                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHRISTIAN LONGORIA, a single man,          No. 16-15606
on behalf of himself as son of
decedent Manuel O. Longoria, on               D.C. No.
behalf of all statutory beneficiaries      2:15-cv-00043-
of decedent Manuel O. Longoria;                 SRB
JOSHUA R. WALLACE, as the personal
representative of the Estate of
Manuel O. Longoria; MANUEL                   OPINION
LONGORIA, JR., a single man;
LYNNETTE LONGORIA, a single
woman; P. C. L., a minor, T. A. L., a
minor; K. R. L., a minor; SANISYA
LOTT, a single woman; T. L., a
minor; and A. L., a minor,
                  Plaintiffs-Appellants,

                  v.

PINAL COUNTY, a political
subdivision of the State of Arizona;
PAUL R. BABEU, in his official
capacity as Sheriff of Pinal County,
Arizona; and HEATH RANKIN, in his
individual capacity as a Deputy
Sheriff of Pinal County, Arizona,
               Defendants-Appellees.
2                 LONGORIA V. PINAL COUNTY

        Appeal from the United States District Court
                 for the District of Arizona
         Susan R. Bolton, District Judge, Presiding

              Argued and Submitted June 6, 2017
                    Pasadena, California

                     Filed October 10, 2017

    Before: Stephen Reinhardt and Alex Kozinski, Circuit
         Judges, and Terrence Berg, * District Judge.

                  Opinion by Judge Reinhardt


                          SUMMARY **


                           Civil Rights

    The panel reversed the district court’s grant of qualified
immunity on summary judgment in favor of Pinal County
Deputy Sheriff Heath Rankin and affirmed the dismissal of
claims brought by family members in a 42 U.S.C. § 1983
action alleging that Rankin used excessive deadly force
when he shot Manuel Longoria in the back and killed him
following a car chase.



    *
      The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                LONGORIA V. PINAL COUNTY                     3

    The panel stated that it was required to assess Rankin’s
reasonableness in using deadly force against Longoria, who
was unarmed, was surrounded by law enforcement officers,
had been shot by bean bag rounds and a taser, and was in the
process of putting his hands over his head reflexively or in
an effort to surrender. Rankin alleged that when Longoria
turned to raise his hands he threatened him or his fellow
officers with a “shooter’s stance.” The panel held that
because of the many material, disputed facts in this case,
Rankin’s credibility or the accuracy of his version of the
facts was a central question that had to be answered by a jury.
Because there was a material issue of fact as to whether
Rankin      violated     Longoria’s      clearly   established
constitutional right, defendants were not entitled to qualified
immunity. The panel therefore reversed the district court’s
grant of summary judgment and remanded for a jury to
determine whether Rankin’s use of deadly force was lawful.

    The panel affirmed the district court’s dismissal of
Longoria’s family-members’ § 1983 claims. The panel held
that only Longoria’s estate could bring a § 1983 for the
violation of his Fourth Amendment rights; his family
members had no standing to sue on their own behalves.

   The panel reversed the district court’s grant of summary
judgment on plaintiffs’ wrongful-death claim brought under
Arizona Revised Statute § 12-611. The panel held that
summary judgment was not appropriate because there was a
material dispute of facts as to whether or not Rankin’s use of
deadly force was reasonable.
4                    LONGORIA V. PINAL COUNTY

                               COUNSEL

Joel B. Robbins (argued), Robbins & Curtin PLLC, Phoenix,
Arizona; Joseph M. Leal III, Cole & Leal, Casa Grande,
Arizona; Darius Bursh, McCain & Bursh PLC, Scottsdale,
Arizona; for Plaintiffs-Appellants.

Nicholas D. Acedo (argued) and Kathleen L. Wieneke,
Struck Wieneke & Love P.L.C., Chandler, Arizona, for
Defendants-Appellees.


                                OPINION

REINHARDT, Circuit Judge:

    Pinal County Deputy Sheriff Heath Rankin fired two
shots into Manuel Longoria’s back and killed him just as he
was raising his hands above his head. Rankin’s shots
followed the use of non-lethal force by police officers from
the City of Eloy who were charged with arresting Longoria.

    When Longoria’s estate (hereinafter “Longoria”) sued
Rankin under § 1983, the district court held that Rankin was
entitled to qualified immunity and entered summary
judgment in his favor. We reverse and remand for further
proceedings. 1

                           BACKGROUND

    Distraught over his relationship with the mother of three
of his children, Manuel Longoria stole his brother-in-law’s
car and began driving around the city of Eloy, Arizona. Eloy

    1
        We discuss infra the remainder of the action filed by Plaintiffs.
                LONGORIA V. PINAL COUNTY                    5

police officers saw him and initiated a traffic stop, but
Longoria fled and led officers on a chase that lasted for more
than 70 minutes.

    The Eloy Police Department (“EPD”) asked the Pinal
County Sheriff’s Office (“PCSO”) to be on “standby” in case
Longoria left Eloy’s jurisdiction. PCSO informed its officers
that Longoria was driving a stolen vehicle and (mistakenly)
that he was armed. PCSO Deputy Heath Rankin and his
partner, Deputy J. Rice, joined the pursuit and participated
for more than 40 minutes.

    During the chase, Longoria stopped his vehicle and
spoke with the pursuing officers several times, but continued
to ignore commands to surrender. During one of these stops,
Longoria got out of the car and was seen holding and kissing
purple or dark-colored rosary beads which he held in his
hand. During another, he got out of the car for a brief period
and held his wallet behind his back. EPD Detective Salazar
saw that Longoria was holding a wallet, not a gun, behind
his back and shouted this out to the other officers on the
scene. That information was also dispatched on an EPD
radio frequency that Rankin was monitoring. Rankin
maintains that he did not hear that part of the broadcast.

    Longoria exhibited other erratic behavior. He threw
money and various objects out of the vehicle while driving
and told officers that he had nothing to live for and wanted
to die. Longoria asked officers to give his money to his
family members, and at times even joked with officers
pursuing him that they would scratch their vehicles if they
kept pulling so close to him. While driving, he waved his
hand out of the car, sometimes making a gun with his fingers
and pointing his fingers at his head as though gesturing for
officers to shoot him. EPD Officer Dean reported over the
radio that Longoria was simulating a gun with his fingers.
6                   LONGORIA V. PINAL COUNTY

As Longoria continued to drive, onlookers gathered and he
laughed, pointed, waved, and even flashed a peace sign at
civilians on the streets.

    Shortly before the chase ended, Pinal County Lieutenant
Villegas ordered Rankin and other Pinal County deputies to
stand down from the pursuit. Rankin heard this command
and initially followed it. Rankin’s Sergeant then directed
him to form a perimeter at the intersection of Main and
Battaglia Streets, which he did.

    A few minutes later, Eloy police officers halted the chase
by disabling Longoria’s car with a PIT maneuver. 2 Rankin
was standing around the corner about a half-block away.
After hearing the crash, he abandoned the perimeter, grabbed
his assault rifle, and ran towards the scene, followed by his
partner Rice. 3

    While Rankin was sprinting to the scene, Longoria got
out of his vehicle and stood facing the Eloy officers with one
hand behind his back near the car. Eight officers surrounded
him and drew their guns. Longoria initially did not comply
with police commands to show his hands. Eloy Sergeant
Tarrango shouted for officers to use “less lethal,” or less than
lethal, force at least twice. Other Eloy officers shouted that

     2
       A PIT (Pursuit Intervention Technique) maneuver is a method of
forcing a fleeing car to abruptly turn sideways, which causes the driver
to lose control and stop. It involves officers using a patrol car to veer into
the rear half of either the driver’s side or passenger’s side of a suspect’s
car.

    3
      Rankin asserts that the order to form a perimeter meant that he was
to actively assist with getting Longoria into custody if and when the
chase ended. No PCSO officers other than Rice abandoned the perimeter
and followed Rankin in his pursuit of Longoria.
                LONGORIA V. PINAL COUNTY                     7

Longoria had only a wallet behind his back. Still more
shouted to tase Longoria.

    Rankin ran behind Longoria—across what would have
been the line of fire had the Eloy officers needed to shoot—
and joined the other officers near the point of collision.
Rankin asserts that he did not hear the commands to use less
than lethal force while he was running towards the collision.

    Rankin stopped running and took up a position between
25 to 45 feet to Longoria’s right, to the side and further away
from Longoria than all of the other officers who had their
weapons drawn. Longoria was facing the other officers, and
continued to stand with one hand behind his back near his
disabled car. Shortly after Rankin stopped sprinting, some of
the other officers fired beanbag rounds at Longoria, striking
him. An officer tased him, hitting him with one dart.
Longoria flinched and moved erratically. He then turned
halfway around to his right—towards and past Rankin—to
face his car and put his empty hands up above his head, his
back to the officers and Rankin. Rankin fired two rounds
from his assault rifle into Longoria’s back, killing him.

    The § 1983 suit ensued, as did the district court’s grant
of summary judgment on the ground of qualified immunity.

                STANDARD OF REVIEW

   We review a district court’s grant of summary judgment
and qualified immunity de novo. Hughes v. Kisela, 862 F.3d
775, 779 (9th Cir. 2016).
8               LONGORIA V. PINAL COUNTY

                       DISCUSSION

    I. Qualified Immunity

    Longoria challenges the district court’s entry of
summary judgment in favor of Rankin on the ground of
qualified immunity. “The doctrine of qualified immunity
protects government officials from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation
marks omitted). Qualified immunity exists to shield an
officer from liability for “mere mistakes in judgment,
whether the mistake is one of fact or one of law.” Butz v.
Economou, 438 U.S. 478, 507 (1978). The doctrine’s
purpose is to strike a balance between the competing “need
to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson, 555 U.S. at 231. “In
determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th
Cir. 2014).

    “Consequently, at summary judgment, an officer may be
denied qualified immunity in a Section 1983 action ‘only if
(1) the facts alleged, taken in the light most favorable to the
party asserting injury, show that the officer’s conduct
violated a constitutional right, and (2) the right at issue was
clearly established at the time of the incident such that a
reasonable officer would have understood [his] conduct to
be unlawful in that situation.’” Hughes, 862 F.3d at 783
                LONGORIA V. PINAL COUNTY                    9

(quoting Torres v. City of Madera, 648 F.3d 1119, 1123 (9th
Cir. 2011)). Our analysis must be from the perspective of a
“reasonable officer on the scene” and “allo[w] for the fact
that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is
necessary in a particular situation.” Plumhoff v. Rickard,
134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor,
490 U.S. 386, 396–97 (1989)).

    We acknowledge at the outset that in the last five years,
the Supreme Court has reversed a number of federal courts,
including ours, in qualified immunity cases because we
failed to abide by the longstanding principle that “‘clearly
established law’ should not be defined at a high level of
generality.” White v. Pauly, 137 S. Ct. 548, 551–552 (2017)
(per curiam). This has been a particular problem in cases
presenting novel factual circumstances involving car chases.
Here, although preceded by a car chase, the shooting
occurred after the pursuit ended and Longoria’s vehicle was
disabled, as described above. This is not one of those cases
occurring mid-pursuit against a “hazy legal backdrop.” See
Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)
(discussing the factual circumstances in Plumhoff, 134 S. Ct.
at 2012; Scott v. Harris, 550 U.S. 372 (2007); Brosseau v.
Haugen, 543 U.S. 194 (2004) (per curiam)). Nor is this like
other recent cases the Court has reversed. We do not rely on
a factor mentioned in prior case law but not clearly
established such that a reasonable officer would be on notice
to conform his conduct accordingly, see, e.g., White, 137 S.
Ct. at 552, or define a constitutional violation at too high a
level of generality to be clearly established, see, e.g.,
Mullenix, 136 S. Ct. at 308–09.
10              LONGORIA V. PINAL COUNTY

    Here we must assess Rankin’s reasonableness in using
deadly force against Longoria, who was unarmed, was
surrounded by law enforcement officers, had been shot by
bean bag rounds and a taser, and was in the process of putting
his hands over his head reflexively or in an effort to
surrender. Rankin claims that when Longoria turned to raise
his hands he threatened him or his fellow officers with a
“shooter’s stance.” Because of the many material, disputed
facts in this case, Rankin’s credibility or the accuracy of his
version of the facts is a central question that must be
answered by a jury. We cannot decide as a matter of law that
qualified immunity is appropriate at the summary judgment
phase.

       A. Constitutional Violation

    Plaintiffs argue that Rankin violated Longoria’s Fourth
Amendment rights when he used excessive force to shoot
Longoria dead. We must evaluate such a claim through the
Fourth Amendment’s reasonableness standard, considering
“whether the officers’ actions [we]re ‘objectively
reasonable’ in light of the facts and circumstances
confronting them.” Graham, 490 U.S. at 397. In our
analysis, we weigh the “nature and quality of the intrusion”
against the “countervailing governmental interests at stake.”
Id. at 396.

    “The intrusiveness of a seizure by means of deadly force
is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, (1985).
Rankin deprived Longoria of the “fundamental interest in his
own life.” Id.

    “The strength of the government’s interest in the force
used is evaluated by examining three primary factors:
(1) ‘the severity of the crime at issue,’ (2) ‘whether the
suspect poses an immediate threat to the safety of the officers
                   LONGORIA V. PINAL COUNTY                           11

or others,’ and (3) ‘whether []he is actively resisting arrest
or attempting to evade arrest by flight.’” Hughes, 862 F.3d
at 779 (quoting Graham, 490 U.S. at 396). The second factor
is the most important, but we are not limited to these three;
rather, we must consider the “totality of the circumstances.”
Id. Here the district court made impermissible factual
inferences in favor of Rankin in its analysis of the second
factor as well as other factual circumstances.

    The “most important” factor is whether Longoria posed
an immediate threat. Id. Rankin shot Longoria after the car
chase had ended. Longoria’s car was fully immobilized; he
was surrounded by armed officers, and his erratic driving no
longer posed any threat to bystanders. He had been hit by
several bean bag rounds shot from close range as well as a
taser dart. Viewing the circumstances in the light most
favorable to Longoria, the inquiry is thus whether he posed
an immediate threat to Rankin or the many officers around
him, or whether a reasonable officer would have perceived
Longoria to be an immediate threat, after the non-lethal force
was used but before Rankin shot him dead.

    We are aided in our reasonableness analysis by two
videos of the moments right before Longoria’s death, one
from a dashboard camera of an EPD cruiser and the other
from a bystander’s iPhone video recorded from over 200 feet
away. Viewed in real-time, as officers—including Rankin—
would have experienced the event, 4 the videos depict

    4
       Neither party asserts that the videos portray the events from
Rankin’s exact perspective when he fired his weapon. They were taken
from locations different from where Rankin stood. His precise position
and perspective is an additional fact that would be relevant to a rational
jury in finding the facts, but it remains unclear based on the varying
accounts from Rankin, Rice, other officers, and the location of the
casings from Rankin’s rifle precisely what Rankin saw. The one thing
12                LONGORIA V. PINAL COUNTY

Longoria flailing his arms and moving erratically before
turning around and raising his empty hands above his head
in the several seconds before Rankin shoots and kills him.
Defendants argue that Rankin reasonably perceived a black
or silver weapon in Longoria’s hands and then saw Longoria
assume a “shooter’s stance.” The district court relies on a
single frozen frame from one of the videos to find that
“uncontroverted video evidence shows that Mr. Longoria
came up with both hands in front of him facing Defendant
Rankin’s direction.” It does not mention any black or silver
weapon.

    Deputy Rankin did not however see a frozen frame,
disaggregated from the context of the rest of the footage. He
watched events unfold in real-time as the two videos played
at their ordinary speed portray. These videos provide some
of the most important evidence as to what occurred before
and during the shooting and what Rankin actually saw. This
evidence alone raises material questions of fact about the
reasonableness of Rankin’s actions and the credibility of his
post-hoc justification of his conduct. See Johnson v. Bay
Area Rapid Transit Dist., 724 F.3d 1159, 1177 n.7 (9th Cir.
2013) (observing that a video, even when an imperfect
account of an officer’s perspective, is relevant to his
credibility). Viewing the two videos in the light most
favorable to Longoria, the moment Rankin describes as a
“shooter’s stance” is not perceptible. While Rankin relies on
a single frozen frame of the iPhone video to illustrate the
“shooter’s stance,” all that demonstrates is the existence of a



we do know is that he saw the events in real-time, just as the two videos
recorded them, not as they were depicted in a frozen frame.
                   LONGORIA V. PINAL COUNTY                           13

genuine dispute of material fact. 5 The full record only
heightens this and other factual disputes.

    The most important question in this case is whether
Rankin reasonably perceived that Longoria assumed a
threatening or “shooter’s stance.” “If [he] did, [he] w[as]
entitled to shoot; if [he] didn’t, [he] [was]n’t.” Cruz v. City
of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) (explaining

    5
       Using frozen frames to bolster the perspective of law enforcement
is not a new phenomenon. Twenty-five years ago in the 1992 Simi Valley
state court trial of the officers who beat Rodney King:

         Frame-by-frame stills of the video were mounted on
         clean white illustration boards and then used as the
         basis for questions to “experts” on prisoner restraint.
         Each micro-moment of the beating of King was
         broken down into a series of frozen images. As to each
         one, the defense attorneys asked the experts whether
         King assumed a compliant posture, or might a police
         officer reasonably conclude that King still posed a
         threat to resist. Once the defense broke the video into
         frames, each still could then be re-weaved into a
         different narrative about the restraint of King. Each
         blow to King represented, not [a] beating . . . but a
         police approved technique of restraint complete with
         technical names for each baton strike (or “stroke”).

Kimberle Crenshaw and Gary Peller, Reel Time/Real Justice, 70 Denv.
U. L. Rev. 283, 285 (1993).

     The state court jury acquitted the officers. See id. at 290.
Subsequently, in a federal court trial for the violation of King’s federal
civil rights, the federal jury convicted two of the four officers charged.
See Koon v. United States, 518 U.S. 81, 88 (1996). These inconsistent
results demonstrate why the probative value of real-time videos and
frozen frames is more appropriately a matter for a jury to view and
evaluate, not a matter for a court to resolve on summary judgment.
14                 LONGORIA V. PINAL COUNTY

that a case in which multiple officers shot an unarmed man
turned on whether or not officers perceived the suspect reach
for a gun in his waistband). In Cruz, four officers testified
that the decedent reached for a weapon in his waistband, but
we nevertheless reversed the district court’s grant of
summary judgment because circumstantial evidence cast
doubt upon the officers’ credibility. Id. at 1078–80. Here, the
evidence supporting Rankin’s version of events is even
slimmer. No other officers saw Longoria assume a
“shooter’s stance” and responded accordingly. In fact, the
Eloy officer who Defendant argues can be seen in the cell
phone footage visibly “ducking” in response to the
“shooter’s stance” stated that he cannot remember
responding in such a manner to such a threat. Instead, other
officers gave statements that it appeared that at the time
Rankin killed him, Longoria was moving towards his car
after being shot by non-lethal rounds, flailing in response to
the impact of the bean bags and taser, or moving his hands
to his chest as if checking whether he had been shot.
Longoria’s expert in police practices could not discern
Longoria assuming a “shooter’s stance” from the iPhone
video reviewed in real-time. 6 The material dispute over these
facts alone is enough to deny summary judgment. See Lopez
v. Gelhaus, No. 16-15175, slip op. at 26, 28 (9th Cir. Sept.
22, 2017) (affirming denial of qualified immunity where
officers gave differing accounts as to whether decedent

     6
       “We have held en banc that ‘[a] rational jury could rely upon such
[expert] evidence in assessing whether the officers’ use of force was
unreasonable.’” Glenn v. Washington County, 673 F.3d 864, 877 (9th
Cir. 2011) (quoting Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir.
2005) (en banc) (reversing district court’s grant of summary judgment)).
Here, although the expert’s report is far from clear, we view it in the light
most favorable to Longoria. Moreover, here as in Lopez, both sides had
experts who disagreed as to whether the officer could have perceived the
alleged threatening gesture. Lopez, slip op. at 8, 19.
                  LONGORIA V. PINAL COUNTY                           15

turned towards them and what turned out to be a toy weapon
resembling an AK-47 appeared to be rising and pointing
towards them).

     The record reveals many other facts in dispute that are
material to the determination of whether a reasonable officer
would have perceived that Longoria posed any immediate
threat. The real-time videos highlight these competing
inferences rather than “blatantly contradict[ing]” or “utterly
discredit[ing]” Longoria’s version of events. See Scott,
550 U.S. at 380–381. In addition to the question whether
Rankin actually perceived that Longoria assumed a
“shooter’s stance” when he shot and killed him, there is, inter
alia, a material dispute as to: whether Rankin heard
commands to use non-lethal force or the other officers’
shouts that Longoria was holding his wallet behind his back;
whether Rankin, who has 20/20 vision, reasonably perceived
a weapon in Longoria’s hands from his position as he said
he did; whether Longoria was in fact reacting to the non-
lethal force deployed by other officers rather than assuming
a “shooter’s stance”; and whether, as a matter of fact, Rankin
could have had enough time to perceive the alleged
“shooter’s stance” at the moment he claims to have done so
and then shoot Longoria in response to that observation at
the time the videos show he shot him. 7 The district court
resolved all of those disputed facts in favor of Rankin.
Viewing all of these facts in the light most favorable to
Longoria, a reasonable jury could conclude that Rankin
knew or should have known that Longoria was not armed,

    7
      There is also a question of fact as to whether, even if Rankin did
perceive a “shooter’s stance,” Longoria’s abandoning of that stance and
his turning and raising his hands happened so quickly thereafter that a
reasonable officer would not have had enough time to shoot before
knowing that he should hold his fire.
16                 LONGORIA V. PINAL COUNTY

that Rankin never perceived a “shooter’s stance,” and that
Rankin knew or should have known that Longoria was either
surrendering in response to the non-lethal force of the bean
bag rounds and taser or reacting in some manner to their
effects upon him but was by no means threatening to shoot
at Rankin or any of the other officers.

    When a suspect is killed and cannot himself provide an
account of what took place, we must examine “whether the
officers’ accounts are ‘consistent with other known facts.’”
Cruz, 765 F.3d at 1080 n.3 (citation omitted); see also
Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir.
2016). This is consistent with our duty to review the record
“from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396 (emphasis added). Rankin’s assertion that he
perceived a “shooter’s stance” is refuted by the two real-time
videos, other officers’ accounts, Longoria’s expert, and most
notably, Rice, his partner who ran to the scene of the
collision behind him and had an almost identical perspective.
Rice “observed the suspect reach behind his back and it
appeared he was attempting to return inside the vehicle.” 8
We may consider the conflicting accounts of Rice and other
officers—none of whom related that they saw Longoria
assume a “shooter’s stance”—in assessing Rankin’s claim of
reasonableness, as well as circumstantial evidence, like the

     8
       Rankin’s account of interactions with Longoria differs from Rice’s
in other ways. For example, Rankin alleges that Longoria pointed
something that appeared to be a gun at him out of the car window while
driving earlier in the pursuit. Rice, like other officers observing these
repeated gestures, observed that “the suspect driver . . . plac[ed] his left
hand out the window making the shape of a handgun with his thumb and
pointer finger.” Rankin also asserts that Longoria threatened him directly
during this interaction; Rice, who sat next to him in the vehicle, reported
no such threat.
                LONGORIA V. PINAL COUNTY                     17

fact that Longoria was actually unarmed. A reasonable jury
is far less likely to credit Rankin’s perception of a “shooter’s
stance” with the knowledge that Longoria did not have a
gun. See Cruz, 765 F.3d at 1079 (“In this case, there’s
circumstantial evidence that could give a reasonable jury
pause. Most obvious is the fact that Cruz didn’t have a gun
on him, so why would he have reached for his waistband?
. . . [F]or him to make such a gesture when no gun is there
makes no sense whatsoever.”).

    In assessing the reasonableness of the use of force, we
must consider the “totality of the circumstances.” Glenn,
673 F.3d at 871 (citation omitted). It is undisputed that
Longoria was emotionally disturbed, acting out, and at times
inviting officers to use deadly force to subdue him. See
Hughes, 862 F.3d at 781. Our precedent establishes that in
these circumstances, a reasonable jury could conclude “that
there were sufficient indications of mental illness to diminish
the governmental interest in using deadly force.” Id. Other
officers appear to have been aware of this and prepared to
respond accordingly by employing only non-lethal weapons.
And like many other similarly tragic encounters with
mentally ill or emotionally disturbed individuals, the
situation facing Rankin was “far from that of a lone police
officer suddenly confronted by a dangerous armed felon
threatening immediate violence.” Deorle v. Rutherford,
272 F.3d 1272, 1283 (9th Cir. 2001). Rankin had an
opportunity to observe Longoria for more than forty minutes
before he killed him. See id. During that time, Longoria
neither brandished a gun nor shot at anyone.

    Another circumstance to be considered is that Rankin
was monitoring the EPD and PCSO radio frequencies
throughout the incident. Despite this, Rankin claims he did
not hear portions of the police broadcast earlier in the pursuit
18              LONGORIA V. PINAL COUNTY

that conveyed Longoria was unarmed, nor did he hear the
commands to use less than lethal force and the shouts that
Longoria was unarmed in the seconds before the shooting.
Viewing the facts in the light most favorable to Longoria,
Rankin disobeyed orders to maintain a perimeter and
sprinted towards the scene—through the line of fire. Rankin
knew that other officers were in better positions to see and
respond to Longoria, had their weapons drawn, and were in
the process of using non-lethal force. The totality of
circumstances does not support the conclusion that Rankin’s
conduct was objectively reasonable. Rather it raises a
genuine issue of material fact to be determined by a jury.

     The immediacy of the threat and Rankin’s objective
reasonableness in the totality of the circumstances depend
upon the resolution of disputes of material facts that must be
resolved against Rankin at this stage of the proceedings. We
cannot say as a matter of law that Rankin acted reasonably.
The question of whether a constitutional violation occurred
is therefore a matter for the jury to determine.

       B. Clearly Established Right

    We next proceed to the second question in assessing
qualified immunity: whether the right at issue was clearly
established. “The ‘dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.’” Hernandez v. Mesa, 137 S. Ct.
2003, 2008 (2017) (per curiam) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)). Our analysis “is limited to ‘the
facts that were knowable to the defendant officers’ at the
time they engaged in the conduct in question.” Id. (quoting
White, 137 S. Ct. at 550). Because we are making a
determination at summary judgment, we must view any
disputed facts in the light most favorable to Longoria.
                LONGORIA V. PINAL COUNTY                   19

    To determine whether the law was clearly established,
we do not “require a case directly on point, but existing
precedent must have placed the . . . constitutional question
beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). We have acknowledged that qualified immunity may
be denied in novel circumstances. See Mattos v. Agarano,
661 F.3d 433, 442 (9th Cir. 2011) (citing Hope v. Pelzer,
536 U.S. 730, 741 (2002)). “Otherwise, officers would
escape responsibility for the most egregious forms of
conduct simply because there was no case on all fours
prohibiting that particular manifestation of unconstitutional
conduct.” Deorle, 272 F.3d at 1286; see also Brosseau,
543 U.S. at 199 (stating that “in an obvious case, [general]
standards can ‘clearly establish’ the answer, even without a
body of relevant case law”).

    The law governing this case is clearly established: “A
police officer may not seize an unarmed, nondangerous
suspect by shooting him dead.” Garner, 471 U.S. at 11.

       While locating the outer contours of the
       Fourth Amendment may at times be a murky
       business, few things in our case law are as
       clearly established as the principle that an
       officer may not “seize an unarmed,
       nondangerous suspect by shooting him dead”
       in the absence of “probable cause to believe
       that the suspect poses a threat of serious
       physical harm, either to the officer or to
       others.”

Torres, 648 F.3d at 1128 (quoting Garner, 471 U.S. at 11);
see also Adams v. Spears, 473 F.3d 989, 994 (9th Cir. 2007).
Thus, Longoria’s Fourth Amendment right not to be shot
dead while unarmed, surrounded by law enforcement, and in
the process of surrendering is clearly established such that a
20                LONGORIA V. PINAL COUNTY

“it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” 9 Hernandez,
137 S. Ct. at 2008. If, however, Rankin reasonably perceived
that Longoria posed a threat of serious physical harm to
Rankin or other officers, then he could have lawfully used
deadly force. There is no dispute in this case about these
propositions.

    We are presented here with a pure question of fact and
not a question of law or of mixed fact and law. Rankin
contends that he in fact perceived that Longoria assumed a
“shooter’s stance” and that Longoria appeared to be armed.
Longoria, on the other hand, asserts that Rankin did not see,
nor could he in fact have seen, what he claimed caused him
to believe that Longoria assumed a “shooter’s stance” and
that he appeared to be armed.

    “Where the facts are disputed, their resolution and
determinations of credibility ‘are manifestly the province of
a jury.’” Wall v. County of Orange, 364 F.3d 1107, 1110 (9th
Cir. 2004) (quoting Santos, 287 F.3d at 852). This case turns
on disputed facts, including the credibility of Rankin.
Rankin’s account of an earlier interaction with Longoria
during the car pursuit is inconsistent with that of his partner,
Rice. Rankin heard some information on the radio dispatches
of both the EPD and the PSCO, but he claims not to have
heard any of the information relayed over those radio
frequencies that would be helpful to Longoria. Unlike other
PCSO officers, Rankin interpreted the command to maintain
a perimeter as a command to run towards Longoria and the

     9
       Within the specific context of Longoria’s death, shot with his
empty hands in the air above his head, this constitutional right is so
clearly established that it has become the anthem in many protests of
other police shootings: “Hands up, don’t shoot!”
                LONGORIA V. PINAL COUNTY                     21

Eloy officers after a PIT maneuver totally disabled
Longoria’s car. Rankin likewise asserts that he did not hear
any of the commands to use non-lethal force immediately
prior to the shooting, nor did he hear officers shouting that
Longoria was unarmed. This is inconsistent with the
accounts of many other officers on the scene. Most
important, no one else saw Longoria assume a “shooter’s
stance,” including Rice, who was just behind him at the time.
The two videos show that anyone who saw the events in real-
time, including Rankin, would not have seen Longoria adopt
what would have appeared to be a “shooter’s stance.”

    A jury must determine Rankin’s credibility in light of
conflicting accounts from his partner, other officers,
Longoria’s expert, and the videos in real-time. See Cruz,
765 F.3d at 1080 (“We make no determination about the
officers’ credibility, because that’s not our determination to
make. We leave it to the jury.”). If a jury concluded that
Rankin reasonably perceived Longoria to be armed and
threatening, it could find he had reason to use deadly force
and thus there was no violation of Longoria’s clearly
established constitutional right. See Act Up!/Portland v.
Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (“[T]he facts and
circumstances within an officer’s knowledge . . . are matters
of fact to be determined, where genuine disputes of a
material nature exist, by the fact finder.”). However, a
reasonable jury could also conclude that Rankin knew or
should have known that Longoria was not holding a gun and
that he did not assume a “shooter’s stance” and could find
that Rankin’s statements to the contrary were not credible. A
jury resolving these questions in Longoria’s favor could thus
find that Rankin violated Longoria’s clearly established
right. We may not usurp the jury’s role as the arbiters of fact,
nor can our analysis at summary judgment change simply
because the videos that show these disputed events unfolding
22              LONGORIA V. PINAL COUNTY

in real-time may be called into question by a single frozen
frame that does not represent what an officer actually saw at
the time the events unfolded. See Lopez, slip op. at 45
(finding that a jury must determine the facts relevant to
qualified immunity: whether the officer could have
reasonably perceived the decedent turning while holding a
toy AK-47 as a “harrowing gesture”).

    Defendants are not entitled to qualified immunity
because there is a material issue of fact as to whether Rankin
violated Longoria’s clearly established constitutional right.
We therefore reverse the district court’s grant of summary
judgment and remand for a jury to determine whether
Rankin’s use of deadly force was lawful.

     II. Plaintiffs’ Rule 56(d) Motion

    Plaintiffs challenge the denial of their Rule 56(d) motion.
This challenge is moot because on remand the parties will be
entitled to conduct further discovery.

     III.   Family-Member Plaintiffs’ § 1983 Claims

    Longoria challenges the dismissal of the family-member
Plaintiffs’ § 1983 claims. Only Longoria’s estate may bring
a § 1983 for the violation of his Fourth Amendment rights;
his family members have no standing to sue on their own
behalves. The Supreme Court has made this abundantly
clear. Alderman v. United States, 394 U.S. 165, 174 (1969)
(“Fourth Amendment rights are personal rights which . . .
may not be vicariously asserted.”). Moreover, the Court has
recently reaffirmed this principle. Plumhoff, 134 S. Ct. at
2022 (“Our cases make it clear that Fourth Amendment
rights are personal rights which may not be vicariously
asserted.”) (citations omitted). We therefore affirm the
                LONGORIA V. PINAL COUNTY                   23

district court’s dismissal of the family-members’ § 1983
claims.

   IV. State Wrongful Death Claim

    Plaintiffs brought a wrongful-death claim under Arizona
Revised Statute § 12-611 against Rankin, as well as Pinal
County Sheriff Paul Babeu (in his official capacity) and
Pinal County under a respondeat superior theory of liability.
Because we find a material dispute of facts as to whether or
not Rankin’s use of deadly force was reasonable, we reverse
the district court’s grant of summary judgment in the state
cause of action as well.

                      CONCLUSION

   For the reasons set forth above, the district court’s order
granting Defendants’ motions for summary judgment is
REVERSED. The district court’s order dismissing the
family-member Plaintiffs’ § 1983 claims is AFFIRMED,
and the case is REMANDED for proceedings consistent
with this opinion.
