                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JAN 08 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

YOUNG HAN, individually and as                  No. 11-17930
successor-in-interest to decedent Joseph
Han; NAM HAN; DAVID HAN,                        D.C. No. 2:10-CV-00633-MCE-
                                                GGH
              Plaintiffs - Appellants,

 v.                                             MEMORANDUM*

CITY OF FOLSOM, a municipal
corporation; SAMUEL L. SPIEGEL, in his
capacity as Chief of Police for the City of
Folsom; PAUL BARBER, individually
and in his capacity as Police Officer for the
City of Folsom; DAREN PROCIW,
individually and in his capacity as Police
Officer for the City of Folsom; RON
PETERSON, individually and in his
capacity as Sergeant of Police for the City
of Folsom,

             Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted October 16, 2013
                            San Francisco, California

Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District
Judge.**

      Plaintiffs-Appellants Young Han, Nam Han, and David Han (the Hans)

appeal from the district court’s order granting summary judgment in favor of

Defendants-Appellees, the City of Folsom (the City), Folsom Police Chief Samuel

Spiegel (Spiegel), Sergeant Ronald Peterson (Peterson), Officer Paul Barber

(Barber), and Officer Daren Prociw (Prociw), on the Hans’ federal claims brought

under 42 U.S.C. § 1983 and their related state-law claims. We have jurisdiction

under 28 U.S.C. § 1291. For the reasons discussed below, we affirm in part,

reverse in part, and remand.

      The Hans claim that three Folsom police officers—Barber, Prociw, and

Peterson—used excessive force and acted negligently when they shot and killed

the Hans’ son/brother, Joseph Han (Joseph), during a confrontation inside the

Hans’ home. The three officers were called to the Hans’ home to help deal with

23-year-old Joseph, who had been acting mentally unstable for a few days. Upon

arriving, the Hans asked the officers to go inside their home and speak with Joseph



      **
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
                                         2
in his room. The officers went to Joseph’s room, where they found him holding a

three-to-four-inch camping knife. Joseph told the officers to leave his room and

began approaching the officers while holding the knife. The confrontation

escalated. Barber fired his Taser at Joseph, then Prociw fired his Taser, but both

were ineffective. Barber then shot Joseph with his gun before backing out of the

room. Soon after, Prociw deployed another Taser and then Peterson shot Joseph

with his gun before subduing him. Joseph later died from the gunshots.

      The Hans claim that Barber and Peterson used excessive force in violation of

the Fourth Amendment when they shot Joseph. The Hans do not, however,

challenge the officers’ use of their Tasers. Because Prociw only used his Taser,

and because the Hans conceded at oral argument that there is no liability against

him, we affirm summary judgment on the Hans’ excessive force claim against

Prociw. We also affirm summary judgment on the Hans’ excessive force claims

against Barber and Peterson because their actions were not “‘objectively

[un]reasonable’ in light of the facts and circumstances confronting them . . . .”

Graham v. Connor, 490 U.S. 386, 397 (1989). Undisputed evidence in the record

establishes that Joseph moved toward the officers, with his knife, in the confines of

his room, and did not comply with the officers’ commands to drop his weapon.

“[W]here a suspect threatens an officer with a weapon such as a gun or a knife, the


                                          3
officer is justified in using deadly force.” Smith v. City of Hemet, 394 F.3d 689,

704 (9th Cir. 2005) (en banc) (collecting cases). Moreover, the Hans’ own police-

tactics expert, Lou Reiter (Reiter), testified that Barber’s and Peterson’s use of

deadly force was reasonable under the circumstances.

      The Hans’ argue that, despite Reiter’s testimony, the officers acted

unreasonably because the officers created the need to use force by confronting

Joseph inside his room when they could have chosen to retreat and monitor Joseph

from outside the room. But, our cases do not “permit a plaintiff to establish a

Fourth Amendment violation based merely on bad tactics that result in a deadly

confrontation that could have been avoided.” Billington v. Smith, 292

F.3d 1177, 1190 (9th Cir. 2002). Even if an officer’s pre-shooting conduct

negligently provokes a suspect to violence, “that negligent [conduct] will not

transform an otherwise reasonable subsequent use of force into a Fourth

Amendment violation.” Id. Also, officers need not use “the least intrusive means

of responding to an exigent situation”; they need only act reasonably. Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Under the circumstances here, Barber’s

and Peterson’s use of force was not unreasonable, and, thus, not unconstitutional.




                                           4
      Even if Barber and Peterson violated Joseph’s Fourth Amendment rights, we

conclude that they are entitled to qualified immunity on the Hans’ excessive force

claims. An officer is entitled to qualified immunity unless he violates a person’s

clearly established constitutional or statutory rights. See Pearson v. Callahan, 555

U.S. 223, 231–32 (2009). Where, as here, “an officer’s use of force was premised

on a reasonable belief that such force was lawful, the officer will be granted

immunity from suit, notwithstanding the fact excessive force was deployed.”

Bryan v. MacPherson, 630 F.3d 805, 832 (9th Cir. 2010) (internal quotation marks

omitted). Accordingly, the district court correctly granted summary judgment in

the officers’ favor on the alternative basis of qualified immunity.

      Because we find no constitutional violation by the individual officers, there

is “no basis for finding the officers [were] inadequately trained.” Scott, 39 F.3d at

916. We therefore affirm summary judgment in favor of the City and Spiegel1 on

the Hans’ § 1983 claims. Similarly, “because there is no federal constitutional

violation and no conduct specified which constitutes a state constitutional

violation, there is no conduct upon which to base a claim for liability under

[California Civil Code Section 52.1].” Reynolds v. Cnty. of San Diego, 84 F.3d

1162, 1170–71 (9th Cir. 1996), overruled on other grounds by Acri v. Varian


      1
          The Hans offer no independent basis for Spiegel’s § 1983 liability.
                                           5
Associates, Inc., 114 F.3d 999 (9th Cir. 1997) (en banc). Thus, we affirm summary

judgment on the Hans’ state-law claims under Section 52.1.

      Though we affirm summary judgment in favor of all Defendants-Appellees

on the Hans’ federal and state constitutional claims, we reverse summary judgment

on two of the Hans’ state-law negligence claims: wrongful death and negligent

infliction of emotional distress. The district court analyzed these negligence claims

under the same standards it applied to the Hans’ constitutional claims and held that,

because the Hans’ constitutional claims fail, so too must their negligence claims.

But, while this case was pending on appeal, the California Supreme Court decided

Hayes v. County of San Diego, 305 P.3d 252 (Cal. 2013). In Hayes, the court

clarified that “state negligence law . . . is broader than federal Fourth Amendment

law” and that “[l]aw enforcement personnel’s tactical conduct and decisions

preceding the use of deadly force are relevant considerations under California law

in determining whether the use of deadly force gives rise to negligence liability.”

Id. at 263. Thus, while the officers’ alleged pre-shooting negligence does not

establish a constitutional violation, it may establish common-law negligence under

California law. The district court therefore incorrectly held that the lack of any

constitutional violation is fatal to the Hans’ wrongful death and negligent infliction

of emotional distress claims. The Defendants-Appellees offer no argument, other


                                          6
than that relied upon by the district court, as to why summary judgment should be

affirmed on these claims.

      Finally, the district court correctly granted summary judgment on the Hans’

state-law claim for negligent hiring, retaining, training, supervision, and discipline

because cities are not liable for such conduct under California law. See de Villers

v. Cnty. of San Diego, 156 Cal. App. 4th 238, 252 (2007) (“We find no relevant

case law approving a claim for direct liability based on a public entity’s allegedly

negligent hiring and supervision practices.”).

      In sum, we affirm summary judgment in favor of Defendants-Appellees on

the Hans’ § 1983, California Civil Code Section 52.1, and negligent hiring,

training, supervision, and discipline claims. We reverse summary judgment on the

Hans’ other state-law negligence claims—wrongful death and negligent infliction

of emotional distress—and remand this case to the district court for further

proceedings consistent with this memorandum disposition. Each party will bear its

own costs.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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