NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PATRICIA LOPEZ, as a surviving parent No. 22-15278 and personal representative of the estate deceased Anthony Lopez; CAESAR LOPEZ, D.C. No. 2:19-cv-04764-DLR surviving parent of deceased Anthony Lopez,
Plaintiffs-Appellees, MEMORANDUM*
v.
CITY OF MESA; HEATH CARROLL,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Argued and Submitted July 6, 2023 San Francisco, California
Before: NGUYEN, COLLINS, and LEE, Circuit Judges. Dissent by Judge LEE.
Defendants City of Mesa and officer Heath Carroll (collectively
“defendants”) appeal the district court’s denial of qualified immunity at summary
judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Patricia and Caesar Lopez (“plaintiffs”), the surviving parents of Anthony
Lopez (“Lopez”), brought this action against defendants under 42 U.S.C. § 1983
for excessive force in the shooting death of their son during a traffic stop.
Defendants moved for summary judgment. The district court denied qualified
immunity on claims of excessive force under the Fourth Amendment, interference
with familial relations under the Fourteenth Amendment, and wrongful death under
state law.
A denial of qualified immunity is reviewed de novo. Villanueva v.
California, 986 F.3d 1158, 1165 (9th Cir. 2021). Our review of a denial of
qualified immunity is “limited exclusively to questions of law” and we take all
disputed facts in favor of the plaintiff. Eng v. Cooley, 552 F.3d 1062, 1067 (9th
Cir. 2009). In determining the qualified immunity issue, the court asks two
questions: (1) “[t]aken in the light most favorable to the party asserting the injury,
do the alleged facts show the officer’s conduct violated a constitutional right”; and
(2) “if a violation could be made out on a favorable view of the parties’
submissions,” was the right “clearly established.” Saucier v. Katz, 533 U.S. 194,
201 (2001).
1. Under the Fourth Amendment, the use of force on a suspect is assessed
for reasonableness based on the totality of the circumstances. Graham v. Connor,
490 U.S. 386, 396 (1989). Among the factors to consider are “the severity of the
2 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.” Id.
The district court correctly denied qualified immunity on the plaintiffs’
Fourth Amendment claim because, construing the facts in the light most favorable
to plaintiffs, we conclude that every reasonable officer in Carroll’s position would
have recognized that shooting and killing Lopez constituted excessive force.
On July 21, 2018, Officers Thranum and Carroll approached Lopez’s car
which was stopped at an intersection without its headlights on. Officer Thranum
pulled up behind Lopez’s car, while Officer Carroll, in another cruiser, pulled up
on the passenger side of Lopez’s car. Lopez failed to comply with Officer
Thranum’s request for his keys, and instead reached for his gear shift. Officer
Carroll pointed a taser at Lopez, thrust his arm into the open window and yelled
commands for Lopez not to put the car in drive. Rather than comply, Lopez slowly
reversed his car and collided into Thranum’s police vehicle right behind him.
Officer Carroll was knocked back, quickly regained his footing, and fired nine
shots through Lopez’s passenger window, killing him. Meanwhile, Officer
Thranum had retreated to her car, uninjured.
Officer Carroll testified that he shot Lopez to protect Officer Thranum and
himself, because he mistakenly believed that Officer Thranum had been injured
3 and was under Lopez’s vehicle. Officer Carroll also testified that he believed that
he could be further injured if Lopez drove his car into him. We have reviewed
videos of the incident from the officers’ bodycams, and we conclude that a
reasonable trier of fact could find Officer Carroll’s testimony to be not credible.
Construing the facts in the plaintiffs’ favor, as we must at this stage of the
proceedings, we hold that any reasonable officer would have realized that use of
deadly force was unreasonable. It is undisputed that Carroll did not see Officer
Thranum fall or hear her cry out. Officer Thranum never put any limbs inside
Lopez’s car and moved straight backwards when Lopez reversed. Lopez backed
up his car slowly, moving at just six miles per hour when he knocked into the
police cruiser. The video shows that the car was not in motion when Officer
Carroll shot Lopez nine times. Officer Carroll stated that he continued shooting
until Lopez removed his hand from the gear shift. Under the totality of the
circumstances of this case, as construed in plaintiffs’ favor, every reasonable
officer would have perceived that Lopez did not pose any immediate danger to
either officer such that the use of deadly force was justified without pausing to
assess the situation.
2. To establish a violation of the plaintiffs’ Fourteenth Amendment due
process right of familial association, the officer’s conduct must “shock[] the
conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). That can be
4 shown either by a “deliberate indifference” standard or a “purpose to harm”
standard. Id. We agree with defendants that the conduct of Officer Carroll must
be evaluated under the “purpose to harm standard of culpability” because the
incident involved an “evolving set of circumstances that took place over a short
time period necessitating ‘fast action.’” Id. at 1139–40 (citation omitted). Here, a
reasonable trier of fact could conclude that Officer Carroll acted with a purpose to
harm “unrelated to the legitimate object of arrest.” Id. at 1140 (citation omitted);
A.D. v. California Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013). And, for
the reasons we have explained, when the facts are viewed in the Plaintiffs’ favor,
every reasonable officer in Officer Carroll’s situation would have understood that
the immediate use of deadly force was so unnecessary that it did not “serve[] the
legitimate purpose of stopping a dangerous suspect.” Zion v. Cnty. of Orange, 874
F.3d 1072, 1077 (9th Cir. 2017). Accordingly, the district court correctly denied
qualified immunity on the Fourteenth Amendment claim.
3. We may exercise pendent appellate jurisdiction of a state law claim if the
state law issues are “inextricably intertwined” with the qualified immunity
question on interlocutory appeal here.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PATRICIA LOPEZ, as a surviving parent No. 22-15278 and personal representative of the estate deceased Anthony Lopez; CAESAR LOPEZ, D.C. No. 2:19-cv-04764-DLR surviving parent of deceased Anthony Lopez,
Plaintiffs-Appellees, MEMORANDUM*
v.
CITY OF MESA; HEATH CARROLL,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Argued and Submitted July 6, 2023 San Francisco, California
Before: NGUYEN, COLLINS, and LEE, Circuit Judges. Dissent by Judge LEE.
Defendants City of Mesa and officer Heath Carroll (collectively
“defendants”) appeal the district court’s denial of qualified immunity at summary
judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Patricia and Caesar Lopez (“plaintiffs”), the surviving parents of Anthony
Lopez (“Lopez”), brought this action against defendants under 42 U.S.C. § 1983
for excessive force in the shooting death of their son during a traffic stop.
Defendants moved for summary judgment. The district court denied qualified
immunity on claims of excessive force under the Fourth Amendment, interference
with familial relations under the Fourteenth Amendment, and wrongful death under
state law.
A denial of qualified immunity is reviewed de novo. Villanueva v.
California, 986 F.3d 1158, 1165 (9th Cir. 2021). Our review of a denial of
qualified immunity is “limited exclusively to questions of law” and we take all
disputed facts in favor of the plaintiff. Eng v. Cooley, 552 F.3d 1062, 1067 (9th
Cir. 2009). In determining the qualified immunity issue, the court asks two
questions: (1) “[t]aken in the light most favorable to the party asserting the injury,
do the alleged facts show the officer’s conduct violated a constitutional right”; and
(2) “if a violation could be made out on a favorable view of the parties’
submissions,” was the right “clearly established.” Saucier v. Katz, 533 U.S. 194,
201 (2001).
1. Under the Fourth Amendment, the use of force on a suspect is assessed
for reasonableness based on the totality of the circumstances. Graham v. Connor,
490 U.S. 386, 396 (1989). Among the factors to consider are “the severity of the
2 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.” Id.
The district court correctly denied qualified immunity on the plaintiffs’
Fourth Amendment claim because, construing the facts in the light most favorable
to plaintiffs, we conclude that every reasonable officer in Carroll’s position would
have recognized that shooting and killing Lopez constituted excessive force.
On July 21, 2018, Officers Thranum and Carroll approached Lopez’s car
which was stopped at an intersection without its headlights on. Officer Thranum
pulled up behind Lopez’s car, while Officer Carroll, in another cruiser, pulled up
on the passenger side of Lopez’s car. Lopez failed to comply with Officer
Thranum’s request for his keys, and instead reached for his gear shift. Officer
Carroll pointed a taser at Lopez, thrust his arm into the open window and yelled
commands for Lopez not to put the car in drive. Rather than comply, Lopez slowly
reversed his car and collided into Thranum’s police vehicle right behind him.
Officer Carroll was knocked back, quickly regained his footing, and fired nine
shots through Lopez’s passenger window, killing him. Meanwhile, Officer
Thranum had retreated to her car, uninjured.
Officer Carroll testified that he shot Lopez to protect Officer Thranum and
himself, because he mistakenly believed that Officer Thranum had been injured
3 and was under Lopez’s vehicle. Officer Carroll also testified that he believed that
he could be further injured if Lopez drove his car into him. We have reviewed
videos of the incident from the officers’ bodycams, and we conclude that a
reasonable trier of fact could find Officer Carroll’s testimony to be not credible.
Construing the facts in the plaintiffs’ favor, as we must at this stage of the
proceedings, we hold that any reasonable officer would have realized that use of
deadly force was unreasonable. It is undisputed that Carroll did not see Officer
Thranum fall or hear her cry out. Officer Thranum never put any limbs inside
Lopez’s car and moved straight backwards when Lopez reversed. Lopez backed
up his car slowly, moving at just six miles per hour when he knocked into the
police cruiser. The video shows that the car was not in motion when Officer
Carroll shot Lopez nine times. Officer Carroll stated that he continued shooting
until Lopez removed his hand from the gear shift. Under the totality of the
circumstances of this case, as construed in plaintiffs’ favor, every reasonable
officer would have perceived that Lopez did not pose any immediate danger to
either officer such that the use of deadly force was justified without pausing to
assess the situation.
2. To establish a violation of the plaintiffs’ Fourteenth Amendment due
process right of familial association, the officer’s conduct must “shock[] the
conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). That can be
4 shown either by a “deliberate indifference” standard or a “purpose to harm”
standard. Id. We agree with defendants that the conduct of Officer Carroll must
be evaluated under the “purpose to harm standard of culpability” because the
incident involved an “evolving set of circumstances that took place over a short
time period necessitating ‘fast action.’” Id. at 1139–40 (citation omitted). Here, a
reasonable trier of fact could conclude that Officer Carroll acted with a purpose to
harm “unrelated to the legitimate object of arrest.” Id. at 1140 (citation omitted);
A.D. v. California Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013). And, for
the reasons we have explained, when the facts are viewed in the Plaintiffs’ favor,
every reasonable officer in Officer Carroll’s situation would have understood that
the immediate use of deadly force was so unnecessary that it did not “serve[] the
legitimate purpose of stopping a dangerous suspect.” Zion v. Cnty. of Orange, 874
F.3d 1072, 1077 (9th Cir. 2017). Accordingly, the district court correctly denied
qualified immunity on the Fourteenth Amendment claim.
3. We may exercise pendent appellate jurisdiction of a state law claim if the
state law issues are “inextricably intertwined” with the qualified immunity
question on interlocutory appeal here. An issue is “inextricably intertwined” if
“resolution of the issue properly raised on interlocutory appeal necessarily resolves
the pendent issue.” Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir. 2000).
Here, the state claim for wrongful death under A.R.S. § 13-410(C) is
5 “inextricably intertwined” with the federal claims on the qualified immunity
question, and we therefore exercise pendent jurisdiction over this claim. Because
the jury could determine that Officer Caroll’s use of deadly force was
unreasonable, the City of Mesa is not entitled to summary judgment on this claim.
AFFIRMED.
6 FILED Patricia Lopez v. City of Mesa, No. 22-15278 JUL 1 2024 LEE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS The majority correctly concludes that a reasonable jury could find that Officer
Carroll used excessive force when he shot Anthony Lopez, given that Lopez’s car
reversed fairly slowly. But I disagree that the violation was clearly established at
the time of the incident.
The Supreme Court has “repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high level of generality.” Kisela
v. Hughes, 584 U.S. 100, 104, 1152 (2018) (citation omitted). So “police officers
are entitled to qualified immunity unless existing precedent ‘squarely governs’ the
specific facts at issue.” Id. (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)
(per curiam)).
No binding precedent squarely governs the specific and unique facts here:
While Lopez reversed his car relatively slowly, his car still struck Officer Carroll,
hitting his arm and causing him to drop his Taser. After being struck by a car and
having his less-lethal weapon fall out of his hands, Officer Carroll then used his gun
to fire repeatedly into the car.
The plaintiffs offer three cases to claim that the violation here was clearly
established, but they are factually distinguishable because the officer there did not
lose his weapon due to the suspect’s actions. First, in A.D. v. California Highway
Patrol, an officer shot twelve rounds at the plaintiff after his supervisor ordered him 1 to stop. 712 F.3d 446, 450 (9th Cir. 2008). Second, in Adams v. Speers, the officer
voluntarily joined an ongoing car chase, then—after the chase ended, while another
officer reached into the plaintiff’s car with a less-lethal weapon—started firing. 473
F.3d 989, 991–92 (9th Cir. 2007). Third, in Acosta v. City and County of San
Francisco, the officer chased two suspects on foot, then shot them as they got into a
vehicle. 83 F.3d 1143, 1144 (9th Cir. 1996), abrogated by Saucier v. Katz, 533 U.S.
194 (2001). Officer Carroll did not pursue Lopez, fire after being ordered to stop,
or begin shooting when other officers had the situation under control. Rather, he
shot Lopez after he refused to follow orders and then suddenly struck him with his
car, knocking the Taser out of his hand.
The Fourteenth Amendment violation also was not clearly established. Even
if Officer Carroll wanted to punish Lopez for driving into a police cruiser, the
plaintiffs have identified no cases establishing that it violated the constitution in
these circumstances. They cite A.D., but the officer there had been ordered not to
shoot but chose to do so anyway. 712 F.3d at 451. And in Porter v. Osborn, the
plaintiff had not yet harmed the police officers or placed them in danger. 546 F.3d
1131, 1133, 1137 (9th Cir. 2008). Here, Lopez hit Officer Carroll with the car and
reversed in Officer Thranum’s direction until he collided with her police cruiser.
I respectfully dissent.