                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 27 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DALIA CORRALES, as Personal                      No. 14-15122
Representative of the Estate of Fabian
Corrales and ROSA MARIA CORRALES,                D.C. No. 2:11-cv-00287-ROS
individually and as natural mother of F.C.,

              Plaintiffs - Appellants,           MEMORANDUM*

 v.

CLARK DAVID IMPASTATO, Phoenix
Police Officer No. 9168, individually and
in his official capacity and CITY OF
PHOENIX, Arizona,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                       Argued and Submitted April 15, 2016
                            San Francisco, California

Before: NOONAN, BEA, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Fabian Corrales appeals the district court’s grant of summary judgment in

favor of Police Officer Clark Impastato on Corrales’s claims arising under 42

U.S.C. § 1983 and the Arizona police deadly-force justification statute. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review a district court’s grant of summary judgment de novo, Barnett v.

Centoni, 31 F.3d 813, 815 (9th Cir. 1994), viewing the facts and “draw[ing]

reasonable inferences” in the light most favorable to the non-moving party “to the

extent supportable by the record,” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)

(emphasis omitted).

1.    Excessive force claims are governed by the Fourth Amendment’s “objective

reasonableness standard,” which requires a “careful balancing of the nature and

quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386,

388, 396 (1989) (internal quotation marks omitted). “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,’” and a warning has been given where feasible. Scott v. Henrich, 39

F.3d 912, 914 (9th Cir. 1994) (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985))

(emphasis in original). We must judge the reasonableness of a particular use of


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force “from the perspective of a reasonable officer on the scene.” Graham, 490

U.S. at 396. “The calculus of reasonableness must embody allowance 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.” Id. at 396–97.

      Viewing the evidence in the light most favorable to Corrales, Officer

Impastato first confronted Corrales while Officer Impastato was conducting an

undercover drug deal. Corrales rushed toward Officer Impastato while pulling his

previously concealed hand from his waistband and forming it into a fist with a

single, hooked finger extended, in an attempt “to scare [Officer Impastato] into

believing that [he] had a gun and [he was] going to try to kill [him].” Though

Officer Impastato did not hear Corrales yell “I’m going to kill you,” he

nevertheless reacted to the threat he reasonably believed Corrales posed—and that

Corrales had intended to create—by immediately reaching for his gun and rapidly

firing at Corrales. Officer Impastato stopped firing as soon as Corrales fell and he

believed the threat to his life had been eliminated. The entire incident spanned

only 3.3 seconds from the time Officer Impastato reached for his gun to the time

Corrales was struck by the officer’s fifth and final bullet.




                                           3
      Officer Impastato’s use of deadly force under these circumstances was not

objectively unreasonable. Faced with a tense and rapidly evolving situation, he

had “probable cause to believe that [Corrales] pose[d] a significant threat of death

or serious physical injury to [himself] or others,’” and was therefore justified in

firing at Corrales to end the perceived threat. Scott, 39 F.3d at 914 (quoting

Tennessee, 471 U.S. at 3). Because “[v]erbal warnings are not feasible when lives

are in immediate danger and every second matters,” Officer Impastato was not

required to issue a warning before firing at Corrales under the rapidly changing

circumstances. Estate of Martinez v. City of Fed. Way, 105 F. App’x. 897, 899

(9th Cir. 2004). Officer Impastato was also not required to cease firing “until the

threat [Corrales posed] ha[d] ended.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022

(2014). Officer Impastato reasonably believed the threat posed by Corrales had

been eliminated only after Corrales was struck by his final bullet and fell to the

ground. Officer Impastato’s use of force was therefore reasonable.

2.    Because we find that Officer Impastato’s use of deadly force did not violate

Corrales’s Fourth Amendment rights, Officer Impastato is entitled to qualified

immunity. Pearson v. Callahan, 555 U.S. 223, 232–33 (2009). We therefore need

not consider whether such right was “clearly established.” Id. at 236.




                                           4
3.    Because Officer Impastato reasonably believed Corrales posed a threat of

significant bodily harm or death, his actions are also justified under the

reasonableness standard laid out in Arizona Revised Statute §§ 13-410(C) and 13-

410(C)(1).

4.    Each party shall bear its own costs.

      AFFIRMED.




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