                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD VOS, individually and as          No. 16-56791
successor-in-interest to Gerritt Vos,
and JENELLE BERNACCHI, individual,           D.C. No.
and as successor-in-interest to Gerritt   8:15-cv-00768-
Vos,                                        JVS-DFM
                Plaintiffs-Appellants,

                  v.                        OPINION

CITY OF NEWPORT BEACH, a
governmental entity; RICHARD
HENRY; NATHAN FARRIS; DAVE
KRESGE; DOES, 1–10, inclusive,
             Defendants-Appellees.


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

          Argued and Submitted April 12, 2018
                 Pasadena, California

                    Filed June 11, 2018
2              VOS V. CITY OF NEWPORT BEACH

    Before: Carlos T. Bea and Mary H. Murguia, Circuit
      Judges, and Donald W. Molloy, * District Judge.

                   Opinion by Judge Molloy;
                     Dissent by Judge Bea


                          SUMMARY **


                           Civil Rights

    The panel affirmed in part and reversed in part the
district court’s summary judgment and remanded in a
42 U.S.C. § 1983 action alleging that police officers used
excessive deadly force when they fatally shot Gerritt Vos.

    The police responded to a call about a man behaving
erratically and brandishing a pair of scissors at a 7-Eleven.
The shooting happened while the police were deciding how
to handle the situation, and Vos unexpectedly charged the
doorway of the store with what appeared to be a weapon
raised above his head.

    The panel held that the facts were such that a reasonable
jury could conclude that Vos was not an immediate threat to
the officers. The panel noted that the officers had
surrounded the front door to the 7-Eleven, had established
positions behind cover of their police vehicles, and

    *
       The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
             VOS V. CITY OF NEWPORT BEACH                   3

outnumbered Vos eight to one. The panel further noted that
although officers saw that Vos had something in his hand as
he charged them, they did not believe he had a gun, and that
the officers had less-lethal methods available to stop Vos
from charging. The panel noted that it was undisputed that
Vos was mentally unstable and that this created a genuine
issue of fact as to whether the government’s interest in using
deadly force was diminished. The panel nevertheless held
that the defendant officers were entitled to qualified
immunity on the § 1983 claims because existing precedent
did not clearly establish, beyond debate, that the officers’
acted unreasonably under the circumstances.

    The panel held that because a reasonable jury could find
that the officers violated Vos’s Fourth Amendment rights, it
was appropriate to remand plaintiffs’ conspiracy claims and
claims brought pursuant to Monell v. Dep’t of Soc. Serv. of
City of N.Y., 436 U.S. 658 (1978) to the district court to
consider in the first instance.

    The panel held that on the record before it, the
defendants were not entitled to summary adjudication of
plaintiffs’ claims under the American with Disabilities Act
and the Rehabilitation Act, and reversed the district court’s
ruling to the contrary. The panel held that the district court
erred when it found that there was no failure to accommodate
because the officers did not initiate the confrontation. The
panel determined that the officers had the time and
opportunity to assess the situation and potentially employ
accommodations, including de-escalation, communication,
or specialized help. The panel also reversed the district
court’s summary adjudication of plaintiffs’ negligence and
remaining state law claims.
4            VOS V. CITY OF NEWPORT BEACH

    Dissenting, Judge Bea stated that because in his view the
officers reacted reasonably to the threat they faced, he would
affirm the decision of the district court.


                        COUNSEL

Paul L. Hoffman (argued), Schonbrun Seplow Harris &
Hoffman LLP, Los Angeles, California; Milton Grimes, Los
Angeles, California; Jason P. Fowler and R. Rex Parris, R.
Rex Parris Law Firm, Lancaster, California; for Plaintiffs-
Appellants.

Daniel Phillip Barer (argued), Pollak Vida & Barer, Los
Angeles, California; Allen Christiansen and Peter J.
Ferguson, Ferguson Praet & Sherman APC, Santa Ana,
California; for Defendants-Appellees.


                         OPINION

MOLLOY, District Judge:

    On May 29, 2014, officers of the City of Newport Beach
Police Department fatally shot Gerritt Vos (“Vos”). The
police responded to a call about a man behaving erratically
and brandishing a pair of scissors at a 7-Eleven. The
shooting happened while the police were deciding how to
handle the situation, and Vos unexpectedly charged the
doorway of the store with what appeared to be a weapon
raised above his head. Vos’s parents filed this action against
the officers and the City, raising claims under federal and
state law. The district court granted summary judgment in
favor of the defendants, concluding that the officers’ use of
force was objectively reasonable. Vos’s parents appeal that
              VOS V. CITY OF NEWPORT BEACH                    5

decision. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm in part, reverse in part, and remand.

                  FACTUAL BACKGROUND

    The record is viewed in the light most favorable to the
nonmovants, Richard Vos and Jenelle Bernacchi (the
“Parents”), Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(per curiam), so long as their version of the facts is not
blatantly contradicted by the video evidence, Scott v. Harris,
550 U.S. 372, 378–79 (2007). The mere existence of video
footage of the incident does not foreclose a genuine factual
dispute as to the reasonable inferences that can be drawn
from that footage. See id. at 380 (focusing on whether a
party’s version of events “is so utterly discredited by the
record that no reasonable jury could have believed him”).

    At approximately 8:15 p.m. on May 29, 2014, Vos
entered a 7-Eleven convenience store. Vos became agitated;
he ran around the store shouting things like “[k]ill me
already, dog.” Someone called 911. For approximately the
next six minutes, Vos ran around the store cursing at people.
Meanwhile, the video footage shows other customers going
about their business of shopping and checking out at the cash
register. The Newport Beach Police Department dispatch
stated that “the reporting party is advising that the subject is
holding a pair of scissors inside the store and there are still
people inside.” At one point, Vos grabbed and immediately
released a 7-Eleven employee, yelling “I’ve got a hostage!”

    At about 8:25 p.m. Officer David Kresge (“Kresge”)
arrived at the scene. Officer Kresge spoke to some
bystanders who indicated Vos was still in the store and
Officer Kresge signaled to the remaining clerks to exit the
building. The clerks said that Vos had armed himself with
scissors and one employee had been cut on the hand while
6               VOS V. CITY OF NEWPORT BEACH

trying to disarm Vos before authorities arrived, resulting in
a “half-inch laceration.” Officer Kresge saw Vos behind the
7-Eleven’s glass doors yelling, screaming, and pretending to
have a gun. Officer Kresge broadcasted on the police radio
that “the subject is simulating having a hand gun behind his
back and is asking me to shoot him.” Officer Kresge then
saw Vos go into the back room and shut the door. Officer
Kresge asked for backup and specifically asked for a 40-
millimeter less-lethal projectile launcher. 1 As other officers
arrived, Officer Kresge informed them that Vos was agitated
and likely under the influence of narcotics.

    By 8:30 p.m., several more officers arrived, including
Defendants Officer Richard Henry (“Henry”) and Officer
Nathan Farris (“Farris”). Immediately before the fatal
shooting, at least eight officers were present. The police
positioned two police cars outside the store’s front entrance
in a “v” formation and used the vehicles’ doors for cover.
Trainee Officer Andrew Shen (“Shen”) armed himself with
the requested 40 millimeter less-lethal device. The others
readied themselves with lethal weapons: Officers Henry and
Farris armed themselves with AR-15 rifles, 2 while Officer
Kresge held a handgun. The police propped open the 7-
Eleven doors and Officer Shawn Preasmyer (“Preasmyer”)
set up a public address system, getting ready to communicate
with Vos. There was also a canine unit on the scene. The
officers knew that Vos had been simulating having a gun and
that he was agitated, appeared angry, and was potentially
    1
       The Newport Police Department differentiates between “non-
lethal” means (holds and pain compliance techniques) and “less-lethal”
means (baton, 40 millimeter, taser, and aerosol).
    2
      Officer Farris initially grabbed a 40-millimeter less lethal when he
arrived at the scene but went back to his car and switched to an AR-15.
He also directed Officer Shen to move to a better vantage point.
               VOS V. CITY OF NEWPORT BEACH                         7

mentally unstable or under the influence of drugs. They also
heard Vos yell “shoot me” and other similar cries. The
police on site talked about using non-lethal force to subdue
Vos both over the radio and amongst themselves at the
scene.

    At about 8:43 p.m., Vos opened the door of the 7-
Eleven’s back room. As he did so, some officers shouted
“doors opening.” Vos then ran around the front check-out
counter and towards the open doors. As he ran, he held an
object over his head in his hand. The distance between Vos
and the officers at the point he started running was
approximately 30 feet. One officer shouted that Vos had
scissors. Over the public address system, Officer Preasmyer
twice told Vos to “Drop the weapon.” Vos did not drop the
object and instead kept charging towards the officers.
Officer Preasmyer then shouted “shoot him.” Officer
Preasmyer later testified that this order was directed solely
to Officer Shen. Officer Shen fired his less-lethal weaponry
and, within seconds, Officers Henry and Farris fired their
AR-15 rifles. 3 No other officers fired. Vos continued to run
as he was struck by the bullets, collapsing on the sidewalk in
front of the officers. Vos was shot four times and died from
his wounds. About eight seconds elapsed from the time Vos
came out of the back room to when he was killed.

    Somewhere around 20 minutes passed from when
officers arrived until Vos ran at them. During this time, the
officers did not communicate with Vos. Officers Shen and
Farris later testified that they did not hear Officer
Preasmyer’s command to shoot, and Officer Henry testified
that he heard it but did not react to it. Neither Henry nor

    3
      Eight shots were fired, four by each officer. Officer Shen fired
once, resulting in nine shots total.
8                 VOS V. CITY OF NEWPORT BEACH

Farris knew that Officer Shen had fired the less-lethal
weaponry. They also testified that they saw a metallic object
in Vos’s hand, which they believed to be scissors. After the
shooting, a “pronged metal display hook was found on the
ground a few feet from where [Vos] had collapsed.” While
the officers only suspected the possibility of substance
abuse, Vos’s blood later tested positive for both
amphetamine and methamphetamine. Vos’s medical history
later revealed that he had been diagnosed as schizophrenic.

                    PROCEDURAL BACKGROUND

     Vos’s Parents brought this suit as Vos’s lawful heirs and
successors-in-interest against the City of Newport Beach,
Officer Henry, Officer Farris, and Officer Kresge, 4 alleging
twelve causes of action: (1) excessive force in violation of
the Fourth Amendment, 42 U.S.C. § 1983; (2) violation of
Title II of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12131; (3) violation of the Rehabilitation Act,
29 U.S.C. § 701; (4) violation of civil rights due to loss of
familial relationship, 42 U.S.C. § 1983; (5) municipal and
supervisory liability, 42 U.S.C. § 1983; (6) wrongful death
(negligence); (7) wrongful death (negligent hiring, training
and retention); (8) battery; (9) assault; (10) violation of civil
rights, Cal. Civ. Code § 52.1; (11) survivor claims; and
(12) civil conspiracy, 42 U.S.C. § 1983. The district court
granted the defendants’ motion for summary judgment as to
all of the Parents’ claims and judgment was entered in favor
of the defendants. The Parents appeal that judgment. 5


    4
        The parties later stipulated to the dismissal of Officer Kresge.
    5
       The Parents do not challenge the district court’s summary
adjudication of their Fourteenth Amendment claim for deprivation of a
               VOS V. CITY OF NEWPORT BEACH                          9

                            DISCUSSION

    We review de novo a grant of summary judgment,
Blankenthorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.
2007), “and in ‘determining whether summary judgment is
appropriate, view the evidence in the light most favorable to
the non-moving party.’” Lal v. California, 746 F.3d 1112,
1115–16 (9th Cir. 2014) (quoting Garcia v. Cty. of Merced,
639 F.3d 1206, 1208 (9th Cir. 2011)) (alteration omitted).
Summary judgment is appropriate where the record, read in
the light most favorable to the non-movant, indicates “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).

I. Excessive Force

    To determine whether the use of force was objectively
reasonable, the court balances 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, 396 (1989) (quotations
and citations omitted).

    A. Nature of the Intrusion

    The officers used deadly force against Vos. “The
intrusiveness of a seizure by means of deadly force is
unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).
“The use of deadly force implicates the highest level of
Fourth Amendment interests both because the suspect has a
‘fundamental interest in his own life’ and because such force

familial relationship. We therefore do not address it. Dennis v. BEH-1,
LLC, 520 F.3d 1066, 1069 n.1 (9th Cir. 2008). The district court also
made a number of evidentiary rulings that are not at issue on appeal.
10           VOS V. CITY OF NEWPORT BEACH

‘frustrates the interest of the individual, and of society, in
judicial determination of guilt and punishment.’” A.K.H. ex
rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir.
2016) (quoting Garner, 471 U.S. at 9). Because no one
disputes that the officers used the highest level of force
against Vos, the issue is determining whether the
governmental interests at stake were sufficient to justify it.

     B. Governmental Interests

    The strength of the government’s interest is measured by
examining three primary factors: (1) “the severity of the
crime at issue,” (2) “whether the suspect poses an immediate
threat to the safety of the officers or others,” and
(3) “whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.”             Id.   “The
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396. As explained below, on these facts, a
reasonable jury could conclude that the government’s
interests were insufficient to justify the use of deadly force
under these circumstances.

    First, the officers were not responding to the report of a
crime. See Glenn v. Wash. Cty., 673 F.3d 864, 874 (9th Cir.
2011) (identifying that the “character of the offense” is “an
important consideration” especially when no crime has been
identified). Rather, law enforcement was contacted because
of Vos’s erratic behavior. In fact, the officers discussed at
                VOS V. CITY OF NEWPORT BEACH                            11

the scene what crime may have been committed, speculating
“false imprisonment” and stating “let’s get a good crime.” 6

     Second, once the officers were at the scene, there was
little opportunity for Vos to flee. While closing himself in
the back room could be perceived as an attempt to evade
arrest, officers never initially spoke to Vos or gave him any
commands as to make his behavior noncompliant. See
Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010)
(noting that while “passive resistance” can support the use
of force, “the level of force an individual’s resistance will
support is dependent on the factual circumstances
underlying that resistance”).

    The most important factor, however, is whether Vos
posed an immediate threat to the safety of officers or others.
See Longoria v. Pinal Cty., 873 F.3d 699, 705 (9th Cir. 2017)
(explaining that the second factor, whether the suspect poses
an immediate threat to the safety of the officers or others, is
the most important). In considering “whether there was an
immediate threat, a simple statement by an officer that he
fears for his safety or the safety of others is not enough; there

    6
       The dissent suggests that, under California law, Vos “likely could
have been charged with” assault with a deadly weapon, false
imprisonment, criminal threats, and disturbing the peace. Yet, the police
initially were called in response to Vos’s erratic behavior. When Officer
Kresege arrived, he learned that one store clerk had been cut while trying
to disarm Vos before authorities arrived, and he watched as Vos yelled,
simulated having a handgun, and shut himself in the back room. Taking
the facts in the light most favorable to the Parents, which we are required
to do at this stage, see Mattos v. Agarano, 661 F.3d 433, 449 (9th Cir.
2011), it is not clear that the “crime at issue” in this case was one of the
severe crimes the dissent identifies. Accordingly, this factor does not
weigh in favor of finding that the officers’ use of deadly force was
reasonable, especially in light of the other facts and circumstances in this
case.
12             VOS V. CITY OF NEWPORT BEACH

must be objective factors to justify such a concern.” Mattos
v. Agarano, 661 F.3d 433, 441–42 (9th Cir. 2011) (en banc)
(internal quotation marks and citation omitted).

    Here, the facts are such that a reasonable jury could
conclude that Vos was not an immediate threat to the
officers. The officers had surrounded the front door to the
7-Eleven, had established positions behind cover of their
police vehicles, and outnumbered Vos eight to one. The
officers saw that Vos had something in his hand as he
charged them, but they did not believe he had a gun, and the
officers had less-lethal methods available to stop Vos from
charging. Even though only eight seconds passed between
when Vos emerged from the back room and when he was
shot, construing the facts as they are presented by the Parents
and depicted in the video footage, a reasonable jury could
conclude that Vos did not pose an immediate threat such that
the use of deadly force was warranted. 7

    The defendants argue that Vos “forced the
confrontation” by charging the officers, and the immediacy
of the threat is comparable to that in Lal v. California. In
Lal, officers responded to a domestic violence call followed
by a 45-minute high-speed car chase. 746 F.3d at 1113–14.
     7
       The dissent contends that our analysis ignores the fact that the
officers had mere seconds to decide whether to deploy deadly force.
That is not the case. Rather, the mere seconds that elapsed between when
Vos emerged from the back room is one factor in the analysis. While the
“calculus of reasonableness must embody the allowance for the fact that
police officers are often forced to make split-second judgments,” the
analysis requires the court to look at all the facts and circumstances
surrounding the interaction, which also includes that the officers had
non-lethal means of stopping Vos, outnumbered Vos eight to one, did
not believe that Vos had a gun, and had established positions of cover
behind their vehicles, which also prevented Vos from easily escaping.
See, e.g., Graham, 490 U.S. at 396–97.
             VOS V. CITY OF NEWPORT BEACH                   13

During the pursuit, officers learned that Lal wanted them to
shoot him and he wanted to kill himself. Id. at 1114. After
Lal’s vehicle was disabled, he got out and officers told him
to put his hands in the air. Id. Lal briefly complied before
putting his hands in his pockets and saying “just shoot me,
just shoot me.” Id. Lal then reached down, grabbed rock,
and smashed it repeatedly into his own forehead. Id. He
also attempted to pull a metal stake out of the ground to
impale himself. Id. Lal then approached the officers while
carrying a rock in his hand and pretended his cell phone was
a gun, and he threw several soft-ball sized rocks at the
officers, and one struck a spotlight on a patrol car. Id. The
officers asked for “less than lethal assistance” and were told
a canine unit was on the way. Id. Lal picked up a large,
football-sized rock and continued to advance on officers
despite their commands. Id. The officers fired on Lal when
he was a few feet away, killing him. Id. at 1115. We held
that the officers reasonably believed that Lal would heave
the rock at them, emphasizing that Lal “forced the issue by
advancing on the officers,” and “[t]he fact that Lal was intent
on ‘suicide by cop’ did not mean that the officers had to
endanger their own lives by allowing Lal to continue in his
dangerous course of conduct.” Id. at 1117–18 (finding “no
suggestion that the officers intentionally provoked Lal.
Rather, the totality of the circumstances shows that they
were patient. . . . Instead, it was Lal who forced the
confrontation”).

    Yet, important facts distinguish this case from Lal. First,
and perhaps most significantly, while the officers in Lal
requested less-lethal means, they had not yet arrived when
Lal advanced on them. 746 F.3d at 1114. Here, by the time
Vos advanced, eight officers had arrived on the scene,
Officer Shen was armed with the 40-millimeter less lethal
firearm, there was a canine unit present, and other officers
14           VOS V. CITY OF NEWPORT BEACH

had tasers. The officers also had the door surrounded and
had established defensive cover using police vehicles. See
Blanford v. Sacramento Cty., 406 F.3d 1110, 1118 (9th Cir.
2005) (specifically noting that a suspect “was not
surrounded” in determining use of deadly force reasonable
under circumstances); Longoria, 873 F.3d at 705 (focusing
on the fact the suspect was surrounded in finding a genuine
question as to whether officers used excessive force).

    Second, while we concluded that using an alternative
force on Lal (pepper spray) would not have prevented him
from hurling the rock, Lal, 746 F.3d at 1119, it is not clear
that the use of any of the above less-lethal means on Vos
would have been ineffective. Vos was within 20 feet of the
officers when he was shot, a distance within the range of the
40-millimeter less-lethal weapon, a taser, or a canine.
Although officers are not required to use the least intrusive
degree of force available, Scott v. Henrich, 39 F.3d 912, 915
(9th Cir. 1994), “the availability of alternative methods of
capturing or subduing a suspect may be a factor to consider,”
Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005)
(citation omitted).

    Third, Lal already had led officers on a 45-minute high-
speed car chase when he was shot, which had endangered the
lives of other drivers and the officers pursuing him, and
therefore demonstrated that he was a serious danger to
himself and others. Lal, 746 F.3d at 1114, 1117. Here, one
clerk was cut on the palm of his hand by Vos’s scissors while
attempting to disarm Vos before the police arrived, but Vos
had not otherwise endangered himself or the 7-Eleven
patrons.

    Finally, while Lal was on the side of the freeway and
could have escaped and risked harm to other individuals,
Lal, 746 F.3d at 1117, Vos was alone in the 7-Eleven and at
                VOS V. CITY OF NEWPORT BEACH                            15

least eight officers and their vehicles served as a barricade
between Vos and the public.

    While we concluded that the officers in Lal reasonably
employed deadly force, Lal does not compel the same
conclusion here where officers had non-lethal means ready
and available, Vos had not previously harmed or endangered
the lives of others, apart from his confrontation with the store
clerk, and eight officers surrounded Vos with their vehicles.
The facts and circumstances confronting the officers here are
such that whether Vos posed an immediate threat is a
disputed question of fact, and one the jury could find in the
Parents’ favor. 8

    Additionally, the Graham factors are not exclusive.
Other relevant factors include the availability of less
intrusive force, whether proper warnings were given, and
whether it should have been apparent to the officers that the
subject of the force used was mentally disturbed. See Bryan,
630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282–
83 (9th Cir. 2001).

    Here, it is undisputed that the officers had less intrusive
force options available to them. See Bryan, 630 F.3d at 831.
Whether the officers warned Vos that they would use deadly
force is more complicated. On one hand, “[e]everything
happened within eight seconds,” giving officers little to no
time to warn Vos that they would use deadly force. On the

    8
      The Parents also raise a factual dispute as to whether Officers Shen,
Henry, and Farris heard the command to shoot. But the order to shoot is
not material to whether the use of lethal force was objectively
reasonable. See Graham, 490 U.S. at 397 (“[T]he question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying
intent or motivation.”).
16               VOS V. CITY OF NEWPORT BEACH

other hand, the officers had upwards of 15 minutes to create
a perimeter, assemble less-lethal means, coordinate a plan
for their use of force, establish cover, and, arguably, try to
communicate with Vos. While a Fourth Amendment
violation cannot be established “based merely on bad tactics
that result in a deadly confrontation that could have been
avoided,” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.
2002); see also City & Cty. of S.F. v. Sheehan (Sheehan II),
135 S. Ct. 1765, 1777 (2015), the events leading up to the
shooting, including the officers tactics, are encompassed in
the facts and circumstances for the reasonableness analysis,
see Hung Lam v. City of San Jose, 869 F.3d 1077, 1087 (9th
Cir. 2017); see also Bryan, 630 F.3d at 831.

    Finally, it is undisputed that Vos was mentally unstable,
acting out, and at times invited officers to use deadly force
on him. These indications of mental illness create a genuine
issue of material fact about whether the government’s
interest in using deadly force was diminished. See Longoria,
873 F.3d at 708. Indeed, other than Henry and Farris, six
“[o]ther officers appear to have been aware of this and
prepared to respond accordingly by employing only non-
lethal weapons.” Id. 9


     9
       The dissent asserts that our opinion creates a “per se rule that in all
circumstances the governmental interest in deadly force is diminished
where the suspect is mentally ill.” That is not our intent. Rather, whether
the suspect has exhibited signs of mental illness is one of the factors the
court will consider in assessing the reasonableness of the force used, in
addition to the Graham factors, the availability of less intrusive force,
and whether proper warnings were given. Although this Court has
“refused to create two tracks of excessive force analysis, one for the
mentally ill and one for serious criminals,” our precedent establishes that
if officers believe a suspect is mentally ill, they “should . . . ma[k]e a
greater effort to take control of the situation through less intrusive
                VOS V. CITY OF NEWPORT BEACH                           17

    Balancing all of these considerations, a reasonable jury
could find that “the force employed was greater than is
reasonable under the circumstances.” Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th
Cir. 2003) (internal quotation marks and citation omitted).
Summary adjudication of the Parents’ Fourth Amendment
claim on these grounds was therefore inappropriate.

II. Qualified Immunity

    Despite factual issues which preclude summary
judgment on the issue of whether the officer’s violated Vos’s
Fourth Amendment rights, that is not the end of the inquiry.
The individual officers are protected “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “In determining
whether an officer is entitled to qualified immunity, we
consider (1) whether there has been a violation of a
constitutional right; and (2) whether that right was clearly
established at the time of the officer’s alleged misconduct.”
Lal, 746 F.3d at 1116. Because the district court concluded
that no constitutional violation occurred, it did not reach the
question of whether the law was clearly established. 10 On

means.” Bryan, 630 F.3d at 829. Here, the fact that Vos was acting out
and had invited the officers to use deadly force on him is sufficient under
our precedent for a reasonable jury to conclude that the government’s
interest in using deadly force on Vos was diminished, see Longoria,
873 F.3d at 708, especially in light of the other facts and circumstances
in this case.
    10
       The defendants argue that the Parents waived any argument as to
qualified immunity because they did not address it in their opening brief.
18             VOS V. CITY OF NEWPORT BEACH

this record, we conclude that the individual officers are
entitled to qualified immunity as a matter of law. Kisela v.
Hughes, ___ U.S. ___, 138 S. Ct. 1148 (2018).

    “A clearly established right is one that is ‘sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.’” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012)). In determining whether the
law has been clearly established, there does not need to be
“a case directly on point, but existing precedent must have
placed the . . . constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 740 (2011). The Supreme
Court has repeatedly admonished courts “not to define
clearly established law at a high level of generality.”
Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at
742). The dispositive question is therefore “whether the
violative nature of particular conduct is clearly established”
in the specific context of the case. Id. (internal quotation
marks and citation omitted). “It is the plaintiff who bears the
burden of showing that the rights allegedly violated were
clearly established.” Shafer v. Cty. of Santa Barbara,
868 F.3d 1110, 1118 (9th Cir. 2017) (internal quotation
marks and citation omitted).

    Here, officers confronted a reportedly erratic individual
that took refuge in a 7-Eleven, cut someone with scissors,
asked officers to shoot him, simulated having a firearm, and
ultimately charged at officers with something in his upraised


But because the district court did not address qualified immunity, the
Parents’ omission does not amount to waiver. See Rodriguez v. Hayes,
591 F.3d 1105, 1118 n.6 (9th Cir. 2010); see also Koerner v. Grigas,
328 F.3d 1039, 1049 (9th Cir. 2003) (recognizing an exception to waiver
when the issue is raised in the appellee’s brief).
             VOS V. CITY OF NEWPORT BEACH                   19

hand. The relevant inquiry is whether existing precedent
placed the conclusion that officers acted unreasonably in
these circumstances “beyond debate.” Mullenix, 136 S. Ct.
at 309. It did not. See Kisela, 138 S. Ct. at 1553–54 (recently
holding that the law was not clearly established where
officers shot a mentally ill woman holding a kitchen knife by
her side standing in close proximity to her roommate).
Because Vos acted aggressively, the law was not established
by either Deorle or Bryan. See S.B. v. Cty. of San Diego,
864 F.3d 1010, 1016 n.5 (9th Cir. 2017) (refusing to extend
law established in Deorle and the like to situations involving
an aggressive or threatening suspect). Rather, as discussed
above, the most analogous case is likely Lal, which was
decided two months before the events that took place here.
746 F.3d 1112; see also Blanford, 406 F.3d at 1119 (holding
that deputies were entitled to qualified immunity for
shooting a suspect wandering around a neighborhood with a
raised sword, growling, and ignoring commands to drop the
weapon); S.B., 864 F.3d at 1015–17 (holding law not clearly
established where officers used deadly force on a mentally
ill individual with knives in his pockets when he drew one);
Woodward v. City of Tucson, 870 F.3d 1154 (9th Cir. 2017)
(holding the law not clearly established in May 2014 where
officers used deadly force on a suspect who attacked them in
his apartment while growling and brandishing a broken
hockey stick). And even if officers were mistaken, that
mistake was reasonable given the decision in Lal. Mullenix,
136 S. Ct. at 311 (noting that even though the “wisdom” of
the officer’s choice not to use less intrusive means may be
questionable, Supreme Court “precedents do not place the
conclusion that he acted unreasonably in these
circumstances beyond debate”) (internal quotation marks
and citation omitted).
20                   VOS V. CITY OF NEWPORT BEACH

    Accordingly, the defendant officers are entitled to
qualified immunity on the § 1983 claims and the district
court’s grant of summary judgment as to the individual
officers is affirmed on that ground. Fresno Motors, LLC v.
Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir.
2014) (“We may affirm on any ground supported by the
record, regardless of whether the district court relied upon,
rejected, or even considered that ground.”) (internal
quotation marks and citation omitted).

III.          Monell 11 and Civil Conspiracy

     When the district court found no constitutional violation,
it also granted summary judgment in favor of the City of
Newport Beach as to the Parents’ Monell and civil
conspiracy claims. Because a reasonable jury could find that
the officers violated Vos’s Fourth Amendment rights, these
claims are remanded to the district court to consider in the
first instance.

IV.           ADA and Rehabilitation Act

    We, like the district court, analyze the Parents’ ADA and
Rehabilitation Act claims together because the statutes
provide identical “remedies, procedures and rights.” Hainze
v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). Title VII of
the ADA prohibits a public entity from discriminating
against any “qualified individual with a disability.” Sheehan
v. City & Cty. of S.F., 743 F.3d 1211, 1231 (9th Cir.), cert.
granted sub nom., City & Cty. of S.F., Cal. v. Sheehan,
135 S. Ct. 702 (2014), and rev’d in part, cert. dismissed in
part sub nom., Sheehan II, 135 S. Ct. at 1778 (hereinafter
Sheehan I). Title VII applies to arrests. Id. at 1232.

       11
            Monell v. Dep’t of Soc. Serv. of City of N.Y., 436 U.S. 658 (1978).
             VOS V. CITY OF NEWPORT BEACH                   21

Although the Supreme Court granted certiorari as to whether
Title II requires “any accommodation of an armed and
violent individual,” it later dismissed that issue as
improvidently granted. Sheehan II, 135 S. Ct. at 1772, 1774.
Sheehan I therefore controls:

       To state a claim under Title II of the ADA, a
       plaintiff generally must show: (1) []he is an
       individual with a disability; (2) []he is
       otherwise qualified to participate in or
       receive the benefit of a public entity’s
       services, programs or activities; (3) []he was
       either excluded from participation in or
       denied the benefits of the public entity’s
       services, programs or activities or was
       otherwise discriminated against by the public
       entity; and (4) such exclusion, denial of
       benefits or discrimination was by reason of
       h[is] disability.

743 F.3d at 1232.

    In Sheehan I, officers responded to a call at a group home
to perform a welfare check on a mentally ill woman after she
threatened a social worker with a knife when he entered her
room. Id. at 1217. When officers entered her room, she
grabbed a knife and began to aggressively approach them,
yelling at them to get out. Id. at 1218–19. The officers
retreated, closed the door, and called for backup. Id. at 1219.
But, instead of waiting, the officers forcibly reentered the
room, pepper sprayed the woman and, when she continued
to advance, shot her five or six times. Id. at 1219–20. We
held that a reasonable jury could find that “the situation had
been defused sufficiently, following the initial retreat from
[the] room, to afford the officers an opportunity to wait for
22           VOS V. CITY OF NEWPORT BEACH

backup and to employ less confrontational tactics.” Id. at
1233.

    Here, the district court found no provocation (i.e., that
officers did not initiate the confrontation) and so found no
failure to accommodate, distinguishing this case from
Sheehan I. The Parents argue that in doing so, the district
court improperly read a provocation requirement into
accommodation. They are correct. While Sheehan I
addresses provocation in the context of a plaintiff’s
excessive force claim, see 743 F.3d at 1230, the
reasonableness of accommodation under the circumstances
is an entirely separate fact question, see id. at 1233 (citing
EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110
(9th Cir. 2010)). Similar to the situation in Sheehan I, the
officers here had the time and the opportunity to assess the
situation and potentially employ the accommodations
identified by the Parents, including de-escalation,
communication, or specialized help. While the defendants
rely on the officers’ pre-shooting conduct to argue they
accommodated Vos to the extent required by the law, those
facts arguably show further accommodation was possible.

    Moreover, the district court’s decision was based in part
on its earlier determination that the officers’ actions were
objectively reasonable. The same fact questions that prevent
a reasonableness determination inform an accommodation
analysis. They also undercut the defendants’ argument that
because Vos posed an immediate threat he was not entitled
to accommodation. 28 C.F.R. § 35.139(a). Finally, the
defendants insist that Title II of the ADA and the
Rehabilitation Act do not apply because Vos’s behavior
stemmed from his illegal drug use, not a mental illness.
28 C.F.R. § 35.131(a). Because the district court concluded
there was no failure to accommodate, it did not address the
             VOS V. CITY OF NEWPORT BEACH                   23

applicability of the ADA based on these grounds.           We
decline to address this question in the first instance.

    On this record, the defendants are not entitled to
summary adjudication of the Parents’ ADA and
Rehabilitation Act claims and the district court’s ruling to
the contrary is reversed.

V. State Law Claims

   A. Negligence

    The Parents bring their negligence claims under state
law. The California Supreme Court articulated the relevant
standard for these claims in Hayes v. County of San Diego
(Hayes I), 305 P.3d 252 (Cal. 2013). In California, police
officers “have a duty to act reasonably when using deadly
force.” Id. at 256. To determine police liability, a court
applies tort law’s “reasonable care” standard, which is
distinct from the Fourth Amendment’s “reasonableness”
standard. Id. at 262. The Fourth Amendment is narrower
and “plac[es] less emphasis on preshooting conduct.” Id.
Because the district court erred in holding that use of deadly
force was objectively reasonable under the Fourth
Amendment, we reverse its summary adjudication of the
Parents’ negligence claim. See C.V. ex rel. Villegas v. City
of Anaheim, 823 F.3d 1252, 1257 n.6 (9th Cir. 2016) (noting
that “state negligence law . . . is broader than federal Fourth
Amendment law”) (quoting Hayes I, 305 P.3d at 263).

   B. Remaining State Law Claims

    Similarly, because the district court found that the
officers used reasonable force, it granted summary judgment
in favor of the defendants on the Parents’ claims under state
law causes of action for assault, battery, and California Civil
24             VOS V. CITY OF NEWPORT BEACH

Code § 52.1. It also granted summary judgment for the
defendants on the Parents’ survivor claims, stating it does
not provide independent methods of recovery. Because the
district court erred in holding that use of deadly force was
objectively reasonable, we reverse its grant of summary
judgment as to the remaining state law claims. Villegas,
823 F.3d at 1257 (“[T]he doctrine of qualified immunity
does not shield defendants from state law claims.” (citing
Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,
1171 Cir. 2013)).

                          CONCLUSION

    We affirm in part the district court’s summary
adjudication of the Parents’ Fourth Amendment excessive
force claim insofar as the individual officers are entitled to
qualified immunity. We reverse the district court’s decision
in all other respects. 12 The case is remanded for the district
court’s consideration of those claims.

  AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.



BEA, Circuit Judge, dissenting in part:

    “Detached reflection cannot be demanded in the
presence of an uplifted knife. Therefore in this Court, at
least, it is not a condition of immunity that one in that
situation should pause to consider whether a reasonable man
might not think it possible to fly with safety or to disable his
     12
      Neither the Parents’ Fourteenth Amendment familial relationship
claim nor the district court’s evidentiary rulings were challenged on
appeal. Therefore, our decision does not impact those rulings.
                VOS V. CITY OF NEWPORT BEACH                           25

assailant rather than to kill him.” Brown v. United States,
256 U.S. 335, 343 (1921) (Holmes, J.) (reversing a
defendant’s conviction for second degree murder and
finding no obligation for defendant to retreat rather than use
deadly force when presented with the immediate mortal
threat of an uplifted knife) (emphasis added).

    Before Vos charged at Newport Beach police officers,
the officers had been informed by a store employee that Vos
had wielded scissors to stab a store employee, and saw that
Vos had refused to drop his weapon when ordered by
bullhorn to do so. Instead of dropping the weapon as police
ordered, Vos raised the metal weapon above his head, and
from approximately forty feet away charged full speed at the
officers. An officer bullhorned an order “shoot him.” Two of
the officers shot him. Because deadly force in such a
circumstance is reasonable, I respectfully dissent in part. 1

    There is no dispute as to what occurred, as much of it is
captured on 7-Eleven’s video cameras. At approximately
8:15 PM on May 29, 2014, Vos entered a 7-Eleven
convenience store in Newport Beach, California. Vos was
agitated, and ran around the store shouting “[k]ill me
already” and other provocations. Someone in the store called
911. At one point Vos grabbed and then released a 7-Eleven
employee and shouted “I’ve got a hostage.” The Newport
Beach Police Department radio stated that “the reporting
party is advising that the subject is holding a pair of scissors
inside the store and there are still people inside.” At
8:20 PM, Officer Kresge arrived at the scene. He testified at
his deposition that when he arrived outside the 7-Eleven Vos
was “yelling and screaming.” Kresge made eye contact with

     1
       I concur with the majority that the individual officers are entitled
to qualified immunity.
26                 VOS V. CITY OF NEWPORT BEACH

the clerks and signaled them to get out of the store. One of
the clerks told Kresge that Vos had “armed himself with
scissors and that one of them had been stabbed in the hand.”
Kresge saw that Vos had wrapped a garment around his right
hand and had begun to pantomime with his hand as if he
were holding a gun. Kresge did not enter the store or engage
Vos; instead, he waited for backup. 2 Several other officers
arrived, including Defendant-Officers Richard Henry and
Nathan Farris, and Officer Andrew Shen.

    The Officers positioned their vehicles outside the store’s
front entrance and took positions behind the doors of their
cars. Officers Henry and Ferris, each positioned behind a car
door, armed themselves with AR-15 rifles. Officer Kresge
pulled out a handgun. Officer Shen was armed with a non-
lethal projectile launcher. The officers propped open the
door to the 7-Eleven. Another policeman, Officer
Preasmyer, set up a public address system (the bullhorn) and
prepared to communicate with Vos. The officers had fully
surrounded the entrance to the 7-Eleven.

    What followed was captured on video by the police dash-
cams and the 7-Eleven surveillance cameras 3: At
approximately 8:43 PM – 23 minutes after Kresge first
arrived at the scene – Vos opened the door to the 7-Eleven’s
back room. The officers shouted “doors opening.” After
going towards the back door, Vos turned around and ran
around the counter and towards the front of the store. As Vos

     2
         Plaintiffs do not contradict Officer Kresge’s testimony.

     3
      The video of the shooting from multiple angles is in the appellate
Record and may be seen here: http://cdn.ca9.uscourts.gov/datastore/opi
nions/media/16-56791-Exhibit-12-Shooting.mp4. An appellate court
may view such video evidence to determine the propriety of summary
judgment. Scott v. Harris, 550 U.S. 372, 377–81 (2007).
                VOS V. CITY OF NEWPORT BEACH                          27

ran, he held a metal object above his head in his left hand.
One officer shouted “he’s got scissors.” Over the public
address system, Officer Preasmyer instructed “Drop the
weapon!” Vos did not drop the object, but instead ran full
steam toward the officers. Officer Preasmyer said “Shoot
him.” Officers Henry and Farris fired their AR-15 rifles,
while Shen fired his non-lethal weaponry. Vos was shot and
collapsed on the sidewalk and parking lot in front of the
officers. He died from his wounds. According to an expert
report submitted by Defendants, based on his rate of speed
Vos would have traveled the 41.1 feet from the back of the
store to the police officers’ positions in 3.4 seconds. 4 Indeed,
the video shows that the officers had approximately two
seconds to decide to shoot Vos after having warned him to
drop his weapon.

    While the majority opinion recites the factors in Graham
v. Connor, 490 U.S. 386, 396 (1989), it misapplies them. As
the majority notes, Graham instructs us to consider three
primary factors when evaluating the reasonableness of a
police officer’s use of force: (1) “the severity of the crime at

    4
       The 41.1 feet, and the rate of speed at which Vos was traveling,
was calculated by Defendant’s expert Craig Fries, who analyzed the
audio and video evidence and incorporated measurements of the scene.
He used the following distances: 27.5 feet from the back of the store to
the 7-Eleven’s door threshold, 9.1 feet from the door threshold to the
white parking block adjacent to the closest police car, and 4.5 feet from
the front wheel edge of the closest police car to the location of officers
Shen and Farris. He calculated Vos’s speed in part by analyzing the
frame rate of one of the 7-Eleven surveillance cameras. Plaintiffs did not
object to nor did they dispute Fries’ evidence as to distances, speed and
time of Vos’s charge to the police. Plaintiffs presented no evidence
contrary to Fries. Plaintiffs argued that the video evidence should not
have been admitted, and therefore disputed portions of the Fries expert
report as lacking foundation. However, the district court ruled that the
video evidence was admissible, a ruling Plaintiffs have not appealed.
28              VOS V. CITY OF NEWPORT BEACH

issue,” (2) “whether the suspect poses an immediate threat
to the safety of the officers or others,” and (3) “whether [the
suspect] is actively resisting arrest or attempting to evade
arrest by flight.” Id. In addition, but not noted by the
majority, is Graham’s instruction that “[t]he 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.

    The majority’s first error is its statement that “the
officers were not responding to the report of a crime.” Slip
Op. *10. This is clearly incorrect. The Officers responded to
a report of Vos running around a 7-Eleven wielding scissors
while screaming and harassing the customers and
employees. It was apparent not long after Officer Kresge
arrived that Vos had injured at least one person. Vos
pantomimed to Kresge that he had a gun. At one point Vos
grabbed a 7-Eleven employee and called him a hostage.
At the least, under California law Vos likely could have
been charged with assault with a deadly weapon, 5




     5
       See California Penal Code (CPC) § 245 (punishing a person “who
commits an assault upon the person of another with a deadly weapon or
instrument other than a firearm. . .). See also Slip Op. at *5 (“The clerks
said that Vos had armed himself with scissors and one employee had
been cut on the hand. . .”).
                VOS V. CITY OF NEWPORT BEACH                            29

false imprisonment, 6 criminal threats, 7 and disturbing the
peace. 8, 9



    6
      “The three elements of felony false imprisonment in California are:
(1) a person intentionally and unlawfully restrained, confined, or
detained another person, compelling him to stay or go somewhere;
(2) that other person did not consent; and (3) the restraint, confinement,
or detention was accomplished by violence or menace.” Turijan v.
Holder, 744 F.3d 617, 621 (9th Cir. 2014). See also Slip Op. at *5 (“At
one point, Vos grabbed and immediately released a 7-Eleven employee,
yelling “I’ve got a hostage.”)

    7
     See CPC § 422 (punishing any person who “willfully threatens to
commit a crime which will result in death or great bodily injury to
another person.”)

     8
       See CPC § 415 (punishing any person who “unlawfully fights in a
public place or challenges another person in a public place to fight” and
who “uses offensive words in a public place which are inherently likely
to provoke an immediate violent reaction.”). See also Slip Op. at *5
(“Vos became agitated; he ran around the store shouting things like
“[k]ill me already, dog,’. . . Vos ran around the store cursing at people.”)
    9
      The majority states that “the police initially were called in response
to Vos’s erratic behavior. When Officer Kresge arrived, he learned that
one store clerk had been cut while trying to disarm Vos before authorities
arrived, and he watched as Vos yelled, simulated having a handgun, and
shut himself in the back room. Taking the facts in the light most
favorable to the Parents, which we are required to do at this stage, see
Mattos v. Agarano, 661 F.3d 433, 449 (9th Cir. 2011), it is not clear that
the “crime at issue” in this case was one of the severe crimes the dissent
identifies.” Slip. Op. at *11. The majority’s statement is perplexing. As
the majority recognizes, it is undisputed that Vos used a weapon to injure
a store employee, grabbed a 7-Eleven employee and declared that he had
a hostage, and pretended to have a gun. There is no “inference” in the
Parents’ favor which can change these undisputed facts. As a result, prior
to Vos’s charge at the officers, he could have been charged with a
number of severe crimes, including assault with a deadly weapon,
30              VOS V. CITY OF NEWPORT BEACH

    But more important is the majority’s error in its analysis
of the “most important [Graham] factor,” Gonzalez v. City
of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014), the
immediacy of the threat posed by the decedent to the
officers. The majority says that “[c]onstruing the facts as
they are presented by the Parents and depicted in the video
footage, a reasonable jury could conclude that Vos did not
pose an immediate threat such that the use of deadly force
was warranted.” Slip Op. at *12. Again, I respectfully
disagree.

    What the majority ignores is the following undisputed
fact: the police were presented with a mere two seconds in
which to decide to deploy deadly force. Vos had secreted
himself into a back room. The officers had just set up a
means of communication when Vos suddenly reappeared
and charged. In the mere seconds which passed, the officers
warned Vos, and ordered him to drop his weapon. Instead,
he ran at them at full speed with a weapon “uplifted.” Brown,
256 U.S. at 343. As we see on the video, he charged full
speed, directly at the officers. There is no factual dispute.

    Yes, the officers had a “tactical advantage” as the
majority describes. In a fight between Vos and the eight
officers, the officers would undoubtedly have come out on
top. But at what cost? It is reasonable for an officer, with
only seconds to react, to conclude that the person wielding
what looks like a knife and charging at him and his fellows
would do serious harm to at least one of them. 10 It is all the


making Vos a “dangerous armed felon threatening immediate violence.”
Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001).
     10
        Again, the reader can see for him or herself by viewing the video
of the shooting. See fn 3 ante.
               VOS V. CITY OF NEWPORT BEACH                          31

more reasonable when those officers know that the person
wielding the weapon has already stabbed somebody with it
and heard a police officer yell “Shoot him!” To hold
otherwise is to ignore the Supreme Court’s instruction to
remember that “[t]he 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.”
Graham, 490 U.S. at 396.

    To find that the officers’ response to the threat they faced
was reasonable is not only logical, but is also compelled by
our precedent. While the majority attempts to distinguish Lal
v. California, 746 F.3d 1112 (2014), its arguments are
unpersuasive. As the majority notes, Lal involved the police
response to a disturbed individual who wished to commit
“suicide by cop.” Lal, 746 F.3d at 1117. 11 Lal had engaged
police in a forty-five minute chase until finally pulling to the
side of the road. Lal picked up a few rocks and threw them
at the officers’ car. Lal then picked up a “football sized
rock,” held it above his head, and advanced on the officers
slowly. The officers instructed him to put the rock down. He
did not, and he continued his advance. The officers shot him.
A panel of our court ruled that the officers’ actions were
reasonable, and affirmed a grant of summary judgment in
defendants’ favor.

    Lal is a closer case than this one. In Lal, the officers
likely could have retreated to a position far enough away that
Lal would have been unable to reach them with the rock. Lal

    11
       A desire here expressed by Vos. See Slip Op. at *5 (“Vos became
agitated; he ran around the store shouting things like ‘Kill me already,
dog.’”)
32            VOS V. CITY OF NEWPORT BEACH

advanced on the officers slowly, and there is no indication
that he had any other means of harming the officers than the
large rock he held above his head. The slow advance meant
that the officers likely had more than two seconds in which
to decide on the best course of action as Lal approached.
Nevertheless, we made clear that “even assuming that it
might have been possible for the officers to have given Lal a
wider berth…there is no requirement that such an alternative
be explored.” Lal, 746 F.3d at 1118. See also Billington v.
Smith, 292 F.3d 1177, 1188 (9th Cir. 2002) (“[P]olice
officers need not avail themselves of the least intrusive
means of responding and need only act within that range of
conduct we identify as reasonable.”) (citing Scott v. Henrich,
39 F.3d 912 (9th Cir. 1994)) (internal quotations omitted).

    So too here. It is possible that other means could have
brought down Vos without this tragic loss of life. But a
reasonable officer could have believed that the alternate
means would not have done the job without the risk that Vos
stab one of them. The officers had two seconds to make these
calculations before deciding to deploy force to stop the
charging man.

    Neither should this case turn on Vos’s mental illness.
While we may consider whether a person is emotionally
disturbed in determining what level of force is reasonable,
we have never ruled that police are obligated to put
themselves in danger so long as the person threatening them
is mentally ill. Such a conclusion would be illogical –
especially given the admonition in Bryan v. MacPherson,
630 F.3d 805, 829 (9th Cir. 2010), quoted by the majority,
that we will not “create two tracks of excessive force
analysis, one for the mentally ill and one for serious
criminals.”

     But that is exactly what the majority does here.
             VOS V. CITY OF NEWPORT BEACH                   33

    In Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th
Cir. 2001), we made a common-sense observation that a
person who is emotionally disturbed may respond differently
to police intervention than a person who is not emotionally
disturbed. We noted that “[t]he problems posed by, and thus
the tactics to be employed against, an unarmed, emotionally
distraught individual who is creating a disturbance or
resisting arrest are ordinarily different from those involved
in law enforcement efforts to subdue an armed and
dangerous criminal who has recently committed a serious
offense.” Rutherford, 272 F.3d at 1282-83. We noted that in
some cases, confronting a mentally ill individual with force
“may…exacerbate the situation,” and that “where feasible”
officers who are trained to deal with mentally unbalanced
persons should be deployed. Id at 1283. Bearing that in
mind, the Rutherford court stated that “[e]ven when an
emotionally disturbed individual is acting out and inviting
officers to use deadly force to subdue him, the governmental
interest in using such force is diminished by the fact that the
officers are confronted, not with a person who has
committed a serious crime against others, but with a
mentally ill individual.” Id. Here, Vos had already
committed a “serious crime against others”: he had stabbed
a 7-Eleven employee. See CPC § 245 (prohibiting assault
with a deadly weapon). In the next sentence, the Rutherford
panel made clear that “[w]e do not adopt a per se rule
establishing two different classifications of suspects:
mentally disabled persons and serious criminals. Instead, we
emphasize that where it is or should be apparent to the
officers that the individual involved is emotionally
disturbed, that is a factor that must be considered in
determining, under Graham, the reasonableness of the force
employed.” Id.
34           VOS V. CITY OF NEWPORT BEACH

    Rutherford stands for a fairly common-sense and non-
controversial result: a mentally disturbed person may
respond differently to police intervention than does a person
who is not mentally disturbed. Officers should bear this in
mind when going about their duties.

    But nowhere in Rutherford, or in any other case, have we
found that an officer’s interest in using deadly force is
diminished when his life is threatened by a mentally
disturbed person. The danger to the officer is not lessened
with the realization that the person who is trying to kill him
is mentally ill. Indeed, it may be increased, as in some
circumstances a mentally ill individual in the midst of a
psychotic break will not respond to reason, or to anything
other than force.

    But the majority instead creates a per se rule that in all
circumstances the governmental interest in deadly force is
diminished where the subject is mentally ill. While in some
circumstances that may be true, in circumstances such as our
case – where a mentally ill person charged at officers while
wielding a metal weapon above his head – it is not. To hold
otherwise would be to render meaningless the language in
Bryan that we will not “create two tracks of excessive force
analysis, one for the mentally ill and one for serious
criminals.” Bryan, 630 F.3d at 829. The majority states “the
fact that Vos was acting out and had invited the officers to
use deadly force on him is sufficient under our precedent for
a reasonable jury to conclude that the government’s interest
in using deadly force on Vos was diminished.” Slip Op. at
*17. By the majority’s logic, so long as an extremely
dangerous person “acts out” or otherwise evinces mental
illness, an officer’s interest in self-defense is somehow
diminished. The majority’s position is simply untenable
either as a matter of precedent or logic. Our precedent: in
             VOS V. CITY OF NEWPORT BEACH                  35

Lal, we noted that Lal had stated that he wished “suicide by
cop.” Lal, 746 F.3d at 1117. In logic: whether the person
who charges the officer does so out of a base desire to kill,
or does so because, in the midst of a psychotic episode, he
thinks the officer is a monster or a ghost, the danger to the
officer is the same. The officer's interest in protecting his
own life and the lives of his fellows is therefore the same as
well.

    Because I think the officers reacted reasonably to the
threat they faced, I respectfully dissent in part and would
affirm the decision of the district court.
