Denk v. Miller

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2025
• Docket: 23-2675
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2025

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SAMUEL DENK, No. 23-2675 Plaintiff-Appellee, D.C. No. 2:20-cv-00818-ROS-ASB v. MEMORANDUM* MATTHEW MILLER, Sgt. #8937, Defendant-Appellant, and CITY OF PEORIA, a public entity, ARTHUR MILLER, in his official capacity as Chief of Police for the City of Peoria, UNKNOWN MILLER, named as Jane Doe Miller, Defendants.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding Argued and Submitted September 13, 2024 Phoenix, Arizona

Before: RAWLINSON and COLLINS, Circuit Judges, and FITZWATER,** District Judge.

Plaintiff-Appellee Samuel Denk brought this action under 42 U.S.C. § 1983

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. alleging, inter alia, that Defendant-Appellant Sergeant Matthew Miller of the

Peoria Police Department used excessive force in violation of the Fourth

Amendment by shooting him during a traffic stop. Miller moved for summary

judgment, asserting qualified immunity. The district court denied his motion, and

he appealed. We have jurisdiction under 28 U.S.C. § 1291 and the collateral order

doctrine, see Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014), and we reverse.

1. “[T]he scope of our review over the appeal” of a denial of qualified

immunity at summary judgment “is circumscribed.” Foster v. City of Indio, 908

F.3d 1204, 1210 (9th Cir. 2018) (citation omitted). Generally, in this context, “[a]

public official may not immediately appeal ‘a fact-related dispute about the pretrial

record, namely, whether or not the evidence in the pretrial record was sufficient to

show a genuine issue of fact for trial.’” Id. (citation omitted). However, “we have

recognized that . . . Scott v. Harris, 550 U.S. 372 (2007), created a narrow . . .

avenue for a defendant to argue that a plaintiff’s version of the facts is ‘blatantly

contradicted by the record, so that no reasonable jury could believe it.’” Estate of

Anderson v. Marsh, 985 F.3d 726, 731 n.3 (9th Cir. 2021) (citation omitted).

The district court found that the pretrial evidence was sufficient to raise a

genuine issue of material fact as to whether Denk reached toward his gun in his lap

before Miller shot him, and therefore inferred for purposes of summary judgment

that he did not. But video footage from Miller’s body camera blatantly contradicts

2 Denk’s version of events. The footage shows, over the course of about six

seconds, that Miller told Denk not to reach for his gun and to put his hands on the

steering wheel; that Denk verbally acceded but then moved his right hand, which

was initially resting on his right thigh near his right knee, backward, farther from

the steering wheel and closer to his lap; and that, in the second it took Miller to

repeat his instruction, Denk raised his hands up and forward toward the steering

wheel and Miller fired his service weapon once. Because Denk’s assertion that he

did not reach in the direction of the gun in his lap is blatantly contradicted by the

video footage, we do “not . . . rel[y] on such visible fiction” and instead “view[]

the facts in the light depicted by the videotape.” Scott, 550 U.S. at 380–81.

2. “Qualified immunity attaches when an official’s conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation

omitted). “Use of excessive force is an area of the law ‘in which the result depends

very much on the facts of each case,’ and thus police officers are entitled to

qualified immunity unless existing precedent ‘squarely governs’ the specific facts

at issue,” or unless the facts present an “obvious case” for which “the general rules

set forth in ‘[Tennessee v. Garner, 471 U.S. 1 (1985)] and [Graham v. Connor, 490

U.S. 386 (1989)] . . . by themselves create [the] clearly established law.’” Kisela,

584 U.S. at 104–05 (citations omitted). Neither ground for defeating qualified

3 immunity has been established here.

a. Existing precedent does not squarely govern the specific facts of this

case. On the contrary, “[o]ur case law is clear that when a suspect reaches for a

gun . . . , responding with deadly force does not violate the Constitution.” Sabbe v.

Wash. Cnty. Bd. of Comm’rs, 84 F.4th 807, 828 (9th Cir. 2023).

None of the cases cited by the district court or by Denk squarely govern.

Neither Garner, 471 U.S. at 21, nor A.K.H. ex rel. Landeros v. City of Tustin, 837

F.3d 1005, 1011–12 (9th Cir. 2016), squarely governs because, unlike Miller here,

the officers in those cases had no reason to believe that the suspect had a deadly

weapon. Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1010–11 (9th Cir.

2017); Hayes v. County of San Diego, 736 F.3d 1223, 1233–34 (9th Cir. 2013); and

C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1256 (9th Cir. 2016), do

not squarely govern because, drawing all reasonable inferences in plaintiffs’ favor,

the suspects in those cases either did not reach toward or did not brandish weapons

against officer instructions. And Lopez v. City of Riverside, No. 22-55723, 2023

WL 8433959 (9th Cir. Dec. 5, 2023), does not squarely govern because that

decision was issued four years after the events of this case, see Brosseau v.

Haugen, 543 U.S. 194, 198, 200 n.4 (2004), and remains unpublished, see Rico v.

Ducart, 980 F.3d 1292, 1300–01 (9th Cir. 2020).

b. Nor do the facts present an obvious case of a Fourth Amendment

4 violation. For that standard to be satisfied, “any reasonable official in the

defendant’s shoes [must] have understood that he was violating” the Fourth

Amendment. Kisela, 584 U.S. at 105 (emphasis added) (citation omitted).

Crucially, “‘the relevant question for purposes of qualified immunity’ is not

whether [Denk] actually threatened [Miller].” Sabbe, 84 F.4th at 827–28 (citation

omitted). Instead, “what matters is what [a] reasonable officer[] in [Miller’s]

position[] would have, or should have, perceived.” Id. at 828; see, e.g., Cruz v.

City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014).

Miller saw Denk move his right hand, already within inches of his gun,

closer to the gun and farther from the steering wheel, contrary to Miller’s

instructions otherwise. Even granting, as we must at summary judgment, that

Denk ultimately never grabbed his gun and had no intention of doing so, we cannot

conclude that any reasonable official observing Denk’s hand movement in that

“tense, uncertain, and rapidly evolving” situation would have understood that using

lethal force would violate the Fourth Amendment. Graham, 490 U.S. at 396–97.

3. For the foregoing reasons, Miller is entitled to qualified immunity. We

reverse and remand for further proceedings consistent with this memorandum.

REVERSED AND REMANDED.