Jacqueline Lawrence v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2021
• Docket: 20-15669
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JACQUELINE LAWRENCE, KEITH No. 20-15669 CHILDRESS, SR., individually and as Successor in Interest to Keith Childress, Jr., D.C. Nos. deceased; CAROLINA NAVARRO, 2:16-CV-03039-RFB-NJK guardian ad litem on behalf of K.C.; 2:18-CV-02314-RFB-CWH ARACELI SAENZ, guardian ad litem on behalf of A.S.; AMBER NEUBERT, guardian ad litem on behalf of K.C.; and MEMORANDUM* FREDERICK WAID, as special administrator of the Estate of Keith Childress, Jr.,

Plaintiffs-Appellees,

v.

ROBERT BOHANON; BLAKE WALFORD; and JAMES LEDOGAR,

Defendants-Appellants.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding

Argued and Submitted May 6, 2021 Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,** District Judge.

On December 31, 2015, Defendant-Officers Robert Bohanon and Blake

Walford fatally shot Keith Childress, Jr. (“Childress”) while attempting to arrest

him. After Childress ignored verbal commands to surrender and began approaching

Defendant-Officers, Bohanon shot him twice and Walford shot him three times.

Childress fell to the ground, and two-to-five seconds later, Bohanon and Walford

shot him two more times each. Defendant-Officer James Ledogar then deployed a

police dog, which bit Childress as he lay bleeding on the ground. Bohanon,

Walford, and Ledogar (together, “the Officers”) now appeal the denial of their

motion for summary judgment, on qualified immunity grounds, on Plaintiffs’

excessive force claim.1 We dismiss for lack of appellate jurisdiction.

“We have jurisdiction to determine our jurisdiction.” United States v.

Decinces, 808 F.3d 785, 788 (9th Cir. 2015). Although an order denying summary

judgment is generally not appealable, “the Supreme Court has created an exception

to the final judgment rule for certain interlocutory appeals when the district court

has denied a motion for summary judgment based on qualified immunity.” Pauluk

** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. 1 The Officers have abandoned their state law immunity claims. We therefore do not consider them on appeal. 2 v. Savage, 836 F.3d 1117, 1120−21 (9th Cir. 2016). However, that exception does

not extend to a district court’s determination that “the parties’ evidence presents

genuine issues of material fact.” George v. Morris, 736 F.3d 829, 834 (9th Cir.

2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)).

Here, the district court denied the Officers’ motion for summary judgment

because it found disputed issues of material fact. Specifically, it held that there is a

dispute as to whether “Childress was moving or had access to his pocket after

being shot” during the first volley and concluded that, under Plaintiffs’ version of

the facts, the Officers “continued to shoot at Childress” and deployed a K9 on him

“despite his clear incapacitation.” Lawrence v. Las Vegas Metro. Police Dep’t, 451

F. Supp. 3d 1154, 1165, 1170-71 (D. Nev. 2020). The Officers implicitly reject this

understanding of the record, arguing that they are entitled to immunity because

Childress was not incapacitated but, to the contrary, “immediately attempted to

stand back up” after the Officers’ first volley struck him.

Thus, the Officers’ arguments on appeal “[boil] down to factual disputes

about the record.” Est. of Anderson v. Marsh, 985 F.3d 726, 732 (9th Cir. 2021).

Such arguments are outside the limited scope of our jurisdiction. Id. at 734

(holding, on interlocutory appeal, that the court was without jurisdiction to review

the district court’s determination “that there is a genuine factual dispute as to

whether [the plaintiff] made a sudden movement”).

3 The Officers contend, however, that we may reach the merits because the

video evidence “blatantly contradict[s]” and “discredit[s]” what the district court

held was the version of the facts most favorable to Plaintiffs. Scott v. Harris, 550

U.S. 372, 380 (2007). But the video does not do so. A jury viewing it could

conclude, as Plaintiffs do, that if Childress moved at all after the first volley, his

movements were an involuntary response to being shot. A jury could also find that

Childress was “clearly incapacitated” when Bohanon and Walford began their

second volley and when Ledogar released his dog. Scott is therefore inapposite.

DISMISSED.