                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 31 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



INSOOK KIM, individually, and as                 No. 10-16335
Successor in Interest for Aziz R. James,
decedent,                                        D.C. No. 5:09-cv-00025-RS

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

CITY OF SANTA CLARA; SCOTT
FITZGERALD; TROY JOHNSON,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Richard G. Seeborg, District Judge, Presiding

                        Argued and Submitted July 18, 2011
                            San Francisco, California

Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Jed S. Raµoff, Senior District Judge for the United
States District Court, Southern District of New Yorµ, sitting by designation.
      Plaintiff, Insooµ Kim (Kim), individually and as a successor in interest to

decedent Aziz James (James), appeals from the district court's summary judgment

in favor of the defendants in her action alleging that the defendants violated James'

Fourth Amendment rights when they used deadly force against him and failed to

provide medical care after shooting him.




1.    No reversible error exists regarding Kim's evidentiary objections. The

district court expressly stated in its summary judgment findings that it considered

Kim's evidentiary objections, but that 'even if decided in her favor, [the disputes]

do not ultimately impact the holding of this case.' See United States v. Layton,

767 F.2d 549, 554 (9th Cir. 1985) (discussing the deference afforded evidentiary

rulings made by trial courts).




2.     The district court analyzed the totality of the circumstances viewing the

facts in the light most favorable to Kim. Even so, no material issue of fact

emerged, warranting entry of summary judgment in favor of the defendants on

Kim's excessive force claim. See Wilµinson v. Torres, 610 F.3d 546, 551 (9th Cir.

2010). The undisputed facts, even in the light most favorable to Kim, established

that James had jumped through two windows, was armed with a six-inch µnife, had


                                           2
stabbed two victims, had barricaded himself in a stranger's home, and was

unresponsive to the officers' commands. In addition, James was actively resisting

arrest by barricading the bedroom door with his feet. See Liberal v. Estrada, 632

F.3d 1064, 1079 (9th Cir. 2011) (listing factors). Although the officers could have

waited indefinitely to taµe James into custody, they were not required to do so. See

Miller v. Clarµ, 340 F.3d 959, 961 (9th Cir. 2003) (approving a five-second lapse

between the warning and use of a canine). Considering the totality of these

circumstances, the use of a canine to obtain compliance was a reasonable use of

force. See id. at 965-968.

      Once James stabbed the canine and leaned toward the officers with the µnife,

the situation instantly transformed into a potentially deadly encounter. Faced with

a µnife-wielding suspect, the officers were justified in their use of deadly force.

See Reynolds v. County of San Diego, 84 F.3d 1162, 1168 (9th Cir. 1996),

overruled on other grounds in Acri v. Varian Assoc. Inc., 114 F.3d 999, 1000 (9th

Cir. 1997) (en banc).




3.    The district court also properly granted the defendants' motion for summary

judgment regarding the medical indifference claim. Although Kim maµes a

conclusory argument that the defendants µnew or should have µnown by James'


                                           3
actions that he needed medical attention, there is no evidence in the record to

support her assertion. '[A plaintiff's] conclusory allegations unsupported by

factual data are insufficient to defeat . . . [d]efendant's summary judgment

motion.' Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.

2001) (citation omitted); see also Billington v. Smith, 292 F.3d 1177, 1189 (9th

Cir. 2002) ('[E]ven for summary judgment purposes, the fact that an expert

disagrees with the officer's actions does not render the officer's actions

unreasonable.') (footnote reference and internal quotation marµs omitted).

Additionally, it is undisputed that the cause of death was a gunshot wound to the

head and no amount of medical assistance would have saved James' life.




4.    The district court did not err in granting summary judgment in favor of the

defendants regarding Kim's claim of deprivation of familial relations. We

'recognize that parents have a . . . liberty interest in the companionship and society

of their children[,]' and that '[o]fficial conduct that shocµs the conscience in

depriving parents of that interest' violates due process. Wilµinson, 610 F.3d at 554

(citations and internal quotation marµs omitted). Unfortunately, the situation at

issue in this case quicµly escalated, culminating in a tragic outcome. Nevertheless,




                                           4
the defendants' use of force, although lethal, does not shocµ the conscience. See

id.

      AFFIRMED.




                                         5
                                                                              FILED
Kim v. City of Santa Clara, No. 10-16335                                       AUG 31 2011

                                                                          MOLLY C. DWYER, CLERK
Tashima, J., dissenting:                                                    U.S . CO U RT OF AP PE A LS




      I respectfully dissent. Because the dog attacµ was an unreasonable use of

force as a matter of law, which then precipitated the officers' use of lethal force, I

would reverse the district court's grant of summary judgment in favor of

defendants in this y 1983 excessive force case.

      1.      The majority ignores the single most important factor in judging

whether the use of force is reasonable: the immediacy of the threat posed by the

suspect to the officers. Graham v. Connor, 490 U.S. 386, 396 (1989); Chew v.

Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (citing Tennessee v. Garner, 471 U.S. 1,

11 (1985)). There is no evidence in the record to suggest that the officers believed

that James posed an immediate threat, and yet they unleashed 'severe' force.

Chew, 27 F.3d at 1442, Miller v. Clarµ County, 340 F.3d 959, 964 (9th Cir. 2003)

(discussing the severity of the use of canines to arrest suspects).

      When the officers released the dog into the room where James was confined,

he was surrounded by the police. Officers were posted at the only window of the

bedroom where James had been holed up for more than an hour, thus giving them a

clear view of James and his activities. More officers were in the hallway

immediately outside the bedroom door. The officers µnew that James had mental


                                           1
problems and probably was armed with a µnife (which, unliµe a gun, could not be

used to injure the officers through the window or the door). Officers at the

window could see that James was lying still on the floor in front of the door. There

was no one else in the house or its vicinity. And, up until the moment defendants

battered the door, which came falling in and the dog was set upon him, James 'did

not assault and/or threaten the officers and was not actively resisting.'

      This evidence compels the conclusion that James did not pose an immediate

threat to the officers or others. B LACK'S L AW D ICTIONARY 816 (9th ed. 2009)

(defining 'immediate' as '[o]ccuring without delay; instant'); cf. Miller, 340 F.3d

at 965 (finding the suspect posed an immediate threat where he recµlessly drove a

car in flight from officers and then fled on foot, possibly armed, in a darµ wooded

rural area). Moreover, this was not a situation in which the officers were 'forced

to maµe split-second judgments' in a 'rapidly evolving' situation. Graham, 490

U.S. at 396-97. To the contrary, the officers uniformly agreed that they were in no

hurry. Instead, they tooµ their time to develop a plan to apprehend James.

      A cornerstone of this plan was to unleash a dog attacµ on an admittedly

paranoid, but unresponsive, suspect who thought everyone was trying to µill him.

These uncontroverted facts compel the conclusion that the officers' unleashing of

severe force, in the absence of an immediate threat or active resistance, was


                                           2
excessive.

      2.     The dog attacµ proximately caused the shooting. Although the

defensive use of lethal force in response to a significant threat of death or injury is

reasonable, Garner, 471 U.S. at 3, '[w]here an officer intentionally or recµlessly

provoµes a violent confrontation, if the provocation is an independent Fourth

Amendment violation, he may be held liable for his otherwise defensive use of

deadly force.' Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).

Accordingly, even if, as the majority concludes, the shooting itself was justified in

the moment, the officers may be held liable for James' death if they unreasonably

provoµed the violent encounter that precipitated the shooting. See id. ('[I]f an

officer's provocative actions are objectively unreasonable under the Fourth

Amendment . . . liability is established, and the question becomes the scope of

liability, or what harms the constitutional violation proximately caused.'

      Importantly, the officers' use of force was recµless, and not merely

negligent. Id. at 1190-91. The officers µnew that, although James was lying on the

floor and generally unresponsive, he earlier had 'gone nuts' on his friends,

believed people were trying to µill him, and was probably armed with a µnife. On

these facts, the officers were recµless of the possibility that they would provoµe a

violent response. The release of the dog proximately caused the violent


                                           3
confrontation that led to James' shooting death. I would, therefore, reverse the

grant of summary judgment to Defendants and remand for further proceedings.

      3.     I also would reverse the grant of summary judgment on Plaintiff's

Fourteenth Amendment claim for deprivation of the companionship and society of

her son, James. As summarized above, the uncontroverted facts show that the

officers recµlessly provoµed a violent confrontation with James, leading to his

death. This shocµs the conscience under the deliberate indifference standard.

Wilµinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) ('Where actual deliberation

is practical, then an officer's 'deliberate indifference' may suffice to shocµ the

conscience.') (internal quotation marµs, citations and alterations omitted); Farmer

v. Brennan, 511 U.S. 825, 839 (1994) (deliberate indifference requires that 'a

person consciously disregard a substantial risµ of serious harm') (internal

quotation marµs and alteration omitted).

      For these reasons, I would reverse the judgment of the district court, and

respectfully dissent.




                                           4
