                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANGELA HERNANDEZ, individually and              No.    18-56127
as a successor in interest to Steven Schiltz,
deceased,                                       D.C. No.
                                                8:17-cv-01257-AG-KES
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

CITY OF HUNTINGTON BEACH; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 8, 2019
                              Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and SILVER,** District
Judge.

      Steven Schiltz’s mother (“Plaintiff”) brought a lawsuit against Huntington

Beach police officers Trevor Jackson and Casey Thomas (“Defendants”) alleging



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
that their fatal shooting of Schiltz violated federal and state law. The district court

granted summary judgment for Defendants on all claims. We affirm in part and

reverse in part.

      1. Summary judgment was appropriate on Plaintiff’s Fourth Amendment

excessive force claim. Schiltz was bloody, and was wielding a sharp stick1 and

haphazardly moving at people on the soccer field, including children. His actions

were frightening enough that parents were attempting to stop Schiltz with branches

and a goal post. Schiltz was holding the sharp stick while he was on the soccer

field and after he climbed the bleachers near a mother and her son, and was still

holding it at the time of the shooting. Even assuming the stick was sharp and that

Schiltz’s conduct on the field had caused fright, a jury could find that Defendants

violated the Fourth Amendment by shooting Schiltz when, viewing the evidence in

the light most favorable to Plaintiff, Schiltz was sitting or kneeling and was too far

away from bystanders and Defendants to immediately hurt them with the stick he

was brandishing. See S.B. v. County of San Diego, 864 F.3d 1010, 1014 (9th Cir.

2017) (holding a jury could find a deputy used excessive force when the deputy

shot a man who was kneeling several feet away from another deputy as soon as the


      1
         Jackson testified that Schiltz appeared to be holding a sharp stick. Because
Plaintiff has failed to present any specific evidence to the contrary or raise real
doubts about Jackson’s credibility, we treat it as uncontested that the stick was
sharp. Although Defendants’ counsel stated at oral argument that he believes
pictures of the stick were taken, none of these pictures are in the record.

                                           2
man grabbed a knife from his back pocket).

      But at the time of the shooting, it was not clearly established that Defendants

violated the Constitution by shooting Schiltz when he was holding a sharp stick in

a threatening manner2 several feet away from bystanders. Defendants shot Schiltz

after he had disobeyed Jackson’s orders, and had moved toward people on the

soccer field while bloody, creating a situation that eyewitnesses later described as

frightening, especially in light of the fact that children were present. Our decision

in S.B., which was issued after the shooting in this case occurred, concluded that it

was not clearly established that conduct similar to Defendants’ violated the Fourth

Amendment. See 864 F.3d at 1015-17. Without any other case that could have put

Defendants on notice that their use of force was excessive, we follow S.B. and hold

that Defendants are entitled to qualified immunity.

      2. The district court did not err in granting summary judgment on Plaintiff’s

Fourteenth Amendment familial association claim. Because Defendants made

“snap judgment[s] . . . [in] an escalating situation,” Plaintiff can only prevail on her

Fourteenth Amendment claim by showing that Defendants “act[ed] with a purpose



      2
         The eyewitness whose testimony is most favorable to Plaintiff testified
that, before the first round of shots, Schiltz was holding the stick in a “threatening
manner.” With respect to the second round of shots, the only specific testimony
about Schiltz’s handling of the stick is from Defendants. The testimony most
favorable to Plaintiff is that Schiltz was holding the stick such that it appeared he
might strike bystanders.

                                           3
to harm unrelated to legitimate law enforcement objectives.” Wilkinson v. Torres,

610 F.3d 546, 554 (9th Cir. 2010). There are cases where “a use of force might be

so grossly and unreasonably excessive that it alone could evidence a subjective

purpose to harm.” S.R. Nehad v. Browder, 929 F.3d 1125, 1140 (9th Cir. 2019).

But Defendants’ shooting of Schiltz, who frightened onlookers during an incident

in which he brandished a sharp stick with bystanders nearby, does not rise to that

level, and there is no other evidence here of a subjective purpose to harm. See

Zion v. County of Orange, 874 F.3d 1072, 1076-77 (9th Cir. 2017) (holding that an

officer did not violate the Fourteenth Amendment when he shot an apparently

injured person who was lying on the ground and was “making no threatening

gestures”).

      3. The district court erred in granting summary judgment on Plaintiff’s

California law battery and negligence claims. The parties agree that Plaintiff’s

battery claim rises and falls with the question whether Defendants used excessive

force in violation of the Fourth Amendment. See Vos v. City of Newport Beach,

892 F.3d 1024, 1038 (9th Cir. 2018); Ting v. United States, 927 F.2d 1504, 1510-

11, 1514 (9th Cir. 1991). And we have explained that “negligence claims under

California law encompass a broader spectrum of conduct than excessive force

claims under the Fourth Amendment.” Mulligan v. Nichols, 835 F.3d 983, 991

(9th Cir. 2016). Because a jury could find that Defendants violated the Fourth


                                         4
Amendment in shooting Schiltz, a jury could also find Defendants liable for battery

and negligence.

      4. Summary judgment was appropriate on Plaintiff’s claim alleging a

violation of California’s Bane Act. To prevail on her Bane Act claim, Plaintiff

must show that Defendants had a “specific intent to violate” the Fourth

Amendment. Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)

(quoting Cornell v. City and County of San Francisco, 225 Cal. Rptr. 3d 356, 384

(Ct. App. 2017)). Defendants’ shooting of Schiltz when he was brandishing a

sharp stick with bystanders nearby does not evince such intent.

      AFFIRMED in part, REVERSED in part, and REMANDED. The parties

shall bear their own costs on appeal.




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                                                                           FILED
                                                                           DEC 24 2019
Hernandez v. City of Huntington Beach, No. 18-56127
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
Schroeder, Circuit Judge, dissenting in part:

      I respectfully dissent from my colleagues’ decision affirming the district

court’s grant of qualified immunity to the officers on the federal claims. The law

has been clearly established for decades that deadly force is justified only when an

individual poses “an immediate threat to the safety of the officers or others.”

Graham v. Connor, 490 U.S. 386, 396 (1989). It is equally well established that

force is not justified when there is no such threat, see, e.g., Price v. Sery, 513 F.3d

962, 971 (9th Cir. 2008), where we said: “Our case law requires that a reasonable

officer under the circumstances believe herself or others to face a threat of serious

physical harm before using deadly force.” These principles are undisputed.

      The pertinent facts are clear. There was no deadly weapon. Cf. S.B. v.

County of San Diego, 864 F.3d 1010 (9th Cir. 2017) (knives). Schiltz was armed

at most with a pointed stick, and was at least five feet from any bystander. The

most that can be said is that the decedent frightened bystanders. His conduct did

not rise to the level of an immediate threat. The officers, in my view, should not

be granted immunity on the theory that we do not yet have a decision saying the

obvious.




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