                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 26 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NATHANIEL SMITH,                                No.    18-16736

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cv-00363-KJM-AC
 v.

CITY OF STOCKTON; et al.,                       MEMORANDUM*

                Defendants-Appellants.

                  Appeal from the United States District Court
                      for the Eastern District of California
               Kimberly J. Mueller, Chief District Judge, Presiding

                      Argued and Submitted February 5, 2020
                            San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

      Defendant Officers Patrick Mayer, Robin Harrison, and Michael Perez

appeal the district court’s denial of their motion for summary judgment on

Nathaniel Smith’s (“Smith’s”) excessive force claims under 42 U.S.C. § 1983.

They challenge the district court’s denial of qualified immunity. The City of

Stockton, asserting pendent appellate jurisdiction, appeals the denial of its motion



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for summary judgment on Smith’s claim under Monell v. Department of Social

Services, 436 U.S. 658 (1978).

      We have jurisdiction over the officers’ appeal under 28 U.S.C. § 1291, and

we affirm in part and deny in part the denial of qualified immunity to the defendant

officers. We dismiss the City’s appeal for lack of jurisdiction.

      We review de novo a district court’s denial of summary judgment on

qualified immunity grounds. S.R. Nehad v. Browder, 929 F.3d 1125, 1132

(9th Cir. 2019). In so doing, we must “view the facts in the light most favorable to

the nonmoving party and draw all inferences in that party’s favor.” Id.

      An officer sued under § 1983 is entitled to immunity from suit unless the

officer’s conduct (1) violated a constitutional right, and (2) that constitutional right

was clearly established at the time of the officer’s actions. Tuuamalemalo v.

Greene, 946 F.3d 471, 476–77 (9th Cir. 2019). A right is not clearly established

“unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 136

S. Ct. 305, 309 (2015) (per curiam)).

      1. We reverse the denial of qualified immunity to Officer Patrick Mayer

(“Mayer”) for pointing his gun at Smith during the traffic stop. Before stopping

the car in which Smith was a passenger, Mayer had been informed that there was

an outstanding felony bench warrant for Smith’s arrest. After the stop, as Mayer


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was exiting his police vehicle, Smith unexpectedly exited the car. Mayer then

drew his gun and pointed it at Smith. At the time of this incident, there was no

clearly established law that would have alerted an officer in Mayer’s position that

pointing a gun in these circumstances would violate the Fourth Amendment.

      In denying Mayer qualified immunity, the district court relied on Robinson

v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc), Cameron v. Craig, 713

F.3d 1012 (9th Cir. 2013) and Tekle v. United States, 511 F.3d 839 (9th Cir. 2007).

We are not persuaded that these cases clearly governed the situation facing Mayer

when he pointed his gun at Smith.

      Robinson is distinguishable and does not support the district court’s ruling.

There, the officers confronted Robinson outside of his home where they could

clearly see his hands and movements as he walked towards them. 278 F.3d at

1010. As one of the officers approached Robinson, he pointed a gun at Robinson’s

head from a distance of about six feet. Id. As Robinson was attempting to comply

with the officer’s commands, the officer “thrust his gun three or four feet from

Robinson’s head.” Id. On these facts, we held that the officer violated Robinson’s

Fourth Amendment rights.

      The circumstances confronting Mayer were markedly different. Mayer was

attempting to apprehend Smith, who was wanted on a felony bench warrant. When

Mayer stopped Smith’s car, Smith unexpectedly exited it. Mayer’s encounter with


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Smith was rapidly evolving and uncertain. Under these circumstances, Robinson

does not squarely control Mayer’s conduct in pointing his gun at Smith.

      The circumstances in Cameron and Tekle are likewise distinct. Both of

those cases implicated the safety of young children and took place in the privacy of

the plaintiffs’ homes. See Cameron, 713 F.3d at 1017; Tekle, 511 F.3d at 845–46.

Here, in contrast, the encounter with Smith took place in the context of a traffic

stop; a situation “especially fraught with danger.” Arizona v. Johnson, 555 U.S.

323, 330 (2009) (quoting Michigan v. Long, 463 U.S. 1032, 1047 (1983)).

      2. We also reverse the denial of qualified immunity to Mayer for unleashing

his dog to apprehend Smith. No clearly established law proscribed Mayer’s

conduct under the circumstances. Even assuming there was a constitutional

violation, Mayer released his dog after Smith began to flee from the traffic stop,

and the dog remained in Mayer’s proximity and never actually made physical

contact with Smith. These facts distinguish Smith’s case from Chew v. Gates,

where the officer released his dog beyond his reach to locate a concealed suspect in

a contained area and “as soon as [the suspect] became aware of [the police dog’s]

presence, he attempted to surrender and yelled to the police to call off the dog.” 27

F.3d 1432, 1436 (9th Cir. 1994). The officer in charge of the dog did not

immediately respond to the suspect’s attempt to surrender and the suspect

“sustained severe lacerations to his left side and left forearm.” Id. The district


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court erred in relying on Chew to deny Mayer qualified immunity for releasing his

dog to apprehend Smith.

      3. We affirm the denial of qualified immunity to Officer Michael Perez

(“Perez”) for his shooting of Smith. Viewing the facts in the light most favorable

to Smith, he had raised both hands in surrender and announced that he was

unarmed when Perez fired. Officer Perez’s initial suspicion that Smith was

engaged in a carjacking does not justify his use of deadly force after Smith had

surrendered. See Hopkins v. Adaya, 958 F.2d 881, 886–87 (9th Cir. 1992)

(explaining that, although deadly force may have been justified initially, later shots

violated the Fourth Amendment because the danger had passed), overruled on

other grounds as stated in Federman v. County of Kern, 61 F. App’x 438, 440

(9th Cir. 2003). Although Officer Perez maintains that Smith’s right hand was out

of sight, such a factual dispute is for the jury to decide. Thus, the district court did

not err in permitting this claim to proceed to trial.

      4. We likewise affirm the denial of qualified immunity to Detective Robin

Harrison (“Harrison”) for her shooting of Smith. At the time of the shooting,

viewing the fact in the light most favorable to Smith, Smith had attempted to

surrender to the officers and did not pose a serious threat. Detective Harrison

initially recognized this and holstered her gun but joined in the shooting once

Officer Perez opened fire. Taking Smith’s account of the incident as true,


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Detective Harrison violated clearly established law in shooting Smith. See Haugen

v. Brosseau, 351 F.3d 372, 394 (9th Cir. 2003) (noting that the plaintiff “ultimately

pled guilty to [the] felony [of] . . . ‘driv[ing] his vehicle in a manner indicating a

wanton or wilful disregard for the lives or property of others[,]’” but that shooting

him violated the Fourth Amendment because it was “not clear that he ‘was

engaged in the commission of a felony at the time of the occurrence causing the

injury”), rev’d on other grounds by Brosseau v. Haugen, 543 U.S. 194 (2004) (per

curiam).

      5. Finally, we dismiss the City’s appeal of the district court’s summary

judgment ruling on the Monell claim. We lack pendent jurisdiction to entertain an

interlocutory appeal of this claim because its resolution is not “inextricably

intertwined” with our resolution of the individual officers’ claims of qualified

immunity. Huskey v. City of San Jose, 204 F.3d 893, 904–05 (9th Cir. 2000).

      AFFIRMED in part, REVERSED in part, DISMISSED in part, and

REMANDED. Each side shall bear their own costs on appeal.




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