Estate of Clemente N. Aguirre v. County of Riverside ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF CLEMENTE NAJERA No. 19-56462
AGUIRRE; J.S.; A.S.; Y.S.,
Plaintiffs-Appellees, D.C. No.
5:18-cv-00762-
v. DMG-SP
COUNTY OF RIVERSIDE; DAN
PONDER, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted November 15, 2021
San Francisco, California
Filed March 24, 2022
Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Jane A. Restani, * Judge.
Opinion by Judge McKeown
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
SUMMARY **
Civil Rights
The panel affirmed the district court's denial of qualified
immunity to Sergeant Dan Ponder of the Riverside County
Sheriff’s Department in an action brought pursuant to
42 U.S.C. § 1983 alleging, among other things, that Ponder
used excessive force in violation of the Fourth Amendment
when he shot Clemente Najera-Aguirre six times without
warning and killed him.
The panel first determined, as a threshold matter, that it
had jurisdiction over this interlocutory appeal and that
Ponder’s characterization of the facts did not result in waiver
of his qualified immunity defense.
The panel stated that police shootings, like all Fourth
Amendment seizures, must be objectively reasonable—and
when a suspect poses no immediate threat to an officer or
others, killing the suspect violates his Fourth Amendment
rights. Here, in dispute was the level of threat Najera posed
immediately before he died. A key disputed fact was
whether Najera was facing the officer and coming “on the
attack,” as Ponder contended, or whether Najera was turned
away from the officer, as indicated by the coroner’s report.
Additionally, although eyewitnesses agreed that Najera was
holding at least one bat-like object when he was shot, it was
disputed how he held that object. Nothing in the record
suggested that Najera was threatening bystanders or
advancing toward them when he was killed. Based on
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 3
Najera’s facts, he presented no threat at all to the officer—
or anyone else—in that moment. The panel concluded that
on interlocutory appeal, construing the evidence in favor of
nonmovant Najera, Ponder’s conduct was not objectively
reasonable, and his use of excessive force violated the Fourth
Amendment.
Because Najera’s estate presented facts sufficient to
establish a Fourth Amendment violation, the panel
considered the second prong of qualified immunity: whether
the law was clearly established. The panel held that although
no body of relevant case law was necessary in an “obvious
case” like this one, this Circuit’s precedent also put Ponder
on notice that his specific conduct was unlawful.
COUNSEL
Tony M. Sain (argued), Lewis Brisbois Bisgaard & Smith
LLP, Los Angeles, California, for Defendants-Appellants.
Dale K. Galipo (argued) and Hang D. Le, Law Offices of
Dale K. Galipo, Woodland Hills, California; Christian F.
Pereira and Ian A. Cuthbertson, Pereira Law, Long Beach,
California; for Plaintiffs-Appellees.
4 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
OPINION
McKEOWN, Circuit Judge:
Police shootings, like all Fourth Amendment seizures,
must be objectively reasonable—and when a suspect poses
no immediate threat to an officer or others, killing the
suspect violates his Fourth Amendment rights. Here, an
officer shot Clemente Najera-Aguirre (“Najera”) six times
without warning and killed him. In dispute is the level of
threat Najera posed immediately before he died. That
quintessential question of fact is reserved for the jury and
precludes summary judgment on the excessive-force claim.
We affirm the district court’s denial of qualified immunity.
I. Background
On April 15, 2016, Sergeant Dan Ponder of the Riverside
County Sheriff’s Department received radio reports that
someone in Lake Elsinore, California, was destroying
property with a bat-like object, and had threatened a woman
with a baby. Crucially, key facts are disputed in this
summary judgment record: whether the officer saw
bystanders bleeding; how close Najera stood to the
bystanders; whether Najera was retreating from the property;
and whether, as he interacted with observers and the police,
Najera was holding his stick upright in a batter’s position in
an ostensibly threatening manner, or with the tip pointed
down in a way that did not pose a threat.
Upon arriving, Ponder exited the patrol car with his gun
drawn and confronted Najera. Ponder motioned for Najera
to back away and demanded that he drop the stick. Najera
did not drop it, and by some accounts verbally refused to do
so. Ponder next tried to pepper-spray Najera, but the spray
blew back in Ponder’s face, and Najera appeared largely
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 5
unaffected. Ponder pointed his gun at Najera and again
ordered him to drop the stick, but Najera did not comply. By
some eyewitness accounts, Najera next retrieved a baseball
bat from nearby bushes and advanced quickly toward Ponder
with at least one weapon raised; other witnesses say Najera
stood still, holding a single stick pointed down. Whichever
the case, Ponder, without issuing a warning, shot Najera six
times from no more than fifteen feet away. Najera died.
Ponder contends that Najera stood facing him during all
six shots, but the coroner’s report found that Najera died
from two shots to his back. The bullet paths suggested that
Najera had turned away from the officer and was falling to
the ground when the bullets struck.
Three of Najera’s children (collectively, “the Najeras”)
sued Ponder and his employer, Riverside County, under
42 U.S.C. § 1983, alleging that Ponder violated the Fourth
and Fourteenth Amendments. Ponder and Riverside County
moved for summary judgment. The district court granted
summary judgment on the claims against the county and on
the Fourteenth Amendment claim against Ponder but denied
summary judgment on the Fourth Amendment claim, thus
denying Ponder qualified immunity. Ponder asks us to
reverse the district court’s denial of qualified immunity.
II. Jurisdiction
As a threshold matter, we conclude that we have
jurisdiction over this interlocutory appeal. The Najeras
argue that we lack jurisdiction because the district court
found that triable issues of fact precluded summary
judgment, and because Ponder waived his qualified-
immunity defense by failing to present the facts in the light
most favorable to the Najeras. Both arguments miss the
mark. We “undoubtedly” have jurisdiction to consider the
6 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
district court’s denial of qualified immunity. Rodriguez v.
Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 707
(9th Cir. 2010). Likewise, Ponder’s defense-friendly
presentation of the facts does not deprive us of jurisdiction.
Although Ponder’s appellate briefing arguably “lapse[d] into
disputing [plaintiffs’] version of the facts,” we are fully
capable of distinguishing between advocacy and the record
itself. George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013)
(quoting Adams v. Speers, 473 F.3d 989, 990 (9th Cir.
2007)). Ponder’s characterization of the facts did not result
in waiver of his qualified-immunity defense.
III. Qualified Immunity
We now turn to the principal question on appeal:
Whether qualified immunity shields Ponder from Najera’s
§ 1983 claim. The purpose of 42 U.S.C. § 1983 is “to deter
state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.” Bracken
v. Okura, 869 F.3d 771, 776 (9th Cir. 2017) (quoting Wyatt
v. Cole, 504 U.S. 158, 161 (1992)). The doctrine of qualified
immunity—though absent from the text of § 1983—“acts to
safeguard government, and thereby to protect the public at
large, not to benefit its agents.” Wyatt, 504 U.S. at 168. As
the architects of qualified immunity, courts must ensure that
the doctrine remains tethered to this principle.
On interlocutory appeal, we review de novo the district
court’s denial of qualified immunity and view the facts in the
light most favorable to the Najeras, the nonmovants here.
See Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021)
(citations omitted). We then ask two questions: (1) “whether
there has been a violation of a constitutional right;” and
(2) “whether that right was clearly established at the time of
the officer’s alleged misconduct.” Lam v. City of Los Banos,
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 7
976 F.3d 986, 997 (9th Cir. 2020), cert. denied, 142 S. Ct.
77 (2021) (citation omitted). The answer to both questions
here is “yes.”
A. The Constitutional Violation
Our touchstone in evaluating an officer’s use of force is
objective reasonableness. See Graham v. Connor, 490 U.S.
386, 397 (1989) (citing Scott v. United States, 436 U.S. 128,
137–39 (1978)). The reasonableness standard “nearly
always requires a jury to sift through disputed factual
contentions,” so summary judgment in an excessive-force
case “should be granted sparingly.” Torres v. City of
Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting
Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). The
reasonableness of Ponder’s conduct is assessed by balancing
the “nature and quality of the intrusion” on Najera’s Fourth
Amendment rights against the government’s countervailing
interest in the force used. Graham, 490 U.S. at 396 (quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
The “nature and quality of the intrusion” here was
undoubtedly extreme. Id. Deadly force is the most severe
intrusion on Fourth Amendment interests because an
individual has a “fundamental interest in his own life” and
because, once deceased, an individual can no longer stand
trial to have his “guilt and punishment” determined. Garner,
471 U.S. at 9. Before using deadly force, law enforcement
must, “where feasible,” issue a warning. Id. at 11–12.
Nothing in this summary judgment record suggests that it
was not “feasible” for Ponder to warn Najera before firing
his weapon six times. Id. at 12.
Turning to the government’s countervailing interest in
the force, three factors inform our analysis: (1) the level of
immediate threat Najera posed to the officer or others,
8 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
(2) whether Najera was “actively resisting arrest or
attempting to evade arrest by flight,” and (3) “the severity of
the crime at issue.” Graham, 490 U.S. at 396 (citing Garner,
471 U.S. at 8–9). Without doubt, the suspected crime in this
case was severe, but that is the only Graham factor that
weighs clearly in the officer’s favor. Ponder does not
contend that Najera was attempting to flee or evade arrest;
quite the opposite, Ponder says that Najera was squarely
facing him when all six shots were fired. This contention
conflicts with forensic evidence. The coroner’s report
showed that Najera died from gunshot wounds to his back
strongly suggesting he was turned away from Ponder rather
than, as Ponder claims, facing him and coming “on the
attack.”
That leaves the “most important” Graham factor—and
the central issue in this appeal—the level of threat Najera
posed immediately before his death. Mattos v. Agarano,
661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith
v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en
banc)). A key disputed fact is whether Najera was facing the
officer and coming “on the attack,” as Ponder contends, or
whether Najera was turned away from the officer, as
indicated by the coroner’s report. Additionally, although
eyewitnesses agree that Najera was holding at least one bat-
like object when he was shot, it is disputed how he held that
object. Nothing in the record suggests that Najera was
threatening bystanders or advancing toward them when he
was killed. Here, on Najera’s facts, he presented no threat at
all to the officer—or anyone else—in that moment.
In this scenario, the government’s interest in the use of
force did not justify the “unmatched” intrusion on Najera’s
constitutional rights. Garner, 471 U.S. at 9. Thus, we hold
that, construing the evidence in favor of the Najeras,
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 9
Ponder’s conduct was not objectively reasonable, and his use
of excessive force violated the Fourth Amendment. 1
B. The Clearly Established Inquiry
Because the Najeras have presented facts sufficient to
establish a Fourth Amendment violation, we consider the
second prong of qualified immunity: whether the law was
clearly established. The Supreme Court’s recent decision in
Rivas-Villegas v. Cortesluna is instructive. As the Court
explained, in an “obvious case,” the standards set forth in
Graham and Garner, though “cast ‘at a high level of
generality,’” can “clearly establish” that a constitutional
violation has occurred “even without a body of relevant case
law.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021)
(per curiam) (quoting Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam)). This is one of those obvious cases.
Deadly force is not justified “[w]here the suspect poses
no immediate threat to the officer and no threat to others.”
Garner, 471 U.S. at 11. Assuming that Najera posed no
immediate threat to Ponder or others at the time of his death,
this “general constitutional rule” applies “with obvious
clarity” here and renders Ponder’s decision to shoot Najera
objectively unreasonable. Hope v. Pelzer, 536 U.S. 730, 741
1
Ponder cites several cases in an effort to counter Najera’s
constitutional claims. See e.g., Bouggess v. Mattingly, 482 F.3d 886, 896
(6th Cir. 2007); Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir.
2003). However, those cases simply restate the uncontroversial
proposition that using force against an immediately threatening suspect
is generally reasonable, and Ponder sidesteps the baseline principle that
at this stage of the proceedings, the facts must be construed in favor of
Najera.
10 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
(2002) (quoting United States v. Lanier, 520 U.S. 259, 270–
71 (1997)).
Although no “body of relevant case law” is necessary in
an “obvious case” like this one, our precedents also put
Ponder “on notice that his specific conduct was unlawful.”
Rivas-Villegas, 142 S. Ct. at 8. We emphasize that only
cases that predate the incident are relevant to the “clearly
established” inquiry. City of Tahlequah v. Bond, 142 S. Ct.
9, 12 (2021) (per curiam) (citation omitted). Two cases
published about three years before the April 2016 incident,
Hayes v. County of San Diego and George v. Morris, made
“clear to a reasonable officer” that a police officer may not
use deadly force against a non-threatening individual, even
if the individual is armed, and even if the situation is volatile.
City of Tahlequah, 142 S. Ct. at 11.
In Hayes, we held that police used excessive force when
they fatally shot Hayes after encountering him inside his
girlfriend’s home holding a large knife pointed tip-down and
standing six to eight feet away. Hayes v. Cnty. of San Diego,
736 F.3d 1223, 1227–28 (9th Cir. 2013). We reasoned that
the officers’ use of deadly force was unreasonable because
the evidence did not “clearly establish that Hayes was
threatening the deputies with the knife,” and because Hayes
was not attempting to evade arrest. Id. at 1233, 1234. It was
also “significant” that, like Ponder, the officers failed to
warn Hayes before deploying deadly force. Id. at 1234–35.
In Hayes, as here, officers, without warning, shot and killed
an individual holding a weapon in a non-threatening manner.
Indeed, the officers in Hayes were much closer to the
individual than Ponder was to Najera when the shooting
occurred. Id. Hayes stands as clearly established law that
Ponder’s actions were unconstitutional.
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 11
Similarly, in Morris, we held that it was unreasonable for
officers responding to a domestic disturbance call to fatally
shoot a suspect who emerged from his home onto his porch
with his pistol pointed down. See George v. Morris,
736 F.3d 829, 832–33, 839 (9th Cir. 2013). While we were
“clear-eyed about the potentially volatile and dangerous
situation these deputies confronted,” we could not conclude
as a matter of law that the officers behaved reasonably by
shooting the decedent “without objective provocation” and
while “his gun [was] trained on the ground.” Id. at 838–39.
Like the officers in Morris, Ponder entered a “potentially
volatile” situation when he responded to the calls about
Najera. And we too acknowledge the difficult landscape
facing Ponder and other offices responding to tense and
often explosive situations. Nevertheless, Morris established
that, even in such situations, officers must not use deadly
force against non-threatening suspects, even if those
suspects are armed.
Ponder’s response to these clearly established principles
is to repeat his mantra that Najera posed an immediate threat
to the officer or bystanders at the time of his death. But
Ponder can neither rewrite the facts to his own liking nor
ignore the disputed evidence. See Adams, 473 F.3d at 991(“The exception to the normal rule prohibiting an appeal
before a trial works only if the appellant concedes the facts
and seeks judgment on the law.”). The posture of this
interlocutory appeal coupled with clearly established law
supports the district court’s denial of qualified immunity.
IV. Conclusion
Critical disputes of fact render summary judgment
premature. We cannot assume the jury’s role to resolve the
disputed question whether Najera presented an immediate
threat. Accepting Najera’s version of the facts—as we must
12 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE
at this stage—the bedrock standards set forth in Graham and
Garner and the factual similarity of Hayes and Morris put
the officer’s constitutional violation “beyond debate.”
Rivas-Villegas, 595 U.S. at ___, slip op. at 4. We affirm the
district court’s denial of qualified immunity to Ponder.
AFFIRMED.