                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            APR 03 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
THE ESTATE OF ALEX MARTIN, by its                No.   15-56451
authorized representative, Craig Martin;
KAREN MARTIN; CRAIG MARTIN,                      D.C. No.
                                                 3:13-cv-01386-LAB-BGS
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

UNITED STATES OF AMERICA; ROY
J. SALCEDO; ALEX FISHMAN;
MATTHEW SMITH; ANTHONY
GALIOTO,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                      Argued and Submitted February 8, 2017
                               Pasadena, California

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Plaintiffs-Appellants sued Defendants-Appellees on behalf of Alex Martin,

who died following a police chase. Appellants challenge the district court’s grant


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of summary judgment against them. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      1. Appellants argue that the act of pulling Martin over, and the manner in

which the agents approached his car before the chase, violated his constitutional

rights and thus, regardless of whether the agents were later justified in using a

taser, they should be held liable under our “provocation doctrine.” See Mendez v.

Cty. of L.A., 815 F.3d 1178, 1193 (9th Cir.), cert. granted in part, 137 S. Ct. 547

(2016). But liability under the doctrine is limited to “harms the constitutional

violation proximately caused.” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.

2002). And Martin’s death was not proximately caused by the alleged antecedent

violations because it was not a reasonably foreseeable consequence of them. See

Paroline v. United States, 134 S. Ct. 1710, 1719 (2014) (“Proximate cause is often

explicated in terms of foreseeability or the scope of the risk created by the

predicate conduct.”). Therefore, this theory was properly subject to summary

judgment.

      2. Appellants further argue that the use of a taser constituted excessive force

under the balancing test from Graham v. Connor, 490 U.S. 386, 396 (1989), thus

violating Martin’s Fourth Amendment rights and giving way to a Bivens claim.

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.


                                           2
388 (1971). Notwithstanding the deadly consequences of the use of the taser in

this particular instance, a taser used in dart mode is an “intermediate, significant

level of force.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); see also

Miller v. Clark Cty., 340 F.3d 959, 962 (9th Cir. 2003) (“To be characterized as

deadly, force must present ‘more than a remote possibility’ of death in the

circumstances under which it was used.” (citation omitted)). Balancing the

severity of the crimes against the government’s interest in applying the force, we

find that this level of force was justified following a high-speed car chase where

the agents reasonably suspected that Martin may have been engaged in unlawful

activity and reasonably perceived that Martin was reaching toward the center

console. Therefore, the use of the taser did not constitute excessive force or violate

Martin’s Fourth Amendment rights, and summary judgment was proper.

      Appellants also assert a state law claim for assault and battery against the

United States for this same conduct under the Federal Tort Claims Act (FTCA).

See 28 U.S.C. §§ 1346(b), 2680(h); Millbrook v. United States, 133 S. Ct. 1441,

1444–45 (2013). In evaluating an FTCA claim, “we are required to apply the law

of the state in which the alleged tort occurred.” Conrad v. United States, 447 F.3d

760, 767 (9th Cir. 2006). California law precludes liability because the agents did

not use excessive force under our Graham inquiry, above. See Avina v. United


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States, 681 F.3d 1127, 1131–32 (9th Cir. 2012) (applying this rule to a claim of

assault and battery); Saman v. Robbins, 173 F.3d 1150, 1156–57, 1157 n.6 (9th

Cir. 1999).

      3. Appellants further asserted state law negligence causes of action against

the United States under the FTCA for the agents’ preshooting conduct, specifically

actions that could have led Martin to believe that the agents were highway robbers

masquerading as police officers and, once Martin was stopped, their yelling of

contradictory commands. See Hayes v. Cty. of San Diego, 305 P.3d 252, 256 (Cal.

2013) (incorporating preshooting conduct into the totality of the circumstances to

determine the reasonableness of a shooting and recognizing this as a more

searching inquiry than the Fourth Amendment’s reasonableness inquiry into

excessive force). “To prevail on a negligence claim [under California law], a

plaintiff must prove that the defendant owed and breached a legal duty to the

plaintiff and that the breach was a proximate cause of damages sustained by the

plaintiff.” Minn. Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 981 (9th Cir. 1999).

These claims were properly subject to summary judgment because Martin’s death

was not a reasonably foreseeable consequence of the allegedly negligent acts. See

Paroline, 134 S. Ct. at 1719.




                                          4
      4. Appellants’ wrongful death claim was properly subject to summary

judgment because Appellants’ other state law claims do not survive. See Quiroz v.

Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 226 (Ct. App. 2006).

      AFFIRMED.




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