                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARIA TORRES; MELCHOR TORRES;                 No. 05-16762*
EVERARDO TORRES,
             Plaintiffs-Appellants,               D.C. No.
               v.                            CV-02-06385-AWI/
                                                    LJO
CITY OF MADERA; MARCY NORIEGA,
                                                  OPINION
            Defendants-Appellees.
                                          
         Appeal from the United States District Court
            for the Eastern District of California
         Anthony W. Ishii, District Judge, Presiding

       Argued and Submission Deferred May 17, 2007
                 San Francisco, California
               Submitted November 8, 2007

                        Filed May 5, 2008

    Before: Betty B. Fletcher, Eugene E. Siler, Jr.,** and
          Michael Daly Hawkins, Circuit Judges.

                   Opinion by Judge Hawkins




  *Companion case No. 05-16468, argued and submission deferred on
May 17, 2007, has been decided separately in a Memorandum disposition.
  **The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

                                4925
                  TORRES v. CITY OF MADERA               4927


                         COUNSEL

Carl E. Douglas (argued) and Cameron A. Stewart (briefed),
The Cochran Firm, Los Angeles, California, for the plaintiffs-
appellants.

Bruce Praet (briefed and argued), Ferguson, Praet & Sherman,
Santa Ana, California, for the defendants-appellees.
4928               TORRES v. CITY OF MADERA
                          OPINION

HAWKINS, Circuit Judge:

   In this interlocutory appeal, we face an issue remarkably
similar on its facts to that faced by the Fourth Circuit in Henry
v. Purnell, 501 F.3d 374 (4th Cir. 2007). There, a deputy sher-
iff, intending to deploy a Taser device holstered near his fire-
arm, instead drew and fired his service weapon, wounding a
suspect fleeing arrest. Here, Madera City Police Officer
Marcy Noriega (“Officer Noreiga”) made the same mistake
with even more tragic consequences: she shot and killed Eve-
rardo Torres (“Everardo”), an arrestee sitting handcuffed in
the back of a patrol car. We conclude that Everardo was
seized within the meaning of the Fourth Amendment, and fur-
ther conclude, as did our sister circuit, that the officer’s mis-
take is governed by Fourth Amendment reasonableness
analysis.

               Facts and Procedural History

   In the process of responding to a loud music complaint,
Madera City Police officers arrested two individuals—Erica
Mejia and Everardo Torres—handcuffed them, and placed
them in the back of a patrol car. After the two were in the
patrol car for approximately thirty to forty-five minutes (dur-
ing which time Everardo had fallen asleep), Mejia was
removed from the car and her handcuffs were readjusted. At
this time, Everardo awoke and started yelling and began kick-
ing the back window of the patrol car. In response, Officer
Noriega approached Everardo’s side of the patrol car. At least
one witness saw Officer Noriega say something as she
approached, which Officer Noriega described as “yelling at
[Everardo] to stop or he was going to be tased.” Officer
Noriega then opened the patrol car door and reached down
with her right hand to her right side, where she had a Glock
semiautomatic pistol in a holster in her officer belt and,
immediately below, a Taser M26 stun gun in a thigh holster.
                      TORRES v. CITY OF MADERA                      4929
She unholstered a weapon, pointed the weapon’s laser1 at
Everardo’s center mass, and pulled the trigger of her
similarly-sized-and-weighted Glock, mortally wounding Eve-
rardo.

   Plaintiffs-Appellants Maria Torres and Melchor Torres,
individually and as Administrators of the Estate of their son,
Everardo, and Melchor Torres, Jr., Everardo’s brother (“The
Torres family”) thereafter sought damages from Officer
Noriega and the City of Madera Police Department
(“Madera”) under 42 U.S.C. § 1983 for violation of Everar-
do’s Fourth Amendment right to be free from unreasonable sei-
zures.2 Officer Noriega and Madera moved for summary
judgment on this claim, and the district court granted this
motion, concluding that “[a] Fourth Amendment seizure . . .
occur[s] . . . only when there is a governmental termination
of freedom of movement through means intentionally
applied,” and that “the means or instrumentality at issue is the
intent to seize Everardo with the [Taser] versus the Glock and
not the general intent to seize Everardo by shooting ‘some-
thing.’ ” Plaintiffs requested, and the district court granted,
certification under Rule 54(b) to allow for this interlocutory
appeal.

                        Standard of Review

  A district court’s grant of summary judgment is reviewed
de novo, CreAgri, Inc. v. USANA Health Scis., Inc., 474 F.3d
626, 629 (9th Cir. 2007), and we are to affirm if, viewing the
   1
     Officer Noriega’s Glock and Taser were both equipped with laser-
sighting devices.
   2
     Plaintiffs also brought a Fourteenth Amendment Due Process § 1983
claim, as well as wrongful death, assault and battery, false arrest and
imprisonment, negligence, and negligent infliction of emotional distress
claims under California state law. These claims, however, are not at issue
in this appeal, as Plaintiffs are no longer pursuing their Fourteenth
Amendment § 1983 claim, and the district court’s grant of summary judg-
ment against Plaintiffs did not extend to any of the state law claims.
4930                  TORRES v. CITY OF MADERA
evidence in the light most favorable to the non-moving party,
there are no genuine issues of material fact, Contract Mgmt.,
Inc. v. Rumsfeld, 434 F.3d 1145, 1146 (9th Cir. 2006) (per
curiam).

                              Discussion

   [1] Officer Noriega’s conduct violated Everardo’s constitu-
tional rights if Everardo was seized and Officer Noriega’s
conduct in the course of the seizure was unreasonable. See
Florida v. Jimeno, 500 U.S. 248, 250 (1991); Brower v.
County of Inyo, 489 U.S. 593, 596, 599 (1989).

   [2] A seizure is a “governmental termination of freedom of
movement through means intentionally applied,” Jensen v.
City of Oxnard, 145 F.3d 1078, 1083 (9th Cir. 1998) (internal
quotation marks and citation omitted), and occurs “whenever
[an officer] restrains the individual’s freedom to walk away.”
Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir. 1985). Mad-
era argues that Everardo was not “seized” by the firing of the
Glock because the Glock was not a “means intentionally
applied,” Brower, 489 U.S. at 597.

   [3] However, the Ninth Circuit employs a “continuing sei-
zure” rule, which provides that “once a seizure has occurred,
it continues throughout the time the arrestee is in the custody
of the arresting officers.” Robins, 773 F.2d at 1010. See also
Fontana v. Haskin, 262 F.3d 871, 879-880 (9th Cir. 2001)
(“[T]he Fourth Amendment prohibition against unreasonable
search and seizure continues to apply after an arrestee is in the
custody of the arresting officers.”). Because Everardo was
handcuffed and placed in the back of the patrol car, where he
remained when Officer Noriega fired, Everardo remained “in
the custody of the arresting officers,” and the officers’ con-
duct continued to be governed by the Fourth Amendment.3
  3
   The circuits are split on this issue. Compare Wilson v. Spain, 209 F.3d
713, 715-16 (8th Cir. 2000) (adopting continuing seizure approach);
                      TORRES v. CITY OF MADERA                         4931
   [4] Even though Everardo was “seized” within the meaning
of the Fourth Amendment, Officer Noriega can only be liable
under Section 1983 if her conduct was unreasonable. See
Brower, 489 U.S. at 599; Fontana, 262 F.3d at 879; Robins,
773 F.2d at 1010. The reasonableness of a particular use of
force is judged “from the perspective of a reasonable officer
on the scene,” and “in light of the facts and circumstances
confronting them.” Graham v. Connor, 490 U.S. 386, 396-97
(1989).

   [5] There is no question that Officer Noriega intended to
draw her Taser but mistakenly drew her Glock. Faced with
almost precisely the same situation—an officer’s mistake in
drawing his Glock when he intended to draw his Taser—the
Fourth Circuit concluded that the relevant inquiry was
whether the officer’s mistake in using the Glock rather than
the Taser was objectively unreasonable. Henry, 501 F.3d at 384.4

United States v. Johnstone, 107 F.3d 200, 206-07 (3d Cir. 1997) (same);
Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992) (same); Pow-
ell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989) (same); McDowell v.
Rogers, 863 F.2d 1302, 1306 (6th Cir. 1988), with Riley v. Dorton, 115
F.3d 1159, 1164 (4th Cir. 1997) (rejecting “continuing seizure” approach),
and Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004) (same).
   4
     The Fourth Circuit does not follow the “continuing seizure” rule. Riley,
115 F.3d at 1164. Moreover, in Henry, the suspect took flight before the
officer could make an arrest, and so the officer’s mistaken use of his
Glock acted as the initial “seizure” of the suspect. See Henry v. Purnell,
428 F. Supp. 2d 393, 394-95 (D. Md. 2006) (describing facts of suspect’s
attempted arrest). The Henry court was thus forced to decide whether the
officer’s mistaken use of his Glock instead of his Taser constituted a
Fourth Amendment seizure. 501 F.3d at 381-82.
   Here, prior to the accident, Everardo had already been arrested, hand-
cuffed, and placed in the back of a locked police vehicle. He was therefore
already “seized” at the time that Officer Noriega mistakenly fired her
Glock. Fontana, 262 F.3d at 879-80. This factual distinction, along with
the Ninth Circuit’s adherence to the “continuing seizure” rule, renders it
unnecessary for us to decide the analytically distinct question of whether
the accidental shooting in this case is an independent “seizure” for Fourth
Amendment purposes. We express no opinion on the Fourth Circuit’s
analysis of that issue.
4932               TORRES v. CITY OF MADERA
We agree that this is the appropriate inquiry. The Supreme
Court has applied a reasonableness analysis to honest mis-
takes of fact in a variety of situations. See, e.g., Maryland v.
Garrison, 480 U.S. 79, 87 (1987) (mistaken but reasonable
search of the wrong premises); Hill v. California, 401 U.S.
797, 803-04 (1971) (mistaken but reasonable arrest of the
wrong person). Although Everardo was already “seized” at
the time of the shooting, it is Officer Noriega’s mistaken use
of her Glock—not the preceding acts of placing Everardo
under arrest and handcuffing him—that the district court must
examine for reasonableness. This is in keeping with our “con-
tinuing seizure” cases, where our focus is on the aspect of the
seizure the plaintiff alleges is “unreasonable.” See Robins,
773 F.2d at 1010 (analyzing officer’s post-arrest excessive
use of force en route to police station as aspect of seizure
alleged to be unreasonable); Fontana, 262 F.3d at 880-81
(analyzing officer’s post-arrest inappropriate physical touch-
ing and sexual propositioning as aspect of seizure alleged to
be unreasonable).

   Henry concluded, and we agree, that five factors were rele-
vant to the reasonableness determination: (1) the nature of the
training the officer had received to prevent incidents like this
from happening; (2) whether the officer acted in accordance
with that training; (3) whether following that training would
have alerted the officer that he was holding a handgun; (4)
whether the defendant’s conduct heightened the officer’s
sense of danger; and (5) whether the defendant’s conduct
caused the officer to act with undue haste and inconsistently
with that training. Henry, 501 F.3d at 383.

   [6] While these factors are relevant to the determination of
whether Officer Noriega acted reasonably, we also stress that
“the calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments.” Graham, 490 U.S. at 396-97. Since the
parties did not brief the issue of whether Officer Noriega’s
mistake was a reasonable one, the factual record is insuffi-
                     TORRES v. CITY OF MADERA                      4933
ciently developed for this court to make this determination,
and we remand to the district court to determine in the first
instance whether Noriega’s conduct was unreasonable under
Graham, 490 U.S. at 396-97, and to otherwise proceed with
the matter.5

  REVERSED and REMANDED.




  5
   Because we cannot resolve the reasonableness inquiry here, we cannot
resolve whether Officer Noriega’s conduct violated the Fourth
Amendment—a question whose resolution is condition precedent to the
qualified immunity determination. See Saucier v. Katz, 533 U.S. 194, 201-
02 (2001). Of course, should the district court conclude that Officer
Noriega acted unreasonably, Officer Noriega may nevertheless be entitled
to qualified immunity if the objective unreasonableness of her conduct in
the course of Everardo’s seizure was not clearly established.
