                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 28 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARIA ADAME, et al.,                            No.    19-16238

                Plaintiff-Appellees,            D.C. No.
                                                2:17-cv-03200-GMS
 v.

JOSEPH GRUVER,                                  MEMORANDUM*

                Defendant-Appellee,

and

CITY OF SURPRISE; et al.,

                Defendants.

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

                        Argued and Submitted June 8, 2020
                            San Francisco, California

Before: SCHROEDER and BRESS, Circuit Judges, and MCSHANE,** District
Judge.
Dissent by Judge SCHROEDER

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
      Defendant-Appellee Joseph Gruver, a police officer of the Surprise Police

Department, appeals the district court order denying his motion for summary

judgment on a claim that he used excessive force in violation of the Fourth

Amendment when he shot and killed Derek Adame. This Court has interlocutory

jurisdiction of the district court’s determination that Officer Gruver’s actions

violated clearly established law. Cunningham v. City of Wenatchee, 345 F.3d 802,

808 (9th Cir. 2003). Due to the unique circumstances present when Officer Gruver

used lethal force, any violation of Adame’s constitutional rights was not clearly

established. Officer Gruver is therefore entitled to qualified immunity.

      “We review the district court’s conclusions regarding qualified immunity de

novo.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017).

“[W]e consider all disputed facts in the light most favorable to the nonmoving

party[.]” Id. In determining whether an officer is entitled to qualified immunity,

courts ask (1) whether the officer violated another’s constitutional rights and, if so

(2) whether the constitutional right was clearly established at the time of the

violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

      The facts relevant to the qualified immunity analysis are not in dispute.1

Around 1:00 a.m. on November 26, 2016, Officer Gruver responded to a report of



      1
        The events were captured by body cameras worn by Officer Gruver and
another officer.

                                           2
a suspicious vehicle. He ran the license plate number and learned that it was stolen.

After putting on his vehicle’s bright “takedown” lights, Officer Gruver then

approached the car and noticed Adame in the driver’s seat of a Nissan Sentra

“kinda leaning over to the side.” Officer Gruver drew his firearm, opened the

passenger door, announced himself as a police officer, and ordered Adame to show

his hands and keep them visible on the steering wheel. Adame initially complied

and, for approximately two minutes, Officer Gruver ordered Adame to stay where

he was while he awaited backup. Officer Gruver kept his firearm drawn while he

repeatedly ordered Adame to keep his hands on the steering wheel and not move.

      As the backup officer arrived, Adame became noncompliant and moved his

right hand down toward the key in the ignition and started the vehicle’s engine.

Officer Gruver immediately leaned into the vehicle, placing his left knee on the

passenger seat as he reached with his left hand for Adame. After Officer Gruver

entered the vehicle, and as both officers yelled for Adame to not move, Adame

drove away with Officer Gruver situated partially inside and partially outside the

vehicle. Gruver was positioned awkwardly, with his left hand reaching for Adame,

his left knee kneeling on the passenger seat, and his right foot bouncing on the

ground outside the vehicle.

      Almost immediately after the car began to accelerate, Officer Gruver fired

two shots, fatally injuring Adame. It is undisputed that at the time Officer Gruver


                                          3
shot Adame, the vehicle was pulling out and beginning to accelerate, with Officer

Gruver hanging partially outside the car. Shortly after the shots were fired, and

with the car moving, Officer Gruver then fell out of the vehicle (the circumstances

by which he did so are not clear). Several seconds later, the Nissan crashed into a

parked truck a short distance away.

      The district court compared these facts at issue with those in Gonzalez v.

City of Anaheim, 747 F.3d 789 (9th Cir. 2014) (en banc), and determined that

Gonzalez was “on all fours” and that Officer Gruver therefore violated Adame’s

clearly established right to be free from lethal force in these circumstances.

Gonzalez, however, is not “on all fours” with the facts here. There, two officers

stopped a minivan for a minor traffic violation. Id. at 792. After pulling over, the

driver of the minivan refused the officers’ commands to turn off the vehicle. Id.

After an officer entered the minivan through the passenger side in an attempt to

make the driver comply, the driver began to drive away. Id. Critical to its

application to the facts here, in Gonzalez “[t]he front passenger door closed behind

[the officer], who remained in the vehicle.” Id. at 793. Viewed in the light most

favorable to Gonzalez, the officer then shot Gonzalez in the head, with no warning,

for failing to obey repeated commands to stop the vehicle that had been moving at

an average speed of 3.4 miles per hour for 10 seconds. Id. at 793–94.




                                          4
      Unlike the officer in Gonzalez, Officer Gruver faced an immediate threat of

serious bodily injury or worse based on his compromised position at the moment

Adame pulled away. In Gonzalez, “Gonzalez’s action could not have presented a

threat sufficient to justify the use of deadly force unless it caused the car to move

in a way that immediately threatened the safety of the officers or the public.” Id. at

796. Because the officer in Gonzalez was securely in the vehicle when it began to

pull away, the only danger to him came from the speed of the vehicle, which our

court regarded as a disputed fact. See id. (“[T]he existence of an immediate threat

to safety in this case is based on the sudden acceleration and speed of the van.”).

Here, in sharp contrast, Officer Gruver was partially inside and partially outside

the vehicle when Adame pulled away. Regardless of the speed of the vehicle (the

issue in Gonzalez), Officer Gruver thus faced a serious risk of bodily injury based

on the possibility that he would fall out of the moving car and be run over by

Adame’s car. Compare id. (noting that in Gonzalez, there was no danger of anyone

“being run over”).

      In addition, unlike the officer in Gonzalez, Officer Gruver did not have 10

seconds to ponder his course of action while sitting securely, albeit unwillingly,

inside a slow-moving vehicle. Instead, immediately after Officer Gruver leaned

into the vehicle, Adame began to drive away, with both officers yelling at him to

stop and Officer Gruver hanging partially outside the vehicle with his right foot


                                           5
bouncing awkwardly along the street. It was in this dangerous and rapidly evolving

situation that Officer Gruver fatally shot Adame. Officer Gruver was thus faced

with a “tense, uncertain, and rapidly evolving” situation where he had a “split-

second” to decide upon an appropriate course of action. Graham v. Connor, 490

U.S. 386, 397 (1989).

      Considering that Officer Gruver was partially outside of the vehicle at the

time of the shooting, Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010), is also

instructive. There, the officer used lethal force while standing outside of a vehicle

that was “moving at a slow rate of speed” but that could have run over the officer

or his partner. Id. at 552. Although the vehicle’s tires were spinning in mud, the

court concluded that “because of the slippage, it could have gained traction at any

time, resulting in a sudden acceleration in speed.” Id. The court held that the facts

there justified the use of lethal force because there was a reasonable threat of

substantial bodily harm. Id. at 552–53.

      Although the district court here correctly concluded that Gonzalez depended

almost entirely on whether the vehicle there was rapidly accelerating, it erred in

not heeding the explicit reminder in Gonzalez that courts must recognize “the

importance of considering all the facts in excessive force cases.” Gonzalez, 747

F.3d at 796 (citing Wilkinson, 610 F.3d at 551). The Gonzalez court distinguished

Wilkinson because in Gonzalez, the officer “was not on foot next to a vehicle that


                                          6
might run him over at any moment should it have accelerated,” and the defendants

in Gonzalez “presented no evidence of anyone else in danger.” Id. The fact that

Officer Gruver faced harm because he was partially outside an accelerating vehicle

is a crucial fact that distinguishes this case from Gonzalez.

       “A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right.” Isayeva, 872 F.3d at 946 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam)). Neither Gonzalez nor Wilkinson “squarely governs” the

unusual predicament faced by Officer Gruver. Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (per curiam) (noting “police officers are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the specific facts at issue”) (quoting

Mullenix, 136 S. Ct. at 309).

      Given the unusual circumstances Officer Gruver faced, his split-second

decision to shoot Adame, even if it violated Adame’s constitutional rights, still

entitles him to qualified immunity. See Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam) (“Qualified immunity shields an officer from suit when she

makes a decision that, even if constitutionally deficient, reasonably misapprehends

the law governing the circumstances she confronted.”). As Officer Gruver’s

decision to use lethal force was, at most, a reasonable misapprehension of

Gonzalez, he is entitled to qualified immunity. Id.


                                           7
REVERSED AND REMANDED.




                    8
                                                                                    FILED
                                                                                     JUL 28 2020
Adame v. Gruver, No. 19-16238
                                                                                 MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
Schroeder, Circuit Judge, dissenting:

      The district court got this right. There was no danger. Decedent Derek

Adame had been asleep in a parked compact Nissan Sentra when Officer Gruver

approached, gun drawn, telling Adame to keep his hands up. Adame, who was

unarmed, initially complied, but then reached with one hand towards the starter and

started the car. Gruver then put one leg inside the small car, and at the moment the

car began to move, Gruver shot Adame in the head without warning, killing him

instantly. The weight of Adame’s falling body caused the car to accelerate and run

into a truck parked on the street.

      The district court followed our decision with facts closest to this one.

Gonzalez v. City of Anaheim, 747 F.3d 789 (9th Cir. 2014) (en banc). There, the

officer was in the car when the suspect started the engine and began to drive. Id. at

792. There was a material conflict in the evidence as to whether the car began to

move fast. Id. at 796–97. We held that if the car had gained speed quickly, the

officer was in danger and the shooting justified. If the car was moving slowly, the

killing was not justified. See id. at 797. In this case the car was barely moving, if

at all. Officer Gruver was not yet in the car.

      If there is one principle that is clearly established in this circuit it is that
deadly force is justified only by an imminent threat of serious harm. See Graham

v. Connor, 490 U.S. 386, 396 (1989). Here, when the officer shot, there was none.

The car had just started to slowly move, and the door was open for Officer Gruver

to step out.

       Officer Gruver had witnessed no dangerous conduct on the part of Adame,

which distinguishes this case from Wilkinson v. Torres, 610 F.3d 546 (9th Cir.

2010). In Wilkinson, we held that use of lethal force was reasonable. There,

following a high speed chase, the decedent attempted to accelerate towards an

officer, and the only reason he was unable to do so was because his wheels were

stuck in mud. Id. at 552. At the time the officer shot the decedent, the officer

believed another officer had already been run over by the decedent’s vehicle. Id. at

549.

       This case was briefed to us on the theory that Officer Gruver was in

immediate danger because he had one leg in the car when the engine started and

was left “dangling” as the vehicle began to move. That might have been the case

had the vehicle in question been a semi-trailer truck. But this was a Nissan Sentra.

The majority seemingly ignores this fact. “Dangling” is an impossibility when the

car sits only a foot or so off the ground.

       The district court therefore was correct when it denied Officer Gruver

qualified immunity, because the situation created no imminent danger to the officer
or to anyone else. The majority seems to have a different situation in mind and I

therefore must respectfully dissent.
