                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      JAN 27 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 MATTHEW BISCOTTI and CHRISTIAN                   No. 13-16238
 BISCOTTI,
                                                  D.C. No. 2:11-cv-01347-JAM-EFB
              Plaintiffs - Appellants,

    v.                                            MEMORANDUM *

 YUBA CITY; et al.,

              Defendants - Appellees.

                     Appeal from the United States District Court
                         for the Eastern District of California
                      John A. Mendez, District Judge, Presiding

                      Argued and Submitted September 15, 2015
                              San Francisco, California

Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.

         Plaintiffs Matthew and Christian Biscotti appeal the grant of summary

judgment in favor of Defendants on their Fourteenth Amendment due process and

California negligence claims arising out of the deadly shooting of Plaintiffs’

mother, Victoria Rogers-Vasselin, by Yuba City police officers on the doorstep of


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
her home. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part,

reverse in part, and remand.

      We reverse the district court’s decision to strike the statement by Lionel

Lonnie Patterson in his declaration, attesting that the officers failed to identify

themselves as police prior to shooting Ms. Vasselin. The district court abused its

discretion in determining that Mr. Patterson’s statement lacked foundation, where

evidence in the record showed that Mr. Patterson was physically present at the

house during the entire sequence of events and stood between the officers and Ms.

Vasselin when she was killed. See Fed. R. Evid. 701(a). The district court also

improperly invaded the province of the jury to the extent that it relied on Mr.

Patterson’s intoxication at the time of the shooting to strike his statement. Sabari

v. United States, 333 F.2d 1019, 1021 (9th Cir. 1964) (that witnesses were

intoxicated does not render their testimony inadmissible). It was for the jury, not

the court, to evaluate Mr. Patterson’s intoxication in determining what weight to

assign his testimony. Id.

      We affirm the district court’s grant of summary judgment in favor of

Defendants on Plaintiffs’ claim that the officers violated their liberty interests in

the companionship of their mother under the Fourteenth Amendment’s due process

                                           2
clause. Police conduct shocks the conscience in violation of due process if

undertaken with (1) deliberate indifference or (2) a purpose to harm unrelated to

legitimate law enforcement objectives. See A.D. v. Cal. Highway Patrol, 712 F.3d

446, 453 (9th Cir. 2013). Plaintiffs’ claim fails under either standard. Under the

former, the officers are protected by qualified immunity because no clearly

established law at the time of their actions put them on notice that their pre-

shooting conduct was in violation of due process. See Pearson v. Callahan, 555

U.S. 233, 243-44 (2009); Mullenix v. Luna, 136 S. Ct. 305, 308, 312 (2015) (per

curiam) (officer not entitled to qualified immunity because “existing precedent”

did not place the “constitutional question beyond debate”) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). Under the latter, there is no evidence in the

record from which a reasonable jury could infer that the officers’ “actions were

undertaken to ‘induce . . . lawlessness, or to terrorize, cause harm, or kill” Ms.

Vasselin. Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008) (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 855 (1998)) (alteration in original).

      We reverse the district court’s grant of summary judgment on Plaintiffs’

negligence claim. Plaintiffs’ pleadings incorporated into their negligence claim



                                           3
factual averments about the officers’ conduct leading up the shooting. 1 Under the

California Supreme Court’s decision in Hayes v. County of San Diego, 305 P.3d

252 (Cal. 2013), the district court erred in declining to consider these pre-shooting

circumstances in evaluating the officers’ negligence. “Law 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. This pre-shooting

conduct is to be considered not in isolation but rather as “part of the totality of

circumstances surrounding the fatal shooting.” Id. at 261; see also Grudt v. City

of L.A., 468 P.2d 825, 830-31 (Cal. 1970) (in bank) (considering officers’ decisions

about how to execute an arrest in evaluating the reasonableness of their ultimate

use of deadly force).

      The California Supreme Court has emphasized that consideration of the


1
  We therefore disagree with the district court that Plaintiffs’ complaint failed to
give Defendants fair notice that their negligence claim relied, in part, on pre-
shooting conduct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the…claim is and the grounds upon which it rests.’”)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original).
Indeed Defendants conceded as much at the summary judgment hearing.

                                           4
“totality of the circumstances surrounding any use of deadly force” under

California negligence law “is broader than federal Fourth Amendment law, which

tends to focus more narrowly on the moment when deadly force is used.” Hayes,

305 P.3d at 263 (internal citations omitted). Thus, acts that may not incur

constitutional liability under the Fourth Amendment’s “reasonableness” standard

may be negligent under California tort law’s “reasonable care standard.” Id. at

262 (citing Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002)).

      When the contested facts and inferences therefrom are viewed in Plaintiffs’

favor, as they must be at the summary judgment stage, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986), the totality of the relevant circumstances in this

case include not only the events that took place once Ms. Vasselin emerged on her

porch with a shotgun in hand, but also the officers’ pre-shooting tactical decisions

that obscured their law enforcement identity and increased the likelihood of a

violent and deadly encounter. Taken in the light most favorable to Plaintiffs, the

sweep of relevant facts includes the officers’ knowledge that their planned visit to

the house would be after dark and that at least one occupant had been armed and

intoxicated earlier that evening. The officers did not park in front of the house,

where a marked car would have been visible, but instead approached from the side,

                                          5
wearing dark uniforms and without announcing themselves as police officers. The

officers stood behind pillars, further obscuring their law enforcement identity, and

several of them shouted imperceptible orders at Ms. Vasselin when she opened the

door. In the process, they failed to inform Ms. Vasselin that they would shoot if

she did not comply with their commands.

      Viewing the evidence as a whole, we conclude that there is a triable issue as

to whether the officers’ ultimate use of deadly force was reasonable under

California negligence law. See, e.g., Grudt, 468 P.2d at 830-31 (triable issue

where plainclothes officers acted so as to make a driver think he was being

robbed); Munoz v. Olin, 596 P.2d 1143, 1148 (Cal. 1979) (“failure [to] adequately

. . . warn [decedent] and to attempt other means to apprehend him” supported

jury’s negligence finding); George v. Morris, 736 F.3d 829, 837-39 (9th Cir. 2013)

(triable issue where plaintiff’s version of the facts showed decedent did not pose an

immediate threat when shot). In reaching this conclusion, we express no view on

what the jury’s verdict should be. Rather, we ask at this stage of the proceedings

only whether a rational trier of fact could find that the officers failed to live up to

their duty to exercise reasonable care. See Nelson v. City of Davis, 571 F.3d 924,

927 (9th Cir. 2009). Because we find that question must be answered in the

                                            6
affirmative, Plaintiffs are entitled to present their case to a jury.

   AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

   Each party shall bear its own costs on appeal.




                                            7
                                                                             FILED
Biscotti v. Yuba City, No. 13-16238                                          JAN 27 2016

                                                                         MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring in part, and dissenting in part:       U.S. COURT OF APPEALS



      I concur with the majority that the Patterson declaration should not have

been struck, and that the officers are entitled to qualified immunity with respect to

the Plaintiffs’ § 1983 claim.1 However, I would also affirm the district court’s

grant of summary judgment with respect to the Plaintiffs’ negligence claim.

      Like federal courts evaluating Fourth Amendment excessive force claims,

California also views “‘reasonableness’ of a particular use of force . . . from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Hayes v. County of San Diego, 305 P.3d 252, 258 (Cal. 2013)

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “To do so, a court must

pay ‘careful attention to the facts and circumstances of each particular case,

including [1] the severity of the crime at issue, [2] whether the suspect poses an

immediate threat to the safety of the officers or others, and [3] whether he is

actively resisting arrest or attempting to evade arrest by flight.’” Hayes v. Cty. of

San Diego, 736 F.3d 1223, 1232 (9th Cir. 2013) (quoting Graham, 490 U.S. at


      1
        I concur in the memorandum disposition that the officers are protected by
qualified immunity but would also hold that under these circumstances the officers
were not deliberately indifferent as a matter of law, for the reasons explained
herein.

                                           1
396). Courts also consider “under the totality of the circumstances, the quantum of

force used, the availability of less severe alternatives, and the suspect’s mental and

emotional state.” Id. (internal quotation marks and citations omitted). “All

determinations of unreasonable force, however, must embody allowance for the

fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Id. (internal quotation marks

omitted). The “most important” consideration is “whether the suspect poses an

immediate threat to the safety of officers or others.” Smith v. City of Hemet, 394

F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting Chew v. Gates, 27 F.3d 1432,

1441 (9th Cir. 1994)).

      Applying the considerations articulated above, the officers’ conduct here

was not negligent, even considering the pre-shooting conduct, because Ms.

Vasselin posed an immediate, deadly threat to the officers. She unexpectedly

appeared naked pointing a shotgun in the officers’ direction. She ignored the

officers’ repeated instructions to drop the gun, and instead proceeded to advance

towards them. The time from when Ms. Vasselin appeared with the shotgun to the

time when the officers fired was about one minute. Thus, the officers did not have

time to consider any less severe alternative means to protect themselves from the

                                           2
danger posed.

      Plaintiffs, however, contend there were alternative means available to the

officers to avoid or diffuse the situation including having a better plan to

communicate, providing more time for Ms. Vasselin to comply, standing in the

open instead of hiding behind pillars, keeping their weapons holstered, contacting

the residents by phone, waiting to approach the house until the morning,

illuminating the porch, and identifying themselves as police clearly. But officers

are not required to choose the “‘most reasonable’ action or the conduct that is the

least likely to cause harm,” so long as their conduct falls “within the range of

conduct that is reasonable under the circumstances.” Hayes, 305 P.3d at 258

(quoting Brown v. Ransweiler, 171 Cal. App. 4th 516, 537–38 (2009)). Although

Plaintiffs argue that the officers yelled confusing orders at Ms. Vasselin, the record

demonstrates that the theme was consistent: drop the gun. Furthermore, the

suggestion that the officers should have given Ms. Vasselin additional time to

comply ignores the fact that she could have fired at them at any moment.

Additionally, the officers’ placement of themselves behind pillars and drawing

their weapons prior to approaching the house were reasonable safety precautions to

cover themselves. See Duran v. City of Maywood, 221 F.3d 1127, 1131 (9th Cir.

2000) (“Although Plaintiffs are correct in pointing out that the officers had their


                                           3
guns drawn and did not announce their presence, these actions were entirely

reasonable given that they were responding to a call that shots had been fired.”);

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“It’s hardly unreasonable for

officers to take arms, knock on the door of an apartment and identify themselves as

police when an armed man who, they are told, recently fired shots and is acting

‘crazy’ lurks inside.” (footnote omitted)). Thus, the officers’ conduct clearly fell

“within the range of conduct that is reasonable under the circumstances.” See

Hayes, 305 P.3d at 258.

      Perhaps Ms. Vasselin did not realize that the individuals she was threatening

were police officers, but this possibility does not alter the officers’ reasonable, if

not compelled, belief that Ms. Vasselin was about to shoot them. The officers

could reasonably have believed that Ms. Vasselin did know that they were the

police. The undisputed evidence shows that the officers arrived in marked patrol

cars and wore police uniforms. They knocked at the door. When Mr. Patterson

appeared at the door with a gun, he obeyed their instructions, and the officers

successfully disarmed him. When Ms. Vasselin emerged, Mr. Patterson was on the

porch with his hands on his head. Neither Mr. Patterson nor Ms. Vasselin asked

who the officers were or what they wanted. Thus, unlike Grudt v. City of Los

Angeles, 468 P.2d 825, 830–81 (Cal. 1970), all of the circumstances support the


                                            4
officers’ reasonable belief that Ms. Vasselin knew that they were the police.

Because Ms. Vasselin nonetheless advanced on them with a shotgun pointed in

their direction, the officers’ use of deadly force was not negligent.

                             *             *              *

      “We must never allow the theoretical, sanitized world of our imagination to

replace the dangerous and complex world that police[] face every day. What

constitutes reasonable action may seem quite different to someone facing a

possible assailant than to someone analyzing the question at leisure.” Martinez v.

Cty. of L.A., 47 Cal. App. 4th 334, 343 (1996) (internal quotation marks omitted).

I would hold that regardless of the officers’ pre-shooting conduct and Ms.

Vasselin’s actual or apparent knowledge that she was facing police officers, given

the immediacy and the deadly threat of harm posed and the lack of then available

alternatives, they were justified in using deadly force. I respectfully dissent from

the majority’s disposition to the extent that it holds otherwise.




                                           5
