                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 15 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TONYA E. SHIRAR, individually and as             No.   15-55029
successor in interest of Robert R. Shirar,
deceased; J. S., individually and as (a          D.C. No.
minor by her guardian ad litem Amy               5:13-cv-00906-JGB-DTB
Daugherty) as a successor in interest of
Robert R Shirar, deceased; A. N., (a minor
by her guardian ad litem Tonya E. Shirar)        MEMORANDUM*
individually; A. S., individually and as (a
minor by her guardian ad litem Tonya E.
Shirar) and as a successor in interest of
Robert R. Shirar, deceased,

              Plaintiffs-Appellees,

 v.

MIGUEL GUERRERO; GARY
JOHNSON,

              Defendants-Appellants.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                      Argued and Submitted October 18, 2016
                               Pasadena, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TALLMAN and CHRISTEN, Circuit Judges, and KENNELLY,** District
Judge.

      California Highway Patrol (CHP) Officer Miguel Guerrero1 appeals the

district court’s denial of summary judgment and qualified immunity in the shooting

death of Robert Shirar. Shirar’s family sued Guerrero under 28 U.S.C. § 1983 on

Shirar’s and their own behalf for Fourth and Fourteenth Amendment violations.

We have jurisdiction over Guerrero’s interlocutory appeal from the denial of

summary judgment under 28 U.S.C. § 1291. Wilkins v. City of Oakland, 350 F.3d

949, 951 (9th Cir. 2003). We affirm the denial of summary judgment on plaintiffs’

Fourth Amendment claim, but we reverse the denial of summary judgment on

plaintiffs’ Fourteenth Amendment claim.

      We review a denial of qualified immunity de novo. Wilkinson v. Torres, 610

F.3d 546, 550 (9th Cir. 2010). On appeal of a denial of qualified immunity, we do

not review the district court’s findings of “genuine issues of material fact.” Lee v.

Gregory, 363 F.3d 931, 932 (9th Cir. 2004) (citing Mendocino Envtl. Ctr. v.

Mendocino County, 192 F.3d 1283, 1291 (9th Cir. 1999)). We must also “view the

      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
      1
         Although CHP Officer Gary Johnson is a named defendant in this action,
plaintiffs’ suit against him has been dismissed. He remains only a nominal party to
this appeal.
                                           2
facts and draw reasonable inferences in the light most favorable to the party

opposing the [summary judgment] motion.” Wilkinson, 610 F.3d at 550 (internal

quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 278 (2007)). The

court retains jurisdiction, however, to review questions of law, including the

materiality of disputed issues of fact. Wilkins, 350 F.3d at 952.

      1.     In officer-involved shootings, “[b]ecause the person most likely to

rebut the officers’ version of events—the one killed—can’t testify, ‘[t]he judge

must 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, the district court held that

“disputed issues of material fact exist that would allow a reasonable jury to

disbelieve Guerrero’s version of events and instead conclude either that Shirar did

not threaten to shoot Guerrero or that he did not reach into his pocket” for a

perceived gun. We agree.

      The record presents numerous factual inconsistencies, such as: (1) Shirar

allegedly asked Guerrero to kill him within one minute after Shirar requested an

ambulance for his injuries, (2) the coroner testified that bullet wounds in Shirar’s

hand could be consistent with raising it in self-defense, and (3) on the day of the


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shooting, Officer Johnson stated that Shirar said nothing after he was shot; but

during his deposition, Johnson testified he heard Shirar ask the officers to shoot

him in the head, We find these inconsistencies material to the issue of whether

Shirar actually threatened Guerrero and attempted “suicide by cop,” justifying

Guerrero’s use of deadly force. If a jury found Shirar did not pose a danger to

Guerrero’s safety, then Guerrero’s use of deadly force would be constitutionally

unreasonable. See Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014)

(en banc) (“An officer’s use of deadly force is reasonable only if the officer has

probable cause to believe that the suspect poses a significant threat of death or

serious physical injury to the officers or others.” (internal quotation marks omitted)

(quoting Scott, 39 F.3d at 914)).

      On the “clearly established” prong of qualified immunity, it has long been

established that shooting an unarmed suspect who poses no danger to officers

violates the Fourth Amendment. See Tennessee v. Garner, 471 U.S. 1, 11 (1985).

If a jury were to believe plaintiffs’ version of events, Guerrero’s use of deadly

force against Shirar would have violated clearly established law. We therefore

hold that Guerrero is not entitled to qualified immunity on plaintiffs’ Fourth

Amendment claim at this stage of the litigation and remand for a trial on the merits.




                                           4
      2.     In quickly evolving situations, a police officer’s conduct violates the

Fourteenth Amendment if the officer acted with a “purpose to harm . . . without

regard to legitimate law enforcement objectives.” Porter v. Osborn, 546 F.3d

1131, 1133 (9th Cir. 2008). The purpose-to-harm standard applies here because

only a minute elapsed between Guerrero’s call for an ambulance for Shirar and his

second radio call that shots had been fired. To prove that Officer Guerrero acted

with a purpose to harm Shirar, plaintiffs must “put forward specific, nonconclusory

factual allegations that establish improper motive.” Jeffers v. Gomez, 267 F.3d

895, 907 (9th Cir. 2001) (internal quotation marks omitted) (quoting Crawford-El

v. Britton, 523 U.S. 574, 598 (1998)). Plaintiffs have not met their burden under

Jeffers. We reverse the district court’s denial of Guerrero’s summary judgment

motion on plaintiffs’ Fourteenth Amendment claim and direct its dismissal on

remand.

      The parties shall bear their own costs.

      AFFIRMED in part; REVERSED in part; and REMANDED.




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