The Estate of Bishar Ali Hassan v. Municipality and City of Anchorage

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2024
• Docket: 23-35466
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAY 22 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THE ESTATE OF BISHAR ALI No. 23-35466 HASSAN; AHMED HASSAN; BILAY ADEN IDIRIS, D.C. No. 3:21-cv-00076-SLG

Plaintiffs-Appellants, MEMORANDUM* v.

MUNICIPALITY AND CITY OF ANCHORAGE; MATTHEW HALL; NATHAN LEWIS; BRETT EGGIMAN; DOES 1-20, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding

Submitted May 20, 2024** Anchorage, Alaska

Before: BYBEE, FRIEDLAND, and MILLER, Circuit Judges.

* 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 Estate of Bishar Hassan (Hassan), Hassan’s brother Ahmed, and Hassan’s

mother Bilay Aden Idiris (collectively, Plaintiffs-Appellants) appeal a grant of

summary judgment in favor of three Anchorage Police Department officers and the

Municipality and City of Anchorage (Defendants-Appellees) in a § 1983 case

involving the lethal use of force. We have jurisdiction under 28 U.S.C. § 1291.

Reviewing de novo, Long v. Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024), we affirm.

1. Plaintiffs-Appellants have failed to identify disputed material facts that

would permit a reasonable jury to conclude that Hassan was unconstitutionally

seized before the officers’ use of lethal force.1 Because the officers did not use

physical force before discharging their firearms, Hassan needed to have submitted

to the officers’ authority to be “seized” within the meaning of the Fourth

Amendment. See Brendlin v. California, 551 U.S. 249, 254 (2007); United States v.

McClendon, 713 F.3d 1211, 1215 (9th Cir. 2013). Far from submitting, however,

Hassan disregarded the officers’ instructions and continued approaching, pulling his

firearm from his waistband. Any brief verbal exchange between Hassan and the

officers does not convert the encounter to a seizure, nor does it matter that Hassan

was walking toward, rather than away from, the officers. See United States v. Smith,

633 F.3d 889, 893 (9th Cir. 2011).

1 Plaintiffs-Appellants do not offer any argument challenging the constitutionality of the use of lethal force itself. 2 2. The district court did not err in relying on the compilation of still frames

in granting summary judgment. The still frames are consistent with the video

recordings of the event, so Plaintiffs-Appellants have not identified a genuine

dispute of material fact. See Hernandez v. Town of Gilbert, 989 F.3d 739, 743

(9th Cir. 2021). The best evidence rule, see Fed. R. Evid. 1002, has no role to play

here because copies of the original video recordings were presented to the district

court, see United States v. Bennett, 363 F.3d 947, 953 (9th Cir. 2004). Finally, even

if Plaintiffs-Appellants could provide evidence supporting their assertion that

Hassan attempted to inform the officers that his firearm was fake, that evidence

would not affect any evaluation of whether the officers’ use of lethal force was

reasonable under the circumstances. See Est. of Strickland v. Nevada County, 69

F.4th 614, 620–23 (9th Cir. 2023) (concluding that law enforcement permissibly

used lethal force against a person who pointed a BB gun in the direction of the

officers).

3. We decline to consider Plaintiffs-Appellants’ claim that Ahmed

Hassan’s Fourth Amendment rights were violated. Plaintiffs-Appellants’ complaint

did not plead a Fourth Amendment claim as to Ahmed Hassan. Their claim is thus

forfeited. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).

4. The district court also properly rejected Plaintiffs-Appellants’ Monell

claim. On appeal, Plaintiffs-Appellants acknowledge that their Monell claim turns

3 on their ability to overcome summary judgment on the Fourth Amendment seizure

claim. Because they have failed to do so, their Monell claim fails.

AFFIRMED.