                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN SOLIS-DIAZ,                                 No. 14-16402

              Plaintiff - Appellee,              D.C. No. 2:12-cv-00619-JAD-
                                                 GWF
 v.

SCOTT TOMPKINS, Police Officer, Las              MEMORANDUM*
Vegas Metropolitan Police Department,

              Defendant - Appellant,

  And

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,

              Defendant.


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

                        Argued and Submitted May 10, 2016
                             San Francisco, California

Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Las Vegas Metropolitan Police Department officer Scott Tompkins appeals

the district court’s denial of his motion for summary judgment in this 42 U.S.C.

§ 1983 action brought by Juan Solis-Diaz. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      We review a district court’s denial of summary judgment de novo, Espinosa

v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir. 2010), viewing the facts and

“draw[ing] reasonable inferences” in the light most favorable to the non-moving

party “to the extent supportable by the record,” Scott v. Harris, 550 U.S. 372, 378,

381 n.8 (2007) (emphasis omitted).

      1.     Excessive force claims are governed by the Fourth Amendment’s

“objective reasonableness standard,” which requires a “careful balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” Graham v. Connor,

490 U.S. 386, 388, 396 (1989) (internal quotation marks omitted). “An officer’s

use of deadly force is reasonable only if ‘the officer has probable cause to believe

that the suspect poses a significant threat of death or serious physical injury to the

officer or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (quoting

Tennessee v. Garner, 471 U.S. 1, 3 (1985)). We must judge the reasonableness of

a particular use of force “from the perspective of a reasonable officer on the


                                           2
scene,” carefully considering “the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officers or others, and whether he [wa]s

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.

at 396. “The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Id. at 396–97. Generally, “[t]he mere fact that

a suspect possesses a weapon does not justify deadly force,” though “threatening

an officer with a weapon does . . . .” Hayes v. Cnty. of San Diego, 736 F.3d 1223,

1233 (9th Cir. 2013) (internal quotation marks omitted).

      Viewing the evidence in the light most favorable to Solis-Diaz, Solis-Diaz

was not committing any crime at the time of the incident, nor was he attempting to

evade arrest. In addition, there is a genuine dispute of fact as to whether it was

objectively reasonable for Tompkins to believe Solis-Diaz posed an immediate

threat to himself or others, in part because it is unclear whether Solis-Diaz ever

pointed his weapon at Tompkins.

      While Solis-Diaz agreed that his gun raised “slightly” when he knelt to look

out from beneath his garage door, Tompkins stated that when he saw Solis-Diaz


                                           3
crouching down Solis-Diaz was “not point[ing]” his rifle at Tompkins. Instead,

Tompkins stated that he could see the profile of Solis-Diaz’s weapon. Solis-Diaz

stated that when he stood up, he held his gun pointing “straight down” in his right

hand. While Solis-Diaz initially responded to Tompkins’s command to drop his

weapon with profanity, he stated that he nevertheless promptly attempted to obey

the command by lifting his left hand in the air palm out, and leaning over to place

the gun on the ground with his right hand. Despite this apparent effort to

surrender, Tompkins opened fire, shooting Solis-Diaz first in the hand and then in

the upper left buttock as Solis-Diaz attempted to escape Tompkins’s gunfire.

      Because Solis-Diaz’s mere possession of an assault rifle that he did not point

at Tompkins would have been insufficient reason for Tompkins to utilize deadly

force, see id. at 1233–34, we cannot conclude based on the above facts that

Tompkins’s use of deadly force was objectively reasonable as a matter of law.

      In addition, even assuming it were reasonable to believe Solis-Diaz posed a

threat to Tompkins, it is unclear whether it was objectively reasonable for

Tompkins to continue firing at Solis-Diaz after he turned to flee. While it is true

that once a deadly threat has been established, “officers need not stop shooting

until the threat has ended,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014), in

this case, a jury could find that any perceived threat posed by Solis-Diaz ended as


                                          4
soon as he (1) stood up and held his firearm in one hand pointed straight down

toward the ground; (2) raised one hand in surrender while attempting to set down

his gun with the other; or (3) raised both hands and turned to flee in an effort to

escape Tompkins’s gunfire. Whether Tompkins was reasonable in continuing to

fire after these attempts by Solis-Diaz to surrender is thus a question of fact best

left to a jury. See Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (holding that

summary judgment in excessive force cases should be granted sparingly).

      2.     Qualified immunity protects government officials from liability when

their conduct does not violate clearly established constitutional or statutory rights.

Hope v. Pelzer, 536 U.S. 730, 739 (2002). The qualified immunity inquiry

proceeds in two parts: (1) “whether the facts that a plaintiff has alleged . . . or

shown . . . make out a violation of a constitutional right;” and (2) “whether the

right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Pearson v. Callahan, 129 S. Ct. 808, 815–16 (2009).

      Because we find that material issues of fact exist with regard to whether

Tompkins’s use of deadly force violated Solis-Diaz’s Fourth Amendment rights,

and these “unresolved issues of fact are also material to a proper determination of

the reasonableness of [Tompkins’s] belief in the legality of [his] actions,”

Espinosa, 598 F.3d at 532, we cannot determine whether Solis-Diaz’s rights were


                                            5
clearly established.1 Tompkins is therefore not entitled to summary judgment on

the basis of qualified immunity. Pearson, 129 S. Ct. at 815–16.

      AFFIRMED.




      1
         For example, if a jury were to determine that Solis-Diaz objectively
presented no threat to Officer Tompkins, and Officer Tompkins was objectively
unreasonable in concluding otherwise, shooting at Solis-Diaz nine times and
wounding him on his hand and buttock would violate clearly established law. See,
e.g., Curnow v. Ridgecrest Police, 952 F.2d 321, 324–25 (9th Cir. 1991). This
case thus differs from C.V. v. City of Anaheim, No. 14-55760 (9th Cir. May 25,
2016), because here a jury could find that Solis-Diaz had already dropped his gun
and raised his hands when Officer Tompkins fired, and thus presented no threat.
Moreover, the only jury to have heard the two accounts presented here acquitted
Solis-Diaz of having assaulted Officer Tompkins, albeit under a stricter standard of
proof.

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