                                                                           FILED
                           NOT FOR PUBLICATION                              APR 28 2010

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




                            FOR THE NINTH CIRCUIT



PATRICIA DESANTIS, Guardian Ad                   No. 08-17536
Litem; RICHARD DESANTIS deceased,
and as Guardian Ad Litem; DANI                   D.C. No. 3:07-cv-03386-JSW
DESANTIS, a minor; TIMOTHY
FARRELL, a minor; ADRIANNE
DESANTIS,                                        MEMORANDUM *

             Plaintiffs - Appellees,

  v.

CITY OF SANTA ROSA; RICHARD
CELLI; TRAVIS MENKE; PATRICIA
MANN,

             Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                     Argued and Submitted December 8, 2009
                            San Francisco, California

Before: O'SCANNLAIN, RAWLINSON and BEA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Defendants-Appellants City of Santa Rosa, et al. (collectively City of Santa

Rosa) appeal from a district court order that denied the cross-motion for partial

summary judgment filed by the City of Santa Rosa and the three police officers

who shot lethal rounds at Richard DeSantis--Sergeant Richard Celli, Officer

Travis Menµe, and Officer Patricia Mann--in an action brought by Plaintiffs-

Appellees under 42 U.S.C. y 1983 for use of excessive force.

      We have jurisdiction over this interlocutory appeal to the extent that it raises

purely legal questions. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also

Behrens v. Pelletier, 516 U.S. 229, 313 (1996). Review is limited to whether the

defendants are entitled to qualified immunity as a matter of law. See Lee v.

Gregory, 363 F.3d 931, 932 (9th Cir. 2004).

      Reviewing the district court's denial of qualified immunity de novo,

assuming the version of disputed issues of material facts asserted by the non-

moving party, and drawing all reasonable inferences in favor of the non-moving

party, see Bryan v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009), we conclude

that the district court did not err in denying qualified immunity to the City of Santa

Rosa and the individual police officers. 'If a genuine issue of material fact exists

that prevents a determination of qualified immunity at summary judgment, the case




                                           2
must proceed to trial.' Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008)

(citation omitted).

       'We must balance the nature and quality of the intrusion on the individual's

Fourth Amendment interests against the countervailing governmental interests at

staµe' to determine whether the City of Santa Rosa employed constitutionally

excessive force. Bryan, 590 F.3d at 772 (citations and internal quotation marµs

omitted). We must assume that the facts as presented by the non-movant are true

and can be proven at trial. See Johnson v. Jones, 515 U.S. 304, 319 (1995). Taµen

in the light most favorable to the Plaintiffs, the facts in this case raise a triable issue

of fact as to whether the officers who fired lethal shots at Richard DeSantis used

excessive force. Both Patricia DeSantis and the dispatcher informed the police that

Richard was mentally ill. Patricia also informed the officers that Richard was

unarmed and the gun was in the house. The officers could see Richard's hands at

all times, and could see he was not hiding a weapon in his waistband. Richard

never threatened to inflict, and did not inflict, harm to his family or to the officers.

He was outnumbered six to one by police officers. When Sergeant Celli shot him,

Richard was at least ten yards away from the nearest officer, and was walµing

towards them with a shattered right arm. None of the officers ever warned Richard

that they would shoot him if he did not stop. The six officers could have used the


                                             3
Sage weapon again, or their Tasers, or their batons, or the dog.1 These facts raise a

triable issue of fact as to whether the officers used excessive force against Richard

when they shot and µilled him. See Deorle v. Rutherford, 272 F.3d 1271, 1282-83

(9th Cir. 2001), as amended.

      For the same reasons, the district court did not err in denying qualified

immunity to the City of Santa Rosa and the individual officers on the substantive

due process claim. Genuine issues of material fact remain to be resolved in

determining whether the officers were motivated by a purpose to cause harm that

shocµs the conscience. See id. at 1140.

      AFFIRMED.




      1
         Although officers are not required to use the least intrusive degree of force
available, Scott v. Heinrich, 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).

                                           4
                                                                               FILED
DeSantis v. City of Santa Rosa, No. 08-17536                                    APR 28 2010

                                                                           MOLLY C. DWYER, CLERK
O'SCANNLAIN, Circuit Judge, dissenting:                                      U.S . CO U RT OF AP PE A LS




      By now, I would have thought it axiomatic that in excessive-force cases,

'[t]he calculus of reasonableness must embody allowance for the fact that police

officers are often forced to maµe split-second judgments--in circumstances that

are rapidly evolving--about the amount of force that is necessary in a particular

situation.' Graham v. Connor, 490 U.S. 386, 396-97 (1989). Nevertheless, the

majority would deny qualified immunity to officers forced to maµe a split-second

decision whether to shoot a deranged man, believed to be armed, who continued to

charge directly at them after a warning shot by a less-lethal weapon failed to deter

his progress. Even more surprising, the majority asserts that there are triable issues

as to whether the officers' conduct shocµs the conscience. Because I do not thinµ

that the officers' conduct was objectively unreasonable, let alone conscience

shocµing, I respectfully dissent.

                                            I

      On April 9, 2007, at approximately 1:00 am, Patricia DeSantis made a

frantic 911 call reporting that her mentally ill husband, Richard, was having

paranoid delusions and firing a gun into the ceiling of their home. At the time, their

two-year-old daughter and twelve-year-old son were also in the home. Richard

was still firing the gun as the first officers arrived at the scene. The six officers
who responded stationed themselves at the end of the driveway with their weapons

drawn and tooµ cover.

      Patricia was able to lead her husband outside to deal with the police. She

testified in her deposition that she told police that he was having mental health

issues and that the gun was in the house. At the time, Richard was wearing only a

pair of baggy jeans. Although the police did not see anything in his hands or on

his person, they did not have an opportunity to search him for weapons until after

the incident unfolded.

      At first, Richard reluctantly complied with the officers' orders to get down

on the ground. However, without any warning or provocation, he got up and began

charging at Officers Menµe and Mann. After Richard got within 10-15 yards of

them, Sergeant Soares fired a 'less-lethal' Sage weapon, striµing Richard in the

arm with a plastic bullet. When this warning shot failed to stop the charge,

Sergeant Celli fired his rifle. That shot, too, failed to stop Richard, who got within

10-15 feet of Officers Menµe and Mann when both fired their service weapons.

      Richard, who turned out to be unarmed, was pronounced dead at the scene.

The entire episode, from the police arrival to the shooting, lasted only about sixty

to ninety seconds.

                                          II


                                           2
                                           A

      The majority holds that there is a triable issue of fact as to whether the

officers used excessive force, relying in part on Patricia's deposition testimony. In

so holding, the majority appears to have fallen into the very trap against which the

Supreme Court warned in Scott v. Harris: 'When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.' 550 U.S. 372, 380

(2007).

      The majority credits Patricia's testimony that her husband was merely

'walµing' toward the officers when the officers fired on him.1 Not so, according

to the seven other eyewitnesses, who testified that the round from the Sage weapon

only slowed Richard 'momentarily,' and that he continued to sprint directly

toward Officers Mann and Menµe. [ER 242, 344 (Celli); 380, 387-88 (Menµe);

434-35 (Mann); 469, 471 (Soares); 533-35 (Jones); 1027 (Ellsworth); 1169

(Silny)]. Given these seven consistent accounts, plus Patricia's admission that '[i]t

was liµe slow motion, so I can't even tell you how fast it all moved,' her 'version


      1
         The majority also notes that Richard had a 'shattered right arm.' This fact
is irrelevant, however, absent any evidence in the record that the officers µnew he
was so injured.

                                           3
of events is so utterly discredited by the record that no reasonable jury could have

believed [her].' Id. at 380. Indeed, not even the district court gave the DeSantises

the benefit of this inference when viewing the facts in the light most favorable to

them. [Dist. Ct. Order at 11.] Consequently, I am perplexed as to why the

majority insists on characterizing Richard's charge at the officers as 'walµing.'

                                          B

      The purpose of the qualified immunity doctrine 'is to recognize that holding

officials liable for reasonable mistaµes might unnecessarily paralyze their ability to

maµe difficult decisions in challenging situations, thus disrupting the effective

performance of their public duties.' Mueller v. Auµer, 576 F.3d 979, 993 (9th Cir.

2009). In my view, the officers who shot Richard are entitled to qualified

immunity on the excessive force claim because they made a reasonable mistaµe as

to whether he was armed. See Saucier v. Katz, 533 U.S. 194, 205 (2001).

      The officers testified that they believed that Richard was still armed when he

charged at Officer Menµe. [ER 234 (Celli), 380 (Menµe), 416 (Mann)]. Even

assuming that Patricia told the officers that her husband was not armed, and they

could not see a weapon on his person, I still cannot say that their belief was

unreasonable when (1) he had been firing a weapon in an occupied residence just a

minute earlier, (2) he had not yet been searched for weapons, and (3) he could have


                                           4
been concealing a weapon in his baggy jeans. See Burrell v. McIlroy, 464 F.3d

853, 858 (9th Cir. 2006) (holding that when a shooting suspect is µnown to µeep a

firearm in his apartment, police may 'act on the assumption that he may be armed

and dangerous' even outside the apartment).

      Although '[t]he officers may not have µnown for certain whether [Richard]

had a weapon, . . . it would have been more than foolish for them to assume he did

not; and it would be singularly inappropriate for us to essentially force the police to

maµe such a dangerous assumption.' Chew v. Gates, 27 F.3d 1432, 1465 (9th Cir.

1994) (Trott, J., dissenting). Therefore, I simply cannot agree with the district

court that the officers should have waited to act 'until he reached them and was

able to wrestle a gun away.' [Dist. Ct. Order at 12] If this is how the police must

operate to avoid trial for excessive force, I question whether the qualified

immunity doctrine serves any purpose at all.

      Because I believe that the majority's holding would paralyze police officers'

ability to maµe split-second judgments to protect themselves and the public, I

would reverse the district court's denial of qualified immunity on the excessive-

force claim.

                                          III

      Finally, I cannot agree with the majority that genuine issues of material fact


                                           5
remain with respect to the Fourteenth Amendment substantive due process claims.

The district court denied the cross-motions for summary judgment not because

triable issues remain, but because the parties did not address the correct legal

standard in their moving papers. Upon de novo review, however, I am unable to

conclude that the DeSantises have raised a triable issue with respect to whether the

officers' conduct shocµs the conscience.

      The relevant legal standard is whether the officers 'acted with a purpose to

harm . . . without regard to legitimate law enforcement objectives.' Porter v.

Osborn, 546 F.3d 1131, 1133 (9th Cir. 2008). To survive summary judgment, the

DeSantises 'must do more than simply allege that the defendants acted with an

improper motive.' Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (per

curiam). Not only do the DeSantises' conclusory allegations of improper motive

fall short of the marµ, but the record amply supports the officers' testimony that

they 'did not intend to commit any harm unrelated to the legitimate use of force

necessary to protect the public and themselves.' Moreland v. Las Vegas Metro.

Police Dep't, 159 F.3d 365, 373 (9th Cir. 1998). Therefore, I would reverse on the

Fourteenth Amendment claim as well.

                                           IV

      For the foregoing reasons, I respectfully dissent.


                                           6
