Bao Le v. Cesar Molina

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2020
• Docket: 19-35464
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BAO XUYEN LE, as the court appointed No. 19-35464 Personal Representative of the estate of Tommy Le; et al., D.C. No. 2:18-cv-00055-TSZ

Plaintiffs-Appellees, MEMORANDUM* v.

CESAR MOLINA, King County Deputy Sheriff,

Defendant-Appellant,

and

MARTIN LUTHER KING JR. COUNTY,

Defendant.

BAO XUYEN LE, as the court appointed No. 19-35465 Personal Representative of the estate of Tommy Le; et al., D.C. No. 2:18-cv-00055-TSZ

Plaintiffs-Appellees,

v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant,

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted June 4, 2020 Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

This case arises from the fatal shooting of Tommy Le (“Tommy”) by King

County Sheriff’s Deputy Cesar Molina (“Molina”). Tommy’s family (“Le”) sued

Molina and King County (collectively, “Appellants”) under 42 U.S.C. § 1983 for

violations of the Fourth and Fourteenth Amendments. Molina appeals the district

court’s denial of his motion for summary judgment based on his claim of qualified

immunity. King County appeals the denial of its motion for summary judgment on

Le’s Monell claim. The cases were consolidated on appeal. Because Appellants

do not advance their arguments by taking the facts in the light most favorable to

Le, we lack appellate jurisdiction and dismiss the appeal.

We have jurisdiction to review an interlocutory appeal of a denial of

summary judgment based on qualified immunity “only to the extent ‘the issue

2 appealed concerned, not which facts the parties might be able to prove, but, rather,

whether or not certain given facts showed a violation of clearly established law.’”

Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (quoting Johnson v.

Jones, 515 U.S. 304, 311 (1995)). In other words, in this interlocutory appeal, we

may only consider “purely legal issues,” id., and “we must construe the facts in the

light most favorable to the plaintiff,” Orn v. City of Tacoma, 949 F.3d 1167, 1171

(9th Cir. 2020).

Appellants do not present material facts in dispute in the light most

favorable to Le. Where an appellant advances an argument without taking the

facts in the light most favorable to the plaintiff, we will not “do [the] appellant’s

work for it, either by manufacturing its legal arguments, or by combing the record

on its behalf for factual support.” George v. Morris, 736 F.3d 829, 837 (9th Cir.

2013) (quoting W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir.

2012)). Here, Appellants recognize that the parties have different versions of the

facts, and they spend the argument portion of their brief disputing Le’s version.

For example, Appellants contend that Tommy presented an immediate threat to

deputies and bystanders because Molina had reason to believe that Tommy was

armed. Although it is undisputed that Molina had received reports that Tommy

was armed with a knife or a pointed object, it is highly disputed whether Tommy

was actually armed and whether Molina should have known that Tommy was

3 unarmed when Molina encountered and shot Tommy. Because Appellants do not

accept Le’s version of the facts and fail to present a question of law, we lack

jurisdiction to consider the appeal.

DISMISSED FOR LACK OF JURISDICTION.