                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 07 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANDREA GONZALES; MICHELLE                        No.   15-17291
MAYERS,
                                                 D.C. No.
              Plaintiffs-Appellants,             4:14-cv-04728-KAW

 v.
                                                 MEMORANDUM*
CITY OF ANTIOCH,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                 Kandis A. Westmore, Magistrate Judge, Presiding

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: REINHARDT and BERZON, Circuit Judges, and AMON,** District Judge.


      Appellants appeal the district court’s grant of summary judgment to the City

of Antioch on their claims for negligence and battery resulting from the fatal


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
shooting of Denny Gonzales by officers of the Antioch Police Department

(“APD”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review a grant of summary judgment de novo. Szajer v. City of Los

Angeles, 632 F.3d 607, 610 (9th Cir. 2011). The Court must determine, viewing

the evidence in the light most favorable to the non-moving party, whether there are

any genuinely disputed issues of material fact. Id. Here, viewing the facts in the

light most favorable to appellants, no reasonable jury could conclude that the

officers’ use of deadly force was objectively unreasonable.

      The undisputed evidence shows that Gonzales contacted an APD detective

and repeatedly made statements from which it could be inferred that he was

planning to kill a police officer. When APD officers arrived at Gonzales’ house,

Gonzales was in his garage, and the officers were positioned near Gonzales’

driveway and across the street. Gonzales subsequently walked out of his garage

carrying a gun in his right hand. When the officers ordered him to drop his

weapon, Gonzales failed to comply and instead turned to the right, raising his right

hand and forearm while he was turning. A video of the incident taken by the

California Highway Patrol shows that in lifting his right hand and forearm,

Gonzales raised his gun in the direction of APD officers positioned around his

house. When Gonzales raised his gun in the direction of the officers, the officers


                                          2
reasonably believed that they faced a serious threat that justified their use of deadly

force.

         The fact that Gonzales only momentarily raised his gun and then lowered it

as he was retreating toward the garage does not create a genuine factual dispute as

to whether the force used was reasonable. The Court must consider the facts and

circumstances confronting the officers “from the perspective of a reasonable

officer on the scene,” and allow 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 v. Connor, 490 U.S. 386, 396–97 (1989). Here, it is

undisputed that the responding officers were confronted with a suspect who had

repeatedly threatened to kill a police officer and raised his gun in the direction of

the officers. Gonzales’ actions rendered the officers’ use of force reasonable as a

matter of law. See George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If the

person is armed—or reasonably suspected of being armed—a furtive movement,

harrowing gesture, or serious verbal threat might create an immediate threat.”).

         Furthermore, appellants failed to create a triable issue of fact with respect to

the negligence of the officers’ pre-shooting conduct. Under California law, “an

officer’s preshooting conduct is properly ‘included in the totality of circumstances


                                             3
surrounding [his] use of deadly force, and therefore the officer’s duty to act

reasonably when using deadly force extends to preshooting conduct.’” Hayes v.

Cty. of San Diego, 736 F.3d 1223, 1236 (9th Cir. 2013) (quoting Hayes v. Cty. of

San Diego, 305 P.3d 252, 257 (Cal. 2013)) (emphasis omitted). Appellants

contend there were alternative means available to the officers to avoid or diffuse

the situation, but they do not cite admissible evidence in the record in support of

their argument. Such speculative and conclusory assertions do not create a triable

issue of fact. Moreover, officers are not required to choose the “‘most reasonable’

action or the conduct that is the least likely to cause harm,” so long as their conduct

falls “within the range of conduct that is reasonable under the circumstances.”

Hayes, 305 P.3d at 258 (quoting Brown v. Ransweiler, 171 Cal. App. 4th 516,

537–38 (2009)).

      Appellants further contend the district court erred in granting summary

judgment because there are factual disputes concerning whether the officers began

shooting before Gonzales raised his gun and whether the officers gave commands

to drop the gun prior to shooting. However, these arguments rely on evidence that

the district court found inadmissible. Because appellants do not contest these

evidentiary rulings on appeal, they have waived any challenge to the district




                                           4
court’s exclusion of this evidence. As a result, there is no evidence in the record

supporting appellants’ asserted factual disputes.

      Finally, the number of shots fired does not create a factual dispute to defeat

summary judgment. The Supreme Court has explained that “if police officers are

justified in firing at a suspect in order to end a severe threat to public safety, the

officers need not stop shooting until the threat has ended.” Plumhoff v. Rickard,

134 S. Ct. 2012, 2022 (2014). Although the officers fired 50 to 52 shots at

Gonzales, appellants do not present any evidence suggesting the officers continued

to fire at Gonzales after they knew he was incapacitated or no longer posed a

threat. Rather, it is undisputed on this record that Gonzales did not drop the gun

before the officers started shooting–either on his way out of the garage, when he

saw the officers, when the officers yelled commands, or when he turned to go back

to the garage. Furthermore, only two bullets struck Gonzales. In the absence of

evidence that the officers continued shooting after Gonzales was incapacitated or

no longer posed a threat, there is no evidentiary basis to conclude the number of

shots fired rendered the officers’ conduct unreasonable.




                                            5
      For these reasons, we conclude that the district court did not err in granting

summary judgment to the City of Antioch on appellants’ negligence and battery

claims.

      AFFIRMED.




                                         6
