1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Denice Garcia, et al., No. CV-21-01152-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 City of Phoenix, et al.,
13 Defendants. 14 15 Defendants Gregory Wilson and Noel Trevino, police officers with the City of 16 Phoenix Police Department, fatally shot and killed James Garcia during an investigation 17 on July 4, 2020. Mr. Garcia’s mother, Denice Garcia, and the mother of his children, Sara 18 Salazar, sue Officers Wilson and Trevino for alleged violations of Mr. Garcia’s right to be 19 free from excessive force under the Fourth Amendment, and of their right to be free from 20 interference with their rights to familial society and companionship under the Fourteenth 21 Amendment. Officers Wilson and Trevino move for summary judgment on the ground that 22 they are entitled to qualified immunity. (Doc. 115.) The Motion is fully briefed. (Docs. 23 115, 118, 120, 123.) The Court held oral argument on May 28, 2024. For the foregoing 24 reasons, the Court will grant the Motion. 25 I. BACKGROUND 26 The Court takes the following facts from the record and draws all justifiable 27 inferences in Plaintiffs’ favor, except for where Plaintiffs’ version of events is blatantly 28 contradicted by the record. See Scott v. Harris, 550 U.S. 372, 380 (2007). Most of these 1 events were record on the officers’ body-worn cameras. 2 On July 4, 2020, Officers Wilson and Trevino were dispatched to investigate a 3 reported stabbing. (Doc. 115-2 at 46.) The victim, L.A., told Officers Wilson and Trevino 4 that an individual named “Eric” had stabbed him one week earlier.1 (Doc. 115, Ex. 7 at 5 01:06-01:09, 02:32-02:41; Doc. 115, Ex. 3 at 03:20-03:47, 05:51-06:06.)2 L.A. said that, 6 while he was taking a shower that day at a nearby residence, Eric attempted to stab him 7 again. (Doc. 115-2 at 46; Doc. 115, Ex. 7 at 01:14-01:30.) L.A. described Eric as “a 8 dark-skinned Hispanic male, with blue shorts, a black and red hat, and around 5 feet 6 9 inches [tall].” (Doc. 115-2 at 46; see also Doc. 115, Ex. 7 at 01:09-01:13; Doc. 115, Ex. 3 10 at 03:54-05:32.) L.A. warned the officers that Eric had a knife and that other unspecified 11 individuals at the residence possessed firearms. (Doc. 115, Ex. 7 at 01:16-01:18, 12 03:29-03:33; Doc. 115, Ex. 3 at 03:36-03:39.) 13 Officers Wilson and Trevino went to the residence to investigate. (Doc. 115, Ex. 7 14 at 03:34-05:35.) Several other officers met them on scene and assisted in gathering 15 information. (Id. at 06:27; Doc. 115, Ex. 3 at 14:23-36:23; Doc. 115, Ex. 9 at 07:21-20:53; 16 Doc. 115, Ex. 5 at 00:24.)3 There, Officer Anthony Deida found Mr. Garcia sitting in a 17 passenger car with dark tinted windows rolled up. (Doc. 115, Ex. 9 at 21:00.) The car was 18 parked, backed into the driveway with its engine running. (Id.) 19 Officer Deida tapped on the driver’s-side window of the car and Mr. Garcia rolled 20 it down slightly. (Id. at 21:01-21:07.) Officer Deida asked Mr. Garcia if he was alright, and 21 Mr. Garcia confirmed that he was. (Id. at 21:08-21:13.) Officer Deida then requested that 22 Mr. Garcia turn off the car and step outside. (Id. at 21:14-21:17.) Mr. Garcia did not do so. 23 (Id. at 21:18-21:27.) Instead, he asked why he needed to get out of the car. (Id.) Officer 24 Deida explained that they were investigating a potential crime and told Mr. Garcia to keep 25 1 The Court abbreviates the alleged victim’s name to protect his privacy. 26 2 Docket 115, Exhibit 7 is the footage captured by Officer Wilson’s AXON body camera. Docket 115, Exhibit 3 is the footage captured by Officer Trevino’s AXON body camera. 27 All pin cites for body camera footage are to the Windows Media Player tracking bar, which tracks the temporal length of the video. 28 3 Docket 115, Exhibit 9 is the footage captured by Officer Deida’s AXON body camera. Docket 115, Exhibit 5 is the footage captured by Officer Backus’s AXON body camera. 1 his hands on the steering wheel. (Id. at 21:20-21:27, 21:53-21:59.) Officer Deida further 2 explained that because they were investigating a crime, they needed to identify everyone 3 inside the residence. (Id. at 22:00-22:05.) He again asked Mr. Garcia to exit the car, and 4 Mr. Garcia again refused. (Id. at 22:17-22:20.) Mr. Garcia asked Officer Deida what he 5 had done wrong. (Id. at 22:20-22:24.) Officer Deida reiterated that they were investigating 6 a crime and needed to make identifications. (Id. at 22:23-22:25.) 7 Still refusing to leave the car, Mr. Garcia offered to provide his identifying 8 information to Officer Deida, although he said that he did not have any ID. (Id. at 9 22:25-22:35.) Officer Deida asked Mr. Garcia for his last name. (Id. at 22:40-22:42.) Mr. 10 Garcia responded, “Garcia Salazar.” (Id. at 22:42-22:43, 22:48-22:49.) Officer Deida then 11 asked for his first name, and Mr. Garcia answered, “First name is Sanders . . . No, sorry, 12 first name is . . . [inaudible].” (Id. at 22:46, 22:49-22:54.) Officer Deida told Mr. Garcia 13 not to lie and asked Mr. Garcia once again for his name. (Id. at 22:55-23:01.) Mr. Garcia 14 then expressed concern about a misdemeanor warrant that he had out of California for a 15 traffic citation. (Id. at 23:02-23:05, 24:18-24:32.) Officer Deida assured Mr. Garcia that he 16 did not care about a misdemeanor traffic ticket or warrant. (Id. at 23:05-23:11.) Mr. Garcia 17 then stated that his name was “John Salazar Manuelo” and that he was born on “January 1, 18 1982.” (Id. at 23:11-23:37.) 19 Officer Deida again asked Mr. Garcia to put his hands on the top of the steering 20 wheel and to stop moving around. (Id. at 23:39-23:48.) Mr. Garcia complied. (Id. at 23:48.) 21 Officer Deida then asked Mr. Garcia if he knew a “Derrick” (presumably meaning “Eric”) 22 who allegedly stabbed someone. (Id. at 24:43-25:02.) Though Mr. Garcia’s answers are 23 difficult to hear in the body camera footage, he appears to say that he does not know 24 anything. (Id.) Next, Officer Deida asked about the car. (Id. at 25:07-25:09.) Mr. Garcia 25 responded that the car belonged to his grandfather, Mallory Van Slyker.4 (Id. at 26 25:09-25:14.) Officer Deida again asked Mr. Garcia to keep his hands on the steering 27 4 Mr. Van Slyker was not Mr. Garcia’s grandfather. (Doc. 115-2 at 138-40; see also Doc. 28 115-3 at 124-131.) He was a friend of Mr. Garcia’s who had allowed Mr. Garcia to stay with him temporarily. (Doc. 115-2 at 138-40; see also Doc. 115-3 at 124-131.) 1 wheel. (Id. at 25:14-25:15.) He then asked Officer Wilson to keep an eye on Mr. Garcia 2 while he went to his patrol vehicle to run Mr. Garcia’s supposed name (John Salazar 3 Manuelo) and date of birth. (Id. at 27:43-27:51.) 4 Now in charge of watching Mr. Garcia, Officer Wilson stepped alongside the front 5 driver’s-side window where Officer Deida had previously been standing. (Doc. 115, Ex. 7 6 at 38:12.) Shortly after taking his position, and while making light conversation with Mr. 7 Garcia, Officer Wilson noticed that Mr. Garcia had lowered his right hand down toward 8 his right hip. (Id. at 38:58-39:03.) Officer Wilson asked Mr. Garcia to move his hand back 9 to the top of the steering wheel, which he did. (Id. at 38:58-39:03.) About a minute later, 10 Officer Wilson asked Mr. Garcia how tall he was. (Id. at 39:59-40:01.) Mr. Garcia’s answer 11 cannot be heard on the body camera footage, but Officer Wilson confirmed “5’11” after 12 Mr. Garcia answered. (Id. at 40:01-40:06.) At about the same time, Officer Deida, at 13 Sergeant John Backus’s direction, pulled his patrol vehicle forward into the driveway of 14 the residence and blocked Mr. Garcia’s car. (Id. at 40:04-40:25; Doc. 115, Ex. 5 at 15 00:40-00:47.) 16 Sergeant Backus then approached the car’s front driver’s-side window next to 17 Officer Wilson and asked Mr. Garcia why he was refusing to leave the car. (Doc. 115, Ex. 18 5 at 01:41-01:44.) Mr. Garcia responded that he did not understand why he had to do so. 19 (Id. at 01:44-01:48.) Sergeant Backus explained that they were investigating a stabbing and 20 they needed to identify everyone at the residence. (Id. at 01:49-01:54.) Sergeant Backus 21 also told Mr. Garcia that his staying in the car presented a safety hazard. (Id. at 22 01:59-02:07.) Mr. Garcia still refused to leave the car and stated that he would drive away. 23 (Id. at 02:07-02:15.) Sergeant Backus told Mr. Garcia that he could not leave the scene. 24 (Id. at 02:15-02:37.) In response, Mr. Garcia locked the car’s doors and rolled up its 25 windows. (Id. at 02:37-03:34.) 26 Sergeant Backus then moved to the rear of the car and left Officer Wilson by the 27 front driver’s-side window. (Id. at 03:10-03:43.) Officer Wilson took his eyes off Mr. 28 Garcia momentarily while he spoke to Sergeant Backus. (Doc. 115, Ex. 7 at 42:17-42:33; 1 see also Doc. 115, Ex. 5 at 3:30-3:43.) When he turned back to Mr. Garcia, he said that he 2 could not see Mr. Garcia’s hands and then, quickly thereafter, announced that Mr. Garcia 3 had a gun. (Doc. 115, Ex. 7 at 42:32-42:34.) Plaintiffs concede that Mr. Garcia had a gun 4 between the driver’s seat and the center console, plainly visible to Officer Wilson at that 5 time. (See Doc. 31 ¶ 36.) Officer Wilson and Sergeant Backus drew their pistols. (Doc. 6 115, Ex. 5 at 3:46-3:48; see also Doc. 115, Ex. 7 at 42:34-42:37.) Officer Trevino, then 7 standing at the end of the driveway, also drew his pistol and hurried to assist Officer Wilson 8 and Sergeant Backus beside the car. (Doc. 115, Ex. 3 at 36:21-36:30.) After first taking a 9 position at the front of the car, Officer Trevino moved behind Officer Wilson, beside the 10 rear driver’s-side window. (Id. at 36:30-36:59.) 11 After drawing his sidearm, Officer Wilson began issuing loud commands to Mr. 12 Garcia: “Hey! Put that f------’—get your hand off the gun! Get your hand off the f------’ 13 gun! Get your f-----’ hand off the gun!” (Doc. 115, Ex. 7 at 42:37-42:44.) While giving 14 these commands, Officer Wilson kept the barrel of his pistol pressed against the front 15 driver’s-side window, about level height with Mr. Garcia’s head. (Id.) Mr. Garcia leaned 16 his head down and toward the window, tapping his temple. (Id. at 42:43-42:45.) 17 Officer Wilson continued shouting loud commands, yelling, “Let go of the God 18 d--- gun! (Id. at 42:49-42:55.) Mr. Garcia again leaned his head toward the window and 19 tapped his temple. (Id. at 42:53-42:56.) Officer Wilson went on: “Hey! Let go of that f-----’ 20 gun!” (Id. at 42:56-43:00.) He told Officer Trevino, “Hey, if he lifts that gun up anymore, 21 I’m shooting him!” (Id. at 43:03-43:06; see also Doc. 115, Ex. 3 at 36:47-36:51.) Again, 22 Mr. Garcia tapped his head and leaned it toward the window. (Doc. 115, Ex. 7 at 23 43:06-43:08.) After briefly explaining to Officer Trevino where Mr. Garcia was holding 24 the gun, Officer Wilson turned to Mr. Garcia and clearly yelled, “Hey! Do not f----’ move 25 it, I will f-----’ shoot you!” (Id. at 43:12-43:20.) Though inaudible, Mr. Garcia visibly 26 mouths, “Shoot me mother f-----! Shoot me! Shoot me!” in response. (Id.; Doc. 115, Ex. 27 24 at 00:11-00:15.) 28 Seconds later, Officer Deida approached the front passenger’s-side window of the 1 car. (Doc. 115, Ex. 9 at 33:14-33:33.) Using a metal pipe that he found nearby, Officer 2 Deida swung three times at the window and broke it. (Id.) While not all of Mr. Garcia’s 3 movements are clear, it is apparent that he first looked toward the front passenger’s-side 4 window, flinched after Officer Deida’s first swing at the window, and then rapidly flinched 5 forward. (Doc. 115, Ex. 7 at 43:24-43:28; Doc. 115, Ex. 24 at 00:16-00:19; Doc. 115, Ex. 6 22 at 00:17-00:20.) His right arm is not clearly visible at that moment in any of the body 7 camera footage. (See, e.g., Doc. 115-3 at 54-117.) Nor is his gun. (See id.) Viewing the 8 facts in the light most favorable to Plaintiffs, the Court assumes that Mr. Garcia did not 9 raise his arm or gun.5 10 Immediately after Mr. Garcia’s flinch forward, Officers Wilson and Trevino opened 11 fire on him. (Doc. 115, Ex. 7 at 43:28-43:31; Doc. 115, Ex. 3 at 37:13-37:17.) Based on 12 the body camera footage, they likely fired at least ten rounds. (Doc. 115, Ex. 7 at 13 43:28-43:31; Doc. 115, Ex. 3 at 37:13-37:17.) Mr. Garcia suffered two penetrating gunshot 14 wounds in his left back and two in his right arm. (Doc. 115-3 at 146.) He received 15 perforating gunshot wounds to his chest, right arm, and right forearm. (Id. at 146-47.) 16 Finally, he suffered a graze gunshot wound to his right back. (Id. at 147.) 17 After the shots were fired, Officer Deida announced that Mr. Garcia was still 18 moving, and several officers shouted commands for Mr. Garcia to show his hands. (Doc. 19 115, Ex. 7 at 43:38-43:46; Doc. 115, Ex. 3 at 37:26-37:38; Doc. 115, Ex. 5 at 04:54-05:30; 20 Doc. 115, Ex. 9 at 33:44-34:30.) Officers Wilson and Trevino cleared the remaining shards 21 of window glass from the front and rear driver’s-side windows. (Doc. 115, Ex. 7 at 22 43:42-43:57; Doc. 115, Ex. 3 at 37:28-37:40.) Officers Wilson, Trevino, and Deida 23 continued aiming their pistols at Mr. Garcia and shouting for him to take his hand off the 24 gun. (Doc. 115, Ex. 7 at 43:57-44:26; Doc. 115, Ex. 3 at 37:40-39:06; Doc. 115, Ex. 9 at 25 34:30-35:23.) After about a minute and a half, Officer Deida said, “His hands are both off 26 the gun right now. His hands are both off the gun right now. The gun is in his lap.” (Doc. 27 115, Ex. 3 at 39:06-39:18; Doc. 115, Ex. 9 at 35:25-35:36.) About three minutes later, and
28 5 Officers Wilson and Trevino describe Mr. Garcia as raising his right arm, gun in hand. (Doc. 115 at 2, 6-7, 18, 21.) That contention is addressed later in this Order. 1 after many additional warnings, Officer Bodeway reached over and grabbed a black pistol 2 from inside the car.6 (Doc. 115, Ex. 3 at 39:18-42:13; Doc. 115, Ex. 5 at 35:36-38:40; Doc. 3 115, Ex. 27 at 03:48-03:54.)7 4 Officer Trevino dragged Mr. Garcia out of the car and, with the assistance of Officer 5 Bodeway, carried him a short distance from the residence, where he began performing 6 CPR. (Doc. 115, Ex. 3 at 42:15-43:46; Doc. 115, Ex. 27 at 04:04-05:08.) The officers then 7 put Mr. Garcia in a police vehicle. (Doc. 115, Ex. 3 at 43:46-44:58; Doc. 115, Ex. 27 at 8 05:23-06:31.) Mr. Garcia was immediately driven away from the scene to receive medical 9 treatment from responding personnel. (Doc. 115, Ex. 3 at 44:58-45:10.) Thereafter, he was 10 taken to a local emergency department where he was pronounced dead. (Doc. 115-3 at 11 147.) The medical examiner concluded that he “died as a result of multiple gunshot 12 wounds.” (Id. at 145, 147.) 13 Plaintiffs filed this lawsuit asserting claims against the City of Phoenix, Officers 14 Wilson, Deida, and Trevino, and Sergeant Backus. (Doc. 1.) Remaining are their claims 15 brought pursuant to 42 U.S.C. § 1983 against Officers Wilson and Trevino for their alleged 16 violation of Mr. Garcia’s right to be free from excessive force under the Fourth 17 Amendment, and of Plaintiffs’ right to be free from interference with their rights to familial 18 society and companionship under the Fourteenth Amendment. (Doc. 31 at ¶¶ 43-60.) 19 Officers Wilson and Trevino move for summary judgment, asserting that they are entitled 20 to qualified immunity. (Doc. 115.) 21 II. LEGAL STANDARD 22 A. Summary Judgment 23 Summary judgment is appropriate if the evidence, viewed in the light most favorable 24 to the nonmoving party, demonstrates “that there is no genuine dispute as to any material 25 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 26 genuine issue of material fact exists if “the evidence is such that a reasonable jury could 27 6 Officer Bodeway’s first name is unknown to the Court. 28 7 Docket 115, Exhibit 27 is the footage captured by Officer Bodeway’s AXON body camera. 1 return a verdict for the nonmoving party,” and material facts are those “that might affect 2 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 3 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the non-movant 4 is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 5 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)); see also Jesinger v. Nev. Fed. 6 Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (“The court must not weigh the evidence 7 or determine the truth of the matters asserted but only determine whether there is a genuine 8 issue for trial.”). 9 “[A] party seeking summary judgment always bears the initial responsibility of 10 informing the district court of the basis for its motion, and identifying those portions of 11 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 12 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment 13 must “cit[e] to particular parts of materials in the record” establishing a genuine dispute or 14 “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. 15 R. Civ. P. 56(c)(1). The Court does not have a duty “to scour the record in search of a 16 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 17 B. Qualified Immunity 18 Qualified immunity is an immunity from suit. Pearson v. Callahan, 555 U.S. 223, 19 231 (2009). It “protects government officials ‘from liability for civil damages insofar as 20 their conduct does not violate clearly established statutory or constitutional rights of which 21 a reasonable person would have known.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 22 2011) (en banc) (quoting Pearson, 555 U.S. at 231). Its purpose “is to strike a balance 23 between the competing need to hold public officials accountable when they exercise power 24 irresponsibly and the need to shield officials from harassment, distraction, and liability 25 when they perform their duties reasonably.” Id. (cleaned up). 26 A defendant in a § 1983 action is entitled to qualified immunity, once invoked, 27 unless “(1) he violated a statutory or constitutional right, and (2) the right was clearly 28 established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 1 (2011) (cleaned up). In moving for summary judgment, the defendant bears the burden of 2 proof that, even construing all evidence and drawing all reasonable inferences in the 3 plaintiff’s favor, no reasonable jury could find that the defendant violated the plaintiff’s 4 statutory or constitutional rights. See, e.g., Est. of Aguirre v. County of Riverside, 29 F.4th 5 624, 627-29 (9th Cir. 2022). But “[t]he plaintiff bears the burden of proof that the right 6 allegedly violated was clearly established at the time of the alleged misconduct.” Shooter 7 v. Arizona, 4 F.4th 955, 961 (9th Cir. 2021) (citation removed). 8 “A clearly established right is one that is ‘sufficiently clear that every reasonable 9 official would have understood that what he is doing violates that right.’” Mullenix v. Luna, 10 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “An officer 11 cannot be said to have violated a clearly established right unless the right’s contours were 12 sufficiently definite that any reasonable official in his shoes would have understood that he 13 was violating it, meaning that existing precedent placed the statutory or constitutional 14 question beyond debate.” City & County of San Francisco v. Sheehan, 575 U.S. 600, 611 15 (2015) (cleaned up). This “inquiry ‘must be undertaken in light of the specific context of 16 the case, not as a broad general proposition.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 17 (2021) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). Indeed, the Supreme 18 Court has “repeatedly told courts . . . not to define clearly established law at a high level of 19 generality.” al-Kidd, 563 U.S. at 742. 20 “Specificity is especially important in the Fourth Amendment context where it is 21 sometimes difficult for an officer to determine how the relevant legal doctrine, here 22 excessive force, will apply to the factual situation the officer confronts.” Rivas-Villegas, 23 595 U.S. at 6 (cleaned up). “Thus, [the Supreme Court] has stressed the need to ‘identify a 24 case where an officer acting under similar circumstances . . . was held to have violated the 25 Fourth Amendment.’” District of Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quoting 26 White v. Pauly, 580 U.S. 73, 79 (2017)). “Of course, there can be the rare ‘obvious case,’ 27 where the unlawfulness of the officer’s conduct is sufficiently clear even though existing 28 precedent does not address similar circumstances.” Id. But in all but the most obvious 1 cases, “police officers are entitled to qualified immunity unless existing precedent squarely 2 governs the specific facts at issue.” Est. of Hernandez by & through Hernandez v. City of 3 Los Angeles, 96 F.4th 1209, 1219 (9th Cir. 2024) (cleaned up). 4 III. DISCUSSION 5 The Court has “discretion to decide which of the two prongs of qualified immunity 6 analysis to tackle first.” al-Kidd, 563 U.S. at 735 (cleaned up). Here, the Court begins with 7 the first prong. 8 A. Excessive Force (Count One) 9 1. Violation of a Statutory or Constitutional Right 10 “A police officer’s application of deadly force to restrain a subject’s movements ‘is 11 a seizure subject to the reasonableness requirement of the Fourth Amendment.’” Est. of 12 Hernandez by & through Hernandez, 96 F.4th at 1216 (quoting Tennessee v. Garner, 471 13 U.S. 1, 7 (1985)). “Accordingly, any such use of deadly force must be ‘objectively 14 reasonable.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). In making that 15 determination, “the trier of fact should consider all relevant circumstances,” Demarest v. 16 City of Vallejo, 44 F.4th 1209, 1225 (9th Cir. 2022), including the following factors: (1) 17 the nature of the force inflicted; (2) the governmental interests at stake, which involve 18 factors such as the severity of the crime, the threat posed by the suspect, and whether the 19 suspect is resisting arrest or lawful detention (the “Graham factors”); and, ultimately, (3) 20 whether the force used was necessary. Espinosa v. City & County of San Francisco, 598 21 F.3d 528, 537 (9th Cir. 2010) (citing Graham, 490 U.S. at 396-97, and Miller v. Clark 22 County, 340 F.3d 959, 964 (9th Cir. 2003)). 23 The Court must also remember that “[t]he ‘reasonableness’ of a particular use of 24 force must be judged from the perspective of a reasonable officer on the scene, rather than 25 with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (1989) (citing Terry v. Ohio, 26 392 U.S. 1, 20-22 (1968)). “The calculus of reasonableness must embody allowance for 27 the fact that police officers are often forced to make split-second judgments—in 28 circumstances that are tense, uncertain, and rapidly evolving—about the amount of force 1 that is necessary in a particular situation.” Id. at 396-97. 2 i. Nature of the Force 3 Under the first factor of the Court’s reasonableness analysis, the Court must “assess 4 both ‘the risk of harm and the actual harm experienced.’” Sabbe v. Wash. Cnty. Bd. of 5 Comm’rs, 84 F.4th 807, 821 (9th Cir. 2023) (quoting Nelson v. City of Davis, 685 F.3d 6 867, 879 (9th Cir. 2012)). “The greater the risk of harm and the actual harm involved, the 7 greater the governmental interest must be to justify the use of force.” Id. Two officers 8 shooting approximately ten rounds at an individual from close range undoubtedly 9 constitutes deadly force. See Seidner v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022) 10 (concluding that “shooting a firearm” is “categorically” deadly force). And “[d]eadly force 11 is the most severe intrusion on Fourth Amendment interests because a person has a 12 ‘fundamental interest in his own life.’” Sabbe, 84 F.4th at 821 (quoting Garner, 471 U.S. 13 at 9.) Thus, the governmental interest at stake must have been equally strong to justify the 14 force used. 15 ii. Governmental Interest at Stake 16 The governmental interest at stake is defined by use of the Graham factors. 17 Espinosa, 598 F.3d at 537. Those factors are not exhaustive, and the Ninth Circuit has 18 considered other relevant factors “such as ‘the availability of less intrusive alternatives to 19 the force employed, whether proper warnings were given[,] and whether it should have 20 been apparent to officers that the person they used force against was emotionally 21 disturbed.’” Est. of Strickland v. Nevada County, 69 F.4th 614, 619 (9th Cir. 2023) (quoting 22 S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017)). But the Ninth Circuit 23 has made clear that the second Graham factor—the threat posed by the suspect—is the 24 most important. See, e.g., id. at 620; Sabbe, 84 F.4th at 822; Mattos v. Agarano, 661 F.3d 25 433, 441 (9th Cir. 2011) (en banc); Bryan v. MacPherson, 630 F.3d 805, 826 26 (9th Cir. 2010). 27 a. Severity of the Crime 28 When assessing this factor, the Court is to “look to the alleged crime of the person 1 being detained.” Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73 F.4th 678, 692 (9th Cir. 2 2023). Mr. Garcia was not suspected of committing any crime. Indeed, Officers Wilson 3 and Trevino do not argue that they suspected him of having committed a crime when they 4 first approached him. (See Doc. 115 at 12-15.) Instead, they argue that, throughout the 5 various officers’ conversations with Mr. Garcia, they developed probable cause to believe 6 that Mr. Garcia gave false information to a police officer in violation of 7 A.R.S. § 13-2907.01, that he was actively attempting to obstruct the investigation, and that 8 he had an outstanding warrant. (Doc. 115 at 14.) But Officers Wilson and Trevino do not 9 argue that these are serious offenses that justify the use of deadly force. (See id. at 12-15). 10 Instead, Defendants argue that the Court “should not focus too narrowly on the 11 severity of the crime, but rather on the nature of the ongoing emergency exacerbated by” 12 Mr. Garcia’s conduct. (Id. at 13.) The Ninth Circuit has advised that “when police are 13 responding to an ongoing emergency,” the Court must “consider the ‘serious—indeed, 14 life-threatening—situation . . . unfolding at the time.’” Bernal, 73 F.4th at 692 (quoting 15 Ames v. King County, 846 F.3d 340, 349 (9th Cir. 2017)) (alteration in original). 16 Here, Officers Wilson and Trevino were responding to an emergency. A 17 knife-wielding individual, alleged to have stabbed L.A., was said to be sheltering inside a 18 nearby residence. At the same time, however, none of the officers stated concern that the 19 suspect posed an active threat at that point, as L.A. was safely within police custody. (See 20 Doc. 115-2 at 45-49, 52-83, 94-111, 120-125, 128-131, 142-180.) In fact, when 21 interviewed by the Phoenix Police Department after the shooting, Sergeant Backus 22 appeared to suggest that, when he arrived on scene, he was not concerned that any 23 additional violence would occur. He was asked by the interviewer, “And you knew you 24 were investigating this felony. But there wasn’t necessarily any additional violence 25 potential to this house?” (Id. at 109.) He responded, “The only info that we had involving 26 violence with this house is the allegation of a stabbing . . .” (Id. at 110.) 27 Drawing all reasonable inferences in Plaintiffs’ favor, the investigation appears to 28 have been remedial rather than preventative. While Mr. Garcia’s refusal to cooperate with 1 law enforcement certainly frustrated a delicate situation, it was not the sort of actively 2 life-threatening one described in Ames and Bernal. For example, the plaintiff in Ames 3 actively hindered the defendants’ attempts to provide potentially life-saving medical 4 treatment to her son, who had apparently attempted suicide by overdosing on medication. 5 846 F.3d at 343-46, 348-49. In Bernal, the plaintiffs stalled the defendants’ time-sensitive 6 attempts to investigate and prevent a threatened school shooting. 73 F.4th at 683-85, 7 691-94. The situation that Officers Wilson and Trevino encountered did not present a 8 similar active threat to life. Accordingly, this factor weighs against Officers 9 Wilson and Trevino. 10 b. Threat Posed by the Suspect 11 “When someone points a gun at a law enforcement officer, the Constitution 12 ‘undoubtedly entitles the officer to respond with deadly force.’” Est. of Strickland, 69 F.4th 13 at 617 (quoting George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013)). Officers Wilson and 14 Trevino argue that Mr. Garcia did precisely that, and therefore he constituted a deadly 15 threat. (Doc. 115 at 2, 6-7, 18, 21.) They also contend that the body camera footage 16 demonstrates that Mr. Garcia raised his gun just prior to the shooting, and they submitted 17 a report from an expert who reviewed and enhanced that footage and came to the same 18 conclusion. (Id. at 9; Doc. 115-3 at 44-49.) But even after reviewing these materials, the 19 Court is still “unable to discern at any point whether Mr. Garcia had control of [his] 20 handgun.” (Doc. 45 at 3.) Nor can the Court tell if Mr. Garcia ever raised the gun and 21 pointed it at any of the officers. The Court cannot even tell from these materials whether 22 Mr. Garcia raised his arm at the time of the shooting. 23 In addition to arguing that the body camera footage shows Mr. Garcia brandishing 24 his gun, Officers Wilson and Trevino argue that the postmortem medical examination 25 report, which noted that Mr. Garcia suffered a gunshot wound in the center of the inside of 26 his right arm at the elbow joint, “conclusively establishes that [Mr. Garcia’s] right arm was 27 raised at the time of the shooting.” (Doc. 115 at 6-7.) The report did not make such a 28 finding, nor have Officers Wilson and Trevino put forth any testimony from a medical 1 expert to support their argument. While the Court may consider the medical examiner’s 2 report, see Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012), it declines to 3 find that the report conclusively establishes that Mr. Garcia raised his right arm at the time 4 of the shooting. 5 Plaintiffs argue that the undisputed video evidence demonstrates that Mr. Garcia 6 was not holding the gun at all.8 (Doc. 118 at 3 (“There was no gun visible on any of the 7 police officers’ body worn cameras.”).) While a reasonable jury may find to the contrary, 8 the Court cannot settle that factual dispute. Jesinger, 24 F.3d at 1131. As the Court stated 9 at the motion to dismiss stage, “[r]easonable inferences must be drawn in Plaintiff’s favor, 10 one being that the handgun was present, but that Mr. Garcia was not holding it.” (Doc. 45 at 11 4); see also Calogne v. City of San Jose, 104 F.4th 39, —, No. 22-16495, 2024 WL 12 2873371, at *3 (9th Cir. June 7, 2024) (“Where a police officer has used deadly force, it is 13 especially important that we [construe the facts in the light most favorable to the 14 non-moving party].”). 15 Nonetheless, while the act of pointing a gun at a police officer is certainly sufficient 16 to justify the use of deadly force, it is not necessary. Reasonableness does not “always 17 require[] officers to delay their fire until a suspect turns his weapon on them.” George, 736 18 F.3d at 838 (cleaned up). Instead, an officer’s use of deadly force is justified if that officer 19 “has probable cause to believe that a suspect poses a significant threat of death or serious 20 physical injury to the officer or others.” Est. of Strickland, 69 F.4th at 620 (cleaned up). 21 Thus, even if a suspect never raises or even touches their gun, they may still constitute a 22 threat sufficient to justify the use of deadly force. See George, 736 F.3d at 838 (“If the 23 person is armed—or reasonably suspected of being armed—a furtive movement, 24 harrowing gesture, or serious verbal threat might create an immediate threat.”); see also 25 Est. of Strickland, 69 F.4th at 620. Accordingly, the Court must determine to what degree 26 Mr. Garcia constituted a threat on the facts construed in the light most favorable to 27 8 In observing Plaintiffs’ argument, the Court does not rely upon or credit any conclusions 28 reached by their untimely disclosed expert, Bryan Neumeister. (See Doc. 113 (excluding Mr. Neumeister’s report as untimely disclosed).) 1 Plaintiffs—that is, that he flinched while in arm’s-reach of a gun but did not hold the gun, 2 raise the gun, or raise his arm. 3 The Court finds that, on these facts, Mr. Garcia constituted only a minimal threat. 4 The Ninth Circuit recently reiterated that deadly force does not become reasonable merely 5 because an individual is armed. See Calogne, 104 F.4th at —, 2024 WL 2873371, at *5 6 (holding that the decedent’s “mere possession of a gun did not justify the use of deadly 7 force”). Admittedly, Mr. Garcia undisputedly did more than merely possess a gun—he 8 moved while the gun was in reach. But the Court concludes that simply flinching in reaction 9 to a shattering window while in arm’s-reach of a gun is insufficient to transform an 10 individual into a threat warranting the use of deadly force. 11 Officers Wilson and Trevino disagree, relying on Amons v. Tindall, No. 20-16351, 12 2021 WL 3015107 (9th Cir. July 15, 2021). There, the defendant police officers responded 13 to a report of a possible drug sale. Id. at *1. Upon arriving on scene, the defendants found 14 Terry Amons in a car matching a description provided in the initial report. Id. They 15 approached Mr. Amons and “noticed a gun in plain view within the center console 16 cupholder between the driver’s seat and the passenger seat.” Id. The defendants drew their 17 pistols and began warning Mr. Amons not to reach for his gun. Id. Mr. Amons initially 18 complied, but eventually slid his right hand down toward his right hip. Id. at *2. The 19 defendants began issuing loud commands for Mr. Amons not to reach for the gun. Id. Mr. 20 Amons said, “But I’m not reaching for—!” but did not stop moving his hand. Id. One of 21 the defendants shot Mr. Amons, who was later pronounced dead at the hospital. Id. The 22 Ninth Circuit found that the defendants, whether rightly or wrongly, reasonably interpreted 23 Mr. Amons’ continued movement toward his gun as a threat to their lives. Id. at *4. 24 Amons is distinguishable because, there, Mr. Amons did more than merely move 25 while in arm’s-reach of a gun. Crucially, he reached toward his gun. The video evidence 26 in this case does not depict Mr. Garcia making a similar movement immediately before 27 being shot. It only shows him flinch. As stated, that is not enough. Thus, this most 28 important factor weighs against Officers Wilson and Trevino. 1 c. Whether the Suspect Was Resisting 2 The officers’ temporary detention and attempted identification of individuals within 3 the suspected crime scene, including Mr. Garcia, was legally permissible. See Hiibel v. 4 Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004) (discussing Terry 5 stops and noting that “the [Supreme] Court has recognized that a law enforcement officer’s 6 reasonable suspicion that a person may be involved in criminal activity permits the officer 7 to stop the person for a brief time and take additional steps to investigate further”). Mr. 8 Garcia actively resisted that lawful detention by refusing to exit his car, rolling up his 9 windows, and locking his doors. Thus, this factor weighs in favor of Officers Wilson and 10 Trevino. See Bernal, 73 F.4th at 692-93 (finding that one of the plaintiffs resisted a lawful 11 detention by refusing to exit her vehicle despite being ordered by police officers to do so). 12 d. Additional Factors 13 Neither party argues that any additional factors apply. (See generally Docs. 115, 14 118, 120.) Nonetheless, the Court finds that two are relevant to this inquiry. First, the Ninth 15 Circuit has stressed the importance of providing warnings prior to using deadly force, when 16 practicable. See, e.g., Gonzalez, 747 F.3d at 794. Officers Wilson, Trevino, and Deida 17 issued loud, frequent, and unequivocal warnings to Mr. Garcia that he must take his hand 18 off his gun. Officer Wilson told Mr. Garcia that he would be shot if he lifted his gun. 19 Plaintiffs do not argue that Mr. Garcia did not hear the warnings. (See generally Doc. 118.) 20 But even if he did not, Officers Wilson, Trevino, and Deida did everything practicable to 21 make sure that he did. Accordingly, this factor weighs in favor of Officers Wilson 22 and Trevino. 23 Finally, the Ninth Circuit has advised that “where it is or should be apparent to the 24 officers that the individual involved is emotionally disturbed, that is a factor that must be 25 considered in determining, under Graham, the reasonableness of the force employed.” 26 Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001). Mr. Garcia’s erratic behavior 27 and requests that Officer Wilson shoot him suggest that he was emotionally disturbed. In 28 such a situation, the governmental interest in using force is diminished. Id. This factor 1 weighs against Officers Wilson and Trevino. 2 iii. Necessity of the Force 3 At this last step, the Court must “balance the force that was used by the officers 4 against the need for such force to determine whether the force used was greater than is 5 reasonable under the circumstances.” Espinosa, 598 F.3d at 537 (cleaned up); see also 6 Smith v. Yanes, No. 2:21-CV-01732-HL, 2024 WL 759508, at *9 (D. Or. Feb. 23, 2024) 7 (conducting this step). 8 Officers Wilson and Trevino used deadly force—the greatest possible force 9 available. But taking the facts in the light most favorable to Plaintiffs, that level of force 10 was unnecessary, and, therefore, greater than reasonable under the circumstances. This is 11 evident from the fact that Mr. Garcia was not suspected of a serious crime, nor did he 12 exacerbate an ongoing and life-threatening emergency; he presented a minimal threat to 13 the safety of those nearby; and Mr. Garcia appeared to be emotionally disturbed. 14 On these facts, a reasonable jury could conclude that Officers Wilson and Trevino 15 violated Mr. Garcia’s right to be free from excessive force under the Fourth Amendment 16 2. “Clearly Established” 17 Officers Wilson and Trevino are nonetheless entitled to qualified immunity unless 18 it was clearly established at the time of their alleged misconduct that using deadly force in 19 response to an uncooperative and apparently mentally disturbed individual’s flinching 20 movement while within arm’s-reach of a plainly visible handgun would constitute 21 excessive force in violation of the Fourth Amendment. See al-Kidd, 563 U.S. at 735; see 22 also Rivas-Villegas, 595 U.S. at 6 (discussing the importance of defining the right at issue 23 with a high degree of specificity in excessive force cases). 24 Plaintiffs have failed to identify any existing precedent that “squarely governs the 25 specific facts at issue” in this case and thereby clearly established the law. Est. of 26 Hernandez by & through Hernandez, 96 F.4th at 1219. In fact, their only citations to 27 caselaw, aside from that setting the legal standard for summary judgment, came in a notice 28 filed by Ms. Garcia just one week before oral argument. (See Docs. 118, 123.) That notice 1 included eleven case citations with no accompanying analysis.9 (Id.) Ms. Garcia did not 2 argue that any of the cases squarely govern the specific facts at issue here. (See id.) The 3 Court has reviewed each of these cases and, among them, only two involved determinations 4 that a reasonable jury could find the defendant officers’ use of deadly force unreasonable. 5 George v. Morris, 736 F.3d 829 (9th Cir. 2013); Tennessee v. Garner, 471 U.S. 1 (1985). 6 In George, the Ninth Circuit concluded that a reasonable jury could find the 7 defendant officers acted unreasonably when they shot and killed an armed homeowner on 8 his patio. 736 F.3d at 832-33, 839. Importantly, there was no body camera footage that 9 captured the incident. Id. at 835. Without definitive proof of the events that precipitated 10 the shooting, the court identified material questions of fact regarding whether the decedent, 11 Donald George, presented an objective threat to the officers, and therefore, whether the 12 defendants’ use of force was reasonable. Id. Namely, it remained disputed whether Mr. 13 George raised his gun at the officers or made any other threatening movements that may 14 have rendered the defendants’ response reasonable. Id. at 838. 15 At most, George clearly establishes that an officer may not use deadly force against 16 an individual peaceably on their own property, making no attempt to flee, and, despite 17 being armed, taking no other objectively threatening action—physical or verbal. Id. at 18 837-839. That is not the situation depicted here by the officers’ undisputed body camera 19 footage. Instead, it shows Mr. Garcia make a rapid movement while within arm’s-reach of 20 a gun. Thus, George does not clearly establish that the use of deadly force is unreasonable 21 under these circumstances. 22 Nor does Garner. There, police officers investigating a potential residential break-in 23 encountered Edward Garner attempting to flee by climbing a six-foot high chain link fence. 24 Garner, 471 U.S. at 3. The defendant officer was “reasonably sure” that Mr. Garner was 25 unarmed. Id. Nonetheless, the defendant shot Mr. Garner in the back of the head, killing 26 him. Id. The Supreme Court determined that the use of deadly force was unreasonable
27 9 In addition to these eleven cases, Ms. Garcia attempts to cite two other cases. One, “Williams v. Las Vegas Metro,” does not contain a citation to a case reporter and the Court 28 is unable to discern what order or opinion Ms. Garcia is referring to. Similarly, the Court is unable to locate “A.K.H., 8937 F.3d at 1011.” 1 because “[a] police officer may not seize an unarmed, nondangerous suspect by shooting 2 him dead.” Id. at 11. Here, by contrast, Mr. Garcia was not “unarmed” or “nondangerous” 3 when he was shot. Instead, he was, at the very least, making a rapid movement while within 4 reach of a visible handgun. Accordingly, Garner does not clearly establish the law with 5 respect to the circumstances here presented. 6 Plaintiffs have therefore failed to present any case clearly establishing that Officers 7 Wilson and Trevino’s use of deadly force was unreasonable under the circumstances. 8 Nor has the Court discovered any such authority in its own research. 9 Peck v. Montoya, 51 F.4th 877 (9th Cir. 2022), comes the closest. In Peck, police 10 were called after decedent Paul Mono began behaving erratically and threatened an 11 individual with a gun. Id. at 883. After arriving, the officers set up a perimeter and spotted 12 Mr. Mono inside his house. Id. Mr. Mono yelled at the officers through a window, made 13 obscene gestures, and challenged them to shoot him. Id. at 883-84. At some point, one of 14 the defendant officers noticed Mr. Mono’s revolver lying on his couch. Id. at 884. Mr. 15 Mono observed this and began yelling, “I’ll show you my gun! You wanna see my gun?” 16 Id. Another of the defendant officers commanded Mr. Mono not to go near it. Id. 17 At that point, the parties’ stories diverged. Id. The defendants argued that Mr. Mono 18 reached for his gun, grabbed it, and raised it toward them. Id. The plaintiff claimed that 19 Mr. Mono did none of those things, and in fact, was moving away from the gun. Id. Further, 20 the plaintiff presented evidence that the gun was recovered “180-degrees away” from 21 where the defendants claimed, that Mr. Mono was “at least several feet away from the 22 gun,” and that the gun was still in its holster when recovered. Id. at 887. In either case, Mr. 23 Mono was shot and killed by the defendants. Id. at 844. On interlocutory appeal, the Ninth 24 Circuit accepted the district court’s determination that a reasonable jury could have found 25 that Mr. Mono was unarmed and moving away from the gun when he was shot. Id. at 26 887-88. On those facts, the Ninth Circuit held that the defendants’ use of deadly force was 27 unreasonable. Id. 28 Peck is dissimilar to this case for the crucial reason that, here, there is no dispute 1 that Mr. Garcia made a movement while within arm’s-reach of his gun. The parties agree 2 that his gun was directly next to him. No contrary evidence suggests that, like Mr. Mono 3 in Peck, Mr. Garcia was at least several feet away from it or otherwise unable to use it. 4 Thus, Peck does not inform officers that, in such a situation, use of deadly force is 5 unreasonable. 6 Finally, “it should go without saying that this is not an obvious case where a body 7 of relevant case law is not needed.” Wesby, 583 U.S. at 65 (cleaned up). “[T]o meet that 8 high standard, Plaintiffs would have to show that ‘any reasonable official in the defendant’s 9 shoes would have understood that he was violating’ the Constitution” despite the lack of 10 caselaw. Est. of Hernandez by & through Hernandez, 96 F.4th at 1221 (emphasis in 11 original) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014)). They have not 12 done so. 13 Officers Wilson and Trevino are therefore entitled to qualified immunity on 14 Plaintiffs’ excessive force claim. 15 B. Deprivation of Familial Society and Companionship (Count Two) 16 1. Violation of a Statutory or Constitutional Right 17 To prove that Officers Wilson and Trevino unconstitutionally interfered with 18 Plaintiffs’ rights to familial society and companionship, Plaintiffs must present evidence 19 that Officers Wilson and Trevino’s conduct “shocks the conscience’ or ‘offends the 20 community’s sense of fair play and decency.’” Rochin v. California, 342 U.S. 165, 21 172-73 (1952) (cleaned up). The “shocks-the-conscience” standard is, depending on the 22 circumstances, met either by showing that a defendant (1) acted with “deliberate 23 indifference” or (2) with a “purpose to harm” for reasons unrelated to legitimate law 24 enforcement objectives. Porter v. Osborn, 546 F.3d 1132, 1137 (9th Cir. 2008) (citing 25 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Under the first situation, if a 26 defendant is in a position “[w]here actual deliberation is practical,” then his deliberate 27 indifference to the harm he caused may be sufficient to “shock the conscience.” Gantt v. 28 City of L.A., 717 F.3d 702, 707-08 (9th Cir. 2013) (quoting Wilkinson v. Torres, 610 F.3d 1 546, 554 (9th Cir. 2010)). “On the other hand, where a law enforcement officer makes a 2 snap judgment because of an escalating situation,” then the courts apply the 3 “purpose-to-harm” standard. Id. (quoting Wilkinson, 610 F.3d at 554). 4 Under Supreme Court precedent, conduct that “shocks the conscience” includes 5 conduct that violates the “decencies of civilized conduct,” that is “brutal” or “offensive” or 6 “arbitrary.” County of Sacramento, 523 U.S. at 846-47 (cleaned up). “Legitimate objectives 7 can include ‘arrest, self-protection, and protection of the public,’” and “[i]llegitimate 8 objectives include ‘[whether] the officer had any ulterior motives for using force against 9 the suspect, such as to bully a suspect or get even, or when an officer uses force against a 10 clearly harmless or subdued suspect.” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 11 2022) (cleaned up). 12 Roughly one minute passed between the time Officer Wilson first spotted Mr. 13 Garcia’s gun and when Mr. Garcia flinched forward while within reach of the gun, 14 precipitating Officer Wilson and Trevino’s gunfire. During that time, the situation 15 escalated as Mr. Garcia steadfastly refused to put his hands on the steering wheel. The 16 Court therefore finds that actual deliberation was not practical under the circumstances, 17 and that Officers Wilson and Trevino were forced to make a snap judgment because of the 18 escalating situation. Thus, the purpose-to-harm standard applies. 19 Plaintiffs have presented no evidence that Officers Wilson and Trevino acted for 20 any reason other than to protect themselves and those around them. For example, there is 21 no evidence that their motive for using force was to bully Mr. Garcia or to get even with 22 him in some way, or that Mr. Garcia was clearly harmless. In the absence of such evidence, 23 a reasonable jury could not find for Plaintiffs on this claim. 24 2. “Clearly Established” 25 Even if Officers Wilson and Trevino had acted with a purpose to harm, Plaintiffs 26 have failed to cite any authority clearly establishing that the exercise of deadly force under 27 the circumstances violated their right to be free from interference with their rights to 28 familial society and companionship. After conducting its own research, the Court still is 1} not aware of any. 2 Accordingly, Officers Wilson and Trevino are entitled to qualified immunity on || Plaintiffs’ claim alleging unconstitutional interference with their right to familial society 4|| and companionship. 5|| IV. CONCLUSION 6 The Court finds that Officers Wilson and Trevino are entitled to qualified immunity || on both of Plaintiffs’ remaining claims. 8 IT IS THEREFORE ORDERED that Defendants Gregory Wilson and Noel 9|| Trevino’s Motion for Summary Judgment (Doc. 115) is granted. 10 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in 11 || Defendants Gregory Wilson and Noel Trevino’s favor and close this case. 12 Dated this 26th day of June, 2024. 13 Wicha T. Sibir Michael T. Liburdi 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28
-22-