                                                                             FILED
                            NOT FOR PUBLICATION                               APR 30 2015

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



                           FOR THE NINTH CIRCUIT


ESTATE OF JAMES LEWIS                )       No. 13-35743
SLATER JR, by and through            )
Laura Casablanca, Personal           )       D.C. No. 2:12-cv-01132-MJP
Representative of the Estate;        )
LAURA MARIE CASABLANCA, )                    MEMORANDUM*
wife of James Lewis Slater, Jr.;     )
DAWN MARIE HAMILTON,                 )
step-daughter of James Lewis         )
Slater, Jr.; ESTATE OF JAMES         )
LEWIS SLATER SR, father of James )
Lewis Slater, Jr., by and through    )
Gerald R. Slater, Personal           )
Representative of the Estate,        )
                                     )
       Plaintiffs - Appellants,      )
                                     )
       v.                            )
                                     )
KING COUNTY; PETER JOSEPH )
COUGAN, in his official capacity     )
as a police officer for King County, )
and as an individual,                )
                                     )
       Defendants - Appellees.       )
                                     )

                   Appeal from the United States District Court
                     for the Western District of Washington


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Marsha J. Pechman, Chief District Judge, Presiding

                           Argued and Submitted April 9, 2015
                                  Seattle, Washington

Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.

      The Estate of James Lewis Slater, Jr.,1 Laura Casablanca, Dawn Hamilton

and the Estate of James Lewis Slater, Sr.,2 appeal the judgment in favor of King

County and police officer Peter J. Cougan, which followed the district court’s grant

of summary judgment on the civil rights action brought by the Slater family. See

42 U.S.C. § 1983. The Slater family also appeals the district court’s denial of its

motions for partial summary judgment. We affirm.

      (1)       The Slater family first asserts that Cougan violated Slater’s right

under the Fourth Amendment to the United States Constitution to be free from an

unreasonable seizure — here the use of force by Cougan, who shot Slater while

responding to a 911 call (in which Casablanca reported acts of domestic violence

by Slater). The district court determined that Cougan was entitled to qualified

immunity. As we see it, Cougan’s use of deadly force did not violate Slater’s

constitutional rights. It was reasonable under the circumstances, and there are no



      1
          James Lewis Slater, Jr., is hereafter referred to as Slater.
      2
          Collectively referred to as “the Slater family.”

                                              2
disputes of fact that could lead to a contrary conclusion. Therefore, we affirm.3 In

general, any use of force by an officer must be “objectively reasonable under the

circumstances,”4 and that is determined “‘in light of the facts and circumstances

confronting’”5 the officer at the time. More specifically, “use of deadly force is

reasonable only if ‘the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others,’”6 but

we cannot overlook “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.”7

We have carefully considered the evidence,8 and, objectively speaking, on the

undisputed facts, Cougan had probable cause to believe that Slater threatened him

with serious physical injury. The atmosphere was frought with menace as Slater


      3
      We can affirm on any basis supported by the record. McSherry v. City of
Long Beach, 584 F.3d 1129, 1135 (9th Cir. 2009).
      4
          Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994).
      5
          Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).
      6
       Scott, 39 F.3d at 914; see also Tennessee v. Garner, 471 U.S. 1, 3, 105 S.
Ct. 1694, 1697, 85 L. Ed. 2d 1 (1985).
      7
       Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443 (1989).
      8
          See Scott, 39 F.3d at 915.

                                            3
rapidly approached, refused to obey repeated commands to stop and was almost

upon Cougan. In that rapidly evolving situation,9 it was reasonable for Cougan to

fire his weapon at Slater. There are some disputed facts, but none of them are

material to determining the reasonableness of Cougan’s response under those

stressful circumstances: for example, the fact that, as it turned out, Slater was not

actually armed as he resolutely marched towards Cougan,10 the fact that less

intrusive alternatives might have been available,11 and the fact that the officers did

not expressly say they would shoot if Slater did not stop advancing.12 In fine,

Slater’s constitutional rights were not violated.

      (2)      The Slater family urges that its constitutional right to due process

pursuant to the Fourteenth Amendment to the United States Constitution was




      9
        The situation had been static and the officers at the scene were waiting until
Slater started moving — between that time and the time Slater was shot was
around eighteen seconds. Cf. Billington v. Smith, 292 F.3d 1177, 1191 (9th Cir.
2002) (150 seconds “is not a comfortably ample period” for deliberation).
      10
        See Lal v. California, 746 F.3d 1112, 1117 (9th Cir.), cert. denied, __ U.S.
__, 135 S. Ct. 455, 190 L. Ed. 2d 331 (2014); Blanford v. Sacramento Cnty., 406
F.3d 1110, 1116 (9th Cir. 2005).
      11
           See Billington, 292 F.3d at 1191.
      12
       They did order him at gunpoint to stop, but he ignored them and kept on
coming at Cougan.

                                               4
violated because Slater’s death took him from the family,13 and Cougan’s acts, in

effect, shock the conscience.14 However, because the due process standard is more

stringent than the Fourth Amendment standard, the Slater family cannot prevail on

this claim.15 The evidence would not support a conclusion that Cougan “acted with

a purpose to harm [Slater] for reasons unrelated to legitimate law enforcement

objectives.” Porter, 546 F.3d at 1137.16

      (3)      The Slater family also asserts that the district court erred when it

granted summary judgment to the County. We disagree. Because Cougan’s

actions did not violate Slater’s or the Slater family’s constitutional rights, the 42

U.S.C. § 1983 claims against the County also fail. See Jackson v. City of

Bremerton, 268 F.3d 646, 653–54 (9th Cir. 2001).

      (4)      Similarly, the Slater family’s claims under the laws of the State of

Washington must fail because absent wrongful acts by Cougan, there is no basis

for recovering in a survival or wrongful death action. See Estate of Lee v. City of

      13
           See Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).
      14
           Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).
      15
        See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 n.4
(9th Cir. 1998).
      16
        To the extent that the Slater family claims that Porter was wrongly decided,
we are unable to consider its argument. See State Bar of Cal. v. Findley (In re
Findley), 593 F.3d 1048, 1050 (9th Cir. 2010).

                                            5
Spokane, 2 P.3d 979, 989–90, 101 Wash. App. 158, 173–74 (2000).

      Therefore, we affirm the grants of summary judgment to Cougan and the

County.17

      AFFIRMED.18




      17
        We perceive no abuse of discretion in the district court’s refusal to
consider portions of the Slater family’s expert’s opinions. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146–47, 118 S. Ct. 512, 519, 139 L. Ed. 2d 508 (1997).
      18
           The Slater family’s motion for summary reversal is denied as moot.

                                           6
