                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IRMA WOODWARD, a single woman,             No. 16-15784
individually, as Statutory Wrongful
Death trustee of Michael Duncklee             D.C. No.
and personal representative of Estate      4:15-cv-00077-
of Michael Duncklee,                             RM
                    Plaintiff-Appellee,

                  v.                         OPINION

CITY OF TUCSON, a political
subdivision of the state of Arizona;
Robert Soeder, an individual; and
Allan Meyer, an individual,
              Defendants-Appellants.



      Appeal from the United States District Court
               for the District of Arizona
      Rosemary Marquez, District Judge, Presiding

          Argued and Submitted July 13, 2017
              San Francisco, California

                Filed September 15, 2017
2               WOODWARD V. CITY OF TUCSON

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
        and Eduardo C. Robreno, * District Judge.

                   Opinion by Judge Robreno


                          SUMMARY **


                      Qualified Immunity

    The panel reversed the district court’s denial of qualified
immunity to defendant Tucson police officers from
plaintiff’s claims under 42 U.S.C. § 1983 for
unconstitutional seizures and use of excessive force.

    Plaintiff’s claims stemmed from the officers’ warrantless
entry into a vacant apartment and use of deadly force on
Michael Duncklee, who aggressively attacked them while
growling and brandishing a broken hockey stick inside the
apartment. Plaintiff is the representative of the Estate of
Michael Duncklee.

    The panel held that plaintiff had standing to assert Fourth
Amendment violations as to Duncklee’s seizure and the use
of force against him. The panel also held, however, that
plaintiff lacked standing to assert a Fourth Amendment
violation for the warrantless entry and seizure of the vacant
apartment. The panel held that the district court appeared to

    *
      The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              WOODWARD V. CITY OF TUCSON                    3

erroneously view the case through a landlord/tenant lens.
Although plaintiff described Duncklee as an overnight guest
of Amber Watts, the former tenant who was in the apartment
with Duncklee, the panel held that Watts had no privacy
rights to assign to Duncklee because she had been formally
evicted and Watts was aware of this eviction.

    Addressing qualified immunity regarding the seizure of
the apartment, the panel held that because Duncklee had no
reasonable expectation of privacy in the apartment, plaintiff
could not establish that the officers violated Duncklee’s
Fourth Amendment rights by entering the apartment without
a warrant. The panel concluded that the district court erred
in denying qualified immunity regarding this claim.

    Addressing qualified immunity regarding the seizure of
and use of force on Duncklee, the panel held that reasonable
officers in the defendant officers’ positions would not have
known that shooting Duncklee violated a clearly established
right; and that the use of deadly force could be acceptable in
such a situation. The panel concluded that the district court
erred in denying defendants qualified immunity regarding
this claim.
4             WOODWARD V. CITY OF TUCSON

                        COUNSEL

Michael W.L. McCrory (argued), Principal Assistant City
Attorney; Michael G. Rankin, City Attorney; City
Attorney’s Office, Tucson, Arizona; for Defendants-
Appellants.

Matthew F. Schmidt (argued) and Ted A. Schmidt, Kinerk
Schmidt & Sethi PLLC, Tucson, Arizona; Scott E. Boehm,
Law Office of Scott E. Boehm PC, Phoenix, Arizona; for
Plaintiff-Appellee.


                         OPINION

ROBRENO, District Judge:

    This interlocutory appeal arises from the district court’s
denial of qualified immunity for Tucson police officers
Allan Meyer and Robert Soeder (“Defendants”) from
Plaintiff’s claims under 42 U.S.C. § 1983 for
unconstitutional seizures and use of excessive force. The
claims stem from the officers’ warrantless entry into a vacant
apartment and use of deadly force on Michael Duncklee,
who aggressively attacked them while growling and
brandishing a broken hockey stick inside the apartment.

    Because the district court erroneously denied Defendants
qualified immunity regarding both the warrantless entry into
the apartment and the use of force on Duncklee, we reverse
and remand.

I. FACTUAL AND PROCEDURAL HISTORY

   As stated by the district court, “[t]his case presents an
unusual circumstance in which the facts are largely
                 WOODWARD V. CITY OF TUCSON                              5

undisputed,” and as acknowledged by Plaintiff, “[v]ery little
is disputed, and certainly nothing that is significant.”
Answering Brief at 2 (ECF No. 21). 1 The district court
summarized the facts of the case as follows: 2

             At 8:58 p.m. on May 21, 2014, the
         Tucson Police Department (“TPD”) received
         a call from “Zee.” Zee reported she was
         employed by an apartment complex landlord,
         and former tenants were inside an apartment
         that was supposed to be empty. Zee stated she
         did not know how the tenants got inside. She
         also stated she was not on the scene and had
         learned of the former tenants’ presence from
         a neighbor who called her, but did not want
         to leave their name.

             When the call was first received, the
         dispatch operator categorized it as a trespass
         with a priority level three. On a range of one
         to four, level one has the highest priority for

    1
       At oral argument, upon questioning, Plaintiff’s counsel similarly
answered that the facts were “largely undisputed.” Later, counsel did
state that, “I believe the final confrontation – there are disputable facts
about exactly what happened.” However, counsel noted no factual
disputes and subsequently acknowledged that there is no contradictory
evidence in the record. Likewise, we have found no evidence that
counters the statements of Defendants.

    2
       The district court stated that the facts presented were those
available to Soeder and Meyer at the time of their encounter with
Duncklee, as those are the facts relevant to whether the seizures violated
Duncklee’s Fourth Amendment rights.

     All footnotes in the quotation are original to it, but are renumbered
for use in this opinion.
6         WOODWARD V. CITY OF TUCSON

    the most pressing situations, and level four
    has the lowest priority. At 9:20 p.m., the lead
    police officer in the area updated the call to
    note that it could be downgraded to a level
    four and placed on hold. The officer did so
    because the property was a vacant location,
    the person who witnessed the reported
    activity did not want to be a part of the
    investigation, there was no one on the scene
    to verify the allegations, and the owner was
    not on the scene.

        Nearly two hours later, at 11:14 p.m., the
    operator dispatched the call. Officer Meyer
    responded and arrived at the apartment at
    11:22 p.m. In his deposition, Officer Meyer
    testified that the metal security door was
    closed when he arrived. He turned the
    doorknob of the security door and learned
    that it was unlocked. He thereafter opened the
    security door, turned the doorknob of the
    front door and opened it enough to learn that
    it was also unlocked, and then closed the
    front door. Officer Meyer left the security
    door open. He then radioed for backup on the
    grounds that he had an apartment with an
    open door. Officer Soeder responded and
    arrived on the scene at 11:32 p.m. The
    officers both stated they did not see any sign
    of forced entry, although Officer Soeder
    noted that the security door was swung wide
    open when he arrived.

       At this point, both officers drew their
    guns, knocked on the door, and announced
        WOODWARD V. CITY OF TUCSON                         7

that they were police. When no one answered
the officers’ call, they opened the door and
entered the apartment. They did not have a
warrant. Upon entering the apartment, neither
officer called for radio silence. Radio silence
is requested when officers encounter a scene
that they believe is likely to create an
emergency such that they need the radio
channels to be clear in case they need to radio
for assistance.

    Once in the apartment, the officers
realized that space in the room was limited
because there were numerous belongings
stacked against the wall and taking up
approximately half of the room. The officers
cleared the front living room and determined
that no one else was present. They saw a
closed door to what is the apartment’s only
bedroom and could hear a radio playing
inside the enclosed room. 3 The officers
approached the closed door and arranged
themselves such that Officer Soeder was to
the left of the door and Officer Meyer was to
the right. Officer Meyer then knocked on the
door and announced their presence, at a
volume he believed was loud enough to be
heard over the radio playing in the room. No
one responded.


    3
      Officer Soeder testified in his deposition that he
believed he could hear the music from outside the
apartment. In his affidavit, he stated that they did not
hear the “faint” radio until he was in the apartment.
8           WOODWARD V. CITY OF TUCSON

        Officer Soeder then opened the door.
    Because of his position he could not see into
    the bedroom. Officer Meyer, however, stated
    that he saw Mr. Duncklee holding “a large
    stick,” with a woman behind him. Officer
    Meyer stated that Mr. Duncklee was holding
    the stick in a way that would allow him to
    strike at Officer Meyer’s head. Officer Meyer
    stated the following in his affidavit:

                  As soon as the door swung
             open enough to see Duncklee,
             he started charging 4 at me
             with the stick raised where it
             could strike at my head, chest
             or arms. As Duncklee charged
             he was also yelling something
             like “aaahh”. [sic] From the
             instant I first saw Duncklee, I
             perceived that he was a
             serious and potentially deadly
             threat to me. He came at me in
             an aggressive manner with a
             scream and the stick raised
             over his shoulder. He was
             initially about five to six feet
             from me. Duncklee came

        4
            Hours after the shooting, TPD officials
    interviewed both Officers Meyer and Soeder. Officer
    Meyer stated in his interview that Mr. Duncklee was
    approaching him “faster than a walk slower than a run
    a brisk um . . . uh a, hard to describe brisk walk um,
    not a run not a slow walk but he’s advancing towards
    me um, I would say in an aggressive manner with a
    scream.” (Doc. 33-1 at 201.)
      WOODWARD V. CITY OF TUCSON               9

       through the door frame
       holding the stick in a swinging
       position with the end above
       his shoulder. I immediately
       started backing up, but knew
       that I couldn’t back up very
       far because of the small size
       of the room and the clutter in
       it. I yelled “Police, stop” at
       Duncklee, Duncklee kept
       coming at me. I fired at
       Duncklee’s chest.

    Officer Soeder had a different
perspective. He stated in his affidavit that
when he first opened the door to the closed
room,

       I heard a growling noise as if
       it    were       an     animal.
       Immediately after that, [Mr.
       Duncklee] burst through the
       door into the front room
       where we were. He was
       charging at me in a very
       aggressive manner holding a
       big, huge stick that appeared
       to be a hockey stick which he
       was starting to bring towards
       my head in a downward
       motion . . . . Duncklee had the
       hockey stick up and I
       remember seeing about 2 feet
       of the stick raised and coming
       down to hit my head. I heard a
10         WOODWARD V. CITY OF TUCSON

            gunshot. There wasn’t room
            to back up because of the
            clutter and because Duncklee
            was charging so fast. I tried
            taking a step or two
            backwards and hit something
            behind me which made me
            start leaning backwards as I
            shot at Duncklee. I believe
            that my shot hit Duncklee’s
            head because I was starting to
            lean backwards at that point
            from whatever was behind
            me. Duncklee was only about
            the distance I could reach if I
            stretched my arms straight out
            when I shot him. He was close
            enough at that point where he
            could hit me with the hockey
            stick.

          Once shot, Mr. Duncklee fell to the floor
     and did not move. Officer Soeder believed
     that he had shot Mr. Duncklee in the head and
     Officer Meyer could see the head wound. The
     woman, Amber Watts, screamed and was
     subsequently ordered to come out of the
     room. When she responded that she could not
     because she had been shot, Officer Soeder
     went to her. He cleared the room and
     determined that no one was present. He then
     holstered his weapon and began applying
     first aid to her gunshot wounds.
             WOODWARD V. CITY OF TUCSON                 11

            Officer Meyer stayed in the front room
       with his gun drawn. He stated in his affidavit
       that he did not provide any assistance to Mr.
       Duncklee because he was not sure if Mr.
       Duncklee had any other weapons, and needed
       to be prepared in case someone else was in
       the apartment. In his deposition, Officer
       Meyer also stated that he did not have any
       first aid materials on him. Officer Meyer
       radioed that there had been a shooting and
       officers soon arrived on the scene. Officers
       thereafter relieved Officers Meyer and
       Soeder and sought a search warrant for the
       apartment.

           Mr. Duncklee died from his gunshot
       wounds. Ms. Watts, who was shot twice in
       the leg, recovered. The stick Mr. Duncklee
       was holding was part of a hockey stick,
       measuring shortly over two feet.

Order, Woodward v. City of Tucson, No. 15-00077, at 2–5
(D. Ariz. Mar. 31, 2016) (alterations in original).

    Duncklee’s mother, Irma Woodward (“Plaintiff”),
brought this action under 42 U.S.C. § 1983 against Officer
Meyer, Officer Soeder, and the City of Tucson. In her
amended complaint, Plaintiff alleged, inter alia, that
Defendants violated the Fourth Amendment by unlawfully
entering the apartment and using excessive force against
Duncklee. Defendants asserted that they were entitled to
qualified immunity. The parties filed cross-motions for
summary judgment.
12            WOODWARD V. CITY OF TUCSON

    The district court denied Defendants’ motion and
granted Plaintiff’s motion in part. First, the district court
found that while Duncklee likely did not have standing to
challenge the seizure of the apartment, he did have standing
to challenge the seizure of his person and, thus, could “allege
that Officers Meyer and Soeder violated [his] Fourth
Amendment rights by entering the apartment.”

    Next, the court denied Defendants’ motion for summary
judgment, finding that Meyer and Soeder were not entitled
to qualified immunity for either their warrantless seizure of
the apartment or their use of force on Duncklee. As to the
warrantless seizure claim, the district court concluded that
Defendants’ warrantless entry into the apartment violated
the Fourth Amendment and that Defendants had failed to
show the entry was reasonable in light of exigent
circumstances or consent to enter. As a result, the court
determined that Meyer and Soeder were not entitled to
qualified immunity on this claim. The district court did not
address whether Duncklee or Watts had standing to raise a
Fourth Amendment privacy violation regarding the
warrantless entry and seizure of the apartment.

    Relying upon the since-abrogated provocation theory
from Alexander v. City and County of San Francisco,
29 F.3d 1355 (9th Cir. 1994), abrogated by County of Los
Angeles v. Mendez, 137 S. Ct. 1539 (2017), the district court
also determined that Plaintiff’s excessive force claim turned
on the force Defendants used in entering the apartment and
concluded that “it was clearly established as a matter of law
that drawing their guns and letting themselves into the
apartment violated a constitutional right to be free from
excessive force.” Thus, the court found that Defendants were
also not entitled to qualified immunity for this claim.
              WOODWARD V. CITY OF TUCSON                     13

    The district court next granted in part and denied in part
Plaintiff’s motion for summary judgment. As with its
qualified immunity analysis, the court found that the
warrantless seizure of the apartment was a Fourth
Amendment violation since there were neither exigent
circumstances nor proper consent to enter. Thus, the court
granted Plaintiff’s motion on this issue. However, the court
denied the motion as to the excessive force claim, finding
that there were outstanding factual issues. In considering the
facts relevant to the excessive force claim, the district court
again focused on Defendants’ actions relating to the
warrantless entry.

    Defendants appeal the district court’s denial of qualified
immunity for both the warrantless entry into the apartment
and the use of force against Duncklee. They also appeal the
district court’s grant of partial summary judgment for
Plaintiff as to the unreasonableness of the warrantless entry.

II. JURISDICTION AND STANDARD OF REVIEW

    Under the collateral order doctrine, this court has
jurisdiction to review the district court’s denial of qualified
immunity under 28 U.S.C. § 1291. See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). Moreover, on an interlocutory
appeal such as this one, we may exercise “[p]endent
appellate jurisdiction . . . over issues that ordinarily may not
be reviewed on interlocutory appeal” so long as those issues
are “inextricably intertwined” with “other issues properly
before the court.” Cunningham v. Gates, 229 F.3d 1271,
1284 (9th Cir. 2000). Because the district court’s grant of
partial summary judgment for Plaintiff as to the
unreasonableness of the Defendants’ entry into the
apartment is “inextricably intertwined” with its denial of
qualified immunity for that entry, we have jurisdiction to
review the grant of summary judgment.
14             WOODWARD V. CITY OF TUCSON

    A district court’s decision to grant or deny summary
judgment on the ground of qualified immunity is reviewed
de novo. See Garcia v. Cty. of Merced, 639 F.3d 1206, 1208
(9th Cir. 2011); Davis v. City of Las Vegas, 478 F.3d 1048,
1053 (9th Cir. 2007). So is a district court’s decision to grant
in part a party’s motion for summary judgment. White v. City
of Sparks, 500 F.3d 953, 955 (9th Cir. 2007). Viewing the
facts in the light most favorable to the non-moving party, this
court must determine whether there are any genuine disputes
as to any material facts and whether the district court
correctly applied the relevant substantive law. See Mueller
v. Auker, 576 F.3d 979, 991 (9th Cir. 2009).

III.      DISCUSSION

    All of the district court’s conclusions rest on the premise
that Duncklee deserved constitutional protections because of
his presence within the vacant apartment. Because Duncklee
had no reasonable expectation of privacy while trespassing
in the apartment, we reverse its denial of qualified immunity
regarding the warrantless entry and seizure of the apartment.
We also reverse the district court’s denial of qualified
immunity regarding the seizure of and use of force on
Duncklee, as it was not clearly established that the
Defendants’ actions violated a constitutional right. Finally,
we reverse the district court’s partial grant of summary
judgment in favor of Plaintiff.

       A. Plaintiff’s/Duncklee’s Fourth Amendment
          Standing

    Plaintiff obviously has standing to assert Fourth
Amendment violations as to Duncklee’s seizure and the use
of force against him. However, Plaintiff lacks standing to
assert a Fourth Amendment violation for the warrantless
entry and seizure of the vacant apartment. See Lyall v. City
             WOODWARD V. CITY OF TUCSON                   15

of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015) (noting
that Fourth Amendment rights are personal rights that cannot
be asserted vicariously and remarking that “when police
trespass on property to carry out a search, a defendant has
standing to raise the Fourth Amendment only if it was his
person, house, paper, or effect searched”). Although the
district court acknowledged that “because Mr. Duncklee is
not alleged to have any sufficient ownership or possessory
rights in the apartment, he may not have standing to
challenge the search of the apartment,” it nevertheless found
that Duncklee could assert rights regarding the apartment.

    Plaintiff recognizes that any privacy rights Duncklee had
in the apartment must stem from his relationship with Watts,
the former tenant who was in the apartment with him.
Plaintiff describes Duncklee as an overnight guest of Watts,
who Plaintiff assumes retained her rights as a tenant. If
Duncklee was an overnight guest, and if Watts retained
tenant rights, then Plaintiff would have standing to pursue a
violation of Duncklee’s Fourth Amendment privacy rights
as a result of Defendants’ warrantless entry into the
apartment. See Espinosa v. City & Cty. of San Francisco,
598 F.3d 528, 533 (9th Cir. 2010) (“An overnight guest in a
home staying with the permission of the host has a
reasonable expectation of privacy under the Fourth
Amendment.”).

    However, Watts had no privacy rights to assign to
Duncklee. Zimmerman v. Bishop Estate, 25 F.3d 784, 787–
88 (9th Cir. 1994) (holding that a house guest of a squatter
has no greater right to be on the property than does the
squatter), superseded on other grounds as recognized by
Margolis v. Ryan, 140 F.3d 850, 854–55 (9th Cir. 1998).
Although Plaintiff couches the case as being of a civil
16            WOODWARD V. CITY OF TUCSON

landlord/tenant nature, the reality is that Watts was a
trespasser, as she had been evicted from the property.

    One who has been formally evicted has no reasonable
expectation of privacy in his or her previous residence.
United States v. Struckman, 603 F.3d 731, 747 (9th Cir.
2010) (providing that a trespasser cannot claim Fourth
Amendment protections); United States v. Young, 573 F.3d
711, 713, 716 (9th Cir. 2009) (holding that “because the
hotel did not actually evict [the defendant], he maintained a
reasonable expectation of privacy in his hotel room,” and
explaining that “[b]eing arrested is different from being
evicted, and being arrested does not automatically destroy
[a] person’s reasonable expectation of privacy in his home”);
United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004)
(providing that “unless his occupancy had been lawfully
terminated when the police conducted their search, [the
defendant] retained a reasonable expectation of privacy in
the room”); Zimmerman, 25 F.3d at 787 (concluding that
squatters have no reasonable expectation of privacy); Klee v.
United States, 53 F.2d 58, 59 (9th Cir. 1931) (providing that
trespassers “cannot claim the benefit of the Fourth
Amendment”). Even though Watts had not removed all of
her personal property from the apartment, she had no
reasonable expectation of privacy in the apartment on the
night of May 21, 2014. Indeed, as Plaintiff acknowledged in
her answering brief, Watts had been formally evicted, her
key had been taken away, and she had made an appointment
for several days later to re-enter the apartment to obtain her
property.

    Because the undisputed evidence shows that Watts was
aware of her eviction, this case differs from situations where
the individuals claiming privacy rights either did not know
they had been evicted or claimed that they still had tenancy
              WOODWARD V. CITY OF TUCSON                    17

rights. See Young, 573 F.3d at 716–17; King v. Massarweh,
782 F.2d 825, 826, 828 (9th Cir. 1986) (providing that
individuals who had been paying rent and were claiming
tenancy rights during a landlord/tenant dispute had Fourth
Amendment protections in connection with a warrantless
search of their apartment, the seizure of their personal
property, and their warrantless arrests). In that she had been
evicted and locked out, Watts had no reasonable expectation
of privacy in the apartment.

    Like Plaintiff, the district court appears to have
erroneously viewed this case through a landlord/tenant lens.
All of the cases relied upon by the court involve situations
where the aggrieved individuals resided in the domiciles at
issue and had reasonable expectations of privacy. For
example, the district court asserted that “[t]he facts of this
case are substantively indistinguishable from those in King
and Frunz [v. City of Tacoma, 468 F.3d 1141 (9th Cir.
2006)].” Both of these cases involve warrantless searches,
lack of the residents’ consent to search, and their Fourth
Amendment rights arising from the searches. As stated, King
involved a landlord/tenant dispute in which the tenants had
been paying rent and were claiming tenant rights. 782 F.2d
at 826, 828. In Frunz, the plaintiff owned the home that was
searched. 468 F.3d at 1142. Thus, both of these cases are
distinguishable from the present case in that the plaintiffs in
those two cases either had property rights or at least made
claims, supported by evidence, that they had such rights.

    In conclusion, the district court’s analysis of this case
rests on a faulty premise, as Duncklee had no reasonable
expectation of privacy in the apartment on the night he was
shot by Defendants. Minnesota v. Carter, 525 U.S. 83, 88
(1998) (explaining that the aggrieved “must demonstrate that
he personally has an expectation of privacy in the place
18            WOODWARD V. CITY OF TUCSON

searched, and that his expectation is reasonable”). Thus,
Plaintiff has no standing to assert a Fourth Amendment
claim on this basis.

     B. Qualified Immunity Regarding the Seizure of the
        Apartment

    The district court began its analysis of Defendants’
qualified immunity claim regarding the seizure of the
apartment by stating that “[o]fficers Meyer and Soeder did
not have a warrant when they opened the door to and entered
the apartment.” It then explained that “‘[i]t is axiomatic that
the physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.’” Id.
(quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)). The
court simply assumed that the apartment was “home” for
Watts and, presumably by her permission, for Duncklee. As
discussed above, under the uncontested facts of this case,
this conclusion is legally untenable.

    Whether qualified immunity is warranted involves a two
part inquiry: (1) whether the facts alleged by the plaintiff
make out a violation of a constitutional right and (2) if so,
whether the right was “clearly established” at the time of the
defendant’s alleged misconduct. Pearson v. Callahan,
555 U.S. 223, 232 (2009). In that Duncklee had no
reasonable expectation of privacy in the apartment, Plaintiff
cannot establish that Defendants violated Duncklee’s Fourth
Amendment rights by entering the apartment without a
warrant. Thus, the first inquiry of the qualified immunity test
is not satisfied and the district court’s decision to deny
qualified immunity regarding this claim must be reversed.
                 WOODWARD V. CITY OF TUCSON                            19

    C. Qualified Immunity Regarding the Seizure of
       and Use of Force on Duncklee

    The district court, in denying qualified immunity to
Defendants as to the seizure of and use of force on Duncklee,
relied on its previous conclusion that the warrantless entry
violated Duncklee’s constitutional rights and, thus,
everything that occurred thereafter was part of that initial
violation. Citing the provocation theory from Alexander, the
court remarked that Plaintiff’s “‘excessive force claim turns
on the force the officers used in entering the [apartment],’”
(alteration in original) (quoting Alexander, 29 F.3d at 1366
n.12), and concluded that “it was clearly established as a
matter of law that drawing their guns and letting themselves
into the apartment violated a constitutional right to be free
from excessive force.” 5

    The provocation theory was succinctly recited in
Billington v. Smith, which held that under Alexander,

         if the police committed an independent
         Fourth Amendment violation by using
         unreasonable force to enter the house, then
         they could be held liable for shooting [a] man
         – even though they reasonably shot him at the
         moment of the shooting – because they “used
         excessive force in creating the situation

    5
      As stated, the district court also accepted Plaintiff’s argument that
the case involved “a landlord-tenant dispute, a matter governed by civil
and not criminal laws.” ER019. In light of Watts’ formal eviction and
acceptance thereof, we disagree. Under any view of the facts, the case
involved a criminal trespass. See, e.g., ER060 (April 25, 2014 Civil
Minute Entry authorizing the order of eviction and noting that once
served with the order, an individual who returns to the property without
permission commits criminal trespass in the third degree).
20            WOODWARD V. CITY OF TUCSON

       which caused the man to take the actions he
       did.”

292 F.3d 1177, 1188 (9th Cir. 2002) (alterations omitted)
(quoting Alexander, 29 F.3d at 1366). However, in County
of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), decided
after the district court’s opinion in this case, the Supreme
Court abrogated Billington and the provocation theory. The
Supreme Court concluded that the provocation theory was
incompatible with established federal excessive force
jurisprudence and held that an earlier “Fourth Amendment
violation cannot transform a later, reasonable use of force
into an unreasonable seizure.” Id. at 1544. The Court
recognized that the provocation theory conflated distinct
Fourth Amendment violations and held that the objective
reasonableness of each search or seizure must be analyzed
separately. Id. at 1547. In light of Mendez, the district court
erred in relying on the provocation theory.

    The question before this court, then, is whether the
officers are entitled to qualified immunity as to their seizure
of and use of deadly force on Duncklee. As we have said, the
qualified immunity analysis has two prongs: (1) whether the
facts alleged by the plaintiff establish that a constitutional
right of his was violated; and (2) whether that right was
“clearly established” at the time of the alleged violation. We
may consider these two prongs in either order. Pearson,
555 U.S. at 234.

    We shall begin with the second prong: was it “clearly
established” under the undisputed facts of this case that
Defendants should not have used deadly force on Duncklee?
These facts, as summarized in declarations made by Meyer
and Soeder, are that upon opening the bedroom door with
guns drawn, Duncklee immediately advanced towards the
              WOODWARD V. CITY OF TUCSON                   21

officers, yelling or growling, with a two-foot length of
broken hockey stick raised in a threatening manner. The
apartment was small and cluttered, making it difficult for the
officers to retreat. Before firing, Officer Meyer yelled
“police, stop” at Duncklee.

    We conclude that reasonable officers in Defendants’
positions would not have known that shooting Duncklee
violated a clearly established right. Indeed, the case law
makes clear that the use of deadly force can be acceptable in
such a situation. See Tennessee v. Garner, 471 U.S. 1, 11–
12 (1985) (“[I]f the suspect threatens the officer with a
weapon . . . , deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has
been given.”); Blanford v. Sacramento Cty., 406 F.3d 1110,
1111–13, 1117–19 (9th Cir. 2005) (holding that deputies
were entitled to qualified immunity for shooting a suspect
wandering around a neighborhood with a raised sword,
making growling noises, and ignoring commands to drop the
weapon). Thus, even assuming that a constitutional violation
occurred, the district court erred by denying Defendants
qualified immunity from this claim.

IV.     CONCLUSION

    The district court erred in denying qualified immunity to
Defendants for their entry into the apartment and use of force
on Duncklee. Moreover, because Defendants are entitled to
qualified immunity on Plaintiff’s claim arising out of their
entry into the apartment, the district court erred by granting
partial summary judgment for Plaintiff as to that claim.

      REVERSED and REMANDED.
