                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 03 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
STEVEN O. PETERSEN, on behalf of                 No.   14-35201
L.P., a minor and beneficiary and as
Personal Representative of the estate of         D.C. No. 3:12-cv-05908-RBL
Steven V. Petersen,

              Plaintiff-Appellant,               MEMORANDUM*

 v.

LEWIS COUNTY, a political subdivision
of the State of Washington; MATTHEW
MCKNIGHT,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted September 2, 2016
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and DAVIS,** Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
      Steven Petersen appeals the district court’s grant of Lewis County’s (“the

County”) and Matthew McKnight’s motion for summary judgment on qualified-

immunity grounds in Petersen’s 42 U.S.C. § 1983 lawsuit arising from the shooting

of his son. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo

the grant of summary judgment. See Fair Hous. Council of Riverside Cty., Inc. v.

Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001). We affirm in part, reverse in

part, and remand.

      The district court correctly found that there were material factual disputes

regarding the reasonableness of McKnight’s actions as to Petersen’s excessive

force claim. However, viewing the facts in the light most favorable to Petersen,

even if McKnight had reasonable suspicion to stop Petersen’s son under Terry v.

Ohio, 392 U.S. 1 (1968), McKnight did not have probable cause to use deadly

force and therefore acted in violation of clearly established law. See Blanford v.

Sacramento Cty., 406 F.3d 1110, 1119 (9th Cir. 2005) (noting that, by 2000,

reasonable officers would be on notice that using deadly force “required probable

cause (supported by objectively reasonable facts) to believe that [a plaintiff] posed

a threat of serious physical harm” to the officers or others); see also A.K.H. v. City

of Tustin, —F.3d—, 2016 WL 4932330, at *6 (9th Cir. 2016) (relying on

Tennessee v. Garner, 471 U.S. 1 (1985), as clearly established federal law when


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affirming the denial of qualified immunity in a deadly shooting case). In citing the

absence of clearly established federal law, the district court therefore erred in

granting qualified immunity to McKnight on the excessive force claim.

      The district court appropriately granted summary judgment to the County on

Petersen’s municipal liability claim. Petersen failed to present evidence that any of

the County’s policies were a “moving force” behind the shooting. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978). Additionally, Petersen failed to identify

deficiencies in McKnight’s training that establish a showing of deliberate

indifference. See Connick v. Thompson, 563 U.S. 51, 61 (2011) (“[A]

municipality’s failure to train its employees in a relevant respect must amount to

‘deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.’” (quoting City of Canton v. Harris, 489 U.S. 378,

388 (1989) (alteration in original))).

      Likewise, the district court appropriately granted summary judgment to the

County and McKnight on Petersen’s substantive due process claim because he

failed to show that McKnight’s actions “shock[] the conscience.” See Cty. of

Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998) (outlining the standard for

executive action that violates substantive due process).




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      However, summary judgment should not have been granted for McKnight

on the state-law negligence claim because the reasonableness of McKnight’s

actions raises factual issues that should be left to a jury. Gallegos v. Freeman, 291

P.3d 265, 277 (Wash. Ct. App. 2013) (“An officer is entitled to state law qualified

immunity where the officer (1) carries out a statutory duty, (2) according to

procedures dictated to him by statute and superiors, and (3) acts reasonably.”

(emphasis added) (internal quotation marks and citations omitted)). The public

duty doctrine does not bar Petersen’s claim because “[t]he [public duty] doctrine

provides only that an individual has no cause of action against law enforcement

officials for failure to act. Certainly if the officers do act, they have a duty to act

with reasonable care.” Coffel v. Clallam Cty., 735 P.2d 686, 690 (Wash. Ct. App.

1987). Therefore, summary judgment was also improperly granted for the County

on Petersen’s vicarious liability claim. See LaPlant v. Snohomish Cty., 271 P.3d

254, 256 (Wash. Ct. App. 2011) (holding that a county may be vicariously liable

for officers’ negligent actions taken within the scope of their employment).

      Finally, the district court appropriately granted summary judgment for the

County on Petersen’s state-law claims for failure to train and negligent supervision

because there is no indication that McKnight acted outside the scope of his

employment. Id. at 257 (“Under Washington Law, . . . a claim for negligent hiring,


                                            4
training, and supervision is generally improper when the employer concedes the

employee’s actions occurred within the course and scope of the employment.”).

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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