                                                                              FILED
                           NOT FOR PUBLICATION                                APR 17 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

RONALD NEAL JOSEPH, Jr.; JANIE                   No. 11-17183
PITRE JOSEPH,
                                                 D.C. No. 2:09-cv-00966-HDM-
              Plaintiffs - Appellants,           LRL

  and
                                                 MEMORANDUM*
HANNAH ELIZABETH JOSEPH,

              Plaintiff,

  v.

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; SARA BRADSHAW,

              Defendants - Appellees.


                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior District Judge, Presiding

                            Submitted April 15, 2013**
                             San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

      Ronald Joseph Sr. and Janie Joseph sued the Las Vegas Metropolitan Police

Department and Officer Sara Bradshaw under 42 U.S.C. § 1983 for the fatal

officer-involved shooting of their son, Ronald Joseph Jr. (“Ron”). They allege that

Bradshaw’s use of deadly force was excessive under the Fourth Amendment and

shocked the conscience under the Fourteenth. They further contend that the

Department’s policies contributed to the alleged constitutional violations.

Bradshaw and the Department moved for summary judgment on all claims and

prevailed. The Josephs timely appealed. We affirm.

      The Josephs argue that genuine disputes of material fact remain on their

excessive force claim. We disagree. Whether or not genuine disputes remain,

none is material. The relevant facts are undisputed: as Bradshaw approached Ron,

she thought that he was committing an armed robbery. She commanded him to

drop his gun and get on the ground. He did not. Instead, he charged Bradshaw.

Whether, as he charged, he also pointed his gun at Bradshaw is ultimately

irrelevant. Either way, he posed an immediate threat to her safety. Cf. Blanford v.

Sacramento Cnty., 406 F.3d 1110, 1116 (concluding that officers were justified in

killing a suspect armed with a two-and-a-half foot sword who, when ordered to set



                                          2
the sword down, instead raised it and growled). Bradshaw was entitled to

summary judgment on this claim.

      The Josephs also claim that Bradshaw violated the Fourteenth Amendment.

Although they allude to this claim in their jurisdictional statement and, later in the

brief, refer in passing to their constitutional interest in maintaining their

relationship with their son, they nowhere attempt to make a prima facie case of a

Fourteenth Amendment violation. Thus, the issue is waived. See Kim v. Kang,

154 F.3d 996, 1000 (9th Cir. 1998). In any event, the claim is meritless. The

Josephs do not dispute that Bradshaw shot Ron in self defense, which is a

legitimate law-enforcement objective. Wilkinson v. Torres, 610 F.3d 546, 554–55

(9th Cir. 2010). Bradshaw was entitled to summary judgment on this claim.

      The Josephs argue that the Department is liable for policies contributing to

the alleged violation. But, since there was no constitutional violation, the

Department is not liable and, thus, was entitled to summary judgment. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986).

      The Josephs also challenge the district court’s denial (without prejudice) of

Bradshaw and the Department’s motion for an award of attorney fees and costs.

The Josephs are not aggrieved by that order. See United States v. Good Samaritan

Church, 29 F.3d 487, 488 (9th Cir. 1994).

      AFFIRMED.

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