                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 23 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

H.B., a minor, individually, and as              No.   18-56180
successor in interest to Michelle Lee
Shirley, by and through his Guardian Ad          D.C. No.
Litem, Ronnie Shirley,                           2:17-cv-02373-SJO-GJS
             Plaintiff-Appellee,
 v.
                                                 MEMORANDUM*
CITY OF TORRANCE, a California
municipal entity; MARK MATSUDA,
Police Chief; DUSTY GARVER, AKA
Doe 1; JASON SENA, AKA Doe 2;
SCOTT NAKAYAMA, AKA Doe 3,
             Defendants-Appellants,
and

TORRANCE POLICE DEPARTMENT, a
California municipal entity; DOES, 1-100,
inclusive,
            Defendants.

                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                     Argued and Submitted November 8, 2019
                              Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and SILVER,** District
Judge.


      Defendants-Appellants City of Torrance police officers Jason Sena, Dusty

Garver, and Scott Nakayama appeal the district court’s denial of qualified

immunity. We have jurisdiction over the officers’ interlocutory appeal under 28

U.S.C. § 1291. See Plumhoff v. Rickard, 572 U.S. 765, 771–73 (2014). We review

the district court’s conclusions regarding qualified immunity de novo. Isayeva v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). We reverse.

      Defendants are not entitled to qualified immunity if (1) their conduct

violated a constitutional right, and (2) if that right was “clearly established” at the

time of the violation. Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).

Defendants are therefore entitled to summary judgment if, viewing the facts in the

light most favorable to Plaintiff H.B., their conduct did not violate a constitutional

right. In this case, Plaintiff claims that Defendants violated the Fourth Amendment

by the use of excessive force when they shot Plaintiff’s decedent. In evaluating a

Fourth Amendment excessive force claim, the most important factor is whether the

decedent posed a significant and immediate threat of death or serious bodily injury



      **
             The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
                                            2
to the officers, or others in the area. Longoria v. Pinal County, 873 F.3d 699, 705

(9th Cir. 2017).

      The parties do not dispute that the situation confronting the officers is

accurately depicted by several videos in the record. The videos show that the

decedent drove in an erratic manner, including by swerving repeatedly into

oncoming traffic, that posed a danger to members of the public in a busy

metropolitan area. The videos also show that the decedent, having been boxed in

by the police officers, accelerated outward in the direction of at least one of the

officers, toward a lane for oncoming traffic and a nearby gas station. Because the

decedent accelerated toward the officers from only a few feet away, a reasonable

officer under these circumstances would have perceived the decedent’s actions to

constitute a significant and immediate threat to the officers in the path of her

vehicle and to other members of the public who were in the vicinity. See Plumhoff,

572 U.S. at 775–77.

      Plaintiff asserts that the decedent was in an impaired mental state that should

have been obvious to the officers and should have caused them to perceive less

need to use deadly force. See Longoria, 873 F.3d at 708. Yet even assuming

Defendants should have known that the decedent was mentally impaired, that

would not have rendered their conduct less reasonable in this case, because the


                                           3
decedent posed a significant and immediate threat, leaving Defendants with no

opportunity to attempt to de-escalate the situation.

      Because we hold that the officers’ use of deadly force was objectively

reasonable at the time of the shooting, we reverse the district court’s denial of

qualified immunity. Plaintiff can not establish a violation of the Fourth

Amendment.

      In order to prevail on the state law battery and Bane Act claims, Plaintiff

must demonstrate that the officers’ use of force was not reasonable at the time of

the shooting. See Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) (“[T]he

elements of the excessive force claim under [the Bane Act] are the same as under §

1983.”); Bowoto v. Chevron Corp., 621 F.3d 1116, 1129 (9th Cir. 2010) (“Under

California law, a plaintiff bringing a battery claim against a law enforcement

official has the burden of proving the officer used unreasonable force.”). Our

determination that the officers’ use of force was objectively reasonable

“necessarily resolves” those claims. Cunningham v. Gates, 229 F.3d 1271, 1285

(9th Cir. 2000). We therefore also hold that the district court should have

dismissed them.

      Plaintiffs also have state law negligence and wrongful death claims. Such

claims may be premised on a broader set of conduct than conduct amounting to


                                           4
excessive force under federal law. See Hayes v. County of San Diego, 305 P.3d

252, 263 (Cal. 2013) (holding that “state negligence law, which considers the

totality of the circumstances surrounding any use of deadly force, is broader than

federal Fourth Amendment law, which tends to focus more narrowly on the

moment when deadly force is used” (citation omitted)); Lopez v. City of Los

Angeles, 126 Cal. Rptr. 3d 706, 714 (Ct. App. 2011) (“The elements of a cause of

action for wrongful death are a tort, such as negligence, and resulting death.”). A

negligence claim thus could be based on negligent conduct preceding the use of

force. The record in this case contains evidence that the officers may have been

negligent in positioning themselves and their vehicles so openly. The complaint

alleges that the officers acted unlawfully “prior to and at the time they shot at Ms.

Shirley and her vehicle.” The district court did not consider these allegations. We

remand for it to do so.

      REVERSED AND REMANDED.




                                           5
