                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RAFAEL GONZALEZ, individually and          No. 11-56360
as successor in interest to Adolph
Anthony Sanchez Gonzalez,                     D.C. No.
                              Plaintiff,   2:10-cv-04660-
                                               PA-SH
                  and

F.E.V., a minor, individually and as         OPINION
successor in interest to Adolph
Anthony Sanchez Gonzalez, by and
through her Guardian Ad Litem
David Vasquez; ANTOINETTE
SANCHEZ, individually and as
successor in interest to Adolph
Anthony Sanchez Gonzalez,
                 Plaintiffs-Appellants,

                  v.

CITY OF ANAHEIM; DARON WYATT;
MATTHEW ELLIS,
            Defendants-Appellees.


       Appeal from the United States District Court
          for the Central District of California
        Percy Anderson, District Judge, Presiding
2               GONZALEZ V. CITY OF ANAHEIM

                   Argued and Submitted
           February 7, 2013—Pasadena, California

                        Filed May 13, 2013

     Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
           and Richard R. Clifton, Circuit Judges.

                 Opinion by Judge O’Scannlain;
                    Dissent by Judge Clifton


                           SUMMARY*


                            Civil Rights

    The panel affirmed the district court’s summary judgment
in a 42 U.S.C. § 1983 action in which plaintiffs alleged that
police officers used excessive force in a struggle that led to
the death of a person suspected of possessing illegal drugs.

    The panel noted that not only was the decedent acting
strangely during a traffic stop, but that the officers had reason
to believe he was committing and then attempting to conceal
a drug offense. He continually ignored the officers’
commands and resisted their attempts to physically restrain
him. And when he attempted to drive away with an officer in
the passenger seat, he made a volatile situation all the more
dangerous. The panel held that the use of force was not
excessive or disproportionate to the quickly escalating

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

situation and that it was objectively reasonable to resort to
deadly force given the speed at which the events occurred.

    The panel rejected plaintiffs’ claim that the officers’
conduct violated their due process right to familial
association, holding that nothing in the officers’ behavior
suggested that there were ulterior motives at work.

    Dissenting, Judge Clifton stated that there was a glaring
inconsistency regarding what happened during the few
seconds before decedent was shot in the head, specifically
about whether the vehicle was rapidly accelerating. Judge
Clifton stated that a jury might conclude from the
contradictory evidence that the police officer’s testimony was
not believable.


                        COUNSEL

Melanie T. Partow, Law Offices of Dale K. Galipo,
Woodland Hills, California, argued the cause and filed a brief
for the Plaintiffs–Appellants. With her on the brief was Dale
K. Galipo, Law Offices of Dale K. Galipo, Woodland Hills,
California.

Moses W. Johnson IV, Assistant City Attorney, Anaheim,
CA, argued the cause and filed a brief for the Defendants–
Appellees. With him on the brief was Cristina L. Talley, City
Attorney, Anaheim, California.
4             GONZALEZ V. CITY OF ANAHEIM

                          OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether police officers used excessive
force in a struggle that led to the death of a person suspected
of possessing illegal drugs.

                               I

                               A

    On September 25, 2009, at 2:00 AM in the morning,
Officers Daron Wyatt and Matthew Ellis, members of the
Anaheim Police Department, were responding to a routine
call to check on a transient. While turning left at an
intersection they were cut off by a van driven by Adolf
Anthony Sanchez Gonzalez. Gonzalez made an illegal left
turn in front of them and pulled into a gas station. The
officers had to brake aggressively to avoid a collision, but
they continued on their way to complete the call. Unable to
locate the transient, the officers headed back the way they
came only a minute or two later, and noticed that Gonzalez’s
van was still at the gas station.

    Their suspicions raised by the near collision, the officers
ran the van’s plates through the mobile data terminal in their
patrol car and discovered that the van had been involved in a
prior narcotics stop. According to Wyatt’s testimony, the
officers decided to follow the van for a short way to see if any
law enforcement action was necessary. A few blocks later,
they noticed that the van was weaving within its lane and
decided to pull it over.
                GONZALEZ V. CITY OF ANAHEIM                          5

    After the officers turned on their lights, the van continued
driving for about 200 feet before making a wide-sweeping
turn to pull over. The officers pulled in behind the van and
approached the vehicle from both sides; Ellis approached on
the driver’s side and Wyatt on the passenger’s side. As Wyatt
approached, he saw Gonzalez reach back with his right hand
toward the area between the driver and the passenger seats.
Wyatt drew his gun and yelled at Gonzalez, warning that if
Gonzalez reached back again, he would shoot him.

    Gonzalez clenched his hands tightly in his lap. Ellis told
him to turn off the vehicle at least twice, but Gonzalez did not
respond or comply. Ellis noticed that Gonzalez appeared to
be concealing a plastic baggy in his right hand, which he
believed could contain drugs. Both officers told Gonzalez to
open his hands.

    Gonzalez continued to ignore the officers’ orders. The
officers reached through Gonzalez’s open windows to unlock
the driver- and passenger-side doors. Wyatt reached through
the now-open door and struck Gonzalez on the arm with his
flashlight three times.

    At this point, Gonzalez moved his right hand toward his
mouth, and his left hand toward the area between the seat and
the door. Ellis believed Gonzalez was trying to swallow
whatever was in his hand.              According to Wyatt,
Ellis—reaching through the driver-side window—attempted
to apply a carotid restraint (or “sleeper hold”)1 on Gonzalez.




  1
    “A ‘sleeper hold’ occurs when a person wraps his forearm around the
victim’s neck with the center of the victim’s neck in the crook of the
6               GONZALEZ V. CITY OF ANAHEIM

Ellis claims that he was attempting only to gain control of
Gonzalez’s arms.

    As Ellis struggled with Gonzalez, Wyatt radioed for
assistance. Wyatt believed Gonzalez was attempting to strike
Ellis, although Ellis himself testified that Gonzalez never
attempted to hit him. Wyatt entered the van from the
passenger side and, with both of his knees on the seat, began
punching Gonzalez in the head and face.

    Still struggling with the officers, Gonzalez tried to shift
the van into gear by slapping the gearshift with his right hand.
Ellis, in an attempt to stop Gonzalez from shifting the van
into gear, hit him on the back of the head three times with his
flashlight. Gonzalez nonetheless managed to put the car into
drive and pulled away with Wyatt still in the passenger seat.

    According to Wyatt, Gonzalez “floor[ed] the accelerator.”
Wyatt moved from his knees to a sitting position and yelled
at Gonzalez to stop. Wyatt then attempted to knock the
vehicle’s gearshift out of gear, but Gonzalez slapped his hand
away. Without giving another warning, Wyatt pulled out his
gun and shot Gonzalez in the head. According to Wyatt, the
van had traveled “approximately fifty feet” in “less than ten”
and possibly “less than five” seconds. After the shot, the van
hit a parked vehicle and came to a stop. Other officers then
arrived and removed Gonzalez from the van, handcuffed him,
and performed chest compressions. Gonzalez died shortly
thereafter.



person’s arm. When performed correctly, the hold should cause the victim
to temporarily lose consciousness.” United States v. Gray, 692 F.3d 514,
517 n.1 (6th Cir. 2012).
              GONZALEZ V. CITY OF ANAHEIM                    7

                              B

    On June 23, 2010, Gonzalez’s father sued the officers and
the City of Anaheim under 42 U.S.C. § 1983 for violation of
his Fourteenth Amendment right of familial association and
of Gonzalez’s Fourth Amendment right to be free from
unreasonable and excessive force. On October 21, 2010,
Gonzalez’s daughter and successor-in-interest brought a
separate suit raising similar federal claims and various state-
law claims. The district court consolidated both actions.

    The City of Anaheim and the officers moved for summary
judgment. Gonzalez’s representatives waived some of their
constitutional claims, and the district court granted summary
judgment for the City and the officers on what remained. The
contested constitutional claims alleged that (1) the officers
used excessive force in violation of Gonzalez’s Fourth
Amendment rights and (2) that the officers’ actions “shocked
the conscience” and so violated the representatives’
Fourteenth Amendment rights. The district court granted
summary judgment and held that the force used throughout
the encounter was reasonable and that the officers’ conduct
did not violate the Fourteenth Amendment. The district court
declined to exercise supplemental jurisdiction over the state
law claims. See 28 U.S.C. § 1367(c)(3). Gonzalez’s
representatives appeal this grant of summary judgment.

                              II

                              A

    Gonzalez’s representatives allege that the officers applied
excessive force at five instances during the encounter that led
to Gonzalez’s death: (1) Wyatt’s use of his flashlight to hit
8               GONZALEZ V. CITY OF ANAHEIM

Gonzalez on the arm; (2) Ellis’s attempt to place Gonzalez in
a carotid restraint;2 (3) Wyatt’s punches to Gonzalez’s head
and face while Ellis was attempting to restrain him; (4) Ellis’s
strikes to the back of Gonzalez’s head with the flashlight; and
(5) Wyatt’s close-range shot to Gonzalez’s head.

    Under the Fourth Amendment, police may use only such
force as is “objectively reasonable in light of the facts and
circumstances confronting them.” Graham v. Connor,
490 U.S. 386, 397 (1989) (internal quotation marks omitted).
To determine whether the use of force was reasonable, we
balance the level of force used against the need for that force.
Graham suggests three factors that courts should consider
when evaluating the need for force: (1) the severity of the
crime, (2) whether the suspect posed an immediate threat to
the officers or others, and (3) whether the suspect was
actively resisting arrest. Id. at 396. These factors, however,
are not exclusive and we must consider the totality of the
circumstances. Bryan v. MacPherson, 630 F.3d 805, 826 (9th
Cir. 2010). “[I]n the end we must . . . slosh our way through
the factbound morass of ‘reasonableness.’” Scott v. Harris,
550 U.S. 372, 383 (2007).

                                  1

    Gonzalez’s representatives first contend that the flashlight
strikes to Gonzalez’s arm constituted excessive force. That
force was instigated by Gonzalez’s refusal to obey several
commands to open his hands and turn off the vehicle.
Officers may use a reasonable level of force to gain
compliance from a resisting suspect who poses a minor threat.

   2
     Whether a carotid restraint was used is a disputed fact. We must
assume that one was attempted to resolve this summary judgment appeal.
              GONZALEZ V. CITY OF ANAHEIM                      9

See, e.g., Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir.
2011) (holding that officers reasonably used “‘stern’ but not
‘severe’” baton strikes to control a noncompliant suspect);
Gregory v. Cnty. of Maui, 523 F.3d 1103, 1106–07 (9th Cir.
2008) (force was not excessive when three officers tackled,
pinned, and forcefully subdued an individual who was
trespassing and refusing to comply with orders to drop his
pen); Forrester v. City of San Diego, 25 F.3d 804, 807 (9th
Cir. 1994) (upholding jury verdict in favor of officers;
officers use of “pain compliance techniques” to arrest
demonstrators was objectively reasonable).          Striking
Gonzalez in the arm was not excessive force given his
stubborn refusal to follow the officers’ commands.

                               2

    Gonzalez’s representatives next urge that Ellis’s
attempted carotid restraint, Wyatt’s punches to Gonzalez’s
face, and Ellis’s flashlight strikes to Gonzalez’s head
constituted excessive force. We apply the three Graham
factors to evaluate the reasonableness of this force.

    The first factor looks to the severity of the crime, and here
it weighs in the officers’ favor. The officers had reason to
believe that Gonzalez possessed illegal drugs and was trying
to destroy evidence. Generally this factor weighs in favor of
the officers if they have “reason to believe” the suspect had
committed a “felony-grade offense.” See Coles v. Eagle,
704 F.3d 624, 628–29 (9th Cir. 2012).

   The second Graham factor is the immediacy of the threat
posed by Gonzalez to the officers or others. This is
undoubtedly the most important factor. Mattos v. Agarano,
661 F.3d 433, 441 (9th Cir. 2011) (en banc). Here, both
10            GONZALEZ V. CITY OF ANAHEIM

officers testified that they saw Gonzalez reach down with his
left hand between the driver’s side door and the seat. At that
moment, a reasonable officer in their position could be
concerned that Gonzalez was concealing a weapon in that
area. Given Gonzalez’s repeated refusal to obey the officers’
orders and his multiple furtive reaches, the officers had
reason to suspect danger. Then, when Gonzalez tried to shift
the van into drive with an officer in the vehicle, the situation
became substantially more dangerous, and the officers’
justification for force increased commensurately. See, e.g.,
Scott, 550 U.S. at 383–84 (officers were justified in ramming
a fleeing suspect in a vehicle that posed significant risk to the
public; reasonableness inquiry weighs the threat posed by the
suspect against the force used by the officers). Because of the
possibility of a hidden weapon and the threat the running
vehicle posed, the second Graham factor weighs in favor the
officers.

    Finally, the last Graham factor asks whether Gonzalez
was “actively resisting arrest or attempting to evade arrest by
flight.” Coles, 704 F.3d at 629. Gonzalez engaged in active
resistance both in his motions with his hands and by
struggling with the officers. See Mattos, 661 F.3d at 445
(suspect who refused to get out of her car and stiffened her
body and clutched at her steering wheel to frustrate officers
engaged in active resistance). Then, when Gonzalez
attempted to put the van in drive, his active resistance became
attempted flight. Like the other factors, this factor weighs in
favor of the officers.

    Because all three Graham factors support the officers,
they were justified in applying significant force. Not only
was Gonzalez acting strangely, but the officers had reason to
believe he was committing and then attempting to conceal a
              GONZALEZ V. CITY OF ANAHEIM                    11

drug offense. He continually ignored the officers’ commands
and resisted their attempts to physically restrain him. And
when he attempted to drive away with an officer in the
passenger seat, he made a volatile situation all the more
dangerous.

                               3

    Wyatt argues that, as an unbuckled passenger in a fast-
moving vehicle driven by an escaping suspect, he had
“probable cause to believe that the suspect pose[d] a
significant threat of death or serious physical injury to the
officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985);
see also Scott, 550 U.S. at 383 (speeding vehicle poses
“actual and imminent threat” to those around him, justifying
force posing a “high likelihood of serious injury or death”);
Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010)
(attempt to accelerate a van within close quarters of two
officers on foot justified the officer’s choice to fire eleven
shots at the driver). However, Gonzalez’s representatives
argue that Wyatt’s story fails to hold together.

    We must keep in mind that deadly force cases are
particularly difficult to evaluate at summary judgment
because “the officer defendant is . . . the only surviving
eyewitness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994). Here, as in Scott and other cases, the only accounts of
the events that led to Gonzalez’s death come from the
testimonies of the two officers who survived the encounter.
In such cases, a court should ensure that the officer’s story is
“internally consistent and consistent with other known facts”
to avoid simply accepting a self-serving statement by an
officer. Id.
12              GONZALEZ V. CITY OF ANAHEIM

    Gonzalez’s representatives and the dissent argue that
Wyatt’s testimony that the van traveled approximately fifty
feet either contradicts his testimony that the events took “less
than ten” and possibly “less than five seconds” or indicates
that the van was traveling so slowly that it could not have
been a threat.3

    First, even assuming that the van was traveling relatively
slowly, the threat of acceleration—and the threat to Wyatt’s
life—remained. Wilkinson, 610 F.3d at 552 (deadly force
was objectively reasonable even though “the vehicle was
moving at a slow rate of speed,” “it could have gained
traction at any time, resulting in a sudden acceleration. . . .”).
Thus, the van’s speed is not a material fact, even if it were
actually disputed. The dissent does not address this point.

     Second, the rough estimates of time taken and distance
traveled stated in Wyatt’s deposition were just that—rough
estimates. Wyatt’s story is “internally consistent” if we do
not ascribe unfounded precision to his estimates. It would be
surprising if an officer could recount precise quantitative
details about an incident which took mere seconds over a year
later. A minor inconsistency in officer testimony does not
alone create a dispute of material fact. See Gregory, 523 F.3d
at 1107–08 (“[E]ven were the officers’ accounts of the
confrontation incredible, there is no medical or circumstantial
evidence that could support the conclusion that the use of
force by the officers was excessive.”); Reynolds v. Cnty. of
San Diego, 84 F.3d 1162, 1169-70 (9th Cir. 1996)
(“Illuminating a potential minor inconsistency . . . is


  3
    As Gonzalez’s representatives repeatedly observe in their brief, a
vehicle that travels 50 feet in 10 seconds would have an average speed of
3.4 miles per hour.
              GONZALEZ V. CITY OF ANAHEIM                    13

insufficient to raise a genuine issue of material fact regarding
the reasonability of the use of force. . .”), overruled on other
grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th
Cir. 1997).

    Third, one rough estimate divided by another does not
provide meaningful evidence on the speed of the van. We
cannot weigh the evidence, but we must look at the record as
a whole. Wyatt also testified that, after Gonzalez managed to
put the van into drive, he “floor[ed] the accelerator and
violently accelerated northbound.” This acceleration was fast
enough to slam the door shut, trapping Wyatt in the vehicle.
Wyatt further testified that when he shot Gonzalez, the van
was going about “50 miles per hour.” Ellis confirmed this
account of events in his deposition and stated in an interview
conducted the day after the incident that Gonzalez “stomped
down” on the gas pedal, causing the vehicle to accelerate so
rapidly that the tires squealed. The most that a rational trier
of fact could conclude from this record is that Wyatt is bad at
estimating—hardly a reason to send this case to trial. Harris,
550 U.S. at 380 (“Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’”) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986)).

    The record taken as a whole does not support any
inferences other than essentially what the officers claim:
Wyatt was an unbuckled passenger in a rapidly accelerating
van with an escaping and noncompliant suspect. Gonzalez’s
flight could have killed or seriously injured Wyatt. This was
not a case where Wyatt had time to deliberate and consider
the most measured response; he testified that he tried to
knock the vehicle’s gearshift out of gear and that he yelled at
14            GONZALEZ V. CITY OF ANAHEIM

Gonzalez to stop. When these methods failed, further
hesitation may have been fatal. Given the speed with which
these events occurred, Wyatt was objectively reasonable in
resorting to deadly force. Wilkinson, 610 F.3d at 553
(holding as objectively reasonable officer’s decision to shoot
the driver of a van which was accelerating in close quarters
with two officers; “absolute certainty of harm need not
precede an act of self-protection”).

    In the alternative, Gonzalez’s representatives argue that
the shooting was provoked by the officers’ prior conduct. As
a result, they claim we should hold the shooting
unreasonable. However, we have held that in order for an
officer’s conduct to render an otherwise reasonable response
unreasonable, the prior conduct must itself be an independent
constitutional violation. Billington v. Smith, 292 F.3d 1177,
1190 (9th Cir. 2002). Because the officers’ prior conduct
never amounted to a constitutional violation, the shooting was
not unreasonable as a result.

                              B

    Gonzalez’s representatives also allege that the officers’
conduct violated their due process right to familial
association. This substantive due process claim requires that
they show that the officers’ conduct “shock[ed] the
conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.
2008). Because the officers had no time to deliberate, the
representatives must show that the officers had a “purpose to
harm” Gonzalez for reasons unrelated to legitimate law
enforcement objectives. Id.; see also Wilkinson, 610 F.3d at
554.
              GONZALEZ V. CITY OF ANAHEIM                     15

    The representatives present no evidence to suggest that
the officers, at any point, had a purpose “to cause harm
unrelated to the legitimate object of arrest” or self-protection.
Porter, 546 F.3d at 1140. At each stage of the encounter, the
officers were forced to make split-second decisions. As
explained above, the force that they used was not excessive
or disproportionate to the quickly escalating situation.
Nothing in the officers’ behavior suggests that there were
ulterior motives at work.

                              III

    For the foregoing reasons, Gonzalez’s representatives do
not show any triable issues of fact that the officers violated
Gonzalez’s constitutional rights.

    AFFIRMED.



CLIFTON, Circuit Judge, dissenting:

   “Deadly force cases pose a particularly difficult problem,”
we have observed, “because the officer defendant is often the
only surviving eyewitness.” Scott v. Henrich, 39 F.3d 912,
915 (9th Cir. 1994). This is one of those cases. Rafael
Gonzalez is dead and cannot speak for himself.

    That does not mean that the court can or should speak for
him, but it does mean that we must examine the evidence
presented by the defendants with a critical eye. As we held
in Scott, “the court may not simply accept what may be a
self-serving account by the police officer. It must also look at
the circumstantial evidence that, if believed, would tend to
16            GONZALEZ V. CITY OF ANAHEIM

discredit the police officer’s story, and consider whether this
evidence could convince a rational factfinder that the officer
acted unreasonably.” Id.

    There is a glaring inconsistency in the story told by the
police officers here. The main thrust of their testimony might
be correct, and it might be the case that their use of deadly
force was justified, but we are reviewing a summary
judgment and we cannot properly conclude that there is no
genuine issue of material fact as to what led to the fatal
shooting. As a result, I respectfully dissent.

    The inconsistency concerns what happened during the
few seconds right before Gonzalez was shot in the head.
According to the evidence submitted by defendants, Gonzalez
was in the driver’s seat of the van. Officer Matthew Ellis
approached the van from the driver’s side, and Officer Daron
Wyatt approached it from the passenger’s side. A struggle
ensued. Wyatt entered the van from the passenger side and
began punching Gonzalez in the head and face. Gonzalez put
the car into gear and started driving away, with Wyatt in the
van. Wyatt pulled out his gun and shot Gonzalez in the head.

     The majority opinion concludes, “[t]he record taken as a
whole does not support any inferences other than essentially
what the officers claim: Wyatt was an unbuckled passenger
in a rapidly accelerating van with an escaping and
noncompliant suspect.” Majority op. at 13. If that is what
happened, then I agree that Officer Wyatt acted reasonably in
resorting to deadly force. But it is simply not so clear that the
events happened that way. Indeed, the story as told by the
officers appears to me to be physically impossible.
                GONZALEZ V. CITY OF ANAHEIM                        17

   There are three pieces to this puzzle: the speed of the
vehicle, the distance it traveled, and the time that elapsed.
Those pieces don’t fit together.

    The speed of the van is the most important piece. It was
that speed that the majority opinion primarily relies upon to
conclude that it was reasonable for Wyatt to shoot Gonzalez
in the head. Wyatt testified that Gonzalez “floor[ed] the
accelerator and violently accelerated northbound.” He
estimated that the van was going about 50 miles per hour
when he shot Gonzalez. Ellis told a similar story, saying that
Gonzalez “stomped down” on the gas pedal, causing the
van’s tires to squeal.

    But that description simply cannot be squared with
Wyatt’s testimony about time and distance. Wyatt estimated
that less than ten seconds, and possibly less than five seconds,
passed between the van moving forward and his firing of the
fatal shot. He also testified that the van had traveled
approximately fifty feet in that time. As plaintiffs have
argued, and the majority opinion acknowledges, at 12 n.3, a
vehicle that traveled fifty feet in ten seconds would have an
average speed of only 3.4 miles per hour. Nobody should
mistake 3.4 miles per hour for 50. If the time period is cut to
five seconds, the average speed only increases to 6.8 miles
per hour. That is hard to mistake for 50 miles per hour, as
well. An actual speed of 3 to 6 miles per hour is simply
inconsistent with Wyatt’s testimony as to the speed of the
van.1 It also appears inconsistent with the testimony of both


  1
    A vehicle traveling 50 miles per hour covers more than 73 feet in
a second. The van was accelerating, so it would take some time for it
to reach the final speed, but that is another reason to question the
account given by the officers. Powerful sport cars are known for going
18                GONZALEZ V. CITY OF ANAHEIM

Wyatt and Ellis that Gonzalez “floored” or “stomped down”
on the gas.

    The majority opinion attempts to shrug off this
discrepancy by excusing Wyatt’s estimates of time and
distance as just “rough estimates.” Majority op. at 12. That
approach is wrong in two different ways.

    First, the estimates could not have been that far off. The
period of time that elapsed could not have been much shorter,
given all that happened during that time according to the
officers’ testimony. Consider the description of those events
provided in the majority opinion: “According to Wyatt,
Gonzalez ‘floor[ed] the accelerator.’ Wyatt moved from his
knees to a sitting position and yelled at Gonzalez to stop.
Wyatt then attempted to knock the vehicle’s gearshift out of
gear, but Gonzalez slapped his hand away. Without giving
another warning, Wyatt pulled out his gun and shot Gonzalez
in the head.” Id. at 6. Events were moving rapidly, to be
sure, but it is not obvious that all of that could have taken
place in much less than five seconds. Nor can the estimate
that the van traveled about fifty feet be blithely excused.
There was plenty of time after the episode took place to check
how far the van traveled. Defendants did not submit evidence
that the actual distance was substantially greater than fifty
feet. We cannot assume that it was.



“0 to 60” mph in less than five or six seconds. Gonzalez was driving
a 1991 Mazda MPV. The website “Zero to 60 Times” lists a time for a
1992 Mazda MPV to get to 60 mph as 11.2 seconds. See
http://www.zeroto60times.com/Mazda-0-60-mph-Times.html (last visited
April 11, 2013). And it would obviously have to travel a lot farther than
fifty feet to get up to speed. The quarter mile time for that vehicle is listed
by the same website as 18.1 seconds.
              GONZALEZ V. CITY OF ANAHEIM                    19

    Second, and more importantly, the majority opinion
applies the wrong standard when it brushes off the “rough
estimates” by emphasizing other parts of the officers’ story.
This is a summary judgment. It is for the jury to weigh the
evidence, not us.        A jury could conclude that the
inconsistency does not impair the officers’ credibility and that
even if the estimates of speed, time, and distance were way
off, the events were such that Officer Wyatt’s life was
endangered and his use of deadly force was justified. But a
jury could also conclude, presented with this evidence, that
the officers’ testimony should not be believed. As we held in
Scott, the court is supposed to “carefully examine all the
evidence in the record, such as medical reports,
contemporaneous statements by the officer and the available
physical evidence, as well as any expert testimony proffered
by the plaintiff, to determine whether the officer’s story is
internally consistent and consistent with other known facts.”
39 F.3d at 915. In this case, the story told by the officers is
not internally consistent. It is not our job to explain away the
discrepancy.

    It is especially not our job to explain away the
discrepancy by making up an unsupported theory. The
majority alternatively dismisses the van’s speed as
immaterial, arguing that even if the vehicle was “traveling
relatively slowly,” Wyatt’s behavior was unquestionably
justified. Majority op. at 12. But, as noted above, Wyatt not
only estimated the speed of the van as 50 miles per hour, he
testified that Gonzalez “floored the accelerator and the van
violently accelerated.” He did not testify that he acted
because he feared that the van might speed up; he claimed
that it was already speeding away. The majority opinion’s
effort to erase the inconsistency isn’t consistent with the
defendant’s own testimony. And it ignores the possibility
20             GONZALEZ V. CITY OF ANAHEIM

that the jury might conclude from the contradictory evidence
that Wyatt’s testimony was not to be believed.

    If Wyatt was sitting in the passenger seat of a vehicle
going 3 to 4 miles per hour when he whipped out his gun and,
without warning, shot Gonzalez dead, a reasonable jury might
conclude that his actions were unreasonable. The majority
opinion tries to eliminate speed from its analysis, citing to
Wilkinson v. Torres, 610 F.3d 546, 552 (9th Cir. 2010). But
in Wilkinson, we did not say that the threat of speed always
justified the use of deadly force; we emphasized the
importance of considering all the facts in excessive force
cases. Id. at 551. In Wilkinson, an officer thought his partner
was standing in the mud, disoriented, next to a fleeing
minivan. Id. The minivan was reeling, the driver was
attempting to accelerate. Id. The officer shot the driver
multiple times. Id. The plaintiffs argued that the vehicle was
moving too slowly to endanger the officers. Id. We decided
that even so, “it could have gained traction at any time,
resulting in a sudden acceleration in speed,” while the officer
believed his partner to be standing nearby. Id. at 552. Given
these facts, we decided that deadly force was justified. Here,
Wyatt was not on foot next to a vehicle that might run him
over at any moment should it have accelerated. He was
inside the car – a car that might have been slowly rolling
forward. Wilkinson does not answer whether Wyatt behaved
reasonably. A jury should.

     I respectfully dissent.
