                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

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




                            FOR THE NINTH CIRCUIT



MAYLEISHA BARNES; et al.,                        No. 11-56109

              Plaintiffs - Appellants,           D.C. No. 2:10-cv-00470-JHN-PJW

  v.
                                                 MEMORANDUM *
CITY OF PASADENA; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                  Jacqueline H. Nguyen, District Judge, Presiding

                           Submitted February 7, 2013 **
                              Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

       This case involves the fatal shooting of Leroy Barnes by two City of

Pasadena police officers. Plaintiffs, Barnes’s two daughters and his estate, appeal




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the district court’s grant of summary judgment in favor of Defendants, the two

officers and the City of Pasadena. Reviewing de novo, we affirm.

      We agree with the district court that Plaintiffs lacked standing to assert an

excessive force claim under the Fourth Amendment. See Moreland v. Las Vegas

Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Plaintiffs have not argued

to the contrary. They failed to demonstrate that one of them was Barnes’s personal

representative or Barnes’s successor in interest under California law. See Tatum v.

City & Cnty. of S.F., 441 F.3d 1090, 1093 n.2 (9th Cir. 2006); Cal. Civ. Proc. Code

§§ 377.30, 377.32.

      We therefore construe Plaintiffs’ Fourth Amendment claim as a Fourteenth

Amendment substantive due process claim based on Defendants’ alleged

deprivation of Plaintiffs’ liberty interest in the companionship of their father.

See Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987), overruled on

other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir.

1999) (en banc). To prevail on that claim, Plaintiffs were required to show that

Defendants’ conduct shocked the conscience. Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010).

      Actual deliberation by the officers was not practical because the incident

rapidly escalated into a physical struggle and a fatal shooting, and it lasted only


                                           2
about twenty-five seconds. See id. Therefore, the officers’ conduct shocked the

conscience only if they acted “with a purpose to harm unrelated to legitimate law

enforcement objectives.” Id.

      We recognize that, this being a case involving deadly force, we must ensure

that the officers are “not taking advantage of the fact that the witness most likely to

contradict [their] story – the person shot dead – is unable to testify.” Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994). We nonetheless conclude that Plaintiffs

failed to demonstrate the existence of a genuine issue of material fact concerning

whether the officers had a purpose to harm Barnes unrelated to legitimate law

enforcement objectives. See Wilkinson, 610 F.3d at 554.

      First, even if an issue of fact existed about the presence of a gun, the

determinative issue was whether the officers reasonably believed Barnes had a gun

and posed an immediate threat to safety. The record indicated that they did. The

enhanced still photos from the patrol car video undisputedly show something in

Barnes’s hand, and Plaintiffs pointed to no evidence suggesting that the officers

did not believe, or should not have believed, it to be a gun. In light of that belief,

the officers used deadly force to ensure their safety. No evidence suggested any

other purpose.




                                           3
      Second, Plaintiffs’ contention that Barnes did not have a gun was not

supported by sufficient evidence to create a genuine issue of material fact anyway,

even drawing all justifiable inferences in Plaintiffs’ favor. The evidence that

arguably supported Plaintiffs’ position – Edwards’s testimony and the lack of

forensic evidence on the gun found at the scene, for example – did not discredit the

officers’ testimony. In addition, other evidence supported the officers’ version of

the facts, including the gun found at the scene, the patrol car video, and the still

photos from the patrol car video. The lack of forensic evidence linking the gun to

Barnes was not enough to support Plaintiffs’ allegation that Defendants planted the

gun. See Scott, 39 F.3d at 915 (“The judge must carefully examine all the evidence

in the record, such as medical reports, contemporaneous statements by the officer

and the available physical evidence, as well as any expert testimony proffered by

the plaintiff, to determine whether the officer’s story is internally consistent and

consistent with other known facts.”). The district court therefore properly granted

summary judgment on this claim.

      Having concluded that no constitutional violation occurred, we do not reach

the issue of qualified immunity, and we conclude that Plaintiffs’ Monell claim

fails. See Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).




                                           4
      Summary judgment was also appropriate on Plaintiffs’ California

Government Code § 815.2(a) claim. The City could not be held liable under

section 815.2 because the officers’ use of deadly force was “justifiable” under

California Penal Code § 196. Given the tense and rapidly escalating situation,

Barnes’s instruction to Edwards to flee the scene, the officers’ physical struggle

with Barnes, and the presence of a gun, the circumstances “reasonably created a

fear of death or serious bodily harm.” Brown v. Ransweiler, 89 Cal. Rptr. 3d 801,

816 (Ct. App. 2009) (alteration omitted) (quoting Martinez v. Cnty. of L.A., 54 Cal.

Rptr. 2d 772, 780 (Ct. App. 1996)).

      AFFIRMED.




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