FILED NOT FOR PUBLICATION DEC 5 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAICA HAMPTON, No. 25-752
Plaintiff - Appellee, D.C. No. 3:21-cv-09407-SK v. Northern District of California, San Francisco CHRISTOPHER FLORES, in his individual capacity as a police officer for MEMORANDUM* the City and County of San Francisco,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of California Sallie Kim, District Judge, Presiding
Argued and Submitted November 20, 2025 San Francisco, California
Before: S.R. THOMAS, BRESS, and MENDOZA Circuit Judges. Dissent by Judge BRESS.
Plaintiff-Appellee, Jamaica Hampton, sued Defendant-Appellant,
Christopher Flores, for damages under 42 U.S.C. § 1983 alleging that Flores
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violated the Fourth Amendment’s prohibition on excessive force when he shot
Hampton. U.S. Const. amend. IV. Flores brings this interlocutory appeal
following the district court’s denial of his motion for summary judgment based on
qualified immunity. We affirm.
We review the district court’s denial of summary judgment based on
qualified immunity de novo. Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011)
(en banc). We consider all disputed facts in the light most favorable to Hampton,
the non-moving party, unless the videotape contradicts them. Scott v. Harris, 550
U.S. 372, 380-81 (2007). Because the parties are familiar with the facts of this
case, we need not recount them here.
I
We have jurisdiction over this case under 28 U.S.C. § 1291 because denying
summary judgment based on qualified immunity is an “appealable ‘final decision’”
so long as it “turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Flores raises two legal issues: one, that his actions were reasonable under
the Fourth Amendment; and two, that even if unconstitutional, the unlawfulness of
his actions was not clearly established. Appellate jurisdiction is appropriate for
these two legal issues. See, e.g., Plumhoff v. Rickard, 572 U.S. 765, 772-73 (2014)
2 (holding appellate jurisdiction is proper where the appellant raises legal issues
rather than a pure factual challenge).
II
To determine whether officers are entitled to qualified immunity under 42
U.S.C. § 1983 we use a “two-step test: first, we decide whether the officer violated
a plaintiff’s constitutional right; if the answer to that inquiry is ‘yes,’ we proceed to
determine whether the constitutional right was ‘clearly established in light of the
specific context of the case’ at the time of the events in question.” Mattos, 661
F.3d at 440. We address each step in turn.
A
Evaluating excessive force under the Fourth Amendment “requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989). We analyze whether force is excessive under the Fourth Amendment using
three steps. See Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011).
We start by assessing “the severity of the intrusion on the individual’s Fourth
Amendment rights by evaluating the type and amount of force inflicted. Even
3 where some force is justified, the amount actually used may be excessive.” Id.
(internal quotations and citations omitted). Then, “we evaluate the government’s
interest in the use of force. Finally, we balance the gravity of the intrusion on the
individual against the government’s need for that intrusion.” Id. (internal
quotations and citations omitted).
The first step requires us to consider “the quantum of force used” when
Flores fired his gun at Hampton. Id. Flores concedes that a gunshot is deadly
force as it “creates a substantial risk of causing death or serious bodily injury.”
Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir. 2005) (en banc). The severity
of the “intrusiveness of a seizure by means of deadly force is unmatched,”
Tennessee v. Garner, 471 U.S. 1, 9 (1985), so this factor weighs in favor of finding
Flores’s force was excessive.
The immediacy of the threat that Hampton posed to Flores and others, which
is “most important Graham factor,” dictates our conclusion at the second step.
Mattos, 661 F.3d at 441 (internal quotation marks omitted). A “simple statement
by an officer that he fears for his safety or the safety of others is not enough; there
must be objective factors to justify such a concern.” Id. at 441-42. Objective
factors do not justify a concern in this case because at the time Flores shot
Hampton, he was unarmed, injured, and unable to get off the ground.
4 Hampton had previously presented a threat to officer and public safety at the
time Officer Hayes fired six shots. However, Flores did not reassess the threat
Hampton posed after Flores’s partner, Officer Hayes, fired a round of six gunshots
five seconds prior to Flores’s single shot. See Est. of Hernandez v. City of Los
Angeles, 139 F.4th 790, 795 (9th Cir. 2025) (en banc) (holding officers are
required to reassess “the need for lethal force” after a suspect is shot and
wounded). When he heard Flores’s additional gunshot, Officer Hayes yelled
“Stop!” twelve times as he had determined that Hampton no longer posed a threat
after his six shots, and had begun calling for medical assistance. See Kisela v.
Hughes, 584 U.S. 100, 101-02 (2018) (noting that all three other officers on the
scene drew their guns and “subjectively believed” the plaintiff to be a threat to
others when the defendant shot her).
In addition to the video showing Hampton wounded and unable to get off
the ground, Flores’s lack of reassessment, and Officer Hayes’s subjective
assessment of threat, would permit a reasonable jury to find that Hampton did not
pose an immediate threat at the time Flores shot him.
Having determined both that the intrusion was most severe and that a
reasonable jury could find Hampton did not pose an immediate threat, the final
5 balancing step under Glenn leads us to conclude that Flores’s use of force was not
reasonable under the Fourth Amendment as a matter of law. 673 F.3d at 873.
B
In determining whether Flores violated a clearly established constitutional
right, “the focus is on whether the officer had fair notice that [his] conduct was
unlawful,” and this inquiry “must be undertaken in light of the specific context of
the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194,
198 (2004). “Use of excessive force is an area of law often ‘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.” Kisela, 584 U.S. at 104 (2018) (citing Mullenix v. Luna, 577 U.S.
7, 13 (2015)). For “excessive force cases, we need to compare the specific facts of
the case before us with the specific facts of previously decided cases,” but the facts
do not need to be “identical, or nearly identical to previously decided cases.”
Johnson v. Myers, 129 F.4th 1189, 1195 (9th Cir. 2025). Instead, we require “facts
that are sufficiently similar to allow for a meaningful comparison.” Id.
Considering the specific factual context of this case, we look to whether an
individual’s constitutional right to be free from additional deadly force where they
had previously attacked and injured an officer with something other than a firearm,
6 but were unarmed, wounded, and unable to get off the ground from a prior round
of gunshots at the time the officer fired a subsequent shot was clearly established.
We conclude precedent exists that is “clear enough that every reasonable official
would interpret it to establish the particular rule” that controls the facts in this case.
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018).
In Zion v. County of Orange, we stated that where “the suspect is on the
ground and appears wounded, he may no longer pose a threat; a reasonable officer
would reassess the situation rather than continue shooting. This is particularly true
when the suspect wields a knife rather than a firearm.” 874 F.3d 1072, 1076 (9th
Cir. 2017) (internal citation omitted). The officer in Zion fired a second volley of
nine gunshots and curb stomped the plaintiff’s head three times after he was
already on the ground, wounded from the first round of gunshots six seconds prior.
Id. at 1075. Flores argues this case is distinguishable from Zion because he fired
the additional gunshot five seconds after Officer Hayes’s first round and that he
fired one shot rather than nine.
Hampton’s fall to the ground constituted a break in the chain of events
providing Flores an opportunity to reassess, so we again reject any strict time
distinction. See Hernandez, 139 F.4th at 797, 801 (holding an officer had an
opportunity to reassess when the break was 1.4 seconds). And while we have long
7 held that the distinction between deadly and non-deadly force is meaningful, see,
e.g., City of Hemet, 394 F.3d at 704-07, the same cannot be said for Flores’s
proposed distinction between nine gunshots and one. In both instances, the
officer’s actions constituted the most severe intrusion on an individual’s
fundamental interest in their life. Garner, 471 U.S. at 9.
Additional sufficiently similar cases support to our conclusion that Flores
shooting Hampton when he was unarmed, wounded, but had previously injured the
officers with something other than a gun violated Hampton’s clearly established
constitutional rights. See, e.g., Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.
1992) (holding the officer’s firing four additional shots at an “unarmed, wounded
civilian” was not reasonable as a matter of law); Tan Lam v. City of Los Banos, 976
F.3d 986, 1001-02 (9th Cir. 2020) (denying qualified immunity where an officer
fired one additional shot at an individual who had previously injured the officer
with scissors but did not continue to pose a threat after the first volley of shots).
AFFIRMED.
8 FILED DEC 5 2025 Hampton v. Flores, No. 25-752 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BRESS, Circuit Judge, dissenting: After Jamaica Hampton violently attacked San Francisco Police Officers
Sterling Hayes and Christopher Flores, Officer Hayes fired his weapon at Hampton,
causing Hampton to briefly fall to the ground. It is undisputed that Hayes’s use of
deadly force was justified. Just seconds later, when Hampton started to stand up,
Flores fired a single additional shot to further subdue him. The majority concludes
that Flores’s single shot violated clearly established law, but it bases this
determination on an incomplete understanding of the facts and a misapplication of
Supreme Court precedent. I would hold that Officer Flores is entitled to qualified
immunity.
The result in excessive force cases “depends very much on the facts of each
case,” which is why “police officers are entitled to qualified immunity unless
existing precedent squarely governs the specific facts at issue.” Kisela v. Hughes,
584 U.S. 100, 104 (2018) (quotation omitted). In a case like this one, where we have
a clear video portraying the encounter from start to finish, we “view the facts in the
light depicted by the videotape.” Smith v. Agdeppa, 81 F.4th 994, 997 (9th Cir. 2023)
(alteration omitted) (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
1 In excessive force cases, we consider “[a]ll of the facts and circumstances
from the beginning of the encounter.” Blanford v. Sacramento Cnty., 406 F.3d 1110,
1118 (9th Cir. 2005); see also Barnes v. Felix, 605 U.S. 73, 76 (2025) (rejecting a
“moment-of-threat rule” that “looks only to the circumstances existing at the precise
time an officer perceived the threat inducing him to shoot”). Here, the encounter
began when Hampton attacked the officers in their police car without provocation
and in broad daylight as people in the neighborhood began to go about their day.
Hampton struck Officer Flores in the head multiple times with a glass bottle,
knocking his baton out of his hand and causing him to sustain a concussion. Then,
when Officer Flores fled, Hampton pursued him. The officers ordered Hampton to
“Get on the ground!” multiple times, with their guns drawn. But Hampton ignored
those warnings and then charged at Officer Hayes, leading Hayes to fire six shots to
protect himself and Flores from Hampton’s violent assault.
As for the circumstances at the moment Flores shot Hampton, the majority’s
characterization leaves out the critical facts and materially understates the threat that
Flores (and Hayes) faced. Three times, the majority says that Hampton was “unable
to get off the ground” “at the time” of Flores’s shot. However, the video plainly
shows Hampton starting to stand up at the time Flores fired his shot—just seconds
after Hayes’s volley caused him to fall to the ground. As the district court accurately
described it, Hampton at this point moved into a “kneeling lunge position.” Then
2 Flores fired his shot, and Hampton fell back to the ground. The majority’s
characterization of Hampton as “unable to get off the ground” would describe
Hampton at some point after Flores’s shot—but it ignores Hampton’s clear attempt
to stand which led to that shot. This is not a case where the video is ambiguous and
Hampton’s movement is susceptible to multiple interpretations. The parties do not
dispute that Hampton was attempting to stand up when Flores fired his shot, the
district court acknowledged as much, and this key fact was the central basis for
Hampton’s appeal. Yet the majority completely fails to address this defining feature
of the encounter or the impact it has on the clearly-established-law analysis.
At minimum, the fact that Hampton was starting to get up following his
violent assault on the officers puts this case firmly outside the realm of clearly
established law. The majority concludes that Zion v. County of Orange, 874 F.3d
1072 (9th Cir. 2017), clearly established the illegality of Flores’s shot. But in Zion,
we emphasized that “[i]n the video, Zion shows no signs of getting up.” 874 F.3d at
1076. Here, by contrast, it is undisputed that Hampton was getting up, and not in
some limited way, either. That fact alone makes this case “materially
distinguishable” from Zion, Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021), such
that denying qualified immunity is clear legal error.
3 Our recent en banc decision in Estate of Hernandez v. City of Los Angeles,
139 F.4th 790 (9th Cir. 2025) (en banc), confirms this interpretation of Zion. In
Hernandez, we characterized Zion as holding that “when an officer shoots and
wounds a suspect, and he falls to the ground, the officer cannot continue to shoot
him, absent some indication that he presents a continuing threat.” Hernandez, 139
F.4th at 795 (emphasis added). Put differently, Zion, per Hernandez, established that
“a fallen and injured suspect armed only with a bladed instrument does not present
a continuing threat merely because he makes nonthreatening movements on the
ground without attempting to get up.” Id. (emphasis added). Zion thus stands only
for the proposition that it is “clearly established that continuing to shoot a suspect
who appears incapacitated violates the Fourth Amendment.” Id. at 802 (emphasis
added).
If that language were not clear enough, the Hernandez court’s application of
Zion erases any doubt on this point. In Hernandez, there were three volleys of shots.
After the officer’s first volley, Hernandez “fell to the ground on his right side.” Id.
at 796. Then, Hernandez “rolled to the left into a position with his knees, feet, and
hands on the pavement, facing down, and started to push himself up, though he did
not continue walking toward” the officer. Id. The officer fired a second volley,
which “caused [Hernandez] to fall onto his back and curl up into a ball with his knees
4 against his chest and his arms wrapped around them.” Id. at 796–97. The officer
then fired a third volley. Id. at 797.
It was the third volley that divided the en banc court under Zion. But it is the
second volley in Hernandez that bears many similarities to Flores’s shot here. In
both cases, initial shots felled a suspect. Id. at 796. When the suspect “started to
push himself up” a few seconds later, the officer fired a second volley, causing the
suspect to fall back to the ground. Id. at 796–77. In Hernandez, applying Zion, all
eleven members of the en banc court agreed that the officer’s second volley was
reasonable as a matter of law. Id. at 800. We based that conclusion on the fact that
Hernandez “had risen halfway to a standing position” and thus “was not yet
incapacitated.” Id. It was this critical distinction—whether Hernandez was getting
up or was “incapacitated”—that distinguished the second (constitutional) volley
from the third (unconstitutional) volley. Hampton here was plainly not incapacitated
at the moment that Flores shot him. And if the second volley in Hernandez was
reasonable as a matter of law under Zion, I do not see how it could be clearly
established that the second volley here was unconstitutional under that same
authority.
There are of course some differences between this case and Hernandez, but
they cut both ways. The time between the first and second volleys in Hernandez
was shorter than what we have here, but just by a matter of seconds. The suspect in
5 Hernandez did have a blade, but he was also 36 feet away from the officer who shot
him, so he was not in immediate striking distance. Id. at 796. As the video reflects,
the two officers here were much closer to Hampton. And Hampton, unlike
Hernandez, had already violently attacked officers. But again, my broader point is
that if the second volley in Hernandez was constitutional, it cannot be said that the
asserted unconstitutionality of Flores’s single shot was clearly established.
The majority, for its part, makes no attempt to reconcile its holding with
Hernandez and its binding interpretation of Zion. Instead, the majority claims that
Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) and Tan Lam v. City of Los Banos,
976 F.3d 986 (9th Cir. 2020) are “sufficiently similar” to “support” its conclusion.
But those cases involved very different fact patterns, where officers had much more
time to reassess the threat. See Hopkins, 958 F.2d at 886 (“several minutes” passed
between the first and second volleys); Tan Lam, 976 F.3d at 998 (officer “not only
had time to speak to [the suspect’s father], but also had time to clear his jammed
handgun”). Tan Lam was also decided after the events in question here, so it cannot
serve as clearly established law. See, e.g., Kisela v. Hughes, 584 U.S. at 107 (“[A]
reasonable officer is not required to foresee judicial decisions that do not yet exist
. . . .”).
The Supreme Court has emphasized that courts should be especially wary of
second-guessing officers’ “split-second judgments.” Plumhoff v. Rickard, 572 U.S.
6 765, 775 (2014) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). That
concern is directly implicated in this case. And by ignoring the key differences
between this case and Zion and our other precedents, the majority violates the
Supreme Court’s critical directive “not to define clearly established law at a high
level of generality.” Kisela v. Hughes, 584 U.S. at 104 (quotations omitted). It is an
upside-down world when Hampton violently attacked officers and put Officer Flores
to a split-second decision affecting public safety, yet emerges from this episode with
the potential for a monetary award.
I respectfully dissent from the decision to deny Officer Flores qualified