                                                                          FILED
                           NOT FOR PUBLICATION                             FEB 20 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


J. L. D., a minor, individually and as          No. 12-56013
Successor in Interest to Reginald Doucet,
Jr. Deceased by and through her Guardian        D.C. No. 2:11-cv-03141-SVW-
Ad Litem Shenaiah K Draper,                     MAN

              Plaintiff - Appellant,
                                                MEMORANDUM*
  v.

CITY OF LOS ANGELES; OFFICER
AARON GOFFMAN, #40283,

              Defendants - Appellees.


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

            Argued February 7, 2014 and Submitted February 20, 2014
                              Pasadena, California

Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      This is an appeal from a summary judgment entered against J.L.D. in her suit

asserting claims under 42 U.S.C. § 1983 and California law against Los Angeles

Police Officer Aaron Goff and the City of Los Angeles. Reginald Doucet, J.L.D.’s

father, was fatally shot by Officer Goff. The shooting occurred after an unarmed

Doucet had forced Goff and his partner, who were attempting to arrest Doucet for

petty theft and indecent exposure, to their knees and pummeled them with his fists.

The district court held that Goff’s use of deadly force was objectively reasonable and

alternatively that Goff was entitled to qualified immunity even if the use of deadly

force was not objectively reasonable.

      We review the district court’s grant of summary judgment de novo. Ramirez

v. City of Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009). We have jurisdiction

under 28 U.S.C. § 1291, because the defendants moved for summary judgment on

both the federal and state law claims, and the district court granted that motion in its

entirety. Finding disputed issues of material fact, we reverse and remand.

      In their depositions, both Goff and his partner recalled only one shot being

fired. It is undisputed, however, that Doucet was shot twice. The medical examiner’s

report establishes that Doucet was shot once in his torso and also (the fatal shot) once

in the base of his neck. The shot to the neck traveled in a downward position through

Doucet’s chest. Goff recalled only firing upwards into Doucet’s torso from a kneeling


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position. Both officers and a witness agreed that Doucet fell backwards after being

shot.

        According to the report of J.L.D.’s expert, the difference in the locations and

direction of the two gunshot wounds directly contradicted Goff’s account of the

shooting. Not only was Goff incorrect as to the number of gunshots, but the expert

also opined that “Goff, from his stated and demonstrated position, could not have

positioned his pistol to produce the neck wound present on Mr. Doucet in terms of

height, wound directionality, or firearm distance.”

        We assume the correctness of the district court’s conclusion that Goff was

entitled to use deadly force to repel an attacker who had forced him to the ground and

continued an attack. But, assuming, as we must, that Goff fired two shots, the first to

Doucet’s torso from a kneeling position and the second, after Doucet fell backwards,

from an angle downward into Doucet’s neck, we are unable to conclude as matter of

law that the use of force in its totality was reasonable. In Hopkins v. Andaya, this

court held that it was reasonable for an officer to empty his revolver on a suspect “to

avoid being bludgeoned to death with his own club,” but a fact question as to

reasonableness was raised when the officer then shot the wounded and unarmed

suspect four more times. 958 F.2d 881, 887 (9th Cir. 1992). Although it is not clear




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how much time transpired between the two shots, J.L.D.’s expert opined that there

“would also be a corresponding time delay between the two shots. The two shots

would not have been discharged in rapid succession as would typically be described

as a two shot burst.” That opinion creates a fact issue on whether the second shot was

reasonable. See Ting v. United States, 927 F.2d 1504, 1510–11 (9th Cir. 1991)

(denying summary judgment where an expert opinion “directly contradicts” the

officer’s version of the shooting and a jury could conclude that it was unreasonable

to shoot “an unarmed and injured felon”).1

      REVERSED and REMANDED.




1
      The district court held that the reasonableness of Goff’s actions also required
dismissal of the state law claims. Because we find a material issue of fact as to
reasonableness, the judgment dismissing those claims is also vacated.

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