                      UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         SEP 22 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


 STEVEN O. PETERSEN, on behalf of L.P.,             No.   14-35201
 a minor and beneficiary and as Personal
 Representative of the estate of Steven V.          D.C. No. 3:12-cv-05908-RBL
 Petersen,                                          Western District of Washington,
                                                    Tacoma
                    Plaintiff-Appellant,
                                                    ORDER
   v.

 LEWIS COUNTY, a political subdivision
 of the State of Washington; MATTHEW
 MCKNIGHT,

                    Defendants-Appellees.

Before: HAWKINS and McKEOWN,* Circuit Judges.

         The request for rehearing is granted with respect to the excessive force issue.

The previous Memorandum (Dkt. 47) is withdrawn and shall be replaced with the


Amended Memorandum filed concurrently with this order.

         The full court has been advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         *
              The Honorable Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, is no longer sitting by designation
due to his retirement.
The petition for rehearing is denied except to the extent noted above.

IT IS SO ORDERED.




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                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 22 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
STEVEN O. PETERSEN, on behalf of                 No.   14-35201
L.P., a minor and beneficiary and as
Personal Representative of the estate of         D.C. No. 3:12-cv-05908-RBL
Steven V. Petersen,

              Plaintiff-Appellant,               AMENDED MEMORANDUM*

 v.

LEWIS COUNTY, a political subdivision
of the State of Washington; MATTHEW
MCKNIGHT,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted September 2, 2016
                              Seattle, Washington

Before: HAWKINS and McKEOWN,** Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, is no longer sitting by designation due to
his retirement.
      Steven Petersen appeals the district court’s grant of Lewis County’s (“the

County”) and Matthew McKnight’s motion for summary judgment on qualified-

immunity grounds in Petersen’s 42 U.S.C. § 1983 lawsuit arising from the shooting

of his son. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo

the grant of summary judgment. See Fair Hous. Council of Riverside Cty., Inc. v.

Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001). We consider this case on

remand from the Supreme Court and affirm.

      The district court erred by finding that there were material factual disputes

regarding whether McKnight’s use of deadly force was reasonable. The record

reflects that Petersen refused to heed McKnight’s commands and started to charge

McKnight. At the time he used force, McKnight knew that a person matching

Petersen’s description was in the area and might be armed with a knife. Given

these facts, McKnight’s actions were reasonable; he did not act with excessive

force in violation of Petersen’s constitutional rights.

      Even if McKnight had acted unreasonably, Petersen failed to identify any

clearly established law putting McKnight on notice that, under these facts, his

conduct was unlawful. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)

(reiterating “the longstanding principle that ‘clearly established law’ should not be


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defined ‘at a high level of generality’” (citations omitted)). The district court

therefore correctly granted qualified immunity to McKnight on the excessive force

claim.

         The district court appropriately granted summary judgment to the County on

Petersen’s municipal liability claim. Petersen failed to present evidence that any of

the County’s policies were a “moving force” behind the shooting. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978). Additionally, Petersen failed to identify

deficiencies in McKnight’s training that establish a showing of deliberate

indifference. See Connick v. Thompson, 563 U.S. 51, 61 (2011) (“[A]

municipality’s failure to train its employees in a relevant respect must amount to

‘deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.’” (quoting City of Canton v. Harris, 489 U.S. 378,

388 (1989) (alteration in original))).

         Likewise, the district court appropriately granted summary judgment to the

County and McKnight on Petersen’s substantive due process claim because he

failed to show that McKnight’s actions “shock[] the conscience.” See Cty. of

Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998) (outlining the standard for

executive action that violates substantive due process).




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      The district court properly granted summary judgment for McKnight on the

state-law negligence claim because, for the reasons addressed above regarding

Petersen’s excessive force claim, McKnight’s actions were reasonable. Gallegos v.

Freeman, 291 P.3d 265, 277 (Wash. Ct. App. 2013) (“An officer is entitled to state

law qualified immunity where the officer (1) carries out a statutory duty, (2)

according to procedures dictated to him by statute and superiors, and (3) acts

reasonably.” (emphasis added) (internal quotation marks and citations omitted)).

Therefore, summary judgment was also properly granted for the County on

Petersen’s vicarious liability claim.

      Finally, the district court appropriately granted summary judgment for the

County on Petersen’s state-law claims for failure to train and negligent supervision

because there is no indication that McKnight acted outside the scope of his

employment. Id. at 257 (“Under Washington Law, . . . a claim for negligent hiring,

training, and supervision is generally improper when the employer concedes the

employee’s actions occurred within the course and scope of the employment.”).

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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