                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 21 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUDY GRIFFITH PAPINEAU,                          No. 13-36176
individually and as Personal
Representative of the Estate of Brooks           D.C. No. 3:12-cv-05256-RBL
Papineau,

              Plaintiff - Appellee,              MEMORANDUM*

 v.

HANNAH HEILMAN and CITY OF
TACOMA,

              Defendants - Appellants.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                        Argued and Submitted June 8, 2016
                               Seattle, Washington

Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Tacoma Police Officer Hannah Heilman appeals the district court’s order

denying her motion for summary judgment on the basis of qualified immunity. We

affirm.

      First, taking the facts “in the light most favorable to the party asserting the

injury. . . [Heilman’s] conduct violated a constitutional right.” Saucier v. Katz, 533

U.S. 194, 201 (2001). Heilman testified that she saw Brooks Papineau holding a

gun inside the cab of his truck, that he exited his vehicle still holding the gun, and

that he turned to face her and pointed the weapon in her direction. But that version

of the facts is disputed by the plaintiff, and is undermined by the physical evidence

found at the scene and by inconsistencies between Heilman’s story and the one told

by her fellow officers. For example, the type of gun Heilman testified that she saw

Papineau holding looked substantially different from the one found inside his

truck, and only Papineau’s wallet and keys were found next to his body.

Moreover, the location of Papineau’s gunshot wounds suggests that he was not

facing Heilman when he was first shot, but rather was still stepping out of the

truck. Thus, taking the evidence in the light most favorable to the plaintiff, a

reasonable jury could find that Papineau never picked up a gun inside the cab of

his truck let alone pointed one at Heilman after exiting his vehicle. Under those

circumstances, a reasonable jury could also conclude that Heilman’s decision to


                                           2
shoot Papineau as he stepped out of his truck constituted an unreasonable use of

deadly force in violation of the Fourth Amendment. Tennessee v. Garner, 471

U.S. 1, 3 (1985); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1080-81 (9th

Cir. 2014).

      Second, taking the facts in the light most favorable to the plaintiff, the right

to be free from excessive force was “clearly established.” Saucier, 533 U.S. at

201. At the most basic level, Supreme Court and Ninth Circuit precedent make

clear that “[l]aw enforcement officers may not shoot to kill unless, at a minimum,

the suspect presents an immediate threat to the officer or others, or is fleeing and

his escape will result in a serious threat of injury to persons.” Harris v. Roderick,

126 F.3d 1189, 1201 (9th Cir. 1997); Garner, 471 U.S. at 11. Moreover, in

Curnow v. Ridgecrest Police, this court affirmed the denial of qualified immunity

for an officer who used deadly force against a suspect who “did not point the gun

at the officers and apparently was not facing them when they shot him the first

time.” 952 F.2d 321, 325 (9th Cir. 1991). Because the plaintiff has shown that

there exists a genuine dispute of material fact as to the reasonableness of Heilman's

conduct, and because under one version of the facts Heilman’s conduct violated

clearly established law, Heilman is not entitled to summary judgment on the basis

of qualified immunity.


                                           3
AFFIRMED.




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