                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LANEY SWEET, an individual, on behalf of No. 18-16118
E.S., N.S., and the estate of Daniel Shaver;
et al.,                                      D.C. Nos. 2:17-cv-00152-GMS
                                                       2:17-cv-00715-GMS
                 Plaintiffs-Appellees,

 v.                                             MEMORANDUM*

CHARLES J. LANGLEY,

                Defendant-Appellant.

                  Appeal from the United States District Court
                           for the District of Arizona
                 G. Murray Snow, Chief District Judge, Presiding

                       Argued and Submitted March 2, 2020
                                Phoenix, Arizona

Before: CLIFTON, OWENS, and BENNETT, Circuit Judges.

      Charles Langley appeals from the district court’s denial of his motion to

dismiss on qualified immunity grounds two 42 U.S.C. § 1983 actions based on

Langley’s involvement in the fatal shooting of Daniel Shaver. We have

jurisdiction under 28 U.S.C. § 1291. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review de novo a district court’s decision denying a motion to dismiss,

accepting as true all well-pleaded allegations of material fact and construing them

in the light most favorable to the non-moving party. Padilla v. Yoo, 678 F.3d 748,

757 (9th Cir. 2012). As the parties are familiar with the allegations, we do not

recount them here. We affirm.

      “Qualified immunity attaches when an official’s conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)

(internal quotation marks and citations omitted). The clearly established right

“must be defined with specificity” so that officials can be said to have reasonable

notice of the violation. Id. When determining whether a defendant’s actions

violate clearly established law, courts may look not only to Supreme Court

precedent, but also to Ninth Circuit precedent, unpublished decisions, and the law

of other circuits. Prison Legal News v. Lehman, 397 F.3d 692, 701–02 (9th Cir.

2005).

      1.     Philip Brailsford violated clearly established law when he shot

Shaver. “A police officer may not seize an unarmed, nondangerous suspect by

shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). Under the

integral participant rule, the plaintiffs need not demonstrate “that each officer’s

actions themselves rise to the level of a constitutional violation.” Boyd v. Benton


                                           2                                    18-16118
Cty., 374 F.3d 773, 780 (9th Cir. 2004). Any “fundamental involvement in the

conduct that allegedly caused the violation” is sufficient to make an officer an

integral participant under clearly established law. Blankenhorn v. City of Orange,

485 F.3d 463, 481 n.12 (9th Cir. 2007). Ninth Circuit precedent in effect at the

time of Shaver’s death clearly establishes that Langley was an integral participant

in the shooting.

      In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), this court denied a

motion to dismiss based on qualified immunity by federal officials who “developed

the plan that resulted in [plaintiff’s] shooting and encouraged [the shooter] to fire

at him.” Id. at 1204. The defendants could be held liable for setting “special rules

of engagement” that “directly impinged on the clearly established constitutional

rights of those against whom they were aimed . . . .” Id. at 1205. Here, the

plaintiffs allege that Langley developed the plan that led to three police officers

pointing rifles at the unarmed Shaver. Langley also told Shaver that there was a

“very severe possibility” that he would be shot and killed if he made a mistake or if

he moved. Because it is alleged that Langley effectively authorized his

subordinates to use excessive force against Shaver, he was an integral participant

in Brailsford’s ultimate decision to shoot Shaver. Id.

      2.     Langley also argues that Shaver’s parents, Grady and Norma Shaver,

failed to allege that Langley’s conduct “shocks the conscience.” Wilkinson v.


                                           3                                    18-16118
Torres, 610 F.3d 546, 554 (9th Cir. 2010). He claims that, because he and his

fellow officers made a “snap judgment” when shooting Shaver, “his conduct may

be found to shock the conscience only if he act[ed] with a purpose to harm

unrelated to legitimate law enforcement objectives.” Hayes v. Cty. of San Diego,

736 F.3d 1223, 1230 (9th Cir. 2013). The Shavers argue that the standard for

reviewing whether Langley’s conduct shocks the conscience is “deliberate

indifference,” because “actual deliberation [was] practical.” Id. The Shavers’

complaint plausibly alleges that Langley acted with either the purpose to harm or

deliberate indifference when he threatened to shoot Shaver for “mak[ing] a

mistake” and ordered his subordinates to point guns at an obviously unarmed and

compliant person. The district court properly denied qualified immunity in light of

these allegations.

      AFFIRMED.




                                         4                                   18-16118
