                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 14 2014

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



                            FOR THE NINTH CIRCUIT


KEAMIA POWELL,                                   No. 13-35403

              Plaintiff - Appellee,              D.C. No. 2:13-cv-00077-TOR

  v.
                                                 MEMORANDUM*
HERBERT SLEMP,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                      Argued and Submitted October 6, 2014
                              Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Washington State Patrol Sergeant Herbert Slemp appeals the district court’s

denial of his motion for summary judgment on the basis of qualified immunity.

Plaintiff Keamia Powell brought suit against him under 42 U.S.C. § 1983, alleging

that Sgt. Slemp used excessive force when he attempted to restrain her with his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
firearm drawn and discharged his weapon, resulting in a gunshot wound to her

back.

        The district court conducted its analysis assuming that the shooting was

accidental. On appeal, Powell argues that we can draw the inference from the

record that Sgt. Slemp intentionally shot Powell. However, beyond her own

speculation, Powell cannot point to any evidence in the record that supports the

conclusion that Sgt. Slemp intentionally shot her, and no reasonable jury could so

conclude. Thus, we focus on what the district court characterized as Powell’s

“primary theory of liability”—that Sgt. Slemp used excessive force when he

attempted to restrain Powell with his firearm drawn.

        In evaluating a qualified immunity defense, a court must assess whether a

jury could find that the defendant’s conduct violated a constitutional right and

whether that right was clearly established, such that “it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 201–02 (2001). District courts and courts of

appeals may exercise their discretion to address these questions in either order,

and, if they answer one question in the negative, may grant qualified immunity

without reaching the other. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In

addressing the clearly established prong, the court must not “define clearly


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established law at a high level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2084 (2011).

      Here, the district court defined the clearly established right at issue too

broadly, without reference to Sgt. Slemp’s particular actions in this case. Unless

existing law would have made it “sufficiently clear” to a reasonable officer in Sgt.

Slemp’s position that attempting to restrain Powell with his gun drawn violated her

Fourth Amendment rights, Sgt. Slemp was entitled to qualified immunity. See

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Because no such case law

exists, and because the illegality of his actions was not otherwise “beyond debate,”

al-Kidd, 131 S. Ct. at 2083, Sgt. Slemp must prevail on his motion for summary

judgment.

      Exercising our discretion under Pearson v. Callahan, we decline to reach the

question whether Sgt. Slemp’s actions violated Powell’s Fourth Amendment rights.



      REVERSED.




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