                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ESTATE OF ANGEL LOPEZ, by and                    No.   14-57007
through its successor in interest, Lydia
Lopez; et al.,                                   D.C. No.
                                                 3:13-cv-02240-GPC-MDD
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

KRISTOPHER MICHAEL WALB,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                      Argued and Submitted October 19, 2016
                               Pasadena, California

Before: TALLMAN, PARKER,** and CHRISTEN, Circuit Judges.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
      San Diego Police Officer Kristopher Walb appeals the district court’s order

denying in part his motion for summary judgment on the basis of qualified

immunity. We affirm.

      We may consider “whether the defendant[s] would be entitled to qualified

immunity as a matter of law, assuming all factual disputes are resolved, and all

reasonable inferences are drawn, in plaintiff’s favor.” George v. Morris, 736 F.3d

829, 836 (9th Cir. 2013) (alteration in original) (quoting Karl v. City of Mountlake

Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)). Taking the facts in the light most

favorable to Lopez, the district court concluded that there was a genuine dispute of

material fact as to whether Walb violated the Fourth Amendment. ER 16. We

agree. Because Lopez died during the incident, the court may construct Lopez’s

version of events “circumstantially from competent expert and physical evidence,

as well as from inconsistencies in the testimony of law enforcement.” Id. at 834.

Viewing the facts in the light most favorable to Lopez, a reasonable jury could

conclude from the physical evidence that Lopez was not facing the officers, did not

make a threatening gesture, and was in the process of complying with the officers’

commands to get down when he was shot. Under those circumstances, Walb’s

decision to shoot Lopez would constitute an unreasonable use of deadly force in

violation of the Fourth Amendment. See Tennessee v. Garner, 471 U.S. 1, 3


                                          2
(1985); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1080–81 (9th Cir. 2014).

Under this same version of events, Lopez’s right to be free from excessive force

was “clearly established.” See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see

also Garner, 471 U.S. at 11; Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.

1997); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).

      A jury could credit the testimony of the officers and find that the use of

deadly force was permissible. However, because the plaintiff has shown that there

exists a genuine dispute of material fact as to the reasonableness of Walb’s

conduct, and because under one version of the facts Walb’s conduct violated

clearly established law, the district court properly denied summary judgment on

qualified immunity from the Fourth Amendment excessive force claim.

      Plaintiffs’ motion for sanctions is denied. Costs on appeal are awarded to

the Appellees.

AFFIRMED.




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