                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ANDERSON P. THURSTON,                            No. 10-15588

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01115-CRB

  v.
                                                 MEMORANDUM *
RICHARD CELLI, Sgt.; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Anderson P. Thurston appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging that defendants, Santa Rosa

police officers, violated the Fourth and Fourteenth Amendments when they shot

and killed his son, Haki Thurston. We have jurisdiction under 28 U.S.C. § 1291.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s grant of summary judgment, and we may

affirm on any ground supported by the record. Moreland v. Las Vegas Metro.

Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). We affirm.

      It is uncontested on this record that defendants had probable cause to believe

that Haki Thurston had, on the night of the shooting, shot and killed his cousin. In

addition, it is uncontested that defendants had probable cause to believe that Haki

Thurston was involved in a residential burglary prior to the evening in question

that included the theft of firearms. Finally, it is uncontested that at the time of the

shooting, defendants had probable cause to believe that Haki Thurston was armed

and dangerous and was fleeing the police to evade arrest. Defendants’ actions

were therefore reasonable, and they are entitled to qualified immunity. See Long v.

City & Cnty. of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007) (in determining

objective reasonableness of use of deadly force, courts should consider “the

severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight” (citation and internal quotation marks

omitted)); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853-54 (1998)

(when unforeseen circumstances demand an instant judgment on the part of an

officer who feels the pulls of competing obligations, only a purpose to cause harm


                                            2                                      10-15588
unrelated to the legitimate object of arrest will satisfy the shocks-the-conscience

test and give rise to a claim under the Fourteenth Amendment).

      The district court did not abuse its discretion in denying Thurston’s motion

for Rule 11 sanctions. See Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815,

819 (9th Cir. 2009) (setting forth standard of review).

      Thurston’s remaining contentions are unpersuasive.

      Thurston’s motion for appointment of counsel is denied.

      AFFIRMED.




                                           3                                    10-15588
