Savage v. Montanez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2026
• Docket: 24-7562
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JESSICA SAVAGE, individually and as No. 24-7562 successor in interest to Decedent Peter D.C. No. Birmingham, 5:24-cv-00097-KK-SP Plaintiff - Appellee, MEMORANDUM * 0F

v.

ROBERT MONTANEZ; RYAN HUBBARD; STEVEN HUNGERFORD,

Defendants - Appellants,

Appeal from the United States District Court for the Central District of California Kenly Kiya Kato, District Judge, Presiding

Submitted March 10, 2026 ** 1F

Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and LIBURDI, District Judge.*** 2F

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael T. Liburdi, United States District Judge for the District of Arizona, sitting by designation. Corona Police Department Officers Robert Montanez, Ryan Hubbard, and

Steven Hungerford (the “CPD Officers”) appeal from the district court’s denial of

their motions to dismiss based on qualified immunity claims for excessive use of

force brought under 42 U.S.C. § 1983. “We review de novo a denial of a motion to

dismiss based on qualified immunity, accepting as true all well-pleaded allegations

of material fact and construing them in the light most favorable to the non-moving

party.” Hyde v. City of Willcox, 23 F.4th 863, 869 (9th Cir. 2022). We affirm in

part, reverse in part, and remand.1

1. We affirm the district court’s denial of qualified immunity to Officer

Montanez on the Appellees’ excessive force claim. The operative facts, as alleged

by the first amended complaint (“FAC”), are that the CPD Officers were

dispatched to decedent Peter Birmingham’s home for a “mental/psychological

well-being” check. When the CPD Officers arrived, they found Mr. Birmingham

“alone in his backyard” armed with a loaded handgun. He was showing signs of

an “acute mental breakdown.” The CPD Officers positioned themselves in a “safe

1 The appeal is timely. The CPD Officers filed their notice of appeal on the same day that the district court entered the order denying their respective motions to dismiss, which was well within the deadline to do so. See Fed. R. App. P. 4(a)(1)(A) (establishing a 30-day deadline). The CPD Officers are not barred from appealing that order based on the district court’s denial of an earlier motion to dismiss filed by the City of Corona because they were not named defendants at the time that motion was filed, and because there is “no jurisdictional bar to successive interlocutory appeals of orders denying successive pretrial motions on qualified immunity grounds.” Knox v. Sw. Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997).

2 24-7562 location” in the side yard. The CPD Officers then deployed a drone, which

hovered over Mr. Birmingham. Mr. Birmingham pointed his handgun at the drone

and fired, but he never pointed the firearm at the CPD Officers or any other person.

Officer Montanez then used lethal force against Mr. Birmingham by shooting him

with a high-powered rifle.

Accepting as true these allegations and construing them in the light most

favorable to the Appellees, each of the Graham v. Connor factors favors the

Appellees. See 490 U.S. 386, 396 (1989). Therefore, the Appellees have

sufficiently stated a constitutional violation for the use of deadly force against Mr.

Birmingham, as he did not present “an immediate threat to their safety or to the

safety of others simply because [he was] armed.” Harris v. Roderick, 126 F.3d

1189, 1204 (9th Cir. 1997). We have clearly established that such a use of force is

a violation of the Fourth Amendment. See George v. Morris, 736 F.3d 829, 839

(9th Cir. 2013); see also Est. of Lopez v. Gelhaus, 871 F.3d 998, 1008–10 (9th Cir.

2017).

2. We reverse and remand the issue of Officer Hubbard’s entitlement to

qualified immunity. Under our precedent, courts are required to complete an

“individualized analysis” when confronted with a claim for qualified immunity and

“must carefully examine the specific factual allegations against each individual

defendant.” Cunningham v. Gates, 229 F.3d 1271, 1287–89 (9th Cir. 2000), as

3 24-7562 amended (Oct. 31, 2000) (emphasis added). Here, the district court improperly

lumped together the qualified immunity analysis of Officers Hubbard and

Hungerford and did not analyze separately whether Officer Hubbard’s order to fire

the rubber bullet was a clearly established constitutional violation. See Peck v.

Montoya, 51 F.4th 877, 890 (9th Cir. 2022) (“Liability may not be imposed based

on a ‘team effort’ theory that would allow the jury to lump all the defendants

together, rather than require it to base each individual’s liability on his own

conduct.” (citation modified)).

3. We affirm the district court’s denial of qualified immunity to Officer

Hungerford on the Appellees’ excessive force claim. Any argument on the first

prong of the qualified immunity analysis has been forfeited since the CPD Officers

presented no such argument. See Stockton v. Brown, 152 F.4th 1124, 1143 (9th

Cir. 2025). As to the second prong, the district court determined that firing the

rubber bullet at an incapacitated Mr. Birmingham may amount to a constitutional

violation, which has been clearly established by our precedent. See Zion v. County

of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017).

4. The CPD Officers contend that we should consider issues of fact that are

not otherwise alleged based on the recitation of the probable cause affidavit in the

FAC or because they are otherwise judicially noticeable. First, the facts within the

probable cause affidavit should not be considered as incorporated into the

4 24-7562 Plaintiff’s allegations because the FAC prefaces its recitation of the affidavit’s text

with the statement that it “contain[s] materially misleading statements of fact.” See

Hyde, 23 F.4th at 871 (courts “must construe the complaint in favor of the

non-moving party”). Second, the facts proposed as judicially noticeable cannot be

“accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b). Accordingly, the panel will

disregard those arguments. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.

2005) (courts “must disregard facts that are not alleged on the face of the

complaint or contained in documents attached to the complaint”). However, that

does not deprive us of jurisdiction over the legal issues presented by an

interlocutory appeal of a denial of a motion to dismiss based on qualified

immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). 3F

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

5 24-7562