                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                        APR 3 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JOSEPH A. NELSON, individually and as           No.    19-35284
personal representative of the estate and its
statutory beneficiaries estate of Joel A.       D.C. No. 3:18-cv-05184-RBL
Nelson,

                Plaintiff-Appellee,             MEMORANDUM*

 v.

THURSTON COUNTY, a Washington
municipality; RODNEY T. DITRICH,

                Defendants,

DOES, 1 through 15, individually,

                Defendant,

and

JOHN D. SNAZA,

                Defendant-Appellant.


JOSEPH A. NELSON, individually and as           No.    19-35286
personal representative of the estate and its
statutory beneficiaries estate of Joel A.       D.C. No. 3:18-cv-05184-RBL
Nelson,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Plaintiff-Appellee,

 v.

RODNEY T. DITRICH,

                Defendant-Appellant,

and

JOHN D. SNAZA; DOES, 1 through 15,
individually,

                Defendants.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                              Submitted April 1, 2020**
                                Pasadena, California

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

      John Snaza and Rodney Ditrich appeal the denial of their motions for

summary judgment based on qualified immunity. We have jurisdiction under 28

U.S.C. § 1291, and we affirm as to Ditrich, but reverse and remand as to Snaza.

      We consider an interlocutory appeal of denial of summary judgment based

on qualified immunity “to the extent that it turns on an issue of law.” Pauluk v.




      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                         2
Savage, 836 F.3d 1117, 1120–21 (9th Cir. 2016) (quoting Mitchell v. Forsyth, 472

U.S. 511, 530 (1985)). We review de novo a determination of qualified immunity

on summary judgment, viewing the evidence in the light most favorable to the

nonmoving party. Martinez v. City of Clovis, 943 F.3d 1260, 1270 (9th Cir. 2019).

      Ditrich argues his appeal turns on a legal issue, but “only in the absence of

material disputes is it ‘a pure question of law,’” Torres v. City of Madera, 648 F.3d

1119, 1123 (9th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8,

(2007)). Ditrich contests the events of the shooting, although appeals such as these

are appropriate “only if the appellant concedes the facts.” Adams v. Speers, 473

F.3d 989, 991 (9th Cir. 2007). What Ditrich “most forcefully contests is whether

his alternative account of the shooting should be accepted as true. Factual disputes

of that order must be resolved by a jury, not by a court adjudicating a motion for

summary judgment.” Orn v. City of Tacoma, 949 F.3d 1167, 1181 (9th Cir. 2020)

(citing Tolan v. Cotton, 572 U.S. 650, 656 (2014)); see also Gonzalez v. City of

Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc) (noting that “summary

judgment should be granted sparingly in excessive force cases,” especially “where

the only witness other than the officers was killed during the encounter”).

      Weighing inconsistent testimony about the shooting, as well as reports that

cast doubt on Ditrich’s version of events, the district court properly denied

Ditrich’s motion for summary judgment. See Newmaker v. City of Fortuna, 842


                                          3
F.3d 1108, 1116 (9th Cir. 2016) (“Qualified immunity should not be granted when

other evidence in the record, such as medical reports, contemporaneous statements

by the officer, the available physical evidence, and any expert testimony proffered

by the plaintiff is inconsistent with material evidence proffered by the defendant.”

(punctuation and citation omitted)).

      Snaza’s appeal, on the other hand, “turns on an issue of law.” Pauluk, 836

F.3d at 1121. “[I]n resolving a motion for summary judgment based on qualified

immunity, a court must carefully examine the specific factual allegations against

each individual defendant . . . .” Cunningham v. Gates, 229 F.3d 1271, 1287 (9th

Cir. 2000). The district court, however, identified no issues of material fact

relating to Snaza, and failed to explain the basis for denying his motion. We

accordingly reverse the district court’s order as to Snaza so that the district court

may undertake the requisite factual examination of the allegations against him.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      Each party shall pay its own costs on appeal.




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