Bao Le v. Cesar Molina ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAO XUYEN LE, as the court appointed No. 19-35464
Personal Representative of the estate of
Tommy Le; et al., D.C. No. 2:18-cv-00055-TSZ
Plaintiffs-Appellees,
MEMORANDUM*
v.
CESAR MOLINA, King County Deputy
Sheriff,
Defendant-Appellant,
and
MARTIN LUTHER KING JR. COUNTY,
Defendant.
BAO XUYEN LE, as the court appointed No. 19-35465
Personal Representative of the estate of
Tommy Le; et al., D.C. No. 2:18-cv-00055-TSZ
Plaintiffs-Appellees,
v.
MARTIN LUTHER KING JR. COUNTY,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant,
and
CESAR MOLINA, King County Deputy
Sheriff,
Defendant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted June 4, 2020
Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
This case arises from the fatal shooting of Tommy Le (“Tommy”) by King
County Sheriff’s Deputy Cesar Molina (“Molina”). Tommy’s family (“Le”) sued
Molina and King County (collectively, “Appellants”) under 42 U.S.C. § 1983 for
violations of the Fourth and Fourteenth Amendments. Molina appeals the district
court’s denial of his motion for summary judgment based on his claim of qualified
immunity. King County appeals the denial of its motion for summary judgment on
Le’s Monell claim. The cases were consolidated on appeal. Because Appellants
do not advance their arguments by taking the facts in the light most favorable to
Le, we lack appellate jurisdiction and dismiss the appeal.
We have jurisdiction to review an interlocutory appeal of a denial of
summary judgment based on qualified immunity “only to the extent ‘the issue
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appealed concerned, not which facts the parties might be able to prove, but, rather,
whether or not certain given facts showed a violation of clearly established law.’”
Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (quoting Johnson v.
Jones, 515 U.S. 304, 311 (1995)). In other words, in this interlocutory appeal, we
may only consider “purely legal issues,” id., and “we must construe the facts in the
light most favorable to the plaintiff,” Orn v. City of Tacoma, 949 F.3d 1167, 1171
(9th Cir. 2020).
Appellants do not present material facts in dispute in the light most
favorable to Le. Where an appellant advances an argument without taking the
facts in the light most favorable to the plaintiff, we will not “do [the] appellant’s
work for it, either by manufacturing its legal arguments, or by combing the record
on its behalf for factual support.” George v. Morris, 736 F.3d 829, 837 (9th Cir.
2013) (quoting W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir.
2012)). Here, Appellants recognize that the parties have different versions of the
facts, and they spend the argument portion of their brief disputing Le’s version.
For example, Appellants contend that Tommy presented an immediate threat to
deputies and bystanders because Molina had reason to believe that Tommy was
armed. Although it is undisputed that Molina had received reports that Tommy
was armed with a knife or a pointed object, it is highly disputed whether Tommy
was actually armed and whether Molina should have known that Tommy was
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unarmed when Molina encountered and shot Tommy. Because Appellants do not
accept Le’s version of the facts and fail to present a question of law, we lack
jurisdiction to consider the appeal.
DISMISSED FOR LACK OF JURISDICTION.
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