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                            NOT FOR PUBLICATION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


                            FOR THE NINTH CIRCUIT


JENNIFER MEDINA, an individual;                  No.   14-56857
ARLENE SUSAN MEDINA, an
individual; ROBERT LEO MEDINA, an                D.C. Nos.
individual,                                      3:08-cv-01252-BAS-RBB
                                                 3:08-cv-01395-BAS-RBB
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

COUNTY OF SAN DIEGO; MARK
RITCHIE, individually and in his capacity
as deputy for the San Diego Sheriff’s
Department; KARLA TAFT, individually
and in her capacity as deputy for the San
Diego Sheriff’s Department; TIM
FENTON, individually and in his capacity
as officer for the California Highway
Patrol,

              Defendants,

STATE OF CALIFORNIA; JULIE
CAHILL, Individually and in her offical
capacity as Deputy for the California
Highway Patrol,

              Defendants,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and

LEO NAVA, individually and in his
capacity as officer for the California
Highway Patrol,

             Defendant-Appellant.



JENNIFER MEDINA, an individual;               No.   14-56898
ARLENE SUSAN MEDINA, an
individual; ROBERT LEO MEDINA, an             D.C. Nos.
individual,                                   3:08-cv-01252-BAS-RBB
                                              3:08-cv-1395-BAS-RBB
             Plaintiffs-Appellees,

v.

COUNTY OF SAN DIEGO; MARK
RITCHIE, individually and in his capacity
as deputy for the San Diego Sheriff’s
Department; KARLA TAFT, individually
and in her capacity as deputy for the San
Diego Sheriff’s Department,

             Defendants-Appellants,

and

TIM FENTON, individually and in his
capacity as officer for the California
Highway Patrol; LEO NAVA, individually
and in his capacity as officer for the
California Highway Patrol; STATE OF
CALIFORNIA; JULIE CAHILL,
Individually and in her offical capacity as


                                         2
Deputy for the California Highway Patrol,

             Defendants.



JENNIFER MEDINA, an individual;               No.   14-56916
ARLENE SUSAN MEDINA, an
individual; ROBERT LEO MEDINA, an             D.C. Nos.
individual,                                   3:08-cv-01252-BAS-RBB
                                              3:08-cv-01395-BAS-RBB
             Plaintiffs-Appellees,

v.

COUNTY OF SAN DIEGO; MARK
RITCHIE, individually and in his capacity
as deputy for the San Diego Sheriff’s
Department; KARLA TAFT, individually
and in her capacity as deputy for the San
Diego Sheriff’s Department,

             Defendants,

LEO NAVA, individually and in his
capacity as officer for the California
Highway Patrol; STATE OF
CALIFORNIA; JULIE CAHILL,
Individually and in her offical capacity as
Deputy for the California Highway Patrol,

             Defendants,

and

TIM FENTON, individually and in his
capacity as officer for the California


                                         3
Highway Patrol,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Cynthia A. Bashant, District Judge, Presiding

                      Argued and Submitted October 18, 2016
                               Pasadena, California

Before: TALLMAN and CHRISTEN, Circuit Judges, and KENNELLY,** District
Judge.

      California Highway Patrol Officers Leo Nava and Timothy Fenton and

County of San Diego Deputy Sheriffs Mark Ritchie and Karla Taft appeal the

district court’s order denying their motions for summary judgment on the basis of

qualified immunity. The County of San Diego also appeals the district court’s

order denying its motion for summary judgment. For the reasons stated below, we

reverse and remand with instructions to grant summary judgment in favor of all of

the defendants.

      1. Orders denying qualified immunity are immediately appealable.

Wilkinson v. Torres, 610 F.3d 546, 549–50 (9th Cir. 2010). We therefore have

limited jurisdiction over questions of law presented by the individual defendants.

      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
                                          4
See id. at 550. We have pendent jurisdiction over the County’s appeal to the extent

that the district court’s decision to deny the County’s summary judgment motion

was “inextricably intertwined” with that court’s decision to deny the officers

qualified immunity. See Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51 (1995).

The County’s appeal is inextricably intertwined if we conclude that the officers

have not committed a constitutional violation. See Huskey v. City of San Jose, 204

F.3d 893, 904–06 (9th Cir. 2000).

      2. A law enforcement officer is entitled to qualified immunity unless 1) the

facts as alleged by the plaintiff show a violation of a constitutional right; and 2) the

right at issue was clearly established at the time of the alleged misconduct.

Wilkinson, 610 F.3d at 550. “[I]t is not constitutionally unreasonable to prevent

escape using deadly force ‘[w]here the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer or to

others.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

      3. No reasonable jury could find that the officers’ decision to fire on

Medina’s truck constituted a violation of his Fourth Amendment right to be free

from excessive force. After police were able to stop his truck and temporarily hem

it in following an extended chase, Medina ignored the officers’ orders to exit the

truck. With officers standing in the immediate vicinity of the truck, Medina drove


                                           5
the truck back and forth in an attempt to escape. Efforts to disable the truck by

shooting out its passenger side tires were unsuccessful. Taking the facts in a light

most favorable to the plaintiffs, the evidence shows that the officers who fired

shots at Medina had probable cause to believe that, at that point, he posed a threat

of serious physical harm to the officers. For this reason, there was no Fourth

Amendment violation.

      4. To sustain a claim under the Fourteenth Amendment in these

circumstances, plaintiffs must show that the conduct of the police “shocks the

conscience.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013). In

"rapidly escalating" situations like the one here, the officers' conduct "shocks the

conscience" if the plaintiffs can show that the officers "acted with a purpose to

harm [Medina] that was unrelated to legitimate law enforcement objectives."

Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). For the reasons described

above, no reasonable jury could find that the officers’ conduct violated this

standard. The officers are therefore entitled to summary judgment on plaintiffs’

Fourteenth Amendment claims.

      5. A government entity cannot be liable for the conduct of its employees

where the plaintiff has failed to show that the employees deprived the plaintiff of

his constitutional rights. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).


                                           6
Because the officers’ use of force in firing on Medina did not violate his

constitutional rights, the County cannot be held liable for its policies—if any—that

might have authorized this conduct.

      6. For these reasons, we remand the case to the district court with

instructions to grant summary judgment in favor of all of the defendants. Each

party shall bear their own costs of this appeal.

      REVERSED AND REMANDED.




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