                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            FEB 23 2018
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ESTATE OF YANIRA SERRANO;                        No.   16-15744
CARMEN GARCIA; IGNACIO
SERRANO; LORENZO SERRANO,                        D.C. No. 3:14-cv-04081-MMC

               Plaintiffs-Appellants,
                                                 MEMORANDUM*
          v.

MENH TRIEU; COUNTY OF SAN
MATEO,

               Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                      Argued and Submitted February 15, 2018
                               Pasadena, California

Before: THOMAS, Chief Judge, and REINHARDT and FISHER, Circuit Judges.

      The plaintiffs appeal the summary judgment entered in favor of the

defendants in their 42 U.S.C. § 1983 action alleging excessive force in the shooting

death of Yanira Serrano by San Mateo Sheriff’s Deputy Menh Trieu. We have

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291, we review the grant of summary judgment de

novo, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en

banc), and we affirm.

      1. The district court properly concluded the plaintiffs “failed to raise a

triable issue as to their claim that Deputy Trieu’s use of deadly force was

unreasonable.” Viewed in the light most favorable to the plaintiffs, the evidence

shows Ms. Serrano was wielding an 11-inch steak knife with a six-inch blade in an

aggressive manner, pursued Deputy Trieu as he retreated for approximately 160

feet, ignored Deputy Trieu’s commands to stop and was within 15 to 20 feet of

Deputy Trieu when he fired a single shot. Deputy Trieu was not required to

continue his retreat. See Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir.

2011) (“Officers ‘need not avail themselves of the least intrusive means of

responding to an exigent situation; they need only act within that range of conduct

we identify as reasonable.’” (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994))); Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc)

(“[W]here a suspect threatens an officer with a weapon such as a gun or a knife, the

officer is justified in using deadly force.”). At minimum, summary judgment was

proper because the plaintiffs have not pointed to any case that would have placed

Deputy Trieu on “fair notice” that the use of deadly force was unconstitutional


                                          2
under the circumstances of this case. See City & County of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1777 (2015).

       2. The plaintiffs’ contention that the district court misapplied the summary

judgment standard is without merit. Summary judgment was appropriate because

the evidence, viewed in the light most favorable to the plaintiffs, established

Deputy Trieu’s use of deadly force was reasonable. This conclusion did not

depend on Deputy Trieu’s credibility. The court, moreover, viewed each of the

factual disputes the plaintiffs identify – Deputy Trieu’s manner of approaching the

Serrano residence; the distance between Deputy Trieu and Ms. Serrano at the time

of the shooting; and Ms. Serrano’s ability to ambulate as she advanced on Trieu –

in the plaintiffs’ favor.

       3. Deputy Trieu is not liable based on events antecedent to the shooting.

The Supreme Court rejected this court’s provocation doctrine in County of Los

Angeles v. Mendez, 137 S. Ct. 1539, 1544 (2017). Although a proximate cause

theory survives Mendez, the plaintiffs have not identified a constitutional violation

preceding the shooting. See id. at 1548-49. The plaintiffs “cannot ‘establish a

Fourth Amendment violation based merely on bad tactics that result in a deadly

confrontation that could have been avoided.’” Sheehan, 135 S. Ct. at 1777

(quoting Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002)).


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AFFIRMED.




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