                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


C. V., a minor, by and                No. 14-55760
through her Guardian ad
Litem, Miguel Villegas;                  D.C. No.
R. V., a minor, by and            8:12-cv-02013-CJC-AN
through his Guardian ad
Litem, Miguel Villegas;
D. V., a minor, by and                 OPINION
through his Guardian ad
Litem, Miguel Villegas;
ESTATE OF BERNIE
CERVANTES VILLEGAS,
         Plaintiffs-Appellants,

              v.

CITY OF ANAHEIM, a
California municipal entity;
ANAHEIM POLICE
DEPARTMENT, a California
municipal entity; JOHN
WELTER; NICK BENNALLACK,
in place of Doe 1,
        Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
      Cormac J. Carney, District Judge, Presiding
2                   C.V. V. CITY OF ANAHEIM

            Argued and Submitted March 15, 2016
                    Santa Ana, California

                        Filed May 25, 2016

    Before: Raymond C. Fisher, Milan D. Smith, Jr., and
              John B. Owens, Circuit Judges.

                    Opinion by Judge Owens


                           SUMMARY*


                            Civil Rights

    The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of defendants in an action
brought under 42 U.S.C. § 1983 and state law alleging that
City of Anaheim police officers used unconstitutional deadly
force when they shot and killed Bernie Villegas, and
remanded.

    The panel held that considering the facts in the light most
favorable to the nonmoving party, a reasonable juror could
find in favor of plaintiffs. The panel held that a reasonable
jury could draw the following factual conclusions: (1) the
officers, responding to a call about a suspected drug dealer
armed with a shotgun and loitering in the visitor parking area
of an apartment complex, came upon Villegas already
holding a long gun; (2) Villegas was ordered to put his hands

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 C.V. V. CITY OF ANAHEIM                    3

up, and as he was complying, the officers ordered him to drop
his gun; (3) without providing a warning or sufficient time to
comply, or observing Villegas pointing the long gun toward
the officers or making any move toward the trigger, Officer
Bennallack resorted to deadly force. The panel held that
viewing the facts in this light, deadly force was not
objectively reasonable.

    The panel nevertheless held that defendants were entitled
to qualified immunity because it was not clearly established
on January 7, 2012, that using deadly force in this situation,
even viewed in the light most favorable to plaintiffs, would
constitute excessive force under the Fourth Amendment.
Accordingly, the panel affirmed the district court’s grant of
summary judgment on the Fourth Amendment claim.

    Determining that the doctrine of qualified immunity does
not shield defendants from state law claims, the panel
reversed the district court’s grant of summary judgment on
the state law claims and remanded for further proceedings.


                        COUNSEL

Federico C. Sayre (argued), Boris Treyzon, and Francis X.
Flynn, Treyzon & Associates, Santa Ana, California, for
Plaintiffs-Appellants.

Moses W. Johnson, IV (argued), Assistant City Attorney, and
Michael R.W. Houston, City Attorney, Anaheim, California,
for Defendants-Appellees.
4                C.V. V. CITY OF ANAHEIM

                         OPINION

OWENS, Circuit Judge:

    C.V., R.V., D.V., and the estate of Bernie Villegas
(Plaintiffs) appeal from the district court’s order granting
summary judgment in favor of the City of Anaheim, the
Anaheim Police Department (APD), former Police Chief John
Welter, and APD Officer Nick Bennallack (Defendants), in
a lawsuit for the 2012 police shooting death of Villegas.
Because triable issues of fact remain as to state law claims,
we affirm in part, reverse in part, and remand.

 I. FACTUAL BACKGROUND AND PROCEDURAL
                HISTORY

    On January 7, 2012, around 11:00 p.m., the APD received
a 911 call about a suspected drug dealer, armed with a
shotgun, loitering in the visitor parking area of an apartment
complex. Four officers – Bennallack, Heitmann, Voorhis,
and Ellis – rendezvoused on a street near the complex and
planned their approach. They then moved on foot in a
“diamond formation” through the carport area of the
complex, with Heitmann taking point.

    As the officers rounded a corner, they encountered two
men, a few yards from each other and twelve to fifteen yards
from the officers. Bennallack and Heitmann gave commands
to “show me your hands” or “put your hands up.” The first
man they saw, Tristan Rosal, put his hands in the air. The
second man, Villegas, was standing next to a cinderblock
wall on the side of a low stairway.
                 C.V. V. CITY OF ANAHEIM                    5

    The four officers’ descriptions of what happened next –
set out in sworn declarations and deposition testimony – were
consistent in many respects, but different in others.

     Bennallack: Bennallack saw what he believed to be a
shotgun leaning against the wall next to Villegas (it turned
out that it was a BB gun lacking any markings to distinguish
it from a full-power long gun). In Bennallack’s account,
Villegas moved quickly to grab the gun near the end of its
barrel with one hand and lift it about a foot off the ground.
His other hand was not near the trigger area, and Villegas did
not point the gun in the officers’ direction. Heitmann and
Bennallack gave “multiple commands” including “show me
your hands,” or “put your hands up,” and “‘drop the gun’ or
something similar,” but Villegas did not obey. About one
second after Villegas lifted the gun from the ground, without
providing any warning to Villegas that he was going to shoot,
Bennallack fired five times and struck Villegas, causing him
to fall to the ground.

    Heitmann: In Heitmann’s account, when the officers
rounded the corner, Villegas was already holding a long gun.
Both his hands were around the barrel, near the tip, and the
gun was pointed up with the butt on the ground. Heitmann
never saw the gun leaning against the wall. He and
Bennallack gave repeated commands to “show me your
hands,” or “put your hands up,” but at some point he changed
his commands to “‘drop the gun,’ ‘let go of the gun,’ or
something similar.” He saw Villegas “slightly” raise the gun
about eight to ten inches off the ground, though it was at all
times pointed upward and not in the officers’ direction.
Heitmann thought there was an immediate threat that Villegas
would fire his weapon, and he was “milliseconds” from
shooting Villegas when Bennallack fired his gun. Villegas’s
6                 C.V. V. CITY OF ANAHEIM

“facial expression was not panicked, but calm,” while Rosal’s
showed “fear” and “shock.”

    Voorhis: Voorhis did not have a clear view of the
shooting, but saw a gun barrel pointed upward “toward the
sky.” It did not appear to be leaning against anything. He
heard an officer say “drop the gun, drop the gun,” saw the
barrel of the gun move either upward or backward, then heard
shots. He feared that Villegas could use the gun against the
officers.

    Ellis: Ellis also did not have a clear view of the shooting,
but heard an officer yell something like “put it down,” “drop
it,” or “get on the ground.” A second later, he heard
gunshots.

    After the shooting, Bennallack and Heitmann approached
Villegas and administered CPR until paramedics arrived.
Villegas died from his wounds.

    In October 2012, Plaintiffs sued Defendants in state court,
bringing a 42 U.S.C. § 1983 claim for excessive force in
violation of the Fourth Amendment and state law claims for
negligence and wrongful death.1 Defendants removed that
suit to federal court, and moved for summary judgment. The
district court concluded that summary judgment was
appropriate on the Fourth Amendment claim, as “an
objectively reasonable officer would reasonably believe that
Mr. Villegas posed an ‘immediate threat to the safety of the
officers or others’ – the ‘most important factor’ in the
Graham [v. Connor, 490 U.S. 386 (1989)] excessive force

  1
    On appeal, Plaintiffs have abandoned their Fourteenth Amendment
substantive due process claim, so we do not address it.
                 C.V. V. CITY OF ANAHEIM                     7

analysis,” and that it would “not judge the reasonableness of
Officer Bennallack’s actions with the 20/20 vision of
hindsight.” Alternatively, the district court held that
Bennallack was entitled to qualified immunity because it was
not clearly established that his conduct violated the Fourth
Amendment. The district court also granted summary
judgment on the state law claims because it found Officer
Bennallack’s conduct was objectively reasonable. This
appeal followed.

              II. STANDARD OF REVIEW

    We review de novo a district court’s grant of summary
judgment. Glenn v. Washington County, 673 F.3d 864, 870
(9th Cir. 2011). We also review de novo a defendant
officer’s entitlement to qualified immunity. Id.

                      III. ANALYSIS

   A. Fourth Amendment Claim

    “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) (citing Pearson v. Callahan, 555 U.S. 223, 232
(2009)). While we have discretion to decide which prong to
address first, here we address both. Id.

    Graham provides the framework for reviewing excessive
force claims. Its non-exhaustive list of factors for evaluating
reasonableness include: (1) the severity of the crime at issue;
(2) whether the suspect posed an immediate threat to the
8                   C.V. V. CITY OF ANAHEIM

safety of the officers or others; and (3) whether the suspect
actively resisted arrest or attempted to escape. Graham, 490
U.S. at 396; see also George v. Morris, 736 F.3d 829, 837–38
(9th Cir. 2013) (discussing Graham and Tennessee v. Garner,
471 U.S. 1 (1985)). We must judge the reasonableness of a
particular use of force “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, keeping in mind that
the “‘most important’ factor under Graham is whether the
suspect posed an ‘immediate threat to the safety of the
officers or others,’” George, 736 F.3d at 838 (internal
quotation marks omitted) (quoting Bryan v. MacPherson, 630
F.3d 805, 826 (9th Cir. 2010)). “[S]ummary judgment should
be granted sparingly in excessive force cases. This principle
applies with particular force where the only witness other
than the officers was killed during the encounter.” Gonzalez
v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en
banc) (citation omitted).2

    Considering the facts in the light most favorable to the
nonmoving party, Glenn, 673 F.3d at 870, a reasonable juror
could find in favor of Plaintiffs. While the officers’
testimony is largely consistent – Villegas held what
resembled a shotgun, and did not put it down when ordered
to do so – the officers’ sworn declarations and testimony
differ on key points. Bennallack testified that merely one
second before he shot Villegas, he observed Villegas make “a
quick movement” to grab the barrel of the rifle which had
previously been resting against the wall. If this were
undisputed, then summary judgment might be appropriate: “If
the person is armed . . . [then] a furtive movement, harrowing

  2
    Rosal was unavailable as a witness, as he apparently left the United
States for the Philippines.
                  C.V. V. CITY OF ANAHEIM                       9

gesture, or serious verbal threat might create an immediate
threat.” George, 736 F.3d at 838.

     But that is not what other officers saw. Heitmann did not
see Villegas grab the gun from against the wall, as
Bennallack testified, but rather observed Villegas already
holding the gun. Voorhis also testified he believed Villegas
was holding the gun and it did not appear to be leaning
against anything. Heitmann recalled Villegas’s calm
expression as he “slightly” raised the gun from the ground.
And none of the officers provided a clear time line of when
they switched from ordering Villegas to raise his arms to
ordering him to drop the gun, or how long after that switch
Villegas had to comply with the new command before
Bennallack opened fire. This is particularly important
because, viewed in the light most favorable to Plaintiffs,
Heitmann’s description of Villegas’s movement is consistent
with Villegas complying with the order to put his arms up:
“The butt of the stock was on the ground or close to it, and as
[Villegas] moved his arms, the rifle was moving with him, in
an upward manner.” Applying the Graham factors, the first
and third factors fall in Plaintiffs’ favor, and the second factor
is less than clear.

    On summary judgment, “all justifiable inferences are to
be drawn in [Villegas’s] favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A reasonable jury could draw
the following factual conclusions: (1) the officers, responding
to a call about a suspected drug dealer armed with a shotgun
and loitering in the visitor parking area of an apartment
10                   C.V. V. CITY OF ANAHEIM

complex, came upon Villegas already holding a long gun;3
(2) Villegas was ordered to put his hands up, and as he was
complying, the officers ordered him to drop his gun;
(3) without providing a warning or sufficient time to comply,
or observing Villegas pointing the long gun toward the
officers or making any move toward the trigger, Bennallack
resorted to deadly force. Viewing the facts in this light,
deadly force was not objectively reasonable. Thus, the
district court erred in holding that Bennallack’s use of deadly
force was justified as a matter of law and in granting
summary judgment on that basis. Our court has rejected
summary judgment in cases involving similar degrees of
apparent danger, and we must do the same here.4

   That ruling does not end our inquiry. Under the second
prong of the qualified immunity test, we ask whether the

     3
      At argument, counsel for Defendants reasoned that the officers’
formation and the apartment complex layout led to the inconsistencies
among the four officers’ sworn declarations and testimony, and that
Bennallack’s perspective provided the most accurate account for what
occurred. That may be true. But whether it is true is a quintessential jury
question, as “[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Anderson, 477 U.S. at 255.
 4
    See, e.g., Gonzalez, 747 F.3d at 793–98 (reversing the district court’s
grant of summary judgment on excessive force claim where officer shot
driver of a minivan after driver accelerated vehicle with officer inside and
refused commands to stop); Glenn, 673 F.3d at 871–78 (reversing the
district court’s grant of summary judgment on excessive force claim where
officers shot and killed individual who did not comply with orders to put
down a knife for approximately three minutes); George, 736 F.3d at
837–39 (affirming the district court’s denial of summary judgment on
excessive force claim where officer shot and killed an armed individual
and there were triable issues as to whether the individual had the gun
“trained on the ground”).
                     C.V. V. CITY OF ANAHEIM                           11

alleged violation of Villegas’s Fourth Amendment right
against excessive force “was clearly established at the time of
the officer’s alleged misconduct.” Lal, 746 F.3d at 1116. If
not, the officer receives qualified immunity. “A Government
official’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘[t]he contours of [a] right
[are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (alteration
in original) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). “We do not require a case directly on point, but
existing precedent must have placed the . . . constitutional
question beyond debate.” Id.; see also Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (per curiam) (explaining that the
qualified immunity inquiry “must be undertaken in light of
the specific context of the case, not as a broad general
proposition” (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001))).

    We agree with the district court that it was not clearly
established on January 7, 2012, that using deadly force in this
situation, even viewed in the light most favorable to
Plaintiffs, would constitute excessive force under the Fourth
Amendment.5 Bennallack is therefore immune from liability


 5
    Cf., Brosseau, 543 U.S. at 200–01 (holding that officer was entitled to
qualified immunity where the cases relied on by plaintiffs did not
“squarely govern[]” the constitutionality of shooting a “disturbed felon,
set on avoiding capture through vehicular flight, when persons in the
immediate area [were] at risk from that flight”); Blanford v. Sacramento
County, 406 F.3d 1110, 1119 (9th Cir. 2005) (holding that deputies were
entitled to qualified immunity because they “would not have found fair
warning in Garner, Graham, or any other Supreme Court or circuit
precedent at the time that they could not use deadly force to prevent
someone with an edged sword, which they had repeatedly commanded
12                   C.V. V. CITY OF ANAHEIM

under section 1983 for his use of deadly force, so we affirm
the grant of summary judgment on the Fourth Amendment
claim.

     B. State Law Claims

    “[T]he doctrine of qualified immunity does not shield
defendants from state law claims.” Johnson v. Bay Area
Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); see
also Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009)
(“California law is clear that the doctrine of qualified
governmental immunity is a federal doctrine that does not
extend to state tort claims against government employees”
(citations, alterations, and internal quotation marks omitted)).
Because we conclude that the district court erred in holding
that the use of deadly force was objectively reasonable as a
matter of law, we reverse the district court’s grant of
summary judgment on the state law claims and remand them
for further proceedings.6

  AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.

     The parties shall bear their own costs on appeal.




him to drop and whom they had repeatedly warned would otherwise be
shot, from accessing a private residence where they or people in the house
or yard might be seriously harmed”).
 6
   As to the negligence claim, we note that the California Supreme Court
has clarified that “state negligence law . . . is broader than federal Fourth
Amendment law.” Hayes v. County of San Diego, 305 P.3d 252, 263 (Cal.
2013).
