                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 04 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DENISE ABBEY, individually and as                No.   15-15863
special administrator of the Estate of
Micah Abbey,                                     D.C. No.
                                                 3:13-cv-00347-LRH-VPC
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

CITY OF RENO; RENO POLICE
DEPARTMENT; KEITH PLEICH,
Individually and in his Official Capacity as
a Police Officer; DANIEL BOND,
Individually and in his Official Capacity as
a Police Officer; SCOTT RASMUSSEN,
Individually and in his Official Capacity as
a Police Officer,

              Defendants-Appellees,

 and

BRAD DEMITROPOULIS; BOARD OF
REGENTS FOR THE NEVADA
SYSTEM OF HIGHER EDUCATION ON
BEHALF OF THE UNIVERSITY OF
NEVADA, RENO,

              Defendants.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                         Argued and Submitted April 18, 2017
                              San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN,** District
Judge.

      Denise Abbey appeals the district court’s grant of summary judgment on her

42 U.S.C. § 1983 claim against defendants the City of Reno, the Reno Police

Department, and individual police officers. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Abbey contends that the officers were not entitled to qualified immunity for

the death of her son, Micah. His death followed an altercation between Micah and

the officers at a mental health group home. The issue we must decide is whether

the force used by the officers was excessive. This is because the Supreme Court

held that police officers are entitled to qualified immunity if they did not use

excessive force, meaning they did not act in an objectively unreasonable manner

given the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). To assess




      **
             The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
                                           2
the reasonableness of the officers’ actions, we must compare the amount of force

used with the government interests at stake. Id. at 396.

      Viewing the facts in the light most favorable to the plaintiff, Abbey, we must

agree with the district court that the officers did not use excessive force. The

government’s interest in procuring Micah’s arrest was extremely high. Micah had

threatened the officers and others with violence; tried to grab an officer’s baton;

attempted to flee; and actively resisted arrest before and during the altercation,

including after being handcuffed. See id. (laying out factors for assessing the

government’s interest). The coroner’s report also shows that, at the time of the

altercation, Micah had in his system a form of synthetic marijuana, which medical

records indicate had previously made him “psychotic.” The officers resorted to

forcible restraint after less forceful means, including taser, failed to subdue Micah.

The case is very different from Drummond ex rel. Drummond v. City of Anaheim,

where the victim offered no resistance after being handcuffed. See 343 F.3d 1052,

1058–59, 1061 (9th Cir. 2003).

      We assume the officers’ actions constituted deadly force, but such force

would not have been what our law recognizes as excessive, given the high degree

of danger that Micah presented to the officers and others at the group home. “A

police officer may reasonably use deadly force where he has probable cause to


                                           3
believe that the suspect poses a threat of serious physical harm, either to the officer

or to others.” Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir. 2002) (internal

quotation marks omitted). The district court properly concluded that the individual

officers were entitled to qualified immunity.

      Because the officers were entitled to qualified immunity, so too were the

municipal defendants in this case. See Tatum v. City & Cty. of San Francisco, 441

F.3d 1090, 1100 (9th Cir. 2006). The district court therefore did not err in granting

summary judgment in favor of all defendants.

      While we regret that the confrontation between Micah and responding

officers came to such a tragic end, given the facts of the case, we are unable to

conclude excessive force was used.

      AFFIRMED.




                                           4
