                    UNITED STATES COURT OF APPEALS                       FILED
                            FOR THE NINTH CIRCUIT                        MAY 21 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
CLEO DAILY, her personal capacity and as        No.   17-16793
Personal Representative of the Estate of
Zachary Pithan; TRACY PITHAN,                   D.C. No. 2:14-cv-00825-SPL
                                                District of Arizona,
                Plaintiffs-Appellants,          Phoenix

 v.                                             ORDER

CITY OF PHOENIX; CLINTON
BROOKINS,

                Defendants-Appellees.

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

      The memorandum disposition filed on April 10, 2019 is amended. On page

5, <For the same reason, Plaintiffs have waived any challenge to the district court’s

grant of summary judgment to Defendants on the state law wrongful death

claims.> is added after the final sentence of the disposition. An amended

memorandum disposition is filed concurrently with this order.

      With this amendment, the majority of the panel has voted to deny the

petition for panel rehearing. Judge Friedland has voted to deny the petition for

rehearing en banc, and Judge Clifton so recommends. Judge Ikuta has voted to

grant the petition for rehearing en banc.
      The full court has been advised of the petition for rehearing and rehearing en

banc and no judge has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.

      The petition for panel rehearing and rehearing en banc is DENIED. No

further petitions may be filed.




                                         2
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CLEO DAILY, her personal capacity and as        No.    17-16793
Personal Representative of the Estate of
Zachariah Pithan; TRACY PITHAN,                 D.C. No. 2:14-cv-00825-SPL

                Plaintiffs-Appellants,          AMENDED
                                                MEMORANDUM*
 v.

CITY OF PHOENIX; CLINTON
BROOKINS,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Steven Paul Logan, District Judge, Presiding

                       Argued and Submitted March 8, 2019
                                Phoenix, Arizona

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

      Zachariah Pithan’s parents (“Plaintiffs”) brought a lawsuit under 42 U.S.C.

§ 1983 against Phoenix police officer Clinton Brookins and the City of Phoenix

(collectively, “Defendants”) alleging that Brookins used excessive force in

violation of the Fourth Amendment and deprived Plaintiffs of their Fourteenth


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Amendment right to familial association when Brookins shot and killed Pithan

during a struggle at Pithan’s apartment. The district court granted summary

judgment for Defendants on all claims, holding that Brookins’s use of force was

objectively reasonable under the Fourth Amendment and that he had not violated

the Fourteenth Amendment because he had not acted with a purpose to harm

Pithan that was unrelated to legitimate law enforcement objectives. The court

dismissed the associated municipal liability claims because there was no

underlying constitutional violation. We affirm in part and reverse in part.

      1. The district court erred in granting summary judgment on Plaintiffs’

Fourth Amendment excessive force claim against Brookins. The “most important”

factor in determining whether deadly force was justified is whether the suspect

poses an immediate threat to the safety of the officer or others. Estate of Lopez ex

rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017). Here, there is a genuine

dispute whether a threat existed. Brookins alleges that Pithan picked up a wooden

stick during the struggle and attempted to swing it at another officer’s face, causing

Brookins to fear for the officer’s safety and justifying his decision to shoot Pithan

twice in the chest. But none of the other three officers in the room saw Pithan

holding a stick, even though they were right next to Pithan and even though

Brookins alleges that Pithan swung the stick at one of their faces. Because a

reasonable jury could find that at least one other officer would have seen Pithan


                                          2
holding a stick if Brookins’s account were true, we cannot conclude that

Brookins’s version of the events is “uncontradicted.”1 Scott v. Henrich, 39 F.3d

912, 915 (9th Cir. 1994). Rather, because there is a genuine factual dispute about

whether Pithan picked up a stick, the district court erred in granting summary

judgment on Plaintiffs’ Fourth Amendment excessive force claim. See Lopez, 871

F.3d at 1006; Cruz v. City of Anaheim, 765 F.3d. 1076, 1079-80 (9th Cir. 2014);

Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc); Santos

v. Gates, 287 F.3d 846, 851 (9th Cir. 2002); Ting v. United States, 927 F.2d 1504,

1511 (9th Cir. 1991).

      2. Summary judgment on Plaintiffs’ Fourteenth Amendment familial

association claim was appropriate. See Lemire v. Cal. Dep’t of Corr. & Rehab.,

726 F.3d 1062, 1075 (9th Cir. 2013). To prove that public officials violated the

due process clause of the Fourteenth Amendment by depriving a plaintiff of her



1
  The dissent repeats the district court’s conclusion that Cruz v. City of Anaheim,
765 F.3d 1076, 1080 (9th Cir. 2014), suggests that it would be more suspicious if
the other officers’ stories matched Brookins’s version of events. But this is a
misreading of our holding in Cruz. Cruz held that the fact that all four of the
officers claimed to have seen the suspect reach for his waistband at the exact
moment—despite the fact that they were in different locations surrounding the
victim and most or all of them had a car door blocking their view of the suspect’s
waistband—was suspicious, and that a reasonable jury could find it was likely that
the officers had lied. Id. Our focus was on “whether the officers’ accounts [we]re
‘consistent with other known facts,’” which they appeared not to be. Id. at 1079
n.3. Nothing in Cruz suggests that an officer’s story is more credible if it does not
match his fellow officers’ accounts.

                                          3
right to familial association, the plaintiff must show that the officials’ conduct

“shocks the conscience”—meaning that they acted with a “purpose to harm” the

decedent that was “unrelated to legitimate law enforcement objectives.” Porter v.

Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The only evidence that Plaintiffs

offer of such a purpose is a handful of Brookins’s Facebook posts from two to

three years prior to the incident in which Brookins discussed wanting to shoot a

firearm and expressed disdain for a vaguely defined group of criminals. The posts

do not indicate that Brookins acted with a purpose to harm Pithan specifically,

because they are not directed toward Pithan and were made several years earlier.

Absent any other evidence about Brookins’s motive at the time of the incident

here, a jury could not reasonably conclude that Brookins acted without a legitimate

law enforcement objective in mind, even if he used excessive force in his actions.

See Gonzalez, 747 F.3d at 797-98 (affirming summary judgment on a familial

association claim even where there is a genuine dispute of material fact that

warrants reversal on the excessive force claim). We therefore affirm summary

judgment on Plaintiffs’ familial association claim.

      3. The district court granted summary judgment to the City of Phoenix on

Plaintiffs’ claims under Monell v. Department of Social Services, 436 U.S. 658

(1978). Plaintiffs waived any challenge to this aspect of the district court’s ruling

by failing to make any arguments about municipal liability in their opening brief.


                                           4
See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (“[Appellant’s]

opening brief does not discuss his Monell policy or custom claims against [the

defendants], nor does it cite any authority related to these claims. We therefore

decline to address [Appellant’s] argument, raised for the first time in his reply

brief, that the district court erred in dismissing his policy-based claims.”). For the

same reason, Plaintiffs have waived any challenge to the district court’s grant of

summary judgment to Defendants on the state law wrongful death claims.

      AFFIRMED in part, REVERSED in part and REMANDED.




                                           5
                                                                              FILED
                                                                               APR 10 2019
Daily v. Phoenix, No. 17-16793
IKUTA, Circuit Judge, dissenting:                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      The central question before us is whether, as Brookins testified, Pithan

grabbed a 16-inch wooden spindle during his melee with the four police officers.

The parties do not dispute that an officer’s use of deadly force in such a

circumstance is not excessive, and therefore does not violate the Fourth

Amendment.

      The plaintiffs assert that there is a genuine issue of material fact as to

whether Officer Brookins was credible, but point to no evidence in the record to

support this claim. The three other officers attempting to subdue Pithan testified

they did not see him grab the wooden spindle during the approximately 30 seconds

in which the struggle took place. But they also testified that they were not in a

position to know whether or not Pithan had a weapon in his hands. Two of the

officers stated that they were focusing solely on Pithan’s legs, and the third officer

stated that he “could not see [Pithan’s] left hand and/or his right hand and the

actions that [he] was doing with those.”

      There is no evidence in the record (expert testimony or otherwise) that given

the officers’ position, the size of the room, and the duration of the confrontation,

one or more of the officers would necessarily have seen the spindle in Pithan’s

hand if there had been one. Nor does the officers’ failure to see the spindle,
without more, give rise to a suspicion that Brookins is not telling the truth. Rather,

our precedent indicates that it would be more suspicious if all the officers gave a

consistent account of the struggle. See Cruz v. City of Anaheim, 765 F.3d 1076,

1080 (9th Cir. 2014).

      In short, the majority’s conclusion that “a reasonable jury could find that at

least one other officer would have seen Pithan holding a stick if Brookins’s

account was true,” is based on nothing in the record.

      Because there is no genuine issue of material fact on the excessive force

claim, I would affirm the district court’s grant of summary judgment in favor of

Brookins. Accordingly, I dissent.
