                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           OCT 26 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHAKINA ORTEGA, individually, and as             No.   14-56824
successor of interest of Victor Ortega,
deceased; et al.,                                D.C. No.
                                                 3:13-cv-00087-LAB-JMA
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

SAN DIEGO POLICE DEPARTMENT, a
public entity,

              Defendant,

CITY OF SAN DIEGO, a public entity
and DOES, 1-10,

              Defendants,

 and

JONATHAN MCCARTHY, an individual,

              Defendant-Appellant.


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


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      Argued and Submitted October 19, 2016
                               Pasadena, California

Before: TALLMAN, PARKER,** and CHRISTEN, Circuit Judges.

      On the morning of June 4, 2012, Officer Jonathan McCarthy shot and killed

Victor Ortega while attempting to take Ortega into custody. Ortega’s surviving

family members brought a lawsuit against McCarthy, asserting violations of

Ortega’s Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983.

McCarthy moved for summary judgment based on qualified immunity. The

district court denied qualified immunity for both the Fourth and Fourteenth

Amendment claims, and McCarthy appeals. We have jurisdiction to decide the

questions of law, including the materiality of disputed facts, presented by this

appeal. See 28 U.S.C. § 1291; Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996);

George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). We review questions of law

de novo. Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009).

For the following reasons, we affirm.

1.    The district court correctly applied Cruz v. City of Anaheim, 765 F.3d 1076

(9th Cir. 2014). In cases of officer-involved deadly shootings in which the officer



      **
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
                                          2
and decedent are the only witnesses, courts must “carefully examine all the

evidence in the record . . . to determine whether the officer’s story is internally

consistent and consistent with other known facts.” Id. at 1079 (alteration in

original) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). The district

court examined McCarthy’s account of events for material inconsistencies and

compared his version of the shooting with other evidence. The district court

properly concluded that there were material inconsistencies that could lead a

reasonable jury to find in favor of the plaintiffs. See Cruz, 765 F.3d at 1080.

2.    The district court correctly found that the disputed facts are material to

whether a violation of a clearly established right occurred. Depending on how a

jury resolves the disputed facts, a jury could conclude that: (1) McCarthy shot

Ortega while he posed no threat to the officer; and/or (2) McCarthy acted with “a

purpose to cause harm unrelated to the legitimate object of arrest.” Cty. of

Sacramento v. Lewis, 523 U.S. 833, 836 (1998). Either scenario would constitute

violation of a right “that is ‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.’” Mullenix v.Luna, 136

S. Ct. 305, 308 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).

A jury could also find to the contrary and determine the use of deadly force was

permissible. Therefore, McCarthy is not entitled to qualified immunity for the


                                            3
alleged Fourth Amendment and Fourteenth Amendment violations at this stage of

litigation.

       AFFIRMED.




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