                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JERRY NEWMAKER; SUSAN                    No. 14-15098
OLESEN,
         Plaintiffs-Appellants,            D.C. No.
                                      4:12-cv-04675-PJH
               v.

CITY OF FORTUNA; MAXWELL                  OPINION
SOETH; CHARLES ELLEBRECHT,
          Defendants-Appellees.


     Appeal from the United States District Court
          for the Northern District of California
   Phyllis J. Hamilton, Chief District Judge, Presiding

         Argued and Submitted March 14, 2016
               San Francisco, California

               Filed November 22, 2016

  Before: William A. Fletcher, Johnnie B. Rawlinson,
       and Andrew D. Hurwitz, Circuit Judges.

             Opinion by Judge W. Fletcher
2               NEWMAKER V. CITY OF FORTUNA

                            SUMMARY*


                             Civil Rights

    The panel reversed the district court’s summary judgment
and remanded in a 42 U.S.C. § 1983 action in which plaintiffs
alleged that City of Fortuna police officer Maxwell Soeth
used excessive force when he fatally shot Jacob Newmaker
during an attempted arrest.

    Officer Soeth maintained in the district court that he shot
Newmaker after Newmaker grabbed Soeth’s police baton.
The panel held that summary judgment is not appropriate in
§ 1983 deadly force cases that turn on the officer’s credibility
that is genuinely in doubt. The panel determined that the
version of events offered by Officer Soeth and Sergeant
Ellebrecht to the district court was materially contradicted by
evidence in the record. The panel concluded that because this
case required a jury to sift through disputed factual
contentions — including whether the officers were telling the
truth about when, why, and how Soeth shot Newmaker —
summary judgment was inappropriate.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             NEWMAKER V. CITY OF FORTUNA                    3

                        COUNSEL

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of
Dale K. Galipo, Woodland Hills, California, for Plaintiffs-
Appellants.

Nancy K. Delaney (argued) and Nicholas R. Kloeppel,
Mitchell Brisso Delaney & Vrieze LLP, Eureka, California,
for Defendants-Appellees.


                         OPINION

W. FLETCHER, Circuit Judge:

    Maxwell Soeth, a police officer in Fortuna, California,
fatally shot Jacob Newmaker during an attempted arrest. In
this 42 U.S.C. § 1983 case alleging excessive force, Officer
Soeth maintained in the district court that he shot Newmaker
after he grabbed Soeth’s police baton. According to Soeth,
Newmaker was standing upright and was swinging the baton
violently toward Sergeant Charles Ellebrecht at head height
when he was shot. According to Soeth, Newmaker then fell
to the ground. Soeth maintained he shot Newmaker again as
Newmaker was getting up and again swinging the baton.

    The district court granted summary judgment to Officer
Soeth based on qualified immunity. Because evidence in the
record contradicts Soeth’s testimony, we reverse and remand.

                 I. Procedural Background

   In 2012, Newmaker’s parents (“Plaintiffs”) filed this suit
against the City of Fortuna, Officer Soeth, and Fortuna Police
4            NEWMAKER V. CITY OF FORTUNA

Sergeant Ellebrecht. Plaintiffs allege that Soeth used
unconstitutionally excessive force by striking Newmaker
multiple times with his police baton and then fatally shooting
him. Plaintiffs originally asserted various federal and state
law claims, but eventually agreed to dismiss several of them,
leaving only the excessive force and substantive due process
claims against Soeth and a few state law claims against both
the City and Soeth.

     After excluding some of Plaintiffs’ proffered evidence,
the district court concluded on summary judgment that
Officer Soeth was entitled to qualified immunity. Based on
Soeth’s testimony that Newmaker had taken his police baton,
the court concluded that “it was reasonable for Officer Soeth
to conclude that Newmaker might use the baton in a
dangerous way against Ellebrecht, merely by virtue of having
it in his possession.” After granting summary judgment on
the § 1983 claims, the district court dismissed the remaining
state law claims without prejudice. Plaintiffs appeal the grant
of summary judgment to Soeth.

                   II. Standard of Review

    We review a district court’s grant of summary judgment
de novo. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047
(9th Cir. 2009). We review for abuse of discretion a district
court’s decision to exclude expert testimony and other
evidence during summary judgment proceedings. See
Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807,
813 (9th Cir. 2014).
              NEWMAKER V. CITY OF FORTUNA                      5

                        III. Discussion

     Because we are reviewing a grant of summary judgment
in favor of defendant Soeth, we view the evidence in the light
most favorable to Plaintiffs. “The evidence of the nonmovant
is to be believed, and all justifiable inferences are to be drawn
in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).

                 A. Evidence in the Record

          1. Officer Soeth’s Deposition Testimony

    Officer Soeth testified in his deposition that Newmaker
walked into the Fortuna Police Station at about midnight on
the morning of March 16, 2012. Newmaker told Soeth that
unidentified people had just chased him down an alley and
that he was afraid. Soeth told Newmaker that he needed
either to file a report or to leave the station. Newmaker
declined to file a report and asked for a ride home. Soeth
refused, and Newmaker left. Newmaker was acting
strangely, and Soeth thought he might be mentally impaired
or on drugs.

    About two hours later, while in a patrol car, Officer Soeth
encountered Newmaker on a street in Fortuna. Newmaker
was fully clothed, wearing a jacket, but shoeless. Newmaker
told Soeth that he was going to the hospital and asked for a
ride to his mother’s house. Soeth refused to give Newmaker
a ride, but followed Newmaker until he arrived at his
mother’s house and went inside. A check with dispatch to
determine whether Newmaker was on probation or parole or
had any outstanding warrants came up negative.
6             NEWMAKER V. CITY OF FORTUNA

    At about 6:00 a.m. that morning, Officer Soeth received
a call at the station about a “male subject . . . banging on the
doors and windows of an occupied dwelling.” While Soeth
went in his patrol car to investigate, Sergeant Ellebrecht
spoke to the caller, who reported that the subject had left on
a bicycle. The caller stated that the subject had said his “skin
was crawling” and “[t]hat he was in contact with radiation.”
Ellebrecht relayed this information to Soeth.             Soeth
encountered Newmaker on a bicycle at an intersection.
Newmaker was no longer wearing his jacket. Soeth
attempted a stop, but Newmaker rode away.

    Officer Soeth followed Newmaker and “called out” a
pursuit. After about two blocks, Newmaker got off his
bicycle and started running. Soeth got out of his patrol car
and pursued on foot. Newmaker turned around and came
back toward Soeth. Soeth ordered Newmaker to get on the
ground. Newmaker responded by lying on the hood of a
parked car. Soeth ordered Newmaker to get on the ground
and show his hands. When Newmaker did not comply, Soeth
physically forced him to the ground.

    Officer Soeth stated in his deposition that he again
ordered Newmaker to show his hands. When Newmaker did
not comply, Soeth used his Taser in “drive” mode (without
darts) to stun Newmaker in the lower back. Soeth stated that
Newmaker reacted by grabbing the Taser with one hand and
Soeth’s leg with the other. Soeth stepped back, and
Newmaker got up and ran away. Soeth again pursued
Newmaker on foot. At some point, Newmaker had lost his
pants. He was now naked from the waist down and wearing
only a t-shirt. He had no weapon.
              NEWMAKER V. CITY OF FORTUNA                        7

     Officer Soeth stated in his deposition that Newmaker
stopped running and assumed a “fighter’s stance.” Soeth
pointed his Taser at Newmaker and told him to get on the
ground. When Newmaker failed to comply, Soeth fired the
Taser in “probe” mode (with darts). The darts hit Newmaker
in the torso, and he fell onto his back. Soeth ordered
Newmaker to roll on his stomach and put his hands on his
back. When Newmaker failed to comply, Soeth activated
another Taser cycle. Newmaker grabbed the Taser wires and
bit through them.

     Sergeant Ellebrecht, who had just arrived in a separate
patrol car, joined Officer Soeth in the attempt to subdue
Newmaker. Officer Soeth stated in his deposition that he hit
Newmaker twice with his police baton to prevent him from
getting up, although video from Ellebrecht’s dashboard
camera shows a greater number of strikes. Soeth stated that
he then tried to close the baton to put it back in its holster, but
he could not do so. He threw the baton to the edge of the
sidewalk next to a fence.            Ellebrecht succeeded in
handcuffing Newmaker’s right wrist. Soeth and Ellebrecht
then dragged Newmaker onto the street behind a parked car,
out of view of the dashboard camera. What happened next is
at the core of this case.

     The video taken by the dashboard camera shows Officer
Soeth going to retrieve his baton from beside the fence and
then returning behind the parked car. Soeth stated in his
deposition that he intended to use the baton to pry
Newmaker’s left arm free so Ellebrecht could handcuff his
left wrist. Soeth stated that Newmaker grabbed the baton and
that he shouted, “He’s got my baton.” According to Soeth,
Newmaker stood up and swung the baton “violently” and
“aggressively” at Ellebrecht’s head. Soeth stated in his
8             NEWMAKER V. CITY OF FORTUNA

deposition that he then drew his firearm and told Newmaker
to drop the baton. Soeth stated that he then shot Newmaker
from a standing position in order to protect Ellebrecht. Soeth
stated that Newmaker fell to the ground, either because he
was shot or because he “was swinging so violently that he
fell.” Soeth stated that he shot Newmaker again as he was
getting up and starting to swing the baton again. Soeth
estimated that the time between the two shots was “[t]wo
seconds tops” and could have been less than a second. The
shots killed Newmaker.

                2. Carol Harris’s Declaration

    A witness to the encounter, Carol Harris, provided a
sworn declaration. Harris stated that she lived “directly to the
south” of where Officer Soeth and Sergeant Ellebrecht were
attempting to subdue Newmaker. She did not specify how far
away she was. She stated that she “exited [her] residence and
stood on the front porch from where [she] observed a man
fighting in the street with officers[.]” She stated that she
“either blinked or looked away for a moment.” When she
“looked back,” one of the officers had drawn his gun and
stated, “‘Put the weapon down.’” That officer “again stated,
‘Put the weapon down, put the weapon down.’” Harris stated
that she “saw two muzzle flashes from the gun . . . ,
approximately two seconds apart[.]” “After the male was
transported by ambulance from the scene, [she] observed
items in the roadway, including one that had a handle and
appeared to be ‘telescoped’ out[.]”
              NEWMAKER V. CITY OF FORTUNA                     9

 3. Evidence Conflicting with Officer Soeth’s Testimony

                  a. The Hislop Interviews

    The day after the shooting, Officer Soeth and Sergeant
Ellebrecht were interviewed by Investigator Michael Hislop
of the Humboldt County District Attorney’s Office,
accompanied by a detective from the Fortuna Police
Department. Before the interviews, Soeth and Ellebrecht had
viewed the dashboard camera video. Only after receiving
suggestions from Investigator Hislop did Soeth and
Ellebrecht arrive at the version of events they ultimately
presented to the district court.

     At the beginning of his first interview, Officer Soeth gave
the following description of what happened after he and
Sergeant Ellebrecht dragged Newmaker behind the parked
car:

            I run back to the sidewalk, grab my baton,
        get towards the subject, go to initiate that
        move, that technique [of using the baton as a
        tool to pry Newmaker’s left hand], he jerks
        his right hand out of [Ellebrecht’s] grasp.
        Latches onto my baton with both hands. I
        latch onto my baton with both hands. We
        struggle. Charles yells, ‘Pepper spray him.’
        I said, “He’s get — he’s getting my baton.”

            He jerks the batons [sic] out of my hand.
        I yell, “He’s got my baton.” I create distance
        between me and him. Draw my weapon, my
        firearm. He is — he has the baton in both
10            NEWMAKER V. CITY OF FORTUNA

       hands and he’s — he’s just swinging it back
       and forth towards Charles.

          He takes a step or two towards Charles.
       I’m ordering him to drop it. . . . Giving . . .
       him orders to comply.

             I shoot him twice. Subject drops.

Soeth stated that Newmaker was “aggressively swinging [the
baton] towards Charles” at about “head height” when he shot
him.

     Near the end of the interview, Investigator Hislop
suggested to Officer Soeth that it might not have happened
the way Soeth had initially described it, with Newmaker
falling to the ground only after Soeth had shot him twice:

       Investigator Hislop: Okay. So you shot two
       shots and — let’s go back to that real quick.
       You shot two shots. And on the videotape
       which you’ve watched . . .

             ...

           [He’s] doing this big overt swing towards
       Sergeant Ellebrecht. You shoot him. And
       then he falls down and he’s getting back up
       again. And then you shoot him again?

       Maxwell Soeth: After seeing the video, I —
       I believe that is what happened.

       ...
             NEWMAKER V. CITY OF FORTUNA                    11

       Investigator Hislop: Okay. Good. Anything
       else?

In his deposition approximately one year later, Soeth repeated
the version of events suggested by Investigator Hislop.

    Investigator Hislop next interviewed Sergeant Ellebrecht.
Ellebrecht stated early in the interview, “I knew he had
Soeth’s baton. And at that point, I saw him, like, swing at
me. And I remember backing up trying to get away from
him. And then that’s when Soeth fired.” “It was head
high. . . . And it was a full swing, so definitely head high at
some point.” Ellebrecht remembered two shots, resulting in
Newmaker on his knees:

       Investigator Hislop: Okay. So once Jacob
       [Newmaker] swung at you with the baton and
       you backed up, what happened right after
       that?

       Charles Ellebrecht: That’s when Officer
       Soeth who was a little bit away from
       Newmaker at that point. I don’t know at what
       point he backed up. But he — I saw his gun
       and I remember him firing two shots.

       ...

       Investigator Hislop: What happened to Jacob
       after that?

       Charles Ellebrecht: He was on his knees[.]
12           NEWMAKER V. CITY OF FORTUNA

Investigator Hislop then suggested to Ellebrecht the same
sequence of events that he had suggested to Officer Soeth:

       Investigator Hislop: You watched the video
       and in how he kind of lunges. There’s a large,
       like, lunge as you’re backing up.

       Charles Ellebrecht: I think it was right at —
       right at the same time Newmaker began
       swinging.

       Investigator Hislop: Okay. And the second
       shot —

       Charles Ellebrecht: It was like less than a
       second later, if I recall correctly. Like, it was
       pretty much back to back as much as I can
       remember.

       Investigator Hislop: Okay. Now if — if you
       referred back to the video if you can, so when
       he does the big lunge and then he gets shot
       and it looks like he way over-extended and he
       fell.

       Charles Ellebrecht: He —

       Investigator Hislop: He fell and then again
       didn’t seem like it stopped him. He fell and
       then he started to get back up again.

       Charles Ellebrecht: That, I think is — that
       might be when Soeth —
             NEWMAKER V. CITY OF FORTUNA                   13

       Investigator Hislop: Would it be possible that
       he shot once while he swung at you and then
       when he fell, he got back up and Soeth shot
       again?

       Charles Ellebrecht: It’s possible.

       Investigator Hislop: Okay. Okay.

       Charles Ellebrecht: I don’t remember.

    Investigator Hislop interviewed Sergeant Ellebrecht again
a month later, on April 19. At the end of the first interview,
Ellebrecht had said only that it was “possible” that Newmaker
had fallen to the ground between shots. Ellebrecht was still
hesitant in the second interview, but he now recited,
unassisted, the version of events that had been suggested by
Hislop:

           Once Newmaker got the baton from
       Soeth, I guess he turned — he was kind of
       facing towards me. And I remember him,
       like, coming down with it at me. And that’s
       when I — I tried backing up when he was
       swinging it at me.

          And then my recollection is that’s when
       Soeth fired the first shot. And I’m not one
       hundred percent positive.

           And then I remember Newmaker falling
       down, down to his knees, I guess. And then
       seeing another shot. I — I think after the
14           NEWMAKER V. CITY OF FORTUNA

       second shot, he started to get up. He fell. I
       remember him falling and trying to get up.

           And then I guess the second shot went off,
       he tried to get up again. And then shortly
       later that’s when he, like fell forward, like, on
       the pavement and had the baton.

                  b. The Autopsy Report

     The report from the autopsy performed on Newmaker’s
body conflicts with Officer Soeth and Sergeant Ellebrecht’s
version of events. When Investigator Hislop initially
interviewed Soeth and Ellebrecht, no autopsy had been
performed. The autopsy, performed three days later, showed
that two bullets killed Newmaker. They both entered his
lower back and traveled at thirty degree angles upward
toward his chest. One bullet entered the left lower back,
broke a rib, traveled through the left lung, and lodged in the
left pectoral muscle. The other entered the right lower back,
traveled through the lower right lung, lacerated two lower
thoracic vertebrae, and lodged in the descending right aorta.

    The video from Sergeant Ellebrecht’s dashboard camera
and Officer Soeth’s own statements make plain that Soeth
was standing upright, holding his gun at about chest level,
when he shot Newmaker. Soeth claimed that he fired the first
shot when Newmaker was standing upright, swinging the
baton violently toward Ellebrecht, and the second shot as
Newmaker was getting up off the ground, again swinging the
baton. The autopsy report contradicts Soeth’s testimony.
The autopsy results can be explained only by Newmaker
having been turned away from Soeth, bending over, and low
to the ground in both shots — not, as Soeth maintains,
              NEWMAKER V. CITY OF FORTUNA                     15

standing up and swinging the baton at head height (the first
shot) or attempting to stand up and swinging the baton again
(the second shot).

                         c. The Video

    The video taken by Sergeant Ellebrecht’s dashboard
camera is also inconsistent with Officer Soeth’s version of the
events. Plaintiffs had the video “enhanced” in an attempt to
improve the lighting and image quality. The district court
had before it both an “enhanced” and “unenhanced” version
of the video. We rely for our analysis on the unenhanced
version.

    The quality of the video is poor, as the recording was
made a little after 6:00 a.m., while it was dark and raining.
The dashboard camera was supposed to record sound, but for
reasons that are unexplained, none has been preserved. The
following can nonetheless be discerned. After Newmaker has
bitten through the Taser wires, Officer Soeth and Sergeant
Ellebrecht struggle with him on the sidewalk. The video
shows Soeth hitting Newmaker about five times with his
baton while still on the sidewalk. (During his deposition,
Soeth stated that he hit Newmaker two times.) Ellebrecht
succeeds in handcuffing Newmaker’s right wrist. Soeth and
Ellebrecht drag Newmaker off the sidewalk onto the street
behind a parked car. Ellebrecht’s patrol car is in front of the
parked car, and what happens on the ground behind the
parked car cannot be seen in the video. Soeth goes to the
fence, on the left-hand side of the video screen, to retrieve his
baton. He returns with the baton to the rear of the parked car
and disappears from sight. Soeth’s head appears briefly,
rising high enough behind the parked car that it can be seen.
Ellebrecht stands, and then Newmaker comes into view. He
16            NEWMAKER V. CITY OF FORTUNA

rises behind the car, and almost immediately twists and falls
toward the right, onto the street. There is nothing clearly
visible in his hands. After he has fallen, only his legs are
visible on the video. The rest of his body is off the screen to
the right. At 06:17:44 on the videotape clock, just after
Newmaker has fallen to the street, Soeth appears to shoot.

 d. Internal Inconsistencies in the Defendants’ Statements

     Officer Soeth’s and Sergeant Ellebrecht’s statements are
inconsistent with one another on several points. They
disagreed over the number of times Newmaker swung the
baton. Soeth stated that Newmaker “aggressively” and
“violently” swung the baton multiple times, while Ellebrecht
stated that Newmaker swung the baton only once. They also
offered conflicting testimony about what happened to the
baton after Newmaker was shot. Soeth stated that Newmaker
fell to the ground with a baton in his hand and that Ellebrecht
later kicked the baton away from Newmaker. Ellebrecht
originally did not remember Newmaker having the baton in
his hand after being shot. He later remembered Newmaker
with the baton, but denied kicking the baton away. A
photograph taken after the shooting shows the baton lying
several feet away from where Newmaker fell.

          B. Summary Judgment Is Inappropriate

    The district court granted summary judgment because of
qualified immunity. Qualified immunity analysis entails a
two-pronged inquiry. Tolan v. Cotton, 134 S. Ct. 1861, 1865
(2014). First, we “ask[] whether the facts, ‘taken in the light
most favorable to the party asserting the injury, . . . show the
officer’s conduct violated a federal right.’” Id. (alterations
omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
             NEWMAKER V. CITY OF FORTUNA                    17

Second, we “ask[] whether the right in question was ‘clearly
established’ at the time of the violation.” Id. at 1866 (citing
Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

    Plaintiffs maintain that Officer Soeth violated
Newmaker’s clearly established Fourth Amendment rights by
using excessive, and ultimately deadly, force. Excessive
force claims are analyzed under a Fourth Amendment
reasonableness inquiry. Graham v. Connor, 490 U.S. 386,
395 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985). In
conducting this analysis, a court must balance the severity of
the intrusion on the individual’s Fourth Amendment rights
against the government’s need to use force. Graham, 490
U.S. at 396; Espinosa v. City & Cty. of San Francisco, 598
F.3d 528, 537 (9th Cir. 2010). Relevant factors include “(1)
the severity of the crime; (2) whether the suspect posed an
immediate threat to the officers’ or public’s safety; and (3)
whether the suspect was resisting arrest or attempting to
escape.” Espinosa, 598 F.3d at 537. The second factor —
whether the suspect posed an immediate threat — is the most
important. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.
2011). Deadly force is not permitted “[w]here the suspect
poses no immediate threat to the officer and no threat to
others.” Garner, 471 U.S. at 11; see also Espinosa, 598 F.3d
at 538.

    We hold that the district court erred in granting qualified
immunity to Officer Soeth. Summary judgment is not
appropriate in § 1983 deadly force cases that turn on the
officer’s credibility that is genuinely in doubt. Gonzalez v.
City of Anaheim, 747 F.3d 789, 791 (9th Cir. 2014); see also
C.V. v. City of Anaheim, 823 F.3d 1252, 1256 (9th Cir. 2016);
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Wilson v.
City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002).
18           NEWMAKER V. CITY OF FORTUNA

Qualified immunity should not be granted when other
evidence in the record, “such as medical reports,
contemporaneous statements by the officer[,] the available
physical evidence, [and] any expert testimony proffered by
the plaintiff” is inconsistent with material evidence proffered
by the defendant. Scott, 39 F.3d at 915; see Gonzalez, 747
F.3d at 791.

    The version of events offered by Officer Soeth and
Sergeant Ellebrecht to the district court is materially
contradicted by evidence in the record. Their versions of
events changed over time. The version they presented to the
district court was suggested to them by Investigator Hislop.
Both their original version of events (that Officer Soeth shot
Newmaker twice in quick succession while he was standing
up and swinging the baton at Ellebrecht) and their second
version of events (that Officer Soeth first shot while
Newmaker was standing and swinging the baton, and quickly
shot again as Newmaker attempted to stand back up while
swinging the baton) conflict with the autopsy report and with
the video evidence. A reasonable jury could conclude that
Soeth and Ellebrecht were wrong when they claimed that
Newmaker grabbed the baton. In the alternative, a reasonable
jury could conclude, given the trajectory of the bullets
through Newmaker’s body, that even if Newmaker had
grabbed the baton Officer Soeth could not have fired his first
shot while Newmaker was standing up and swinging the
baton. See Curnow v. Ridgecrest Police, 952 F.2d 321, 322,
325 (9th Cir. 1991) (holding that officers were not entitled to
qualified immunity for shooting a suspect who was holding
a semiautomatic rifle when the suspect’s back was to the
officers and the suspect was not pointing the rifle at them);
Ting v. United States, 927 F.2d 1504, 1508, 1511 (9th Cir.
1991) (holding officers were not entitled to qualified
              NEWMAKER V. CITY OF FORTUNA                    19

immunity because, although the suspect was originally armed
with a gun, the plaintiff’s version of events suggested that the
officers shot “an unarmed and injured felon lying or kneeling
on the floor surrounded by five heavily armed agents”).
Because this case “requires a jury to sift through disputed
factual contentions” — including whether the officers were
telling the truth about when, why, and how Soeth shot
Newmaker — summary judgment was inappropriate. Santos
v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

                         Conclusion

    Based on the foregoing, we reverse the decision of the
district court and remand for further proceedings.

   REVERSED and REMANDED.
