                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 7 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PARIS HOLLOWAY,                                  Nos. 15-56770
                                                      17-55284
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:15-cv-03867-CAS-JC

BARTMAN HORN; CITY OF
PASADENA,                                        MEMORANDUM*

              Defendants-Appellants.


                   Appeals from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                       Argued and Submitted March 7, 2017
                              Pasadena, California

Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

      On October 11, 2013, Officer Bartman Horn of the Pasadena Police

Department pursued Paris Holloway on foot after Holloway fled from Horn’s

attempt to talk him. The pursuit ended when Officer Horn shot Holloway multiple

times. One bullet lodged in Holloway’s spinal cord, resulting in immediate and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
permanent paralysis. Holloway later pleaded no contest to violations of Cal. Penal

Code §§ 69 (resisting arrest), 29800 (felon in possession of a firearm), and 30305

(felon in possession of ammunition). He subsequently filed a complaint against

Officer Horn and the City of Pasadena under 42 U.S.C. § 1983 alleging excessive

force and denial of medical care. Defendant-Appellants moved to dismiss on the

basis of qualified immunity, which the district court denied. They now appeal that

denial.

      Holloway alleges that Officer Horn pursued him into an alley between the

fenced-in backyards of apartment complexes, where Holloway removed the gun he

was carrying from his pants while facing away from Horn and, without ever

turning towards him, threw the gun over one of the fences.

      He further alleges that after the gun was out of his hands and while he was

still facing away from Officer Horn, Horn opened fire. Horn asserts that this

conduct alone would not support a guilty plea under Cal. Penal Code § 69, and that

therefore Holloway must have done something involving “threats, force or

violence,” such as “pointing a gun at an officer,” which would entitle Horn to

qualified immunity.

      1. The facts alleged in Holloway’s complaint are not contradicted by his no

contest plea to a violation of Cal. Penal Code § 69. Because this appeal concerns a


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motion to dismiss, we must accept all factual allegations in the complaint as true.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, the case may be

dismissed only if it is not possible to construe Holloway’s plea as consistent with

the facts he alleges in his complaint. Here, the plea may be construed as consistent

with those facts.

      Under California law, Holloway could have violated the statute either by

attempting to deter Officer Horn from pursuing him “by means of . . . threat,” or by

resisting him “by the use of force or violence,” Cal. Penal Code § 69(a), when he

removed a gun from his pants and threw it over the fence, even if he never pointed

it at Officer Horn. Under California law, the mere brandishing of a weapon in the

open may be “threat[ening]” or “violen[t].” Displaying a weapon, even if only

momentarily, before throwing it over a fence, could plausibly be intimidating to an

officer in pursuit. In Rodriguez v. City of Long Beach, No. SACV 10-00271 DOC,

2011 WL 3757122, *4 (C.D. Cal. Aug. 25, 2011), “the mere refusal to sit on the

curb,” accompanied by profanity directed at a police officer, was held to be

sufficient to support a conviction under § 69. In People v. Brown, 245 Cal. App.

4th 140, 146-47 (2016), a state court agreed without comment that a defendant

could be convicted under § 69 when he fled from police before sitting down and

“swinging his hands” at officers without ever making contact. In short, these cases


                                          3
justifying a conviction under § 69 concerned behavior that was far less threatening

or violent than the conduct which Holloway acknowledges he engaged in here:

displaying a weapon and then throwing it over a fence. Thus, his plea is not

inconsistent with the facts alleged in his complaint.

      Even if Officer Horn were correct that a conviction under § 69 required that

Holloway point his gun at Horn, that would not change the outcome of this case.

Taking the remaining facts in the light most favorable to Holloway, he threw his

gun over the fence before Officer Horn shot him. Holloway suffered immediate

paralysis upon being shot, yet when other officers arrived, they found his gun on

the other side of a tall wooden fence about ten feet away. Plaintiff had been shot in

the back, including directly in his spinal cord, supporting the inference that he was

not pointing a firearm at Officer Horn at the time that Horn opened fire. This is

sufficient to deny qualified immunity, even under the strict requirement of White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam), that a case exists that places the

constitutional issue “beyond debate.” In Curnow v. Ridgecrest Police, 952 F.2d

321, 322, 325 (9th Cir. 1991), we denied qualified immunity to officers because, at

the time they opened fire, the victim was not pointing his gun at the officers and

was not facing them. Curnow was recently cited with approval in a case denying




                                           4
qualified immunity at the summary judgment stage. See Newmaker v. City of

Fortuna, 842 F.3d 1108, 1116-17 (9th Cir. 2016).

      Moreover, Holloway alleges that Officer Horn shot him several times when

he was on the ground after he had thrown the gun over the fence. Shooting an

unarmed, injured person who is unmoving and bleeding profusely while lying on

the ground would in itself be sufficient to defeat qualified immunity. See, e.g.,

Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (“This would be a different case

if petitioners had initiated a second round of shots after an initial round had clearly

incapacitated Rickard . . . .”); Ting v. United States, 927 F.2d 1504, 1511 (9th Cir.

1991) (denying qualified immunity where officers shot “an unarmed and injured

felon lying or kneeling on the floor”).

      We therefore affirm the district court’s denial of Appellants’ motion to

dismiss.

      2. Because we affirm the district court’s denial of the motion to dismiss,

thereby returning the case to the district court to proceed, we do not consider

Appellants’ appeal of the district court’s denial of a motion for written indication

under Federal Rule of Civil Procedure 62.1. While several other circuits have

decided (or assumed) that denial of a motion under Rule 62.1 is an appealable

order in the case of a final appeal, see LFoundry Rousset, SAS v. Atmel Corp., No.


                                           5
16-2566-cv, 2017 WL 2210895 (2d Cir. May 19, 2017); Dice Corp. v. Bold Tech.,

556 F. App’x 378, 382-83 (6th Cir. 2014); Ray v. Pinnacle Health Hospitals, Inc.,

416 F. App’x 157, 161 n.3 (3d Cir. 2010), we are not convinced that this court has

jurisdiction to entertain such an appeal in this case.

      Rather than unnecessarily decide the issue of jurisdiction, we dismiss the

appeal as moot. As a result of affirming the denial of the motion to dismiss, we

return jurisdiction to the district court, where Appellants may bring a Rule 60(b)

motion. See LFoundry Rousset, 2017 WL 2210895, at *2 (“[O]ur return of the

mandate to the district court rendered the Rule 62.1 motion moot because it was no

longer necessary for the district court’s jurisdiction to consider the concomitant

Fed. R. Civ. P. 60(b) motion.”). Nothing in the Local Rules prevents litigants from

raising issues in a Rule 60(b) motion that were previously raised in a Rule 62.1

motion. See Local Rules – Central District of California, L.R. 7-18 (only

disallowing motions for reconsideration that repeat arguments made in “the

original motion” (emphasis added)). Appellants are therefore free to move in

district court for reconsideration under Rule 60(b) on the basis of the two hearing

transcripts they received after the district court’s denial of their original motion to

dismiss. We express no view on the merits of any such motion.




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      The district court’s denial of Appellants’ motion to dismiss in case number

15-56770 is AFFIRMED. Appellants’ appeal of the denial for written indication in

case number 17-55284 is DISMISSED AS MOOT.




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