’s misreading of the district court’s finding
is evident for at least two additional reasons. First, the duel
the dissent envisions conflicts with the district court’s
repeated statement that Andy did not “point the weapon at
the officers or otherwise threaten them with it.” Id. at 1164
(emphasis added). Of course, if we cast aside the dissent’s
interpretation and view this statement with the benefit of the
above context, its meaning is clear: Andy did not point his
weapon at the officers—in contrast to the facts of Scott—and
the movement of Andy’s weapon did not pose any imminent
threat to Gelhaus—in contrast to the circumstances in
Billington, Reynolds, Garcia, and Lal.
Second, whereas the dissent revises the district court’s
finding to assert that Andy was “facing the officer and the
gun [wa]s beginning to rise,” the district court distinguished
between the movement of Andy’s gun at the instigation of
32 ESTATE OF LOPEZ V. GELHAUS
the turn and during the remainder of the interaction. The
court stressed how the defendants had used “carefully-
phrased language . . . saying only,” for instance, that the
barrel was coming “up and around in their direction” “as
Andy turned around.” Lopez, 149 F. Supp. 3d at 1158. The
court also knew that Gelhaus had shot Andy in the chest, so
Andy had completed his movement when Gelhaus opened
fire. It then focused directly on the starting position of the
gun, when Andy had his back to the officers, and emphasized
that it was obligated to view the evidence in the light most
favorable to the plaintiffs. “[I]n that light,” the court said it
could “conclude only that the rifle barrel was beginning to
rise; and given that it started in a position where it was
pointed down at the ground, it could have been raised to a
slightly-higher level without posing any threat to the
officers.” Id. at 1162. The dissent strips this finding of the
vital context that the gun began to rise in connection with
Andy’s turn. But with that necessary context, the district
court’s interpretation of the record is apparent: it found that
even if the gun “began” to rise at the start of Andy’s turn
(when it was pointed straight down at the ground), as one’s
arm naturally swings in the course of a turn, it did not
necessarily rise throughout the whole interaction, and could
have been raised only to a “slightly-higher level” that was
non-threatening to Gelhaus. The court’s reading of
Anderson confirms this. In the paragraph immediately
preceding its finding, it distinguished Anderson by stating
that “mere possession of a weapon is not sufficient to justify
the use of deadly force,” and by concluding that, unlike the
suspect in Anderson, Andy was “holding a weapon pointed
down at his side, and merely turned around in response to an
officer’s command.” Id. at 1161‒62.
Taken in the appropriate context, and in consonance with
our duty “to determine what facts the district court, in the
ESTATE OF LOPEZ V. GELHAUS 33
light most favorable to the nonmoving party, likely
assumed,” Watkins, 145 F.3d at 1091, the proper reading is
that the district court could “conclude only that the rifle
barrel was beginning to rise [at the outset of Andy’s turn];
and given that it started in a position where it was pointed
down at the ground [when Andy had his back to the officers],
it could have been raised [by Andy’s natural turning motion]
to a slightly-higher level without posing any threat to the
officers.” Lopez, 149 F. Supp. 3d at 1162. Put differently,
as Andy turned around, the weapon could incidentally have
risen only “to a slightly-higher level [that did not] pos[e] any
threat to the officers.” Id.
This is the best reading of the district court’s factual
finding for several reasons. First, unlike the dissent’s
interpretation, it echoes the district court’s description of the
event. Second, unlike the dissent’s interpretation, it is
congruent with the district court’s analysis explicitly
distinguishing the five aforementioned cases involving
impending threats. Third, unlike the dissent’s interpretation,
it explains the district court’s finding that Andy did not
“point the weapon at the officers or otherwise threaten them
with it.” Id. at 1164 (emphasis added). It also explains the
district court’s conclusion that the “defendants have not
established that Andy actually threatened the officers with
the rifle that he was holding.” Id. at 1158.
Lastly, unlike the dissent’s interpretation, the record
supports this reading for purposes of summary judgment.
Plaintiffs’ adduced evidence, for instance, that included
three-dimensional models of Andy’s movements depicting,
frame-by-frame, how Andy’s fully-extended left arm would
have appeared when he had his back to the deputies, and how
the gun could have been raised only to a “slightly-higher
level” as Andy’s elbow slightly flexed as he naturally turned
34 ESTATE OF LOPEZ V. GELHAUS
around. In addition, there was Gelhaus’s reenactment in the
video, Gelhaus’s admission that the gun had been benignly
swinging (and thus not only rising but also falling) with
Andy’s natural motions, Gelhaus’s admission that he had no
knowledge of where Andy’s gun was pointing when he
elected to shoot, and the fact that neither Gelhaus nor
Schemmel ever stated how much the barrel began to rise as
Andy turned. The dissent’s interpretation relies on the
assumption that Andy’s gun was continuously rising
throughout the interaction, such that it imposed an imminent
threat forcing Gelhaus to shoot just before Andy’s weapon
was pointed directly at him. Under our summary judgment
jurisprudence, however, the district court was required to
assume that all factual disputes would be resolved, and all
reasonable inferences would be drawn, in plaintiffs’ favor.
In light of the plaintiffs’ evidence, the record cannot support
the dissent’s version of the event for purposes of summary
judgment. 15
15
The dissent’s attempt to impugn the plaintiffs’ evidence is
unavailing. Regarding the plaintiffs’ expert report, the dissent posits that
a jury could learn nothing about the movement of Andy’s gun from the
gun’s position at the moment the bullets entered Andy’s body—as if the
gun’s position could meaningfully have changed in the time that it took
the bullets to exit the chamber and travel twenty yards. That does not
make sense. The gun’s position when the bullets struck Andy is
obviously informative of the gun’s likely movement in the prior moment.
In any event, the report depicts the likely movement of Andy’s gun as he
turned to face the officers, and how the gun could have been raised only
to a non-threatening level as Andy’s elbow slightly flexed with his
natural motion. Next, the benign swinging of the gun with Andy’s
natural steps is also informative of the gun’s likely movement because
the plaintiffs’ expert report shows that Andy must have taken multiple
steps as he turned to face the officers. Lastly, the dissent would cast
aside the strong circumstantial evidence that Gelhaus had no knowledge
of where Andy’s gun was pointing when he elected to shoot, and the fact
ESTATE OF LOPEZ V. GELHAUS 35
In sum, the dissent’s accusations are as seismic as they
are unconvincing. Moreover, the dissent’s analysis is flawed
because it rests upon a misreading of the district court’s
factual finding regarding the movement of Andy’s gun. It
bears repeating: even though we must assume for purposes
of this interlocutory appeal that the barrel “began” to rise as
Andy turned, we must also assume—as the district court
expressly found—that it potentially rose, as an incident of
Andy’s turning motion, only “to a slightly-higher level [that
did not] pos[e] any threat to the officers.” Id. at 1162.
Mindful of that possibility, and viewing the evidence in the
light most favorable to the plaintiffs, the district court found
that Andy did not “point the weapon at the officers or
otherwise threaten them with it.” Id. at 1164 (emphasis
added). And that is why, taking the facts as we must regard
them, a reasonable jury could find that Gelhaus deployed
deadly force while Andy was merely standing on the
sidewalk holding a gun that was pointed down at the ground.
This conclusion echoes the district court’s findings, which
govern this interlocutory appeal. By contrast, the dissent’s
version of the event violates a fundamental principle of our
summary judgment jurisprudence—that “all factual disputes
are resolved, and all reasonable inferences are drawn, in
plaintiff’s favor,” George, 736 F.3d at 836—and selectively
accepts Gelhaus’s word at face value with respect to the
movement of Andy’s gun, thereby contravening Cruz. See
765 F.3d at 1079 (“[I]n the deadly force context, we cannot
that neither Gelhaus nor Schemmel ever stated how much the barrel
began to rise as Andy turned. However, where “the only witness other
than the officers was killed during the encounter,” courts have a duty to
“examine circumstantial evidence that, if believed, would tend to
discredit the police officer’s story.” Gonzalez, 747 F.3d at 795. That is
precisely what the district court had here. Therefore, this evidence
properly informed the district court’s summary judgment determination.
36 ESTATE OF LOPEZ V. GELHAUS
simply accept what may be a self-serving account by the
police officer.” (internal quotation marks omitted)).
II. Step Two—Whether the right was clearly
established.
“Under the second prong of the qualified immunity test,
we ask whether the alleged violation of [Andy’s] Fourth
Amendment right against excessive force was clearly
established at the time of the officer’s alleged misconduct.”
C.V. by and through Villegas v. City of Anaheim, 823 F.3d
1252, 1257 (9th Cir. 2016) (internal quotation marks
omitted). If not, Gelhaus is entitled to qualified immunity
on the excessive force claim. “A Government official’s
conduct violates clearly established law when, at the time of
the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’”
Ashcroft, 563 U.S. at 741 (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “We do
not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate.” 16 Id.
In White v. Pauly, 137 S. Ct. 548 (2017), the Supreme
Court recently “reiterate[d] the longstanding principle that
‘clearly established law’ should not be defined ‘at a high
level of generality.’” (quoting Ashcroft, 563 U.S. at 742).
Rather, “the clearly established law must be ‘particularized’
16
“[T]his Court has [also] acknowledged that qualified immunity
may be denied in novel circumstances.” Hughes, 841 F.3d at 1088.
“Otherwise, officers would escape responsibility for the most egregious
forms of conduct simply because there was no case on all fours
prohibiting that particular manifestation of unconstitutional conduct.”
Deorle, 272 F.3d at 1286.
ESTATE OF LOPEZ V. GELHAUS 37
to the facts of the case.” Id. (quoting Anderson, 483 U.S. at
640). “Such specificity is especially important in the Fourth
Amendment context, where the Court has recognized that
‘[i]t is sometimes difficult for an officer to determine how
the relevant legal doctrine, here excessive force, will apply
to the factual situation the officer confronts.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting Saucier, 533 U.S.
at 205).
In accordance with these instructions, the district court
asked whether the law was clearly established such that an
officer on October 22, 2013, would have known that the use
of deadly force was unreasonable “where the suspect appears
to be carrying an AK-47, but where [the] officers have
received no reports of the suspect using the weapon or
expressing an intention to use the weapon, where the suspect
does not point the weapon at the officers or otherwise
threaten them with it, where the suspect does not ‘come at’
the officers or make any sudden movements towards the
officers, and where there are no reports of erratic, aggressive,
or threatening behavior.” Lopez, 149 F. Supp. 3d at 1164.
The district court held that the law was clearly established
that under those circumstances, Gelhaus’s use of deadly
force was unreasonable. Id. It did not identify a specific
precedent that put Gelhaus on notice that his conduct was
unconstitutional.
The district court erred by failing “to identify a case
where an officer acting under similar circumstances as
[Deputy Gelhaus] was held to have violated the Fourth
Amendment.” White, 137 S. Ct. at 552. However, George
38 ESTATE OF LOPEZ V. GELHAUS
v. Morris serves that function. Harris and Curnow were also
on the books to provide Gelhaus with guidance. 17
A. Taking the facts as we must regard them on this
interlocutory appeal, the law was clearly
established at the time of the shooting that
Gelhaus’s conduct was unconstitutional.
In George, the suspect was a sixty-four-year-old male
with terminal brain cancer. 736 F.3d at 832. He awoke in
the middle of the night, retrieved his gun, and loaded it with
ammunition. Id. His wife called 9-1-1 and could be heard
on the recording exclaiming “No!” and “My husband has a
gun!” Id. Three deputies were then “dispatched to the
residence for a domestic disturbance involving a firearm.”
Id. The wife met the deputies at the front door, advised them
“not to scare her husband,” and said that he was on the back
patio “with his gun.” Id. The officers set up a perimeter in
the backyard. Id. Soon after, they saw the husband open the
17
The dissent conjures its own “framing”—“that the use of deadly
force without an objective threat is unreasonable”—and criticizes the use
of that fictitious frame to the extent that it applies here. We employ no
such frame. Nor do we rely on general excessive force principles.
Rather, we ask whether the law was clearly established that the use of
deadly force was unreasonable in a situation where the factual predicates
enumerated in Part I.B are assumed to be true. Somewhat distilled, this
is a situation where, among other things, “the suspect appears to be
carrying an AK-47, but where [the] officers have received no reports of
the suspect using the weapon or expressing an intention to use the
weapon, where the suspect does not point the weapon at the officers or
otherwise threaten them with it, where the suspect does not ‘come at’ the
officers or make any sudden movements towards the officers,” where the
officers do not witness any “erratic, aggressive, or threatening behavior,”
and where the suspect was not warned that deadly force would be
deployed despite the officers having ample opportunity to do so. Lopez,
149 F. Supp. 3d at 1164.
ESTATE OF LOPEZ V. GELHAUS 39
door to the second-floor balcony. Id. “Once he appeared in
view of the deputies,” the officers identified themselves as
law enforcement and instructed the husband to show his
hands. Id. The husband was using a walker and—as
Gelhaus attests Andy was doing here—was holding a gun in
his left hand “with the barrel pointing down.” Id. At this
point, an officer testified that the husband “turn[ed] straight
east and raise[d] [the gun]” and “point[ed] it directly at
[him],” prompting the officer to fire. Id. at 833 n.4.
However, there was reliable evidence to support the
plaintiff’s version of the event, so we did not “credit the
deputies’ testimony that [the husband] turned and pointed his
gun at them.” Id. at 838. We also assumed that the husband
did not take “other actions that would have been objectively
threatening.” Id. On those facts, where the deputies shot the
decedent “without objective provocation while he used his
walker, with his gun trained on the ground,” id. at 839, we
held that “a reasonable fact-finder could conclude that the
deputies’ use of force was constitutionally excessive,” id. at
838.
George mirrors the facts here, and indeed, involved
circumstances that were far more objectively threatening
than those in the present case. In other words, Gelhaus’s
alleged use of deadly force was more objectively
unreasonable than the Fourth Amendment violation
identified in George. For instance, the officers in George
responded to a report of a possible crime. 736 F.3d at 839.
By contrast, Gelhaus discovered Andy while on routine
patrol. He was not responding to a potential crime that might
have caused him to be especially concerned for his safety.
Next, the officers in George knew that the husband was
acting erratically. The wife specifically warned them “not
to scare her husband.” Id. at 832. Here, by contrast, the
officers described Andy as composed and non-threatening
40 ESTATE OF LOPEZ V. GELHAUS
immediately prior to the shooting. Next, the officers in
George identified themselves explicitly as law enforcement.
Id. The notion that the husband disobeyed their command
thus was fairly plausible. Here, Gelhaus’s shout was the first
moment that Andy became aware that someone was behind
him. Andy also did not know that the person who shouted
was a police officer, and could not be certain that the call
was even directed at him.
As for similarities, in George, as here, the officers failed
to warn the victim despite having the opportunity to do so.
Further, in George, as here, the victim allegedly held a gun
in his left hand with the barrel of the weapon pointing down.
Next, in George, as here, the barrel of the weapon did not
rise to a position that posed any threat to the officers. Lastly,
in George, as here, the victim did not take “other actions that
would have been objectively threatening.” 736 F.3d at 838.
At bottom, taking the facts as we must regard them at this
stage of the proceedings, Gelhaus, like the deputies, shot
without warning, without objective provocation, and while
the gun was trained on the ground. Because George
“squarely governs” the circumstances that Gelhaus
confronted, Gelhaus violated Andy’s clearly established
right to be free of excessive force in this context.18 Mullenix,
136 S. Ct. at 310 (quotation marks omitted).
18
The dissent’s application of George is flawed because it is
premised on the erroneous assumption that Andy’s gun barrel was
continuously rising throughout the interaction. The dissent fails to heed
the Supreme Court’s admonition “not to define a case’s ‘context’ in a
manner that imports genuinely disputed factual propositions.” Tolan,
134 S. Ct. at 1866. The dissent also fails to explain how turning naturally
and non-aggressively while holding a gun pointed down at the ground
amounts to “manipulating” the gun. In any event, the argument is a red
herring. Even though we must assume that the barrel “began” to rise as
ESTATE OF LOPEZ V. GELHAUS 41
Though George is sufficient, Harris and Curnow also
gave Gelhaus warning that his use of deadly force was not
objectively reasonable. In Harris, an FBI agent was
instructed to shoot any armed male near a particular home.
126 F.3d at 1202. The officer saw a suspect returning to the
home who he believed had killed an FBI agent the previous
day. Id. at 1203. While perched safely on a hill, the agent
shot the suspect without warning, without the opportunity to
surrender, and despite the fact that the suspect had made no
threatening movement of any kind. Id. at 1203. We said that
the law was clearly established that the use of deadly force
in that circumstance was not objectively reasonable. Id.
“Law enforcement officials may not kill suspects who do not
pose an immediate threat to their safety or to the safety of
others simply because they are armed.” Id. at 1204. On the
facts as we must regard them, that statement put Gelhaus on
notice that his use of deadly force was constitutionally
excessive.
In Curnow, the police broke down a suspect’s front door
because they believed the suspect had injured a woman
inside. 952 F.2d at 323. As they entered the house, the
suspect was standing next to an assault weapon. Id.
(statement of Mercedes Taylor). An officer outside then shot
the suspect in the back as the other police officers entered.
Id. We held that “the police officers could not reasonably
have believed the use of deadly force was lawful because
[the victim] did not point the gun at the officers and
apparently was not facing them when they shot him the first
time.” Id. at 325. Curnow is not identical to the present
circumstances because the victim in Curnow was not holding
Andy turned, we must further assume that that it could have risen, as part
of the natural turning motion, only “to a slightly-higher level [that did
not] pos[e] any threat to the officers.” Lopez, 149 F. Supp. 3d at 1162.
42 ESTATE OF LOPEZ V. GELHAUS
the gun. See id. at 323, 325. Still, it gave Gelhaus “fair
notice” that the use of deadly force is unreasonable where
the victim does not directly threaten the officer with the gun.
See Hope v. Pelzer, 536 U.S. 730, 739 (2002).
In light of George, Harris, and Curnow, and taking the
facts as we must regard them at this stage of the proceedings,
there is no room for Gelhaus to have made “a reasonable
mistake” as to what the law required. See Saucier, 533 U.S.
at 205 (“If the officer’s mistake as to what the law requires
is reasonable . . . the officer is entitled to the immunity
defense.”). Qualified immunity may also apply, however,
where the government official makes a reasonable “mistake
of fact.” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez,
540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Here,
Gelhaus could not have reasonably misconstrued the threat
allegedly posed by the position of Andy’s gun because, on
the facts as we must regard them, it never rose to a position
that posed any threat to the officers. Accordingly, the only
question is whether Gelhaus could have reasonably
misconstrued Andy’s turn as a “harrowing gesture.” See
George, 736 F.3d at 838 (“If the person is armed . . . a furtive
movement, harrowing gesture, or serious verbal threat might
create an immediate threat.”). As to that determination, we
must avoid “the 20/20 vision of hindsight,” Graham,
490 U.S. at 396, but remain mindful that “[a] desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies
the use of force that may cause serious injury,” Deorle,
272 F.3d at 1281.
Based on the present record, Gelhaus could not
reasonably have misconstrued Andy’s turn as a “harrowing
gesture.” First, Gelhaus describes Andy as walking
normally and appearing composed and non-threatening
ESTATE OF LOPEZ V. GELHAUS 43
immediately prior to turning. Gelhaus also believed that
Andy looked like a teen and did not look like a gang member.
Gelhaus has not described Andy’s turn as abrupt, and
the district court expressly found that Andy did not “make
any sudden movements towards the officers.” Lopez, 149
F. Supp. 3d at 1164. This makes sense because, to Gelhaus’s
knowledge, Andy was not aware that someone was behind
him until Gelhaus shouted “drop the gun.” Gelhaus had not
received any report suggesting that Andy was dangerous or
intended to use the weapon. Indeed, when he came across
Andy, the weapon itself was pointed straight down at the
ground. Gelhaus never identified himself as a police officer,
so Andy could not have consciously disobeyed a law
enforcement order. Lastly, as Andy engaged in the turn, the
position of the gun barrel never posed any threat to Gelhaus.
In short, prior to and during Andy’s turn, Gelhaus simply did
not witness any threatening behavior. Thus, the only
reasonable inference is that Andy was turning naturally and
non-aggressively to look at the person who shouted from
behind. If anything, Gelhaus should have expected Andy’s
turn, for it did not contravene Gelhaus’s command, and it
may have been an effort to comply. Turning is also the most
natural reaction when someone yells in your direction from
behind.
Gelhaus objects to this analysis, arguing it has not been
clearly established “that law enforcement officers have to
determine at what angle a suspect needs to turn and raise an
assault weapon in their direction before they can lawfully
use deadly force.” However, this argument not only
overlooks George, but is predicated on assuming two facts
that we cannot assume on this interlocutory appeal: First,
that Andy’s turn was an aggressive gesture even though it
was not sudden; second, that the gun rose to a position that
posed a threat to the officers. Taking the facts as we must
44 ESTATE OF LOPEZ V. GELHAUS
regard them, Andy did not pose an immediate threat to
Gelhaus or Schemmel.
Next, Gelhaus insists that the court improperly placed
the burden on him to show that existing precedent allowed
his conduct, see Sorrels v. McKee, 290 F.3d 965, 969 (9th
Cir. 2002) (explaining that plaintiff bears the burden of
proving the right allegedly violated was clearly established
at the time of the violation, and if plaintiff meets the burden,
defendant bears the burden of establishing that the defendant
reasonably believed his conduct was lawful), and failed to
afford breathing room for Gelhaus to make a reasonable but
mistaken judgment. There is no evidence to support the
former argument. The latter argument is foreclosed in light
of George, and because there is no room for “a reasonable
mistake” as to what the law required on the facts as we must
regard them.
B. Ultimately, Gelhaus’s entitlement to qualified
immunity depends on disputed facts that must be
resolved by a jury.
“While we have held that qualified immunity is to be
determined at the earliest possible point in the litigation, we
have also held that summary judgment in favor of moving
defendants is inappropriate where a genuine issue of material
fact prevents a determination of qualified immunity until
after trial on the merits.” Liston v. Cty. of Riverside,
120 F.3d 965, 975 (9th Cir. 1997) (internal quotation marks
and citation omitted). Based on the present record, the latter
scenario applies here.
If the jury finds, for instance, that Andy briefly glanced
backwards and was aware that the officers were following
him, it may find that he intentionally disobeyed the order to
drop the gun, that he turned aggressively, and that his
ESTATE OF LOPEZ V. GELHAUS 45
weapon was not pointed at the ground. On those facts, even
if Gelhaus committed a Fourth Amendment violation, his
conduct likely did not violate clearly established law given
that “a furtive movement, harrowing gesture, or serious
verbal threat” can justify deadly force against someone who
is armed. George, 736 F.3d at 838. Conversely, if plaintiffs’
version of the facts prevails and the jury concludes that Andy
posed no imminent threat to the officers, then Andy’s right
to be free of excessive force in this context was clearly
established at the time of Gelhaus’s conduct. See id.; Harris,
126 F.3d at 1204; Curnow, 952 F.2d at 325.
Because Gelhaus’s entitlement to qualified immunity
ultimately depends on disputed factual issues, summary
judgment is not presently appropriate. See Hughes, 841 F.3d
at 1090 (denying summary judgment where the “application
of qualified immunity” “depend[ed] upon the facts as
determined by a jury”); Martinez v. Stanford, 323 F.3d 1178,
1184–85 (9th Cir. 2003) (the “facts in dispute bearing on the
question of qualified immunity” made summary judgment
on that ground inappropriate); Santos v. Gates, 287 F.3d 846,
855 n.12 (9th Cir. 2002) (declining to grant qualified
immunity “because whether the officers may be said to have
made a ‘reasonable mistake’ of fact or law, may depend
upon the jury’s resolution of disputed facts and the
inferences it draws therefrom” (citation omitted)).
CONCLUSION
We AFFIRM the district court’s order denying
defendants’ motion for summary judgment on the defense of
qualified immunity, and REMAND for trial. Appellants
shall bear costs on appeal. Fed. R. App. P. 39(a)(2).
46 ESTATE OF LOPEZ V. GELHAUS
WALLACE, Circuit Judge, dissenting:
The facts of this case are tragic. A boy lost his life—
needlessly, as it turns out. We know now that he was
carrying only a fake gun, albeit a realistic-looking one.
Deputies Gelhaus and Schemmel therefore never were in any
real danger and deadly force was not necessary. In view of
these facts, the inclination to hold Deputy Gelhaus liable for
shooting Andy Lopez is understandable. But it is a well-
settled rule that a court may do so only if precedent clearly
established at the time of the shooting that the use of deadly
force in the circumstances Deputy Gelhaus faced was
objectively unreasonable. I do not agree with the majority
that such a case existed on the day Andy died. Respectfully,
I therefore dissent.
I.
The majority opinion exhaustively recounts the facts of
the case, but for me, they are largely irrelevant. One critical
fact—the upward motion of the fake gun—resolves the
qualified immunity issue in Deputy Gelhaus’s favor. In
reaching the opposite conclusion, the majority accuses me of
making an assumption regarding this fact that is improper at
the summary judgment stage. I have done no such thing. In
fact, as I explain below, it is the majority whose position is
unsupported by the record. For contextual purposes, and to
rebut any contrary implication in the majority opinion, I also
will explain why the statements of Jose Licea, who testified
regarding the appearance of Andy’s fake gun, do not affect
the qualified immunity analysis.
A.
As the majority concedes, we must accept the district
court’s finding that the barrel of the gun “was beginning to
ESTATE OF LOPEZ V. GELHAUS 47
rise.” The majority also accepts the district court’s additional
finding that the gun “could have been raised to a slightly-
higher level without posing any threat to the officers.” Based
on the latter finding, I agree with the majority that we must
assume the gun was not in fact pointed at the officers at the
moment Deputy Gelhaus opened fire. As the majority says,
neither Deputy Gelhaus nor Deputy Schemmel testified how
high the gun barrel rose, but both stated that they believed
they were in imminent danger as a result of the gun’s
movement. This evidence shows that the deputies at least
perceived that the weapon posed a threat at the height to
which it had then risen. Their perception is not dispositive,
however, and there is other evidence in the record (and the
district court’s finding) that the gun, while rising, had not yet
risen to a point where it could have shot either deputy. I agree
with the majority, therefore, that the precise angle at which
Andy pointed the gun is a disputed fact, but as I explain
below, that fact is not material to the qualified immunity
analysis.
The majority attempts to discount the district court’s
finding that the gun barrel was beginning to rise. For
instance, in summarizing the facts in the light most favorable
to the plaintiffs, the majority says that “[Deputy] Gelhaus
deployed deadly force while Andy was merely standing on
the sidewalk holding a gun that was pointed down at the
ground.” This description does not characterize fairly the
situation that Deputy Gelhaus faced. A gun pointed at the
ground and one that is rising are qualitatively different. By
casting the latter as the former, the majority goes beyond
viewing the facts in the light most favorable to the plaintiffs
and ignores a critical fact that must be accepted as true and,
as I will explain, bears directly on the question of whether it
was clearly established that Deputy Gelhaus’s use of deadly
force was unreasonable under the circumstances. The
48 ESTATE OF LOPEZ V. GELHAUS
majority repeats this error when it describes the record as
showing that “as Andy engaged in the turn, the position of
the gun barrel never posed any threat to [Deputy] Gelhaus”
without a mention of the gun’s upward motion.
The majority takes me to task for “rel[ying] on the
assumption that Andy’s gun was continuously rising
throughout the interaction,” an assumption that the majority
believes is unsupported by the record. This criticism is
puzzling for two reasons. First, I have not taken Deputy
Gelhaus’s “word at face value,” as the majority charges.
What I have done, and I was under the impression that the
majority had done the same, is accept the district court’s
finding that the fake gun’s barrel “was beginning to rise.”
Estate of Lopez v. Gelhaus, 149 F. Supp. 3d 1154, 1162
(N.D. Cal. 2016). Not only is it not improper for me to accept
this fact, it is required. Watkins v. City of Oakland, 145 F.3d
1087, 1091 (9th Cir. 1998). The majority itself embraces this
finding as one that “makes sense.” So, as far as I can tell, the
majority’s concern is one of timing—that although the barrel
may have begun to rise at some point before the shooting, it
may also have ceased to rise in time for Deputy Gelhaus to
recognize that Andy did not pose a threat.
This position is difficult to reconcile with the district
court’s finding. The district court did not find that the gun’s
barrel stopped moving after beginning to rise. It found only
that the barrel “was beginning to rise.” Lopez, 149 F. Supp.
3d at 1162. To the extent the majority believes some
ambiguity exists as to whether the district court found that
the gun was still rising immediately before Deputy Gelhaus
shot Andy, the court’s legal analysis confirms my reading. It
found that the gun “was beginning to rise” while
distinguishing cases involving shootings preceded by
actions that, from the district court’s perspective, were more
ESTATE OF LOPEZ V. GELHAUS 49
threatening. Id. If the district court wanted to distinguish
those cases on the basis that Andy’s action was not
sufficiently threatening, it would make little sense to find
that the gun barrel was “beginning to rise” if there was room
to find instead that the gun barrel had stopped rising.
Therefore, the most natural reading of the district court’s
finding, and the only reasonable one, is that the gun was
beginning to rise (i.e., in the process of rising) immediately
before Deputy Gelhaus shot Andy.
This brings us to the second flaw in the majority’s
argument, which is that it is completely unsupported by the
record. The majority speculates that the gun may not have
been rising at the time Deputy Gelhaus committed to firing
his weapon. Contrary to the majority’s contention, however,
nothing in the record before us supports this proposition. The
majority’s reliance on the three-dimensional models created
by the plaintiffs’ expert is misplaced. Those models are
components of the expert’s analysis of Andy’s likely body
posture at the time he was struck by the bullets. As such, they
necessarily concern only what occurred after Deputy
Gelhaus first fired his weapon and thus cannot serve as
evidence of the gun’s motion even at the moment of the
shooting, much less at the time Deputy Gelhaus became
committed to using deadly force. With respect to Deputy
Gelhaus’s purported admission “that the gun had been
benignly swinging . . . with Andy’s natural motions,” it is
true that Deputy Gelhaus stated that none of Andy’s
“motions” during the time leading up to the confrontation
seemed aggressive, and that the gun would “swing
somewhat” as Andy walked. Even granting that the gun was
moving in this way while Andy was walking away from the
police car, however, that fact does not tell us how the gun
moved when Andy stopped walking and engaged in an
50 ESTATE OF LOPEZ V. GELHAUS
entirely different motion—namely, turning to face Deputy
Gelhaus.
The majority has thus identified no evidence that even
suggests that the gun had stopped rising at the time Deputy
Gelhaus resorted to deadly force. This dearth of support
might explain why the plaintiffs themselves have never
made such an argument, preferring instead to contest
whether the gun began to rise at all. Even the majority seems
to recognize that the evidentiary foundation for its argument
is lacking, as it does not claim that the evidence just
discussed in fact supports a finding that the gun stopped
rising. Instead, the majority asserts only that this evidence is
reason to doubt my “assumption” (which really is nothing
more than a reasonable, natural reading of the district court’s
finding) in the abstract. To reach its ultimate conclusion, the
majority cites Deputy Gelhaus’s statement that he did not
know where Andy’s gun was pointing when he pulled the
trigger and declares that the gun “did not necessarily rise
throughout the whole interaction.” At bottom, then, the
majority’s argument rests on the bare absence of evidence
definitively disproving the existence of alternate facts for
which there is no record. My “seismic” “accusations,” as the
majority calls them, are a straightforward reading of the
district court’s finding.
This novel rule—that we must accept as true all facts not
conclusively disproved by evidence in the record even if
those facts have no evidentiary support of their own—is
plainly wrong. We need only “assume the truth of the
evidence set forth by the nonmoving party with respect to [a]
fact” when “direct evidence produced by the moving party
conflicts with direct evidence produced by the nonmoving
party.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 631 (9th Cir. 1987) (emphasis added).
ESTATE OF LOPEZ V. GELHAUS 51
The record before us contains evidence (not to mention the
district court’s finding) that the gun was beginning to rise,
but no evidence showing that the gun then stopped rising
before the shooting started. The mere possibility that a jury
might disbelieve a moving party’s undisputed evidence is
not enough to avoid summary judgment. See id. at 630
(“[T]he nonmoving party may not merely state that it will
discredit the moving party’s evidence at trial and proceed in
the hope that something can be developed at trial in the way
of evidence to support its claim”). What the majority has
done here is to conjure up “some metaphysical doubt as to
the material facts”—a step that not even the district court
took—and affirm the denial of summary judgment on that
basis. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
This attempt to avoid the conclusion that the gun was
rising at the time Deputy Gelhaus decided to use deadly
force is unpersuasive, but also unsurprising. As discussed
below, none of the cases the majority cites to show that
Deputy Gelhaus violated Andy’s clearly established right
addressed a situation where the victim’s gun “was beginning
to rise” toward the officer. So to make those cases fit, the
majority must eliminate this crucial differentiating fact.
Perhaps knowing that the district court’s finding of fact
cannot so casually be cast aside, the majority unpersuasively
attempts to parse the district court’s language to create a
distinction between the gun’s initial motion and its
continuing motion and concludes that the district court’s
finding pertains only to the first. This clever argument leaves
the majority free to attribute any conclusion about the second
to some other source—here, Deputy Gelhaus’s account—
and then chide me for misunderstanding the rules of
summary judgment. Unfortunately for the majority, nothing
in the district court’s order reflects that it even considered
52 ESTATE OF LOPEZ V. GELHAUS
this dichotomy, let alone structured its factual findings
around it.
But the majority does not stop there. It then subtly
revises the district court’s finding to make it appear
consistent with this new reading. According to the majority,
the district court found that “the barrel of the weapon could
incidentally have risen, as part of the natural turning motion,
only ‘to a slightly-higher level [that did not] pos[e] any
threats to the officers.’” Tellingly, the majority inserts
“only” here in nearly every place (seven to be exact) that it
purports to quote or paraphrase this finding. This seemingly
innocuous insertion greatly distorts the finding in a way that
supports the majority’s argument. On this reading, the
district court made a finding that, at the time Deputy Gelhaus
committed to using deadly force, the gun could not have
risen to a level where it threatened the officers. Had the
district court made this finding, it would indeed support the
majority’s argument. But this alteration is important. What
the district court actually found was that “the rifle barrel was
beginning to rise; and given that it started in a position where
it was pointed down at the ground, it could have been raised
to a slightly-higher level without posing any threat to the
officers.” Lopez, 149 F. Supp. 3d at 1162. This language
paints a different picture: far from concluding that the gun
could not rise further, the district court found that the rising
motion was not necessarily sufficient to put the gun in a
position where it was pointed at the officers. If anything,
then, the language that the district court actually used
reinforces the notion that it found that the gun was moving
when Deputy Gelhaus decided to fire his weapon. In
addition, even under the majority’s distorted reading, the gun
was necessarily pointed somewhere between the ground and
Deputy Gelhaus, by virtue of it “beginning to rise” after
having been “pointed down at the ground.” Therefore, the
ESTATE OF LOPEZ V. GELHAUS 53
gun was not “trained on the ground” or “pointed down at the
ground” at the time Deputy Gelhaus pulled the trigger as the
majority claims.
The majority says it is deferring to the district court’s
findings, but it is not. Rather than perform these interpretive
changes, I would take the district court at its word and decide
this appeal on the understanding that the gun was beginning
to rise when Deputy Gelhaus committed to using deadly
force.
B.
The majority also fails to appreciate the apparent threat
posed by the gun from Deputy Gelhaus’s perspective. The
record is replete with evidence that Deputy Gelhaus did not
realize and could not have discerned that Andy was carrying
a fake gun instead of an authentic AK-47. First, it is
undisputed that the gun was missing the bright orange tip
required by federal law. 15 U.S.C. § 5001(b)(1). This tip
immediately would have identified the gun as a fake;
conversely, its absence would suggest to an observer that the
gun was real.
Second, Deputy Gelhaus, who had experience with AK-
47s both as a deputy and during his time serving in the
United States Army, testified that he believed Andy was
carrying a real AK-47 and that “[t]here were no unusual
markings or colorings on the weapon which were visible to
[him] which indicated that the weapon was anything other
than an AK[-]47 assault weapon.” Furthermore, he testified
that it was not until after the shooting, when he was close to
the gun, that he was able to recognize that it was not a real
rifle.
54 ESTATE OF LOPEZ V. GELHAUS
We cannot simply take Deputy Gelhaus’s word,
however. As the majority counsels, we must instead
“carefully examine all the evidence in the record . . . to
determine whether the officer’s story is internally consistent
and consistent with other known facts.” Cruz v. City of
Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014), quoting Scott
v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Here, there is
expert testimony that it was not possible for Deputy Gelhaus
to tell the difference between Andy’s fake gun and a real
AK-47 at the distances from which he observed it. Plaintiffs’
expert does not refute this conclusion, opining only that the
reenactment video upon which Deputy Gelhaus’s expert
relied “does not necessarily accurately depict the
information available to Deputy Gelhaus prior to his
decision to shoot [Andy].” Notably absent is any direct
evidence that a reasonable officer in Deputy Gelhaus’s
position would have been able to differentiate between the
fake and the real thing.
The majority’s factual exposition refers to statements by
Jose Licea, a witness who observed Andy walking on the
sidewalk before the shooting. Licea testified that, as he drove
by Andy, he thought the gun “look[ed] fake.” Taken at face
value, his assessment of the fake gun’s appearance might
seem to create a genuine dispute of material fact. A bit of
digging, however, reveals that Licea’s perception was based
largely on facts and circumstances unique to him. For
example, he qualified his statement that he thought Andy
was carrying a BB gun by explaining that someone had
recently shot a window at his house, after which his mother-
in-law observed some children with BB guns in the area.
There was no reason for Deputy Gelhaus to know this fact,
so it should play no part in the analysis. White v. Pauly, —
U.S. —, 137 S. Ct. 548, 550 (2017) (per curiam) (“Because
this case concerns the defense of qualified immunity, . . . the
ESTATE OF LOPEZ V. GELHAUS 55
Court considers only the facts that were knowable to the
defendant officers” (emphasis added)).
Licea’s perception of the fake gun was also influenced
by his assumption that no one would be carrying an AK-47
during the daytime. “[T]hat’s something for the night,” he
asserted. Putting aside the reasonableness of this assumption
as a general matter, it is not one that a reasonable officer in
Deputy Gelhaus’s position would have shared, given that the
area had a very high concentration of weapons-related
violent crime and Deputy Gelhaus himself previously had
confiscated an authentic AK-47 within a mile of the site of
the shooting. Licea’s assumption therefore should be
discounted as well.
Other than these two personal reasons, Licea offered no
basis for his conclusion that the gun appeared not to be real.
Most importantly, he did not identify anything about the gun
itself that gave him that impression. The only time he
mentioned the gun’s appearance—which is the only
information that was available to Deputy Gelhaus—was a
remark that its shape and design, particularly with respect to
the clip, “made it look like an AK-47.” Because Licea’s
opinion that the gun looked fake is grounded not in objective
facts, but rather in his own idiosyncratic understandings, it
does not create a genuine dispute of material fact with
respect to whether a reasonable officer in Deputy Gelhaus’s
position would have been able to distinguish between
Andy’s replica and a real AK-47.
This conclusion is not inconsistent with our limited role
in reviewing the denial of qualified immunity on summary
judgment. It is true that “[a]ny decision by the district court
‘that the parties’ evidence presents genuine issues of
material fact is categorically unreviewable on interlocutory
appeal.’” George v. Morris, 736 F.3d 829, 834 (9th Cir.
56 ESTATE OF LOPEZ V. GELHAUS
2013), quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.
2009). In fact, the district court made no such decision with
respect to Deputy Gelhaus’s ability to discern that the gun
was not real. Instead, the district court stated first that it was
setting that issue aside, Lopez, 149 F. Supp. 3d at 1158 n.1,
and then later that “even assuming the reasonableness of that
belief [that the fake was a real gun], qualified immunity is
still not warranted.” Id. at 1164 n.2. Nowhere did the district
court say that there was a genuine dispute of material fact
regarding the possibility of identifying the gun as a fake. We
therefore are not constrained in our analysis of that issue.
If anything, the district court’s assumption that Deputy
Gelhaus’s perception was reasonable points in the other
direction. Where there is a genuine dispute of material fact,
the “facts must be viewed in the light most favorable to the
nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(emphasis added). Clearly it would have been more
favorable to the plaintiffs if Deputy Gelhaus unreasonably
perceived the fake gun to be real, so if the district court
believed there was a genuine dispute of material fact on that
issue, it was obliged to so construe the facts. We presume
that district courts follow the law, United States v.
Cervantes-Valenzuela, 931 F.2d 27, 29 (9th Cir. 1991), and
nothing in the record before us suggests that the contrary is
true in this case. There is therefore no reason to depart from
the district court’s decision to assume that Deputy Gelhaus
reasonably believed the gun to be real.
In sum, I reject the false dichotomy the majority has
created with respect to the movement of the gun. The district
court found that the barrel was “beginning to rise” without
distinguishing between an initial rising motion and a
continuing rising motion. I would adhere to that finding.
Furthermore, I emphasize that there is no genuine dispute of
ESTATE OF LOPEZ V. GELHAUS 57
material fact as to whether a reasonable officer in Deputy
Gelhaus’s position could have recognized that the gun was
not real. Finally, as the majority and plaintiffs concede, it is
undisputed that Andy failed to drop the gun after officers
activated the patrol car lights and siren, and yelled at him at
least once to drop the gun. Accepting these facts, I turn to
the question of clearly established law.
II.
I agree with the majority’s conclusion that the district
court erred by failing to conduct the necessary analysis
identifying a precedential case or cases it believed would
have put Deputy Gelhaus on notice that his conduct was
unconstitutional. White, 137 S. Ct. at 552. Rather than
conclude there and decide the appeal, the majority attempts
to perform on its own the district court’s task by identifying
three cases—not one of which appears anywhere in the
district court’s order—that purportedly served as notice to
Deputy Gelhaus that he could not constitutionally use deadly
force against Andy.
More important than the district court’s omission, which
should require reversal, is that the plaintiffs themselves have
never argued that these cases clearly established Andy’s
right, either in response to Deputy Gelhaus’s motion for
summary judgment or in their answering brief on appeal. As
the majority recognizes, “[t]he plaintiff bears the burden of
showing that the right at issue was clearly established under
this second prong” of the qualified immunity analysis.
Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). The
majority’s effort improperly attempts to carry plaintiffs’
burden for them. This is yet another reason to reverse the
district court.
58 ESTATE OF LOPEZ V. GELHAUS
In addition to contravening settled law, the majority’s
defense of the district court’s incomplete holding is
ultimately unsuccessful on the merits. In my view, all of the
cases cited are distinguishable on their facts from the one
before us and therefore cannot perform the function the
majority ascribes to them, even if it were appropriate for the
majority to attempt to do so.
A.
The majority relies primarily on our case of George v.
Morris. In that case, the defendant officer shot the victim,
who was armed with a pistol and had been reported as acting
erratically, after he allegedly “grasped the gun with both
hands” and pointed it “directly at” the officer. 736 F.3d at
833 n.4. We could not credit the officer’s account, however,
because the district court had found it to be disputed. Id.
Importantly, there was evidence in the record that “called
into question whether [the victim] ever manipulated the
gun.” Id. at 833 (emphasis added). In the most favorable
light, then, the victim did not manipulate the gun before the
officer resorted to deadly force. See id. at 839 (describing the
victim’s gun as “trained on the ground”). This fact
conclusively distinguishes George from the case before us
because Andy did manipulate the gun—it was beginning to
rise toward the deputies as he turned. Here again the majority
tries unsuccessfully to evade the district court’s factual
finding that the gun “was beginning to rise” so that it can
also avoid this manipulation issue. Since the majority is
wrong on the first point for the reasons already mentioned,
its second point is a non-issue.
Given the version of the facts it was required to assume,
the court in George had no occasion to pass judgment on the
use of deadly force in a situation like the one Deputy Gelhaus
faced. George may have clearly established that using
ESTATE OF LOPEZ V. GELHAUS 59
deadly force against an armed individual is unreasonable
when that person does not “ever manipulate[] the gun,” id.,
but that rule says nothing about the use of such force when
someone does manipulate a gun. Indeed, our court took pains
to emphasize that we were not considering the officer’s
version of events, according to which the victim had done
just that. Id. at 833 n.4, 838.
The majority’s attempt to shoehorn the facts of our case
into George is further undercut by George’s pronouncement
that officers need not “delay their fire until a suspect turns
his weapon on them” when a person “reasonably suspected
of being armed” makes “a furtive movement,” a “harrowing
gesture,” or even a “serious verbal threat.” Id. at 838. This
passage stands for the proposition that the use of deadly
force can be justified by an action less threatening than
pointing a gun directly at an officer. Combining this
principle with the case’s holding that deadly force is not
reasonable if an armed individual does not manipulate his
gun, the use of deadly force against a person armed with a
gun (or reasonably suspected of being so armed) becomes
reasonable somewhere along the spectrum of actions
between not manipulating the gun and pointing the gun at an
officer. One would search in vain, however, to find the point
at which that occurs in George. There simply was no reason
to reach that issue based on the factual assumptions the court
was required to make. Accordingly, George could not have
put Deputy Gelhaus on notice that Andy’s actions did not
cross the threshold—wherever it may lie—at which the use
of deadly force becomes reasonable. He may have been
mistaken in his assessment, but he would not have known it
from reading George.
Once this is understood, the additional aggravating
factors of George become immaterial. Nevertheless, it bears
60 ESTATE OF LOPEZ V. GELHAUS
mentioning that the majority greatly understates the potential
danger Andy posed as perceived by Deputy Gelhaus. As
explained, Deputy Gelhaus reasonably believed that Andy
was carrying an AK-47. With narrow exceptions, possession
of such a weapon is a crime in California. Cal. Penal Code
§ 30605(a). Considering the undisputed destructive
capabilities of an AK-47, the prevalence of weapons-related
violent crimes in the area, and the fact that local gang
members were known to use weapons against police to gain
respect, the suspected crime cannot be considered mild.
Indeed, in enacting this prohibition, the California
legislature declared that “the proliferation and use of assault
weapons poses a threat to the health, safety, and security of
all citizens of [California].” Id. § 30505(a). 1 By contrast, the
possible crime in George was less threatening. As we
observed, the victim’s wife, who had made the 911 call,
“was unscathed and not in jeopardy when deputies arrived.”
George, 736 F.3d at 839. Furthermore, her husband “was not
in the vicinity,” and was instead “said to be on the couple’s
rear patio.” Id.
Nor can the majority rely on George because it
established a rule that the use of deadly force without an
objective threat is unreasonable, because this framing
commits the sin for which the Supreme Court repeatedly has
admonished the lower federal courts: it “define[s] clearly
1
That Deputy Gelhaus might have reasonably suspected that Andy
was committing a non-trivial crime also bears on the first factor in the
Graham excessive force analysis, contrary to the majority’s assertion
that this factor “weigh[s] clearly in Andy’s favor.” Because I conclude
that Deputy Gelhaus is entitled to immunity because it was not clearly
established that his conduct was unconstitutional, however, I would not
speculate on whether a reasonable jury could find his use of deadly force
to be objectively unreasonable, and do not do so here. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
ESTATE OF LOPEZ V. GELHAUS 61
established law at a high level of generality.” Ashcroft v. al-
Kidd, 563 U.S. 731, 742 (2011); see also Mullenix v. Luna,
— U.S. —, 136 S. Ct. 305, 309 (2015) (“The general
principle that deadly force requires a sufficient threat hardly
settles this matter”). The operative inquiry instead is whether
there is a case that would have given notice to Deputy
Gelhaus at the time of the incident that the circumstances he
faced were not sufficiently threatening to warrant the use of
deadly force. See White, 137 S. Ct. at 552 (reversing denial
of qualified immunity because the court “failed to identify a
case where an officer acting under similar circumstances as
[the defendant] was held to have violated the Fourth
Amendment” (emphasis added)). For the reasons already
explained, George is not such a case. 2
B.
The second case cited by the majority, Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997), also fails to live up
to its announced billing. Harris arose from the Ruby Ridge
siege and involved the use of deadly force by a Federal
Bureau of Investigation (FBI) sniper against the plaintiff,
Harris. 126 F.3d at 1193–94. Following a shootout between
United States Marshals and a group of armed civilians
including Harris, “the FBI dispatched a special unit designed
to deal with crisis situations,” which included snipers. Id. at
1193. For purposes of this encounter alone, the FBI, in
collaboration with the Marshal Service, rewrote its Standard
Rules of Engagement. Id. The new rules displaced the
2
The majority objects to this paragraph as employing a “fictitious
frame” of its argument. There is no cause for alarm, however. I am
simply pointing out that reading George to establish a more general rule
is no more helpful to the majority’s analysis than the actual facts of the
case.
62 ESTATE OF LOPEZ V. GELHAUS
requirement that deadly force be used only when the target
“presents an immediate risk of death or great bodily harm to
the agent or another person” in favor of an instruction that
“any armed adult male” “in the vicinity of the Weaver cabin
could and should be killed.” Id. (emphasis omitted).
According to the complaint, the events leading up to the
shooting of Harris unfolded as follows. The day after the
initial shootout, Harris accompanied Randy Weaver, the
owner of the cabin under siege and the person upon whom
the Marshals were attempting to serve an arrest warrant
when the shootout erupted, to a shed on the property “to help
minister to the body of Weaver’s dead son,” who had been
killed in the shootout. Id. at 1193, 1203. While Weaver was
opening the shed, an FBI sniper stationed “on a hill
overlooking the Weaver cabin” shot Weaver in the back. Id.
at 1193. Harris was armed at this point, but “made no
aggressive move of any kind.” Id. at 1203. The group
immediately ran back to the cabin, where Weaver’s wife,
Vickie, was holding the door open. Id. at 1193. As Harris
was entering the cabin, the sniper “fired a second shot in an
effort to kill both Harris and Vickie.” Id. at 1193–94. “The
bullet passed through the clear glass in the open door,
striking Vickie in the head, and after passing through her, hit
Harris in the upper arm and chest.” Id. at 1194.
The facts of our case are far afield from those in Harris.
Unlike Deputy Gelhaus, the FBI sniper was “perched safely
on a hill” when he started shooting. Unlike Andy, Harris was
not turning to face the agent but rather was fleeing back into
the cabin at the time he was shot. Finally, although Harris
was armed, there was no indication that his weapon made
any movement in the sniper’s direction before the latter
resorted to deadly force. Indeed, the facts as alleged made it
clear that the sniper shot Harris solely because he was armed,
ESTATE OF LOPEZ V. GELHAUS 63
and that was the rule that the case established: “Law
enforcement officials may not kill suspects who do not pose
an immediate threat to their safety or to the safety of others
simply because they are armed.” Id. at 1204 (emphasis
added).
We, of course, are not dealing with a situation in which
Deputy Gelhaus shot Andy merely because he was armed.
Knowing that he could not use deadly force just because
Andy was holding a gun would not tell Deputy Gelhaus what
the Constitution required when Andy, instead of following
the command to drop the gun, turned to face Deputy Gelhaus
and the barrel of the rifle began to rise. Harris did not
address such a circumstance, or even a similar circumstance,
and so could not have given Deputy Gelhaus notice one way
or the other as to the reasonableness of his actions. It
therefore is inapposite to the question we face in this case.
C.
The majority’s final case, Curnow ex rel. Curnow v.
Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991), is even less
helpful in this analysis because, as the majority admits, there
was evidence in that case that the victim was unarmed at the
time police began shooting at him. Id. at 323. But that is not
all: a witness to the shooting stated that the victim not only
was not armed, but had not even reached for a nearby gun
when an officer shot him in the back. Id. In the most
favorable light, the victim was merely sitting in his home
with his back to the officer and a gun in the vicinity. A rule
that deadly force is unreasonable in those circumstances says
nothing about the propriety of such force when the person is
armed and facing the officer and the gun is beginning to rise.
The majority suggests that this case provided “‘fair notice’
that the use of deadly force is unreasonable where the victim
does not directly threaten the officer with the gun.” Not only
64 ESTATE OF LOPEZ V. GELHAUS
is this interpretation inconsistent with George’s admonition
that officers are not always required “to delay their fire until
a suspect turns his weapon on them,” 736 F.3d at 838, it is
also inappropriate because the undisputed facts here do
establish a direct threat to the officer. Thus, Curnow is off-
point as well.
III.
The disputed facts the majority points to—whether Andy
looked backwards at the officers, whether Deputy Gelhaus
yelled at Andy to drop the gun more than once, whether the
patrol car chirped more than once, whether Andy held the
gun in his right or left hand, and the angle between the
ground and Deputy Gelhaus at which Andy pointed his
gun—are simply not material to the qualified immunity
analysis. Taking together the district court’s findings and
undisputed facts, this case involves the use of deadly force
against a hooded individual armed with a replica assault rifle
indistinguishable from a real one, who turned to face an
officer while raising the rifle after the officer had activated
his patrol car lights and siren and yelled at the individual to
drop the rifle. These facts are not sufficiently similar to the
facts of George, Harris, or Curnow to have put Deputy
Gelhaus on notice that his use of deadly force violated
Andy’s Fourth Amendment right to be free from excessive
force. See White, 137 S. Ct. at 552. Without these cases, the
majority is left only with the statement it cites at the
beginning of its clearly established law analysis: that we may
deny qualified immunity “in novel circumstances.” Hughes
v. Kisela, 862 F.3d 775, No. 14-15059, 2016 WL 9226211,
at *17 (9th Cir. 2016). It is doubtful how much of this
statement, if any, has survived the Supreme Court’s
intervening decision in White. See 137 S. Ct. at 552 (stating
that the Tenth Circuit’s observation that the case
ESTATE OF LOPEZ V. GELHAUS 65
“present[ed] a unique set of facts and circumstances . . . .
should have been an important indication . . . that [the
officer’s] conduct did not violate a clearly established right”
(internal citation and quotation marks omitted)). To the
extent it retains any vitality, it likely would be confined to
those cases where the officer’s conduct is an “obvious”
violation of a constitutional right. Id., quoting Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also
Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)
(“When ‘the defendant[’s] conduct is so patently violative of
the constitutional right that reasonable officials would know
without guidance from the courts’ that the action was
unconstitutional, closely analogous pre-existing case law is
not required to show that the law is clearly established’”
(quoting Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.
1994))).
This assuredly is not such “an obvious case.” Brosseau,
543 U.S. at 199. As shown by the majority’s painstaking
evaluation of the objective reasonableness of Deputy
Gelhaus’s use of force, this case is not obvious, but clearly
quite close. Whether Deputy Gelhaus acted unreasonably
turns on such minute details as how high the gun barrel had
risen, whether it might have been feasible to give a warning,
and just how aggressive Andy’s turning motion was. By
contrast, cases found to be “obvious” involve much clearer
constitutional transgressions. See, e.g., Hope v. Pelzer,
536 U.S. 730, 734–35 (2002) (reversing grant of qualified
immunity where a prisoner was handcuffed to a “hitching
post” without a shirt for seven hours “while the sun burned
his skin,” during which time “he was given water only once
or twice and was given no bathroom breaks” and a guard
“taunted [him] about his thirst” by giving water to some
dogs, bringing the water cooler near the prisoner, and then
intentionally spilling all the water on the ground). Our case
66 ESTATE OF LOPEZ V. GELHAUS
is not the “rare” one “in which the constitutional right at
issue is defined by a standard that is so ‘obvious’ that we
must conclude . . . that qualified immunity is inapplicable,
even without a case directly on point.” A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 455 (9th Cir. 2013), quoting Hope,
536 U.S. at 740–41. Accordingly, the district court’s denial
of immunity cannot be affirmed on this basis either.
IV.
Deputy Gelhaus misjudged the threat that Andy posed,
and Andy’s death is the heartbreaking result of that
miscalculation. In circumstances like these, it is imperative
that we do justice. But justice does not invariably require
punishing the officer. A reasonable mistake of law or fact is
not enough to impose liability. Pearson, 555 U.S. at 231.
The law affords relief only when an officer transgresses a
boundary clearly established by precedent at the time he acts.
If no such case exists, the officer cannot be held liable even
if his conduct, the court believes in retrospect, may be
unreasonable.
This is the situation that we face. The facts of the cases
that the majority relies on to reach the opposite conclusion
are materially different from the real facts before us. Those
cases therefore could not have given Deputy Gelhaus notice
that using deadly force against Andy would violate his
constitutional right. Although all are sympathetic to Andy’s
family, as anyone should be, I am duty-bound to conclude
that we must provide Deputy Gelhaus with the “breathing
room to make reasonable but mistaken judgments about
open legal questions” that qualified immunity affords him.
al-Kidd, 563 U.S. at 743. For these reasons, I dissent.