                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 MICHAEL EASLEY; STEPHANIA                         No. 16-55941
 SESSION,
              Plaintiffs-Appellants,                 D.C. No.
                                                  5:14-cv-00117-
                     v.                              TJH-SP

 CITY OF RIVERSIDE; SERGIO DIAZ;
 SILVIO MACIAS; DOES, 1 TO 10,                       OPINION
 inclusive,
              Defendants-Appellees.



        Appeal from the United States District Court
            for the Central District of California
       Terry J. Hatter, Senior District Judge, Presiding

           Argued and Submitted February 6, 2018
                    Pasadena, California

                       Filed May 18, 2018

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
   Circuit Judges, and Robert W. Pratt,* District Judge.



     *
       The Honorable Robert W. Pratt, United States District Judge for
the Southern District of Iowa, sitting by designation.
2                EASLEY V. CITY OF RIVERSIDE

                  Opinion by Judge Callahan;
                    Dissent by Judge Pratt


                          SUMMARY **


                           Civil Rights

    The panel affirmed the district court’s grant, on summary
judgment, of qualified immunity to a police officer in a 42
U.S.C. § 1983 action alleging that the officer used excessive
force when he shot plaintiff three times following a traffic
stop.

    The panel first held that the district court did not err by
raising the issue of qualified immunity sua sponte and
addressing it on summary judgment because the district
court retains this authority and because defendant raised and
preserved qualified immunity as a defense. On the merits,
the panel held that the district court correctly granted
qualified immunity and summary judgment in defendant’s
favor because his application of deadly force was objectively
reasonable under the Fourth Amendment. The panel noted
that based on the undisputed facts, a reasonable officer may
have reasonably feared that plaintiff had a gun and was
turning to shoot him.

    Dissenting, District Judge Pratt stated that he perceived
genuine, material factual disputes in the record that the
district court and the majority had either improperly

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

purported to resolve or improperly ignored. Judge Pratt
would reverse the summary judgment and remand for further
proceedings.


                       COUNSEL

Dale K. Galipo (argued) and Hang D. Le, Law Offices of
Dale K. Galipo, Woodland Hills, California, for Plaintiffs-
Appellants.

Alana H. Rotter (argued) and Timothy T. Coates, Greines
Martin Stein & Richland LLP, Los Angeles, California; John
M. Porter, Lewis Brisbois Bisgaard & Smith LLP, San
Bernardino, California; Neil Okazaki, Deputy City
Attorney; Gary Geuss, City Attorney; Office of the City
Attorney, Riverside, California; for Defendants-Appellees.


                        OPINION

CALLAHAN, Circuit Judge:

    On December 22, 2011, Michael Easley (“Easley”) was
shot three times by Officer Silvio Macias (“Macias”)
following a traffic stop. Based on his resulting injuries,
which include permanent physical disability and paralysis,
Easley filed this action alleging that Macias violated
42 U.S.C. § 1983 through the use of excessive force. The
district court sua sponte ordered an evidentiary hearing
regarding Macias’ entitlement to qualified immunity.
Following the two-day hearing, the district court ruled
Macias was entitled to qualified immunity and granted
summary judgment in his favor. Easley appeals, challenging
the district court’s sua sponte grant of summary judgment as
4              EASLEY V. CITY OF RIVERSIDE

procedurally impermissible and arguing that the record
construed in the light most favorable to Easley reflects that
genuine issues of material fact remain as to Macias’
entitlement to qualified immunity. We affirm because the
district court properly considered qualified immunity sua
sponte and because, viewing the record in the light most
favorable to Easley, Macias’ use of deadly force was
objectively reasonable under the Fourth Amendment.

I. FACTUAL AND PROCEDURAL BACKGROUND

                              A.

    On the night of December 22, 2011, at around 8:20 p.m.,
Macias and his partner, Officer Anthony Watkins
(“Watkins”), were on patrol in the 12th Street area of
Riverside, California, in their police car. They noticed a
pink Chevrolet Monte Carlo with what appeared to be
illegally-tinted windows. Macias thought he recognized the
driver, Stephania Session (“Session”), from a prior
encounter. Easley, her husband, was a passenger in the car.
As the Chevrolet passed the police car, Macias shone his
flashlight into the car and the passenger leaned back in the
seat.

     Macias and Watkins began following the Chevrolet,
which made a U-turn, sped up, and entered a strip mall
parking lot. When the Chevrolet sped across the parking lot,
fishtailing and barely avoiding hitting another car, the
officers activated the patrol car’s lights and sirens. The
Chevrolet did not initially heed the lights and sirens, but then
it suddenly stopped.

    Easley bolted out of the car and, clutching the waistband
of his pants with his right hand, ran away from the patrol car.
Macias and Watkins exited their patrol car and Watkins
                  EASLEY V. CITY OF RIVERSIDE                          5

shouted “Gun” or “He’s got a gun.” 1 Macias pursued Easley
on foot.

    Easley continued to clutch his waistband with his right
hand. However, with his left hand he removed an object,
later determined to be a gun, from his right pants’ pocket and
flung the item to his left. Macias fired three shots, striking
Easley twice in the right arm and once in the back. Easley
was shot within two to four seconds of throwing the gun.

                                   B.

    Easley and Session filed this action in California state
court alleging, among other claims, the unreasonable and
excessive use of force in violation of the Fourth and
Fourteenth Amendments, made actionable under 42 U.S.C.
§ 1983. The case was removed to the United States District
Court for the Central District of California. Plaintiffs filed a
First Amended Complaint, which Macias answered asserting
that his actions “were objectively reasonable under the
circumstances” and that he was entitled to “qualified
immunity from suit, liability and damages.”

    The parties negotiated a partial dismissal of some of the
claims in the complaint and Macias agreed not to seek
summary judgment on the remaining claims. On February
29, 2016, the district court conducted a pretrial status
conference and sua sponte raised the issue of Macias’
entitlement to qualified immunity. The district court ordered
an evidentiary hearing on the issue, which was held on April
7 and 8, 2016. The court heard testimony from Macias,
Easley, and several fact and expert witnesses. On June 1,

    1
      The dashboard camera video entered as an exhibit in the trial court
records that Watkins shouted these words to Macias.
6              EASLEY V. CITY OF RIVERSIDE

2016, the district court issued its order determining that there
remained no genuine issue of material fact for determination
by a jury and that Macias was entitled to qualified immunity
and judgment as a matter of law. Easley and Session filed a
timely notice of appeal.

              II. STANDARD OF REVIEW

    We review a district court’s summary judgment
determination de novo. Longoria v. Pinal Cty., 873 F.3d
699, 703 (9th Cir. 2017); see also Glenn v. Wash. Cty.,
673 F.3d 864, 870 (9th Cir. 2011) (“We review a district
court’s decision to grant summary judgment de novo,
considering all facts in dispute in the light most favorable to
the nonmoving party.”).

                      III. ANALYSIS

                              A.

    Before addressing the merits, we consider whether the
district court erred by raising sua sponte the issue of
qualified immunity. We have held that “[d]istrict courts
unquestionably possess the power to enter summary
judgment sua sponte even on the eve of trial.” Norse v. City
of Santa Cruz, 629 F.3d 966, 971 (9th Cir. 2010). In so
ruling, we followed the Supreme Court’s command. See
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)
(“[D]istrict courts are widely acknowledged to possess the
power to enter summary judgments sua sponte, so long as
the losing party was on notice that she had to come forward
with all of her evidence.”).

   Easley questions the district court’s ability to raise the
matter of qualified immunity sua sponte, and alternatively
argues that Macias waived his right to raise qualified
               EASLEY V. CITY OF RIVERSIDE                    7

immunity as a defense. Neither argument is persuasive.
Although qualified immunity is an affirmative defense, see
Siegert v. Gilley, 500 U.S. 226, 231 (1991) (“Qualified
immunity is a defense that must be pleaded by a defendant
official.”), a district court is not proscribed from directing
the parties to brief the issue when it has been properly raised.
Here, Macias raised qualified immunity as a defense in his
answer, and he never waived or abandoned his claim of
qualified immunity. Macias did not move for summary
judgment, but reasonably asserted qualified immunity when
directed by the district court to brief the issue.

   The district court did not err by raising the issue of
qualified immunity sua sponte and addressing it on summary
judgment.

                              B.

    “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Stanton v. Sims, 571 U.S. 3, 4–5 (2013) (per
curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). The doctrine is designed to balance “two important,
competing interests: the need to hold public officials
accountable for irresponsible actions, and the need to shield
them from liability when they make reasonable mistakes.”
Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017); see
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified
immunity gives government officials breathing room to
make reasonable but mistaken judgments about open legal
questions.”); Green v. City & Cty. of S.F., 751 F.3d 1039,
1051 (9th Cir. 2014). “When properly applied, it protects
‘all but the plainly incompetent or those who knowingly
8              EASLEY V. CITY OF RIVERSIDE

violate the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).

    Courts engage in a two-pronged analysis to determine
whether qualified immunity applies: “[O]fficers are entitled
to qualified immunity under § 1983 unless (1) they violated
a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the
time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664
(2012)). The second prong requires us to analyze two
discrete sub-elements: “whether the law governing the
conduct at issue was clearly established” and “whether the
facts as alleged could support a reasonable belief that the
conduct in question conformed to the established law.”
Green, 751 F.3d at 1052.

    On de novo review of a district court’s summary-
judgment ruling, this Court “must view the evidence,
including all reasonable inferences, in favor of the non-
moving party.” Reed v. Lieurance, 863 F.3d 1196, 1204
(9th Cir. 2017); see Sharp v. Cty. of Orange, 871 F.3d 901,
909 (9th Cir. 2017). Consequently, at summary judgment,
an officer may be denied qualified immunity in a § 1983
action only if (1) the facts alleged, taken in the light most
favorable to the party asserting injury, show that the officer’s
conduct violated a constitutional right; and (2) the right at
issue was clearly established at the time of the incident such
that a reasonable officer would have understood his conduct
to be unlawful in that situation. See Pearson, 555 U.S. at
232.

    Courts are “permitted to exercise their sound discretion
in deciding 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.” Id. at 236; see
               EASLEY V. CITY OF RIVERSIDE                  9

Morales, 873 F.3d at 822. If the second prong is dispositive,
courts need not analyze the first. Pearson, 555 U.S. at 236–
37. In this case, the district court analyzed only the second
prong and concluded that summary judgment was warranted.

   We stated the applicable law in Wilkinson v. Torres,
610 F.3d 546, 550 (9th Cir. 2010):

       Apprehension by deadly force is a seizure
       subject to the Fourth Amendment’s
       reasonableness requirement. See Graham v.
       Connor, 490 U.S. 386, 395 (1989). However,
       an officer using deadly force is entitled to
       qualified immunity, unless the law was
       clearly established that the use of force
       violated the Fourth Amendment.           See
       Brosseau v. Haugen, 543 U.S. 194, 198
       (2004). . . .

       Case law has clearly established that an
       officer may not use deadly force to apprehend
       a suspect where the suspect poses no
       immediate threat to the officer or others.
       Tennessee v. Garner, 471 U.S. 1, 11 (1985).
       On the other hand, it is not constitutionally
       unreasonable to prevent escape using deadly
       force “[w]here the officer has probable cause
       to believe that the suspect poses a threat of
       serious physical harm, either to the officer or
       to others.” Id.

We further noted that “[w]hether the use of deadly force is
reasonable is highly fact-specific . . . but the inquiry is an
objective one.” Wilkinson, 610 F.3d at 551 (citing Scott v.
Harris, 550 U.S. 372, 383 (2007), and Graham, 490 U.S. at
10                EASLEY V. CITY OF RIVERSIDE

397). The question “is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Wilkinson, 610 F.3d at
551 (quoting Graham, 490 U.S. at 397). We also observed
that “[a] reasonable use of deadly force encompasses a range
of conduct, and the availability of a less-intrusive alternative
will not render conduct unreasonable.” Id.

    Here, taking the facts and allegations in the light most
favorable to Easley, Macias’ use of deadly force was
objectively reasonable. It is an undisputed fact that Macias
was concerned about the presence of a gun. Watkins,
Macias’s partner, had shouted “Gun” or “He’s got a gun”
when Easley ran away from the Chevrolet and the patrol car.
Macias then saw Easley grab his waistband as he ran. It is
undisputed that as he ran, Easley pulled an object from his
right pants’ pocket with his left hand and threw it away from
his body. Macias shot Easley within two to four seconds of
the object leaving Easley’s hand. 2 Easley stated that he
threw the gun in a motion similar to throwing a Frisbee
across his body; this would necessarily involve some upper
body or shoulder movement. Based on these undisputed
facts, a reasonable officer may have reasonably feared that
Easley had a gun and was turning to shoot him. Thus,
viewing the critical evidence in the light most favorable to
Easley, we conclude that Macias is entitled to qualified

     2
       The dissent believes that we do not read the record in the light most
favorable to Easley by relying on the two-to-four-second timeframe.
Dissent at 18. But Easley did not claim that four seconds elapsed; as the
dissent notes, he first estimated “maybe three or four seconds” and then
agreed that it could have been only two or three. Regardless, any
possible discrepancy is not dispositive. See Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (finding qualified immunity where a police officer
shot a possibly threatening suspect after only “mere seconds to assess the
potential danger”).
               EASLEY V. CITY OF RIVERSIDE                 11

immunity. We need not, and do not, resolve the remaining
disputed issues of fact in Macias’ favor to reach this result.

    As the Supreme Court noted in Graham, “[t]he calculus
of reasonableness must embody allowance for the fact 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.” 490 U.S. at 396–97.
This was just such a situation. Macias’ application of deadly
force was a proportional response because “the Fourth
Amendment does not require” a police officer to be
“omniscien[t], and absolute certainty of harm need not
precede [an officer’s] act of self-protection.” Wilkinson,
610 F.3d at 553 (citation and internal question mark
omitted).

                   IV. CONCLUSION

    The district court committed no error when it sua sponte
raised the issue of qualified immunity and addressed it on
summary judgment because the district court retains this
authority and because Macias raised and preserved qualified
immunity as a defense. On the merits, the district court
correctly granted qualified immunity to Macias and
summary judgment in his favor because his application of
deadly force was objectively reasonable under the Fourth
Amendment.

   AFFIRMED.
12             EASLEY V. CITY OF RIVERSIDE

PRATT, District Judge, dissenting:

    In order to ensure Officer Macias is insulated from
liability at this pre-trial stage in the present litigation, the
district court and today’s majority have stretched too thin the
established bodies of law concerning both summary
judgment and qualified immunity. I respectfully dissent and
address each of these two issues in turn.

                               I

    I first consider the law of summary judgment, a term
which is something of a misnomer.               The adjective
“summary” suggests a simple and abbreviated judicial
process coupled with a brief dispositional order; however, a
proper, effective application of the summary-judgment
standard is in fact complicated and time-consuming. See
Hon. D. Brock Hornby, Summary Judgment Without
Illusions, 13 Green Bag 2d 273, 273 (2010). Because
Easley’s Seventh Amendment right to trial by jury is at
stake, we must “assiduously avoid deciding disputed facts or
inferences” in our quest to determine whether this record
contains any genuine factual disputes necessitating trial. Id.
at 281–82; see U.S. Const. amend. VII. In the context of
§ 1983 actions, “the jury’s role in vindicating constitutional
rights has long been recognized by the federal courts.” City
of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 721 (1999). It is therefore constitutionally imperative
that we carefully and deliberately apply the law of summary
judgment and its underlying principles to Easley’s complaint
to ensure we do not prematurely vitiate his jury demand or
undermine the traditional role of the jury in § 1983 actions
alleging a violation of constitutional protections.

   “[S]ummary judgment is an extreme remedy.” May
Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1214
                  EASLEY V. CITY OF RIVERSIDE                        13

(9th Cir. 1980). “It should not be granted unless the movant
has established its right to judgment with such clarity as to
leave no room for controversy. It must be found that the
other party is not entitled to recover under any discernable
circumstances.” Id. The purpose of summary judgment is
not “to cut litigants off from their right of trial by jury if they
really have issues to try.” Poller v. Columbia Broad. Sys.,
Inc., 368 U.S. 464, 467 (1962) (quoting Sartor v. Ark.
Natural Gas Corp., 321 U.S. 620, 627 (1944)).

    To that end, we must view all the record evidence in the
most favorable light to Easley, and we also must give him
the benefit of every reasonable inference. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”); see
Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017). The
evidence to be considered is strictly limited to objective
circumstances; the subjective beliefs of the defendant are
categorically irrelevant. Inouye v. Kemna, 504 F.3d 705, 712
(9th Cir. 2007). “Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge . . . .”
Anderson, 477 U.S. at 255. Courts may not issue findings of
facts—either formal or de facto—when granting or denying
summary judgment. 1 Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (holding summary judgment courts may
not “weigh the evidence and determine the truth of [a]
matter” (quoting Anderson, 477 U.S. at 249)). Instead,


    1
       The proscription against fact-finding on summary judgment is a
deceptively difficult mandate. Both this Court and the district courts of
this circuit sometimes inadvertently fail to adhere to it. See Rand v.
Rowland, 154 F.3d 952, 957 n.4 (9th Cir. 1998).
14                 EASLEY V. CITY OF RIVERSIDE

courts are left only to make legal determinations.                      See
Anderson, 477 U.S. at 251–52.

    Summary judgment may properly be entered only
against a party who has failed to make a showing sufficient
to establish a genuine dispute as to the existence of an
element essential to his case and upon which the party will
bear the burden of proof at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). To grant summary
judgment, therefore, there can be no genuine issue of
material fact. Fed. R. Civ. P. 56(a). A disputed issue is
“genuine” when the evidence produced “is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. “As to materiality, the
substantive law will identify which facts are material . . . .
Factual disputes that are irrelevant or unnecessary will not
be counted.” 2 Id.

    This case presents a particular class of summary
judgment ruling: whether a law enforcement officer, alleged
to have used unconstitutionally excessive or deadly force, is
entitled to qualified immunity and cannot be sued under
§ 1983. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019
(2014) (affirming that qualified immunity provides entitled
officers with immunity from suit rather than a defense to
liability). Over time, this Court’s recitations of the separate
laws of summary judgment and qualified immunity began to
mutate and coalesce, and the two bodies of law have been
occasionally folded into one symbiotic permutation:



     2
      Because the question of materiality relies on the underlying
substantive law, I consider the materiality of the factual disputes in detail
below following a review of the law of qualified immunity.
               EASLEY V. CITY OF RIVERSIDE                   15

       [A]t summary judgment, an officer may be
       denied qualified immunity in a Section 1983
       action “only if (1) the facts alleged, taken in
       the light most favorable to the party asserting
       injury, show that the officer’s conduct
       violated a constitutional right, and (2) the
       right at issue was clearly established at the
       time of the incident such that a reasonable
       officer would have understood [his] conduct
       to be unlawful in that situation.”

Longoria v. Pinal Cty., 873 F.3d 699, 704 (9th Cir. 2017)
(second alteration in original) (quoting Hughes v. Kisela,
862 F.3d 775, 779 (9th Cir. 2016), rev’d on other grounds,
138 S. Ct. 1148 (2018)); see also, e.g., Townsend v.
Basterrechea, No. 1:16-cv-151, 2017 WL 242606 (D. Idaho
Jan. 18, 2017) (applying the shortened standard without
separate discussion or application of summary judgment
principles). This abbreviated standard, in my view, gives
short shrift to the importance of careful examination and
construction of the factual record on summary judgment; to
the courts’ duty to fastidiously decline to make findings of
fact; and to plaintiffs’ constitutional rights under the Seventh
Amendment, which necessarily hang in the balance. The
U.S. Supreme Court has expressly held that summary-
judgment standards are not different or lowered in the
context of a claim to qualified immunity. Tolan, 134 S. Ct.
at 1866. It cannot be enough for a court merely to say that it
affords every fact and inference to the party opposing the
motion; the court must affirmatively endeavor to do so. See
Scott v. Harris, 550 U.S. 372, 378 (2007).

    In this case, I perceive genuine, material factual disputes
in the record that the district court and the majority have
either improperly purported to resolve or improperly
16                EASLEY V. CITY OF RIVERSIDE

ignored. In doing so, they have inadvertently encroached
upon the constitutional province of the jury and upon
Easley’s Seventh Amendment rights. See City of Monterey,
526 U.S. at 709–10, 721.

    Concerning the district court’s approach to this case, the
record shows the court made impermissible credibility
determinations and engaged in other affirmative fact
finding. 3 See Anderson, 477 U.S. at 249; Tolan, 134 S. Ct.
at 1866. The court found Macias’s controverted testimony
to be credible, finding that Macias “saw the profile of the
gun” when Easley removed it from his pocket and threw it
away. The court went one step further and held there was
“no evidence” to the contrary. However, significant portions
of counsel’s cross-examination of Macias at the evidentiary
hearing was committed to circumstantial evidence
suggesting Macias did not see the profile of the gun or have
express knowledge of the presence of a gun. The district
court erroneously either discounted or ignored the
reasonable inferential value of Easley’s evidence on this
question when it concluded there was “no evidence”
contrary to its finding that Macias saw the profile of the gun.
Cf. Tolan, 134 S. Ct. at 1863. We cannot consider whether
Macias subjectively believed Easley carried or threw a gun;
we may only consider whether the objectively identifiable
profile of a gun was visible to him. See Inouye, 504 F.3d at
712. Therefore, in drawing all inferences in Easley’s favor

     3
       With all deference to the district court and its judicial autonomy, I
conclude its sua sponte evidentiary hearing contributed to the incidental
fact finding that appears in its summary judgment order. While I agree
with the majority that the evidentiary hearing does not constitute error
per se, I am convinced that the risk of a court instinctually weighing
credibility and implicitly finding facts should militate against this kind
of proceeding. Notably, at oral argument, both parties conceded they
had never previously participated in or witnessed this type of procedure.
               EASLEY V. CITY OF RIVERSIDE                  17

to conform with the law of summary judgment, we may not
find or presume either (1) that the object Easley threw during
the foot chase was or was not visibly identifiable or (2) that
Macias did or did not “see the profile” of a gun.

    Additionally, the district court found that the incident
occurred in a “high-crime area.” Macias suggests we should
affirm this finding, which should support his decision to use
deadly force in this case. However, the case law Macias
relies upon concerning so-called “high-crime areas”
involves reasonable-suspicion Terry stops, not allegations of
excessive force. See, e.g., Illinois v. Wardlow, 528 U.S. 119,
124 (2000). According to those cases, “[a]n individual’s
presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized
suspicion that the person is committing a crime.” Id. at 124.
Furthermore, this Court has warned that “citing of an area as
‘high-crime’ requires careful examination by the court,
because such a description, unless properly limited and
factually based, can easily serve as a proxy for race or
ethnicity.” United States v. Montero-Camargo, 208 F.3d
1122, 1138 (9th Cir. 2000) (en banc). Given the limited
record evidence supporting a finding of a high-crime area
and the fact that such a finding relies on inference in
Macias’s favor rather than Easley’s, I conclude that
consideration of the purported “high-crime area” to Macias’s
benefit is contrary to the summary-judgment evidentiary
standard.

    The majority has avoided these two summary-judgment
pitfalls, but it has joined the district court in three others.
First, the district court and the majority have improperly
considered the fact that Easley conceded post facto that the
object thrown was in fact a gun. The standard is that the
record must be evaluated “from the perspective of a
18             EASLEY V. CITY OF RIVERSIDE

reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); see
City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1776–77
(2015) (noting that courts’ refusal to rely on hindsight also
serves an important protective role for officials asserting
qualified immunity); Estate of Lopez ex rel. Lopez v.
Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017) (“[W]hen
considering qualified immunity, we are also limited to
considering what facts the officer could have known at the
time of the incident.” (quoting Davis v. United States,
854 F.3d 594, 598 (9th Cir. 2017))). The majority’s
consideration of knowledge gained after the incident is
contrary to both the proper standard concerning
reasonableness and the principles of summary-judgment
evidence. Therefore, we can give no weight to Macias’s
claim in his briefing that he “correctly thought [Easley] was
armed,” and I reject the majority’s apparent reliance on the
fact that the object thrown was “later determined to be a
gun.”

    Second, the district court and the majority fail to properly
construe the record pertaining to the amount of time that
elapsed between Easley disarming himself and Macias firing
on him. On direct examination, Easley testified that “maybe
three to four seconds” passed, but on cross-examination, he
affirmed defense counsel’s assertion that “two or three
seconds” had elapsed. The discrepancy was not explored in
the hearing, but for purposes of summary judgment, of
course, this Court must construe the testimony in the light
most favorable to Easley. See Newmaker v. City of Fortuna,
842 F.3d 1108, 1111 (9th Cir. 2016), cert. denied sub nom.
Soeth v. Newmaker, 137 S. Ct. 2217 (2017). A jury could
credit Easley’s assertion that four seconds elapsed between
the moment he threw the gun and the moment Macias fired
                  EASLEY V. CITY OF RIVERSIDE                        19

the first shot, and we must therefore accept that allegation as
true. 4 The district court determined it did not need to
construe the record on the question of timing because it was
not a “material fact.” 5 However, the majority appears to
sidestep the question of materiality entirely by concluding
there is no genuine factual dispute. The majority states it is
an “undisputed fact[]” that “Easley was shot within two to
four seconds of throwing the gun.” However, this statement
is not a fact at all—it is a range of possible facts. Neither is
it undisputed. Each party has flatly contradicted the other’s
version of the timing of events. The majority’s recitation
reveals it has not properly construed the record in the light
most favorable to Easley. Four seconds, two seconds, and
zero seconds are not constitutionally equivalent in these
circumstances; we cannot so easily dismiss the distinction by
stating that the event occurred “within two to four seconds.”

    Third, neither the district court nor the majority
acknowledge Easley’s testimony—which we must accept as
true—stating that throughout the chase, he did not turn to
look back at Macias, did not face Macias, and did not level
the object in Macias’s direction.

    Having clarified these several points of departure
between myself and the majority concerning the proper
evidence for consideration on summary judgment, I proceed




    4
     Macias argues the credibility of Easley’s version of the timeline is
“dubious” and contrary to physical evidence, but he concedes it must be
accepted as true for summary-judgment purposes.
    5
      I disagree with the district court’s materiality conclusion and
discuss my analysis thereof in Section II(A) below.
20                EASLEY V. CITY OF RIVERSIDE

to consider whether the factual disputes are material
pursuant to the law of qualified immunity.

                                    II

    Concerning the doctrine of qualified immunity, I agree
in general terms with the majority’s recitation of the
applicable law. In essence, there are three inquiries we must
perform to determine whether an official is entitled to
qualified immunity: (1) whether the official’s conduct
violated a plaintiff’s constitutional right; (2) whether the
constitutional right asserted by the plaintiff was clearly
established in the law as it was at the time of the official’s
conduct; and (3) whether the law at the time would have
made it clear to a reasonable official that the alleged conduct
was unlawful under the circumstances. See Green v. City &
Cty. of S.F., 751 F.3d 1039, 1051 (9th Cir. 2014); Torres v.
City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). On
summary judgment, if these three inquiries could be
answered in the affirmative upon development of the record
at trial, the official is not entitled to qualified immunity.
Green, 751 F.3d at 1052–53.

    The majority concludes that one (or perhaps more) of
these inquiries must be answered in the negative in this case.
However, it is not clear which question is the dispositive one.
For its part, the district court has conflated the first inquiry—
whether an official’s exercise of force was unreasonable and
therefore a violation of a constitutional right—with the third
inquiry—whether a reasonable officer would have
understood particular conduct to be unlawful. 6 Compare

     6
      The district court purportedly based its decision on the second and
third prongs of the qualified-immunity test, but it also relied solely on a
reasonable-force analysis, which alone answers only the first prong. The
                   EASLEY V. CITY OF RIVERSIDE                           21

San Jose Charter of Hells Angels Motorcycle Club v. City of
San Jose (Hells Angels), 402 F.3d 962, 971 (9th Cir. 2005)
(“The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” (quoting Saucier v. Katz, 533 U.S.
194, 202 (2001)); with Longoria, 873 F.3d at 705–09
(applying the factors for evaluating the reasonableness of the
use of force as applied to the first—not second—prong of
the qualified immunity standard). Though each inquiry turns
on a determination of objective reasonableness, the two
questions are neither identical nor coextensive. The first
asks whether the use of force was reasonable, while the third
asks whether a reasonable official would have known the
force used was unreasonable under the law. 7


majority states the district court relied on the second and third prongs,
then proceeds to review the district court’s ruling; however, its ultimate
conclusion that Macias’s “application of deadly force was objectively
reasonable” suggests it relies on the first prong.

    7
        These two questions, though discrete, require some overlapping
analysis. This redundancy may account for the present confusion
between the different qualified-immunity prongs. The first prong was
initially a required consideration, but it later became a discretionary and
sometimes disfavored consideration in cases in which the established-
law prong was dispositive. See generally Camreta v. Greene, 563 U.S.
692, 705–07 (2011); Pearson v. Callahan, 555 U.S. 223, 236–42 (2009).
The Supreme Court’s most recent decision on this question may be read
to suggest that the first prong does not appertain to qualified immunity
at all, but to the substance of the underlying § 1983 claim. See Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (“[T]he Court need not, and does
not, decide whether [the official] violated the Fourth Amendment when
he used deadly force against [the plaintiff]. For even assuming a Fourth
Amendment violation occurred—a proposition that is not at all evident—
on these facts [the official] was at least entitled to qualified immunity.”);
see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (noting a
22                EASLEY V. CITY OF RIVERSIDE

    Regardless, we review summary judgment de novo. And
on de novo review, I conclude that genuine issues of material
fact remain as to all three qualified-immunity inquiries.
Summary judgment was therefore improper. I address each
of the three inquiries individually.

                                   A

    The first inquiry asks whether the defendant official
“violated a federal statutory or constitutional right.” District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
Therefore, our “analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force.” Graham v. Connor, 490 U.S. 386, 394
(1989). In this case, “the Fourth Amendment provides an
explicit textual source of constitutional protection against
this sort of physically intrusive governmental conduct.” Id.
at 395. The Fourth Amendment guarantees citizens that they
will “be secure in their persons . . . against unreasonable . . .
seizures.” U.S. Const. amend. IV. “[T]he ‘reasonableness’
of a particular seizure depends not only on when it is made,
but also on how it is carried out.” Graham, 490 U.S. at 395.

         Because “[t]he test of reasonableness under
         the Fourth Amendment is not capable of
         precise definition or mechanical application,”
         . . . its proper application requires careful

defendant official may be entitled to qualified immunity on the
established-law prong even if he had in fact violated a constitutional
right). Perhaps the established-law prong will ultimately subsume the
currently bifurcated qualified-immunity analysis. But a denial of
qualified immunity at present requires consideration of the existing first
prong to determine whether Macias’s alleged conduct constitutes a
violation of a constitutional right, which by necessity abuts the
underlying merits of the complaint.
               EASLEY V. CITY OF RIVERSIDE                 23

       attention to the facts and circumstances of
       each particular case, including the severity of
       the crime at issue, whether the suspect poses
       an immediate threat to the safety of the
       officers or others, and whether he is actively
       resisting arrest or attempting to evade arrest
       by flight.

Id. at 396 (alteration in original) (quoting Bell v. Wolfish,
441 U.S. 520, 559 (1979)). It is in any case well established
that “[t]he use of deadly force to prevent the escape of . . .
suspects, whatever the circumstances, is constitutionally
unreasonable.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).
“A police officer may not seize an unarmed, nondangerous
suspect by shooting him dead.” Id.

    The dispositive consideration for the district court was
whether there were objective identifiers that Easley “pose[d]
an immediate threat to the safety of” Macias. Id. I do not
agree that the evidence—construed pursuant to the
summary-judgment standard—reflects an indisputable,
objectively perceptible, and immediate threat. There remain
genuine disputes about, inter alia, Macias’s line of sight on
the gun and the timing between Easley’s self-disarming and
Macia’s decision to fire on him. Therefore, it is possible for
a jury to conclude on this record that Macias first reasonably
suspected Easley was armed, then clearly observed Easley
divest himself of the suspected firearm, and finally
decided—after sufficient time to recognize Easley was
unarmed and not dangerous—to fire upon him.

    The district court avoided this conclusion in part by
deciding that the timing of this event is immaterial for
summary-judgment purposes. I disagree. It is, for example,
self-evident, that if an officer observes a suspect disarm
24             EASLEY V. CITY OF RIVERSIDE

himself and then pursues the suspect on foot away from the
discarded weapon for thirty seconds, he may not then decide
to fire upon the suspect and claim in good faith that he was
in fear of the suspect using the discarded weapon to hurt him.
Likewise, it is clear that if an officer observes a suspect
remove a firearm from his pocket toward the officer and the
officer shoots the suspect before the firearm leaves the
suspect’s hands, the officer’s fear was reasonable even if the
suspect later claims it was his intent to discard the weapon.
This case, then, presents a complex line-drawing exercise: at
what point between these two extremes does a fear of
immediate harm become unreasonable?

    As the majority notes, the law is clear that “[t]he calculus
of reasonableness must embody allowance for the fact 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, 490 U.S. at
396–97. Indeed, at the evidentiary hearing, Macias
presented expert testimony regarding the time it takes “to
identify a threat, process it, make a decision, and then
execute a response.” Macias’s expert testified that the “lag
time” that occurs “between an action and a reaction” consists
of “milliseconds,” or “anywhere from [a] quarter-second to
a third of a second.” In this case, according to the summary-
judgment record, Macias had four seconds to deliberate after
Easley disarmed himself before he fired the first shot. Four
seconds—by pure definition—pushes past the outer bounds
of the case law’s provision for “split-second judgments” and
beyond the “milliseconds” needed to process new
information according to Macias’s own expert.

    Of course, if a jury were to determine that fewer than
four seconds passed or that Macias could not have
                  EASLEY V. CITY OF RIVERSIDE                        25

objectively seen or known that Easley had disarmed himself,
this calculus changes. That is why the matters of timing and
of Easley discarding his firearm remain genuine, triable
issues of material fact. It does not settle the issue to say
simply that Easley was shot “within two to four seconds of
throwing the gun.” 8 I therefore dissent from the majority’s
conclusion that Macias’s “application of deadly force was
objectively reasonable” as a matter of law.

                                   B

     The second inquiry asks whether the constitutional “right
at issue was clearly established at the time of the incident.”
Torres, 648 F.3d at 1123. The first step in determining
whether Macias’s alleged conduct violated a clearly
established right is to determine whether case law existed at
the time of the incident in which “an officer acting under
similar circumstances . . . was held to have violated the
Fourth Amendment.” White v. Pauly, 137 S. Ct. 548, 552
(2017); see Morales v. Fry, 873 F.3d 817, 823 (9th Cir.
2017). In some circumstances, the existence of case law
proscribing the alleged conduct will be “obvious.” White,
137 S. Ct. at 552. For example, when an officer is alleged to
have “seize[d] an unarmed, nondangerous suspect by
shooting him dead,” as in Garner, it is “obvious” that such

     8
       Though the Supreme Court recently held an officer was entitled to
qualified immunity when exercising deadly force with “mere seconds to
assess . . . potential danger,” the circumstances in that case involved a
suspect armed with a knife who refused to comply with directions to
disarm herself and was accosting a bystander within striking distance.
Kisela, 138 S. Ct. at 1152. We are confronted with distinguishable facts
on summary judgment in this case: Easley was disarmed and not within
striking distance of a third party. Therefore, a general “mere seconds”
finding such as the one relied upon in Kisela cannot fully and properly
inform our analysis in this case.
26             EASLEY V. CITY OF RIVERSIDE

conduct is unconstitutional. Garner, 471 U.S. at 11; see
White, 137 S. Ct. at 552; see also Graham, 490 U.S. 395–96
(setting out the general reasonableness standard for
excessive-force claims). Insofar as Easley asserts that
Macias clearly observed Easley disarm himself and
nevertheless proceeded to fire on him knowing he was not
armed, he is alleging this case is the rare but “obvious one
where Graham and Garner alone offer a basis for decision.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004). For the
purposes of summary judgment, our analysis should end
there; Graham and Garner were well established at the time
of the incident.

    Even if this is not the “obvious” case, I conclude other
clearly established case law in this circuit would have given
officers fair notice that the conduct alleged here was
unconstitutional at the time of the incident. See Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting
Brosseau, 543 U.S. at 198). In non-obvious cases, courts
must explicitly identify particular court rulings
demonstrating the unlawfulness of the alleged conduct.
White, 137 S. Ct. at 552. “Such specificity is especially
important in the Fourth Amendment context, where . . . ‘[i]t
is sometimes difficult for an officer to determine how the
relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting Saucier, 533 U.S.
at 205). This specific-case requirement ensures that officers
are not exposed to liability without a “fair and clear warning
of what the Constitution requires.” Sheehan, 135 S. Ct. at
1778 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 746 (2011)
(Kennedy, J., concurring)); see Kisela, 138 S. Ct. at 1152.

     This Court has held that its 1991 decision, Curnow ex
rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.
               EASLEY V. CITY OF RIVERSIDE                 27

1991), fairly informs officers of the constitutionality of the
use of deadly force in circumstances sufficiently analogous
to the present case. See Lopez, 871 F.3d at 1020. In Curnow,
police officers broke down a door to confront a suspect.
952 F.2d at 323. The officers claimed that as they entered
through the doorway, the suspect picked up a nearby firearm
and raised the weapon as he began to turn towards the
officers. Id. However, for summary-judgment purposes
only, the court accepted as true the contrary testimony of a
witness who stated the suspect did not have the gun in his
hand, did not raise his arm, and did not turn toward the
officers. Id. The officers shot the suspect in the back. Id.
This Court held, “[T]he police officers could not reasonably
have believed the use of deadly force was lawful because
[the suspect] did not point the gun at the officers and
apparently was not facing them when they shot him the first
time.” Id. at 325.

    In the present case, as in Curnow, the record for
summary-judgment purposes reveals that Easley was not
holding a gun at the time of the shooting, nor was he raising
his arm toward or turning to face Macias. Further, in
Curnow, the suspect had a firearm within immediate reach,
while in this case, Plaintiff had thrown his firearm away
from his person and continued to run in the opposite
direction of the gun. Therefore, Curnow, a twenty-year-old
decision at the time of the shooting in this case, gave Macias
a fair and clear warning that his use of deadly force—at least
on the facts as construed for summary judgment—was not
constitutional.

    The parties present competing arguments regarding the
value of Curnow for the purposes of the present established-
law inquiry. Macias argues that Curnow is legally
distinguishable from the present case. There is some tension
28             EASLEY V. CITY OF RIVERSIDE

in the case law concerning how distinguishable a case may
be on its facts before it cannot be construed as clearly
established law for qualified-immunity purposes. On the
one hand, the Supreme Court has repeatedly admonished this
Court “not to define clearly established law at a high level of
generality.” Kisela, 138 S. Ct. at 1152 (quoting Sheehan,
135 S. Ct. at 1775–76); see al-Kidd, 563 U.S. at 742
(majority opinion). To constitute clearly established law, the
“existing precedent must have placed the . . . constitutional
question beyond debate” and must “‘squarely govern[]’ the
specific facts at issue.” Kisela, 138 S. Ct. at 1152–53 (first
quoting White, 137 S. Ct. at 551; then quoting Mullenix,
136 S. Ct. at 310). At the same time, the Supreme Court has
consistently maintained that its “caselaw does not require a
case directly on point for a right to be clearly established,”
id. at 1152 (quoting White, 137 S. Ct. at 551), and that
“officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002). This of course must be
true because every individual case will present at least
nominal factual distinctions. If precisely identical facts were
required, qualified immunity would in fact be absolute
immunity for government officials.

    With these principles in mind, I conclude that clearly
established law for qualified-immunity purposes will
necessarily contain both operative circumstances—i.e., the
circumstances from which the constitutional violation
flowed—and ancillary circumstances—i.e., the surrounding
factual details of the case that bear no constitutional
significance. The operative circumstances described in
Curnow include: (1) the suspect was not holding a gun when
shot even though a gun was within his reach, (2) the suspect
did not point a gun at the officers, and (3) the suspect did not
turn to face the officers. These same circumstances are the
                EASLEY V. CITY OF RIVERSIDE                   29

foundational points of fact in the present case for summary-
judgment purposes.

    Macias notes this case involved a foot chase, while
Curnow involved officers breaking down a door to intercept
a seated suspect they believed was armed. This is indeed a
factual distinction. However, both Curnow and the present
case involve similarly high-pressure situations for the
officers. Macias has presented no principled reason why he
is subject to a lower threshold than the officers in Curnow,
who were also involved in quickly evolving and tense
circumstances. Ultimately, the factual distinction Macias
relies upon does not overcome the parallel operative
circumstances between the two cases.

    In broader terms, Macias contends the only court ruling
that would satisfy the established-law inquiry would be a
case holding that it is “unconstitutional for an officer to shoot
at an armed suspect who grabbed and raised an object
immediately before being shot, simply because the suspect
let go of the object seconds before being hit.” This curious
characterization of the present circumstances is strained and
self-contradictory; it claims Easley was simultaneously
armed and unarmed. But more to the point, the law does not
require this level of precise factual identity for the
unconstitutionality of certain conduct to be “clearly
established.”

    In this case, there exists a construction of the disputed
facts that is controlled by the clearly established expectations
for government officials both as generally set forth in
Garner and Graham and as specifically set forth in Curnow.
30             EASLEY V. CITY OF RIVERSIDE

                               C

    The third inquiry asks whether “a reasonable officer
would have understood her conduct to be unlawful” in the
circumstances alleged. Torres, 648 F.3d at 1123. Again,
this is a separate question from whether Macias’s conduct
was reasonable. Macias enjoys an extra layer of deference
on this third inquiry insofar as he may have reasonably
believed his conduct was permissible even if it was not. In
recognition of this extra deference, “if officers of reasonable
competence could disagree on this issue, immunity should
be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

    However, the proper answer to this inquiry, like that of
the first inquiry, is presently lost within the contested facts.
If the objective circumstances would have unequivocally
informed a reasonable officer that Easley was disarmed and
if four full seconds to deliberate passed between that
officer’s perception thereof and his decision to shoot Easley,
I conclude there is no room for a reasonable officer with an
understanding of Garner, Graham, and Curnow to assert that
the use of deadly force was reasonable. Therefore, there
remain genuine issues of material fact bearing upon
resolution of this inquiry. Based on the summary-judgment
record taken in the light most favorable to Easley, Macias’s
entitlement to qualified immunity is not presently
established as a matter of law.

                               D

    My conclusion that summary judgment was improper is
not equal to a conclusion that Macias is not entitled to
qualified immunity.         Macias may prove in further
proceedings that he is so entitled. He simply has not done
so at this pre-trial, summary-judgment stage. The proper
resolution to this appeal, therefore, is that we should reverse
               EASLEY V. CITY OF RIVERSIDE                  31

the grant of summary judgment and remand for resolution of
the contested factual issues by a jury. See, e.g., Zion v. Cty.
of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017); Jones v. Las
Vegas Metro. Police Dep’t, 873 F.3d 1123, 1132 (9th Cir.
2017); Longoria, 873 F.3d at 705; Green, 751 F.3d at 1053.

    It is well established that the question of eligibility for
qualified immunity should be resolved at the earliest stage
possible in the proceedings because it is an immunity from
suit and not merely a defense to liability. Hunter v. Bryant,
502 U.S. 224, 228 (1991) (per curiam); see Morales,
873 F.3d at 822. But in this case, the district court’s two-day
evidentiary hearing was a de facto bench trial, and Macias
therefore has already suffered whatever abstract harm might
result from an infraction upon his asserted immunity from
suit, mooting consideration of that injury for our purposes on
appeal.

     When, as here, triable issues of fact preclude resolution
of an official’s entitlement to qualified immunity, then the
immunity question is “transformed from a doctrine
providing immunity from suit to one providing a defense at
trial.” Morales, 873 F.3d at 823. On remand, “special
interrogatories to the jury can be used to establish disputed
material facts,” which the district court can then rely upon to
determine Macias’s eligibility for qualified immunity as a
matter of law. See id. at 823–24.

                              III

    The requisite analyses in this case are difficult and
complex; nonetheless, we must diligently and carefully
perform each one to ensure that we fulfill our roles as neutral
arbiters of the law in § 1983 actions alleging excessive force,
which are presently subject to increased public scrutiny.
Though the law is complicated, the outcome in this case is
32             EASLEY V. CITY OF RIVERSIDE

simple: there remain genuine, triable disputes concerning
facts material to Macias’s entitlement to qualified immunity.
I therefore conclude we are prohibited from granting
summary judgment at this stage in the proceedings. My
conclusion in no way prejudices Macias’s ability to prove
his entitlement to qualified immunity at trial, and it also
avoids any potential for irremediable prejudice to Easley’s
Fourth or Seventh Amendment rights. And because we are
not permitted to weigh evidence or make credibility
determinations, we may not opine as to the likelihood either
that Easley will prevail on the merits of his claim or that
Macias will be able to establish entitlement to qualified
immunity at trial. The best course for us is to reverse and
remand for further proceedings. I therefore dissent from the
majority’s decision to affirm the district court.
