                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ESTATE OF ALAN KOSAKOFF, by its                  No. 10-55765
personal representative Harold Kosakoff;
et al.,                                          D.C. No. 3:08-cv-01819-IEG-NLS

              Plaintiffs - Appellees,
                                                 MEMORANDUM *
  v.

CITY OF SAN DIEGO, a municipal
corporation; et al.,

              Defendants - Appellants,

  and

DOES, 1-100 inclusive,

              Defendant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                    Argued and Submitted November 10, 2011
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

      Defendants appeal the district court’s decision to deny summary judgment on

the basis of qualified immunity to Officers Lenahan and Douglas. “[A] district court’s

denial of a claim of qualified immunity, to the extent that it turns on an issue of law,

is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). Exercising our jurisdiction to review questions of law, we affirm.

      To a large degree, Defendants’ argument asks us to review “the sufficiency of

the evidence supporting the trial court’s conclusion that an issue of fact exists,” which

we lack jurisdiction to do. Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per

curiam). We deny Plaintiffs’ motion to dismiss for lack of jurisdiction, because

Defendants do raise questions of law that we have jurisdiction to decide. But we

cannot consider Defendants’ arguments to the extent that they challenge the district

court’s determination of what facts a reasonable jury could find.

      As to the legal issues within our jurisdiction, we review de novo. Watkins v.

City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998). We must address two questions

as to each of Plaintiffs’ claims. First, “[t]aken in the light most favorable to the party


       **
             The Honorable Henry E. Hudson, U.S. District Judge for the Eastern
District of Virginia, sitting by designation.

                                            2
asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other

grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Second, was the right clearly

established? Id. We answer these questions in the affirmative for both claims.

I.    Fourth Amendment Claim

      “An officer’s use of deadly force is reasonable only 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.’” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994)

(quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)) (emphasis omitted). Plaintiffs

have put forward evidence on the basis of which a reasonable jury could conclude that

Officers Lenahan and Douglas used deadly force without “probable cause to believe

that [Kosakoff] pose[d] a significant threat of death or serious physical injury,”

Garner, 471 U.S. at 3. A jury must resolve the factual disputes and determine whether

the force used by the officers was excessive. See Santos v. Gates, 287 F.3d 846, 853

(9th Cir. 2002).

      Plaintiffs have also shown that the rights in question were clearly established.

It is not enough that an officer have been on notice of an abstract legal standard.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). But “in an obvious case, [general]

standards can ‘clearly establish’ the answer, even without a body of relevant case


                                           3
law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). We agree with the district court that,

viewing the facts in the light most favorable to Plaintiffs, this is such a case, one that

is similar to at least two of our precedents. See Acosta v. City and County of San

Francisco, 83 F.3d 1143 (9th Cir. 1996); Adams v. Speers, 473 F.3d 989 (9th Cir.

2007). If a jury were to find that Officers Lenahan and Douglas had violated

Kosakoff’s rights by shooting at him while he posed no significant threat, there is little

question that the violation would be “obvious” as a matter of law.

II.   Fourteenth Amendment Claim

      With respect to the Fourteenth Amendment claim, “the cognizable level of

executive abuse of power” is “that which shocks the conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Depending on the circumstances,

plaintiffs may establish a Fourteenth Amendment violation by showing that the

officers “acted with deliberate indifference” or by showing that they “acted with a

purpose to harm” the suspect. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)

(emphasis omitted). We need not determine which of these standards applies here,

because a reasonable jury could conclude that Officers Lenahan and Douglas violated

the Fourteenth Amendment even under the more stringent purpose-to-harm standard.

Under Porter, a jury may consider the manner in which officers needlessly caused a


                                            4
confrontation to escalate in determining whether the officers acted with a purpose to

harm. See id. at 1141-42. Again, the relevant facts regarding this question are in

dispute and for purposes of considering qualified immunity must be presumed to be

those offered by the non-moving party. See Saucier, 533 U.S. at 201.

       The Fourteenth Amendment rights in question were clearly established. At the

time of Kosakoff’s shooting, it had long been the law that an “abuse of power” by law

enforcement officers could give rise to a Fourteenth Amendment claim when it

“shock[ed] the conscience,” Lewis, 523 U.S. at 846, and that—even in a rapidly

changing situation—“a purpose to cause harm unrelated to the legitimate object of

arrest” could “satisfy the element of arbitrary conduct shocking to the conscience,”

id. at 836. To enunciate the right is to answer whether it is clearly established: if a jury

finds that an officer’s conduct is so egregious as to shock the conscience, the officer

cannot reasonably have believed the conduct to be legal.

       The district court’s denial of qualified immunity is therefore AFFIRMED.




                                             5
