                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRANDON SMITH,                                   No. 14-15969

              Plaintiff - Appellant,             D.C. No. 2:12-cv-02391-FJM

 v.
                                                 MEMORANDUM*
CITY OF CHANDLER; KEITH SMITH,
Officer #616,

              Defendants - Appellees.



BRANDON SMITH,                                   No. 14-17512

              Plaintiff - Appellant,             D.C. No. 2:12-cv-02391-FJM

 v.

CITY OF CHANDLER; KEITH SMITH,
Officer #616,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted May 10, 2016
                            San Francisco, California

Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.

      Brandon Smith (“Brandon”) appeals the district court’s order granting

summary judgment in favor of Officer Keith Smith (“Officer Smith”) on

Brandon’s Fourth Amendment excessive force claim and the City of Chandler on

Brandon’s state law negligence claim. Brandon also appeals the district court’s

order granting attorney’s fees and non-taxable costs to the defendants. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the grant of summary

judgment and vacate the award of fees and costs.

1.    We review a grant of summary judgment de novo and take the facts in the

light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372,

377–78 (2007); Barnett v. Centori, 31 F.3d 813, 815 (9th Cir. 1994). We construe

the district court’s order as a grant of summary judgment on the merits of the

Fourth Amendment claim. We conclude that material disputes of fact exist and

that the district court therefore erred in granting summary judgment. We are well

aware 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.” Graham v. Connor, 490 U.S. 386,



                                          2
397 (1989). Nonetheless, taking the facts in the light most favorable to Brandon,

the officers entered the patio area with guns drawn on a man whom they knew to

be emotionally disturbed and possibly suicidal. They immediately began issuing

commands, and Brandon testified that he heard a command to “stand up.” When

Brandon began to stand up—with a knife cradled in his arm pointing towards

himself, positioned approximately eight feet from Officer Hawkins, who was

pointing a handgun at Brandon—Officer Smith shot him with two beanbag rounds,

and later claimed he did so in order to protect Officer Hawkins. Because triable

issues of material fact remain as to whether one of the four officers ordered

Brandon to “stand up,” and whether Officer Smith reasonably should have heard

this command, we reverse the district court’s grant of summary judgment on the

merits of the excessive force claim. See Glenn v. Washington Cty., 673 F.3d 864,

871 (9th Cir. 2011) (holding that summary judgment on an excessive force claim

was precluded when officers shot beanbag rounds at a man standing several feet in

front of them and holding a knife pointed at himself).

2.    In the alternative, Officer Smith argues that he is entitled to qualified

immunity. To determine whether a police officer is entitled to qualified immunity,

we apply the two-prong test established in Saucier v. Katz, 533 U.S. 194 (2001),

overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). We ask, “[t]aken


                                           3
in the light most favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S. at

201. In addition, we ask “whether the right was clearly established,” meaning that

“it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. at 201–02. “We have the discretion to decide ‘which

of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.’” Lacey v. Maricopa Cty.,

693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting Pearson, 555 U.S. at 236).

      Taking the facts in the light most favorable to Brandon—that he was told by

one of the officers to stand up, and complied with that command—Officer Smith is

not entitled to qualified immunity. The circumstances surrounding the beanbag

shooting were not meaningfully different than those in Glenn, which was decided

before the shooting. 673 F.3d 864. The similarity of Brandon’s situation to the

situation in Glenn demonstrates that the law against discharging beanbag rounds

under these circumstances was clearly established at the time Officer Smith shot

Brandon. See Saucier, 533 U.S. at 201–02.

3.    We also reverse the district court’s grant of summary judgment on

Brandon’s state law negligence claim against the City of Chandler. As explained

above, taking the facts in the light most favorable to Brandon, Officer Smith did


                                           4
not act reasonably in discharging two beanbag rounds. Thus, there are disputed

issues of material fact as to whether Officer Smith acted negligently, and whether

his actions were of a kind for which the City of Chandler was vicariously liable.

4.    Because we reverse the district court’s grant of summary judgment, we also

vacate the award of attorney’s fees and non-taxable costs.

      REVERSED IN PART, VACATED IN PART, AND REMANDED.




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