Filed 9/17/15 Arrendell v. Perez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ALFRED ARRENDELL,                                                   D065719

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. ECU07337)

S. PEREZ et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,

Judge. Affirmed.



         Schonbrun, Desimone, Seplow, Harris, Hoffman & Harrison and Catherine

Sweetser for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney

General, Thomas Patterson and Christopher H. Findley, Deputy Attorneys General, for

Defendants and Respondents.
       Alfred Arrendell appeals from a summary judgment in favor of defendants

S. Perez, A. Din and R. Lam in his lawsuit against them alleging negligence in the

performance of their duties as correctional officers in responding to an inmate fight that

left Arrendell blinded in one eye. We conclude that the trial court properly granted

summary judgment in favor of defendants, and we accordingly affirm the judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       Arrendell was an inmate at Centinela State Prison, where Perez and Din were

correctional officers and Lam was a correctional sergeant. On February 9, 2010,

Arrendell was in the prison yard when a fight broke out between three inmates whom he

did not know: Martinez, Rios and Bivens.

       Perez was stationed in the tower overlooking the prison yard, approximately 32

feet above the ground. She observed as Martinez and Rios chased Bivens, caught up to

him and began fighting with him. Martinez and Rios attacked Bivens with punches and

slicing motions that indicated they had weapons. Perez saw blood coming from Bivens's

head as Bivens tried to break loose. Bivens also had a weapon and was using it.1

       Perez ordered all of the inmates on the yard to get down, and reported the fight on

the institutional radio. Arrendell dropped prone to the ground about 100 feet away from

the fight. Din and Lam responded to the prison yard along with other staff.



1       Four weapons of sharpened melted plastic or sharpened metal, ranging from four
to six inches long, were found in the prison yard after the fight.

                                             2
       While the other officers were arriving on the scene, Perez attempted to get the

three inmates to stop fighting by using a 40 mm launcher, which shoots nonlethal rounds.

First, Perez shot a direct impact round, consisting of a rubber projectile. Perez aimed the

round at Martinez, but the shot missed. Perez ordered the fighting inmates to get down

again, but they refused to comply, so she deployed a different type of nonlethal round,

consisting of a cartridge containing three wood blocks that are designed to disperse upon

hitting the ground about three feet in front of a target (wood block round). She used the

wood block round because it would disperse into three blocks and thus had a better

chance of hitting one of the fighting inmates. Perez did not hit any of the inmates with

the wood block round.

       When the officers on the ground responded, including Din and Lam, they

repeatedly ordered the inmates to stop fighting, but the inmates did not comply. Din and

one other officer deployed a total of three oleoresin capsicum ("O.C.") grenades, which

contain a substance similar to pepper spray. The O.C. grenades did not stop the fight.

Neither Lam nor Din used physical force against the fighting inmates because, consistent

with their training, they were concerned that the inmates would use weapons against

them. Instead, the officers formed a skirmish line approximately 10 feet away from the

fight. Although no other witness recalled such an occurrence, Arrendell testified in his

deposition that at some point during the fight a correctional officer approached the

fighting inmates while they were wrestling on the ground, straddled them, and raised his

baton as if to strike them, but then desisted when Lam directed him to stop.



                                             3
       The inmates continued to fight, and Bivens was bleeding profusely. Perez

believed Bivens would be killed if she didn't shoot Rios or Martinez, and she therefore

decided that deadly force was necessary. As Perez stated in her deposition, "It had gone

too long already and I was afraid that if I didn't do something right away [Bivens] would

have died." Perez armed herself with a Mini-14 rifle that shoots .223 caliber rounds.

After the inmates again refused to comply with orders to stop fighting, Perez had a clear

shot on Rios and fired, aiming at Rios's upper torso. The shot missed and the fighting

continued.

       Perez then transitioned back to the wood block round, as she was no longer able to

get a good shot on any of the assailants due to the fact that they were moving around.

According to Perez and Din, the second wood block round hit Martinez, and he stopped

fighting, threw his weapon over the fence, and laid down on the ground, not getting back

up until the fight was over. According to Arrendell's account, Martinez was hit with

either a wood block round or a direct impact round, which caused him to get down on the

ground and stop fighting for a short time, but then he got back up and rejoined the fight.2

       As Perez and Din described the situation, Bivens and Rios continued to fight after

Martinez left, and Bivens was still bleeding profusely. Perez continued to believe that

Rios would kill Bivens if she did not shoot Rios. When she had a clear shot on Rios,


2       The eyewitness accounts also differed as to whether the fight took place with the
combatants on the ground, on their feet in a standing position, or a combination of both.
According to Perez, the inmates never fought on the ground. Din and Lam stated that the
inmates moved back and forth between standing and being on the ground, and Arrendell
stated that the inmates wrestled on the ground for most of the fight.

                                             4
Perez fired her Mini-14 rifle at Rios's upper torso. The shot missed. After again ordering

the inmates to stop fighting and then waiting 10 seconds, Perez fired another shot from

the Mini-14 rifle. After that shot, Rios stopped fighting and went prone to the ground.

Bivens moved away and sat down, and the fight was over. A photograph in the record

shows Bivens with numerous bloody wounds immediately after the fight.

       Perez's third rifle shot ricocheted after missing Rios and travelled approximately

100 feet to where Arrendell was prone on the ground. The bullet entered Arrendell's

skull through his left eye, causing him to permanently lose sight in that eye. Medical

personnel arrived within 60 seconds to tend to Arrendell's injuries.

       Arrendell filed a lawsuit against Perez, Din and Lam (collectively defendants),

asserting a single cause of action for negligence.3 Arrendell alleged that defendants did

not use reasonable care in employing deadly force to control the fight in the prison yard,

causing him to suffer injury.

       Defendants filed a motion for summary judgment, which argued that the

undisputed facts established they did not breach their duty of care to act reasonably in

using deadly force. The trial court granted the motion for summary judgment, explaining

that "the undisputed facts show that defendants' actions fell within a reasonable range of

conduct." Arrendell appeals from the judgment.




3      Arrendell earlier filed a federal lawsuit against the State of California and several
individuals, which the parties stipulated to having dismissed in favor of litigating the case
in superior court.

                                              5
                                               II

                                        DISCUSSION

A.     Applicable Legal Standards

       1.     Summary Judgment Standards

       We begin our discussion with an overview of the rules governing motions for

summary judgment.

       A defendant "moving for summary judgment bears an initial burden of production

to make a prima facie showing of the nonexistence of any triable issue of material fact."

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may meet

this burden either by showing that one or more elements of a cause of action cannot be

established or by showing that there is a complete defense. (Ibid.) "[A]ll that the

defendant need do is to show that the plaintiff cannot establish at least one element of the

cause of action[;] . . . the defendant need not himself conclusively negate any such

element . . . ." (Id. at p. 853.) If the defendant's prima facie case is met, the burden shifts

to the plaintiff to show the existence of a triable issue of material fact with respect to that

cause of action or defense. (Id. at p. 849; Silva v. Lucky Stores, Inc. (1998) 65

Cal.App.4th 256, 261 (Silva).)

       We review a summary judgment ruling de novo to determine whether there is a

triable issue as to any material fact and whether the moving party is entitled to judgment

as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001)

24 Cal.4th 945, 972.) "In practical effect, we assume the role of a trial court and apply

the same rules and standards which govern a trial court's determination of a motion for

                                               6
summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61

Cal.App.4th 1073, 1079.) Thus, on appeal we apply the same three-step analysis used by

the trial court. "We identify the issues framed by the pleadings, determine whether the

moving party has negated the opponent's claims, and determine whether the opposition

has demonstrated the existence of a triable, material factual issue." (Silva, supra, 65

Cal.App.4th at p. 261.)4

       2.     Law Applicable to the Officers' Use of Deadly Force

       We next examine the law that applies to Arrendell's cause of action for negligence

against defendants.

       " '[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff

must show that [the] defendant had a duty to use due care, that he breached that duty, and

that the breach was the proximate or legal cause of the resulting injury.' " (Hayes v.

County of San Diego (2013) 57 Cal.4th 622, 629 (Hayes).)

       Here, because Arrendell was injured when the officers used deadly force to control

the fight in the prison yard, we focus on the case law establishing the circumstances




4       In a footnote in his opening brief, Arrendell states that had the case gone to trial he
"would have presented expert testimony regarding the training of correctional officers,
including a policy preventing the discharge of weapons if there is reason to believe
persons other than the target will be injured. We do not consider this evidence as it was
not submitted to the trial court in connection with the summary judgment motion.
(Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 790 [" '[I]n
reviewing a summary judgment, the appellate court must consider only those facts before
the trial court, disregarding any new allegations on appeal.' "].)

                                              7
under which a law enforcement officer may reasonably use deadly force.5 Our Supreme

Court "has long recognized that peace officers have a duty to act reasonably when using

deadly force. [Citations.] The reasonableness of an officer's conduct is determined in

light of the totality of circumstances." (Hayes, supra, 57 Cal.4th at p. 629.) The same

standards apply when a suspect is injured by an officer's use of deadly force or, when as

here, an officer uses deadly force that unintentionally causes injury to an innocent

bystander. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 534 (Brown) [examining

whether officers acted reasonably under the totality of circumstances in using deadly

force that caused injury to a bystander in a nearby building].)

       More specifically, case law establishes that "[a] police officer's use of deadly force

is reasonable if ' " 'the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others.' " ' " (Brown,

supra, 171 Cal.App.4th at p. 528.) "Where potential danger, emergency conditions, or

other exigent circumstances exist, ' "[t]he Supreme Court's definition of reasonableness is

. . . 'comparatively generous to the police. . . .' " [Citation.]' [Citation.] ' "In effect, 'the

Supreme Court intends to surround the police who make these on-the-spot choices in

dangerous situations with a fairly wide zone of protection in close cases.' " ' " (Ibid.)


5      Although the case law that we cite was developed in noncustodial situations where
a plaintiff was injured by law enforcement officers' use of deadly force, the parties both
rely on that case law as controlling here, where correctional officers, not police officers,
used deadly force. Like noncustodial law enforcement officers, correctional officers are
subject to reasonable force restrictions. (C.f., In re Riddle (1962) 57 Cal.2d 848, 852
["custodial officers may use reasonable force upon a prisoner to enforce proper prison
regulations"].)

                                                 8
"Also, as the nation's high court has observed, '[t]he "reasonableness" of a particular use

of force must be judged from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.' " (Hayes, supra, 57 Cal.4th at p. 632, quoting

Graham v. Connor (1989) 490 U.S. 386, 396.) " ' "We must never allow the theoretical,

sanitized world of our imagination to replace the dangerous and complex world that

policemen face every day. What constitutes 'reasonable' action may seem quite different

to someone facing a possible assailant than to someone analyzing the question at leisure."

[Citation.]' [Citation.] Placing the burden of proof on the plaintiff to establish that an

officer's use of force was unreasonable 'gives the police appropriate maneuvering room in

which to make such judgments free from the need to justify every action in a court of

law.' " (Brown, at pp. 527-528.)

       Because of the deference given to law enforcement officers in making tactical

decisions in exigent circumstances, " '[a]s long as an officer's conduct falls within the

range of conduct that is reasonable under the circumstances, there is no requirement that

he or she choose the "most reasonable" action or the conduct that is the least likely to

cause harm and at the same time the most likely to result in the successful apprehension

of a violent suspect, in order to avoid liability for negligence.' [Citation.] . . . Law

enforcement personnel have a degree of discretion as to how they choose to address a

particular situation." (Hayes, supra, 57 Cal.4th at p. 632, italics added.)

       The issue of whether a law enforcement officer acted within the range of

reasonable conduct in using deadly force may, when appropriate, be decided on summary

judgment. "Summary judgment is appropriate when the trial court determines that,

                                              9
viewing the facts most favorably to the plaintiff, no reasonable juror could find

negligence." (Hayes, supra, 57 Cal.4th at p. 632.) When, in considering a summary

judgment motion, the trial court determines that a "decision to use deadly force and . . .

use of deadly force were objectively reasonable under the circumstances," judgment may

be granted for the defendant. (Brown, supra, 171 Cal.App.4th at p. 534, italics added

[affirming summary judgment in negligence claim against police officers who used

deadly force that inadvertently injured a bystander in a nearby building, as the actions

were objectively reasonable under the circumstances].) Only "[i]f the circumstances

permit a reasonable doubt whether defendants' conduct violated the boundaries of due

care, [must] the doubt . . . be resolved as an issue of fact by the jury rather than of law by

the court." (Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 887.)6




6       Arrendell cites Giraldo v. California Department of Corrections & Rehabilitation
(2008) 168 Cal.App.4th 231, 250, when discussing the applicable duty of care. However,
Giraldo is inapposite under the facts of this case. Giraldo concerned a lawsuit by a
transgender prisoner who challenged implementation of " 'prison policies that place
transgender inmates, such as [plaintiff], who have the physical appearance of women, in
the male inmate population without any meaningful precaution to the obvious risk of
sexual assault to them,' " and which allegedly led to the plaintiff being beaten and raped
by a cellmate. (Id. at p. 237.) Giraldo held that "there is a special relationship between
jailer and prisoner, imposing on the former a duty of care to the latter." (Id. at p. 250.)
That duty arises from the fact that prisoners are "vulnerable" and "dependent," with the
"relationship between them . . . protective by nature, such that the jailer has control over
the prisoner, who is deprived of the normal opportunity to protect himself from harm
inflicted by others." (Ibid.) The special duty of a correctional officer to protect prisoners
from other inmates is not applicable here because Arrendell was not harmed by another
inmate. The injury to Arrendell resulted from an inadvertent ricochet of a bullet when
officers were acting on their duty to protect another inmate, Bivens, from being harmed
by fellow inmates.

                                              10
B.     Perez, Din and Lam Established as a Matter of Law That the Decision to Use
       Deadly Force Was Objectively Reasonable Under the Circumstances

       Arrendell contends that in responding to defendants' summary judgment motion,

he established a material factual dispute about whether defendants acted within the range

of reasonable conduct by responding with deadly force to the prison yard fight. As we

will discuss, under any version of the facts supported by the record, the defendants'

conduct was objectively reasonable.

       As we have explained, the fundamental applicable principle is that the "use of

deadly force is reasonable if ' " 'the officer has probable cause to believe that the suspect

poses a significant threat of death or serious physical injury to the officer or others.' " ' "

(Brown, supra, 171 Cal.App.4th at p. 528.) Here, it is undisputed that Bivens was being

stabbed, was bleeding profusely, and Perez believed that Bivens would be killed if she

did not act immediately to stop the fight. This situation satisfies the criteria for use of

deadly force.

       Arrendell's main dispute is not with whether Bivens's life was in danger.7 Instead,

Arrendell criticizes the use of deadly force because he believes that nonlethal measures

could have been just as effective without putting bystanders in danger of suffering injury



7      We note, however, that Arrendell tries to distinguish one of the applicable cases
cited by the People, Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, by arguing
that unlike in this case, in Lopez the officer's unintended shooting of a person behind a
closed door was reasonable based on "the exigency of the circumstances." (Id. at p. 690.)
If Arrendell means to argue that no exigent circumstances existed here, we disagree. As
we have explained, there was evidence that Rios was stabbing Bivens, and Perez believed
that Bivens would soon be killed if she did not quickly stop the fight.

                                               11
from a ricocheting bullet. However, Arrendell overlooks two important points. First,

case law gives officers wide discretion in exigent circumstances to determine how to

respond to a situation. As we have explained, " 'there is no requirement that [the officer]

choose the "most reasonable" action or the conduct that is the least likely to cause harm

and at the same time the most likely to result in the successful apprehension of a violent

suspect, in order to avoid liability for negligence.' " (Hayes, supra, 57 Cal.4th at p. 632.)

Second, the evidence shows that the nonlethal measures were not effective at stopping the

fight. Rios was still stabbing Bivens even after Perez fired three nonlethal rounds and the

other officers threw several O.C. grenades at the fighting inmates. Based on those facts,

Arrendell's suggestion that the officers could have stopped the fight using nonlethal

measures "is pure conjecture, and does not establish that [the officers'] actual response to

the situation was unreasonable." (Brown, supra, 171 Cal.App.4th at p. 537.)

       In an attempt to establish that the officers' response with deadly force was not

within the range of reasonable conduct under the circumstances, Arrendell contends that

it was not reasonable for Perez to shoot the rifle a third time because she "herself

admitted that she could not accurately hit the inmates." According to Arrendell, Perez

"knew her aim was not good enough to reliably hit the moving people at whom she was

firing" and that "[i]t was undisputed that . . . Perez did not have a clear shot at the three

inmates that were fighting . . . ." Those assertions have no support in the record, as there

is no evidence of Perez ever admitting that she could not accurately hit the inmates. On

the contrary, Perez stated in her deposition testimony that she shot the rifle on occasions

when she did have a clear shot at her target. She chose to use a wood block round, not

                                              12
the rifle, during the interval when the subjects were moving around too much to allow her

to aim accurately.

       In a similar argument, Arrendell contends that Perez "kn[e]w from missing with

the less-lethal rounds that she [could not] accurately hit the person at whom she [was]

aiming." (Italics omitted.) Arrendell contends that "it is undisputed that the tower officer

was unable to hit the fighting inmates . . . ." That assertion is not supported by the

record, as Arrendell did not miss with all of the nonlethal rounds. As we have explained,

according to Perez, she missed with the initial direct impact round and with the first wood

block round, but she hit Martinez with the second wood block round. Arrendell contends

that the second wood block round missed its mark because it hit the ground near the

inmates. However, as Perez explained in her deposition testimony, she was not aiming

directly at the inmates. Instead, because the wood block round is designed to disperse

and hit people after striking the ground in front of them, she aimed three feet in front of

the inmates. After the wood block round hit where Perez aimed, it dispersed and struck

Martinez. Similarly, under the facts as described in Arrendell's deposition, Perez hit

Martinez with one of the nonlethal rounds, which was either the direct impact round or

the wood block round, depending on which part of Arrendell's deposition is consulted.

Under either of these factual scenarios, there is no basis for a finding that Perez knew she

could not hit a target accurately with a shot from the tower.

       Arrendell also contends that Perez should have continued to use nonlethal rounds

because she purportedly had success with the wood block round in getting the inmates to

desist. Arrendell specifically argues that Perez should not have used lethal force because

                                             13
the nonlethal force "was effective in getting the inmates to 'prone out' or lay prone on the

floor and stop fighting." We reject this argument for two reasons. First, under

Arrendell's version of the facts as described in his deposition testimony, the nonlethal

rounds did not cause the inmates to desist, as Martinez returned to the fight after briefly

going to the ground when hit with a nonlethal round. Next, under the officers' version of

events, Perez fired three nonlethal rounds, with a wood block round finally getting

Martinez to stop fighting, but the nonlethal measures did not stop Rios, who continued to

stab Bivens. As exigent circumstances existed based on the immediate threat to Bivens's

life, it was objectively reasonable for Perez to switch to deadly force when the nonlethal

measures had not stopped Rios from stabbing Bivens.

       Turning his attention to the officers on the ground — Din and Lam — Arrendell

contends that they did not act reasonably because they did not physically intervene to

stop the fight, which contributed to Perez's ultimate decision to use deadly force.8 As an

initial matter, we note that according to Arrendell's version of events, an officer did

physically intervene by straddling the three assailants and threatening to use his baton on

them, but then desisting at Lam's orders. Assuming that Arrendell is arguing either that

this physical intervention was not sufficiently extensive, or that there was no physical



8      We consider the reasonableness of Din's and Lam's conduct as part of the inquiry
into whether it was reasonable, under the totality of the circumstances, for the officers to
use deadly force. As our Supreme Court has recently clarified, officers' "preshooting
conduct should not be considered in isolation" as a possible separate breach of duty.
(Hayes, supra, 57 Cal.4th at p. 632.) "Rather, it should be considered in relation to the
question whether the officers' ultimate use of deadly force was reasonable." (Ibid.)

                                             14
intervention at all, as the officers testified, we reject the argument and conclude that the

officers' conduct was well within the range of reasonable conduct. The officers on the

ground did not simply stand by without doing anything. Instead, they deployed several

O.C. grenades at the feet of the fighting inmates and repeatedly ordered the inmates to

stop fighting. Further, the officers are trained to avoid physical combat with inmates who

possess weapons because the inmates may turn the weapons on them.9 Under the

circumstances here where (1) exigent circumstances existed; (2) Perez was in the tower,

with both nonlethal and lethal measures available to her; and (3) the officers were trained

not to engage armed inmates, it was objectively reasonable for the officers on the ground

to employ O.C. grenades rather than engaging in a physical confrontation with armed

inmates.10



9       Arrendell contends that Perez "specifically told Arrendell that the officers on the
ground should have approached the inmates and it was only when they failed to break up
the fight that she felt she had to use deadly force." The record does not support that
assertion. Arrendell testified in his deposition that he spoke to Perez at some point after
the incident, but in the excerpts contained in the record, Arrendell did not describe a
discussion with Perez on that subject. Perez testified in her deposition that during the
fight she wished that the officers on the ground could have done something to stop the
fight, but in her deposition testimony she quickly clarified that the only options available
to them were to throw the O.C. grenades.

10      In a related contention, Arrendell states that all three of the fighting inmates went
to the ground, at which point the officers on the ground should have moved in to
physically restrain them. This argument fails because its premise is faulty. There is no
evidence that all of the inmates were on the ground and in a position to be physically
restrained at any point during the fight. According to all of the witnesses, the inmates
continued to actively fight throughout the entire incident, with only Martinez stopping
(either briefly or permanently). There was accordingly no good opportunity to physically
restrain the inmates that did not involve risk to the officers. If Arrendell means to argue
that the officers should have restrained Martinez when he went down to the ground, it
                                             15
       Finally, Arrendell argues that factual disputes exist on issues that are important in

establishing whether the officers' conduct was within the range of reasonable conduct.

Specifically, the following factual disputes exist: (1) whether Martinez stopped fighting

and threw away his weapon after being hit with a nonlethal round, or only temporarily

stopped fighting; (2) whether the inmates were ever fighting on the ground, as Din, Lam

and Arrendell recalled, or fighting while standing, as Perez remembered; and (3) whether

an officer straddled the fighting inmates on the ground and raised a baton, but then

moved away at Lam's orders.11

       Regardless of how a finder of fact were to resolve these three factual disputes, the

officers' approach would still be within the range of reasonable conduct as a matter of

law. First, regardless of whether Martinez rejoined the fight after being hit with a

nonlethal round, the undisputed fact remains that Rios was still stabbing Bivens, and


was within the range of reasonable conduct for the officer to have decided not to do so.
Assuming that, as Arrendell described, Martinez only temporarily stopped fighting and
still had his weapon, it was reasonable for the officers to stand back from Martinez at that
point, as Martinez might turn his weapon on them. Restraining Martinez would also have
put the officers in the danger zone of any rounds fired by Perez to control Rios, who was
still actively stabbing Bivens. If, on the other hand, events unfolded as the officers
described, with Martinez going to the ground and discontinuing the fight after throwing
away his weapon, it would not have been important for the officers to immediately
restrain Martinez.

11      Arrendell contends that there is also a factual dispute about whether all of the
fighting inmates went prone to the ground and could have been handcuffed after the
wood block rounds were deployed. As we have explained, there is no evidence in the
record supporting Arrendell's scenario. Although witnesses described the fight as
transitioning to the ground rather than with the inmates standing up, and Martinez going
to the ground after being hit with a nonlethal round, no witness described all of the
inmates as taking a prone position during which they stopped fighting and could have
been handcuffed prior to Perez firing the third lethal round.
                                             16
Perez believed that Bivens would be killed if she did not do something quickly. Under

either scenario, the remaining threat posed by Rios justified the use of deadly force.

Second, regardless of whether the inmates fought on the ground or standing up, it is

undisputed that nonlethal measures had not stopped Rios from stabbing Bivens, justifying

Perez's resort to deadly force to try to stop the attack. Third, even if, as Arrendell

testified, an officer with a drawn baton straddled the fighting inmates at some point and

then desisted at the direction of Lam, the officers' actions would still be within the range

of reasonable conduct. There is no indication in Arrendell's testimony that the officer

straddling the inmates was making any progress in stopping the fighting, and, as we have

described, officers are trained to stay out of a physical altercation with armed inmates

because the officers may be harmed. Further, with the officer straddling the inmates,

Perez would be prevented from taking a shot at the fighting inmates to get them to stop

fighting without putting the officer in danger. Based on all those considerations, it would

be within the range of reasonable conduct for the officer straddling the inmates to back

off and allow Perez to handle the situation by shooting rounds from the tower.

       In sum, we conclude that under any factual scenario of how the incident occurred,

the officers' use of deadly force was objectively reasonable under the circumstances.

Therefore, the trial court properly granted summary judgment in favor of defendants.




                                              17
                                  DISPOSITION

      The judgment is affirmed.



                                                IRION, J.

WE CONCUR:



NARES, Acting P. J.



HALLER, J.




                                      18
