Geraldine Nicholson v. Miguel Gutierrez

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GERALDINE NICHOLSON; JOSE                No. 17-56648
FERNANDO HUERTA; J. H., a minor
by and through his guardian ad litem,       D.C. No.
Jose Fernando Huerta; J. N. G., a        2:15-cv-07594-
minor by and through his guardian          DDP-RAO
ad litem, Geraldine Nicholson,
                 Plaintiffs-Appellees,
                                           OPINION
                  v.

CITY OF LOS ANGELES; EVERARDO
AMARAL, individually and in his
official capacity as a Police Officer
of the Los Angeles Police
Department,
                           Defendants,

                 and

MIGUEL GUTIERREZ, individually
and in his official capacity as a
Police Officer of the Los Angeles
Police Department,
                 Defendant-Appellant.

      Appeal from the United States District Court
         for the Central District of California
      Dean D. Pregerson, District Judge, Presiding
2                   NICHOLSON V. GUTIERREZ

             Argued and Submitted March 4, 2019
                    Pasadena, California

                      Filed August 21, 2019

        Before: Andrew J. Kleinfeld, R. Guy Cole, Jr., *
          and Jacqueline H. Nguyen, Circuit Judges.

                    Opinion by Judge Nguyen


                          SUMMARY **


                            Civil Rights

    The panel reversed in part and affirmed in part the
district court’s denial of qualified immunity to a Los Angeles
Police Department officer in an action brought pursuant to

42 U.S.C. § 1983

 for violations of plaintiffs’ Fourth
Amendment rights to be free from excessive force and
unreasonable seizure and violations of their Fourteenth
Amendment substantive due process rights.

    Plaintiffs were among a group of teenagers who had met
in an alleyway near their school to listen to and sing rap
music. One of the teenagers, plaintiff J.N.G., was shot by
defendant Gutierrez after Gutierrez mistook a plastic Airsoft
replica gun held by one of the other teenagers for an actual

    *
      The Honorable R. Guy Cole, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 NICHOLSON V. GUTIERREZ                      3

gun. After the shooting, officers detained the group for over
five hours while they investigated. J.N.G. and J.H. filed a
lawsuit and the district court denied qualified immunity on
plaintiffs’ Fourth and Fourteenth Amendment claims.

    Addressing the Fourth Amendment claim, the panel
agreed with the district court that under the circumstances,
plaintiffs’ continued detention for five hours after the
shooting—well after any probable cause would have
dissipated—and the use of handcuffs throughout the
duration of the detention violated plaintiffs’ clearly
established Fourth Amendment rights to be free from
unlawful arrest and excessive force. The panel rejected
Gutierrez’s argument that while he participated in the initial
handcuffing and detention, he was not responsible for any
subsequent constitutional violation because he played no
role in that conduct. The panel held that an officer can be
held liable where he is just one participant in a sequence of
events that gives rise to a constitutional violation. Here,
viewing the evidence in the light most favorable to plaintiffs,
Gutierrez was more than a “mere bystander” in the alleged
constitutional violations. The panel affirmed the district
court’s denial of qualified immunity on the Fourth
Amendment violations because, ultimately, a reasonable
jury could conclude that Gutierrez played an integral role in
the unlawfully prolonged detention and sustained
handcuffing of plaintiffs.

    Addressing the Fourteenth Amendment substantive due
process claim, the panel held that, viewing the totality of the
evidence in the light most favorable to the plaintiffs, the
shooting violated plaintiffs’ due process rights. Under the
circumstances, a rational finder of fact could find that
Gutierrez’s use of deadly force shocked the conscience and
was unconstitutional under the Fourteenth Amendment.
4                    NICHOLSON V. GUTIERREZ

Nevertheless, the panel held that because no analogous case
existed at the time of the shooting, the district court erred by
denying Gutierrez qualified immunity for this claim. The
panel accordingly reversed the district court and remanded
for an entry of qualified immunity on the Fourteenth
Amendment claim.


                              COUNSEL

Denise L. Rocawich (argued) and James R. Touchstone,
Jones & Mayer, Fullerton, California, for Defendant-
Appellant.

Herbert-John S. Hayden (argued) and John W. Harris, Harris
& Associates, Los Angeles, California, for Plaintiffs-
Appellees.


                               OPINION

NGUYEN, Circuit Judge:

    On the morning of February 10, 2015, four teenagers met
in an alleyway near their school to listen to and sing rap
music. As the teenagers—Michael Sanders, Abdul Wooten,
J.N.G., and J.H. 1—stood in a tight circle dancing and
rapping, Sanders was holding a plastic Airsoft replica gun
with a bright orange tip as a prop. Just as they turned off the
music and were getting ready to head to school, J.N.G. was

    1
       Throughout the record, J.N.G. (Jamar Nicholson Green) and J.H.
(Jason Huerta) were referred to by their initials because they were minors
at the time of the incident and for some time after filing this lawsuit. For
consistency, we also refer to them by their initials.
                     NICHOLSON V. GUTIERREZ                              5

shot by Officer Michael Gutierrez of the Los Angeles Police
Department (“LAPD”). Officer Gutierrez fired his weapon
because he mistook Sanders’s replica gun for an actual gun.
Gutierrez fired multiple shots, one of which hit J.N.G. in the
back. After the shooting, officers detained the group for over
five hours while they investigated.

    J.N.G. and J.H. (collectively, “Plaintiffs”) filed a lawsuit
against the officers, the LAPD, and the City of Los Angeles,
alleging violations of the Fourth and Fourteenth
Amendments and various state laws. The district court
denied qualified immunity on two of Plaintiffs’
constitutional claims. Gutierrez appeals. We affirm in part
and reverse in part.

                         BACKGROUND 2

    At around 7:15 a.m. on February 10, 2015, J.N.G., J.H.,
Michael Sanders, and Abdul Wooten met in an alley at the
corner of 10th Avenue and Florence Avenue in Los Angeles,
CA, a few blocks from their high school. They regularly
gathered in that alleyway before and after school to listen to
music and freestyle rap. That morning, as they were rapping
and dancing in a circle, Sanders was holding a plastic toy
gun with a bright orange tip. J.N.G., J.H., and Wooten
maintain that Sanders kept the gun pointed downward
around waist-level and did not fire the gun that morning. At
approximately 7:40 a.m., the teenagers turned off the music
and began preparing to head to school.




    2
      At this stage of the proceedings, we view the facts in the light most
favorable to Plaintiffs. George v. Morris, 

736 F.3d 829, 836

 (9th Cir.
2013) (9th Cir. 2013).
6                 NICHOLSON V. GUTIERREZ

    Around this time, Officer Everardo Amaral was driving
down 10th Avenue in an unmarked car with his partner,
Officer Gutierrez. From the passenger seat, Gutierrez “saw
a person (later identified as Michael Sanders) pointing . . . a
blue steel handgun at another person (later identified as
Plaintiff J.H.).” Gutierrez, believing that J.H. was “being
robbed at gun point or was about to be murdered,” yelled
“Gun, gun, gun!” Amaral stopped the vehicle south of the
alley on 10th Avenue. Without conferring with Amaral,
Gutierrez immediately jumped out of the car and ran into the
alley. Amaral parked the car and followed Gutierrez.
Neither officer was in uniform.

    Gutierrez claims he identified himself as an LAPD
officer and commanded Sanders to drop the gun. However,
J.H., J.N.G., and Wooten all contend that Gutierrez did not
identify himself or make any verbal commands prior to
shooting his weapon. A few seconds after he entered the
alley, Officer Gutierrez fired at least three shots, one of
which hit J.N.G. in the back. J.N.G. and J.H. contend that
Gutierrez fired his gun with one hand while running toward
them, while Gutierrez stated that he fired only after stopping
a few feet away from the group. When the shots were fired,
J.H. was about to put on his school uniform, and J.N.G. was
spraying cologne on his face. The four of them had been
standing in a tight circle, “within a foot or so of each other.”
Sanders soon turned and dropped the toy gun, though the
parties dispute whether this occurred before or after
Gutierrez fired.

    Shortly after Officer Gutierrez fired, Officer Amaral
arrived and requested three additional units. Amaral also
requested an ambulance when he realized that J.N.G. had
been shot. The officers held the group at gunpoint, face
down on the ground. The parties dispute how far the
                 NICHOLSON V. GUTIERREZ                     7

dropped “gun” was from the teenagers when they were on
the ground, but neither officer picked it up or moved it away
from them. While on the ground, J.H. shouted that the gun
was “not even a real gun” and repeatedly asked why the
officers shot at them and “What did we do wrong?” The
officers remained silent in response to his questions, with
dumbfounded expressions on their faces. Responding
officers soon arrived, and they searched and handcuffed the
group. Gutierrez was “involved in the decision to handcuff
them.” Officer Amaral later explained in his deposition that
the detention of the boys was “[f]or [a] weapons violation.”
Officers Gutierrez and Amaral were separated and
monitored soon after additional units arrived on the scene.
J.H. remained in handcuffs throughout the investigation,
which lasted until around 1:00 p.m., over five hours after the
shooting. J.N.G. also remained in handcuffs for over five
hours—through the duration of his hospital examination—
until detectives interrogated him.

    J.N.G., by and through his mother and guardian ad litem
Geraldine Nicholson, and J.H., by and through his father and
guardian ad litem Jose Fernando Huerta, sued Officer
Gutierrez, Officer Amaral, the City of Los Angeles, the
LAPD, Chief of Police Charles Beck, and Commander
Andrew Smith. In addition to various state law claims,
Plaintiffs J.N.G. and J.H. alleged claims under 

42 U.S.C. § 1983

 for violations of their Fourth Amendment rights to be
free from excessive force and unreasonable seizure and
violations of their Fourteenth Amendment substantive due
process rights. Defendants Gutierrez, Amaral, and the City
of Los Angeles jointly moved for summary judgment,
arguing in part that no constitutional violation occurred and
that qualified immunity applied.
8                NICHOLSON V. GUTIERREZ

    The district court granted in part and denied in part
Defendants’ joint motion for summary judgment. Relevant
to this appeal, the district court denied Gutierrez qualified
immunity in part on Plaintiffs’ Fourth Amendment claim and
on Plaintiffs’ Fourteenth Amendment claim. Gutierrez
timely appealed.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 

28 U.S.C. § 1291

 to review
the denial of qualified immunity at the summary judgment
stage. Plumhoff v. Rickard, 

572 U.S. 765

, 771–73 (2014).
But “the scope of our review over the appeal is
circumscribed” because we may not “consider questions of
eviden[tiary] sufficiency, i.e., which facts a party may, or
may not, be able to prove at trial.” Morris, 

736 F.3d at 834

(quoting CarePartners, LLC v. Lashway, 

545 F.3d 867, 875

(9th Cir. 2008)). “Thus, in this appeal, we are confined to
the question of ‘whether the defendant[s] would be entitled
to qualified immunity as a matter of law, assuming all factual
disputes are resolved, and all reasonable inferences are
drawn, in plaintiff’s favor.’” 

Id.

 at 836 (quoting Karl v. City
of Mountlake Terrace, 

678 F.3d 1062, 1068

 (9th Cir. 2012)).

                       DISCUSSION

    “Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Kisela v. Hughes, 

138 S. Ct. 1148, 1152

(2018) (per curiam). Once a defendant has raised qualified
immunity as a defense to a claim, a plaintiff must show
“(1) that the right was violated; and (2) that the right was
clearly established at the time of the alleged misconduct.”
Isayeva v. Sacramento Sheriff’s Dep’t, 

872 F.3d 938, 946

(9th Cir. 2017). Although a right is not clearly established
                     NICHOLSON V. GUTIERREZ                              9

where merely defined “at a high level of generality,”
qualified immunity does not “require a case directly on
point.” Kisela, 

138 S. Ct. at 1152

. Instead, the “focus is on
whether the officer had fair notice that her conduct was
unlawful,” 

id.,

 for example, through “any cases of
controlling authority in their jurisdiction at the time of the
incident,” Wilson v. Layne, 

526 U.S. 603, 617

 (1999).

    We now turn to each of Plaintiffs’ constitutional claims.

                 I. Fourth Amendment Claim

    Plaintiffs allege that, after the shooting, Defendants
violated their Fourth Amendment rights by unlawfully
arresting them, using excessive force, and prolonging their
detention. 3    In denying Officer Gutierrez qualified
immunity, the district court concluded that immediately after
the shooting, an investigatory stop was reasonable while the
officers assessed the situation. But “[a]t some point, the
detention evolved into a full-fledged arrest that required
probable cause that J.H. and J.N.G. had been engaged in
criminal activity.” The district court further concluded that
“a reasonable jury could determine that the sustained
handcuffing of J.H. and J.N.G. . . . constituted excessive
force.”


     3
       Plaintiffs also alleged that the shooting itself also violated their
Fourth Amendment rights. The district court granted summary judgment
in favor of Defendants on this claim, finding that the teenagers were not
“seized” by Gutierrez’s gunfire under the Fourth Amendment because
Gutierrez intended to use deadly force against Sanders, not against
J.N.G. or J.H. See United States v. Al Nasser, 

555 F.3d 722, 728

 (9th
Cir. 2009). Plaintiffs do not challenge this ruling and thus the question
of whether the shooting violated their Fourth Amendment rights is not
before us in this appeal.
10                NICHOLSON V. GUTIERREZ

    It is well-established that a “person may not be arrested,
or must be released from arrest, if previously established
probable cause has dissipated.” United States v. Ortiz-
Hernandez, 

427 F.3d 567, 574

 (9th Cir. 2005) (per curiam).
“As a corollary . . . of the rule that the police may rely on the
totality of facts available to them in establishing probable
cause, they also may not disregard facts tending to dissipate
probable cause.” 

Id.

 (quoting Bigford v. Taylor, 

834 F.2d 1213, 1218

 (5th Cir. 1988)). A reasonable officer would
know that participation in an ongoing seizure after any
probable cause had dissipated violates the Fourth
Amendment.

    Here, it was soon apparent to the officers that the
teenagers were unarmed, posed no threat to anyone, and
were not engaged in any criminal activity. The incident
occurred in the morning right before the start of school
hours, and Plaintiffs had their school uniforms and
backpacks. In fact, as Officer Gutierrez approached the
scene, J.N.G. was spraying on cologne and J.H. was donning
his school uniform. Moreover, Officer Gutierrez admitted
that he perceived at least J.H. to be a possible victim, not a
suspect, further undermining any justification to detain him.
We agree with the district court that under these
circumstances, Plaintiffs’ continued detention for five
hours—well after any probable cause would have
dissipated—and the use of handcuffs throughout the
duration of the detention violated Plaintiffs’ clearly
established Fourth Amendment rights to be free from
unlawful arrest and excessive force.

    On appeal, Officer Gutierrez does not appear to dispute
that the prolonged detention and handcuffing violated
Plaintiffs’ clearly established Fourth Amendment rights.
Instead, Gutierrez focuses his argument on the fact that he
                  NICHOLSON V. GUTIERREZ                     11

was separated and monitored after the shooting. Thus, his
argument goes, while he admittedly “was an integral
participant in the initial handcuffing and detention,” he is not
responsible for any subsequent constitutional violation
because he played no role in that conduct.

    A police officer need not have been the sole party
responsible for a constitutional violation before liability may
attach. “An officer’s liability under section 1983 is
predicated on his ‘integral participation’ in the alleged
violation.” Blankenhorn v. City of Orange, 

485 F.3d 463

,
481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 

76 F.3d 292

, 294–95 (9th Cir. 1996)). This theory of liability “does
not require that each officer’s actions themselves rise to the
level of a constitutional violation.” 

Id.

 (quoting Boyd v.
Benton County, 

374 F.3d 773, 780

 (9th Cir. 2004)). Instead,
liability may attach if the officer has “some fundamental
involvement in the conduct that allegedly caused the
violation.” 

Id.

 A theory of integral participation thus
comports with general tort principles of causation applicable
to a § 1983 action: “[G]overnment officials, like other
defendants, are generally responsible for the ‘natural’ or
‘reasonably foreseeable’ consequences of their actions.”
Stoot v. City of Everett, 

582 F.3d 910, 926

 (9th Cir. 2009).
Even though “an intervening decision of an informed,
neutral decision-maker ‘breaks’ the chain of causation,” the
chain of causation is not broken where the intervening
decision was foreseeably influenced by the defendant. 

Id.

(quoting Murray v. Earle, 

405 F.3d 278, 292

 (5th Cir.
2005)). Thus, under our case law, an officer could be held
liable where he is just one participant in a sequence of events
that gives rise to a constitutional violation.

   For example, in Boyd v. Benton County, we held that
each of the officers in a search operation were liable for
12                NICHOLSON V. GUTIERREZ

excessive force for the use of a flash-bang grenade, even
though only one officer reached into the home and deployed
the device. 

374 F.3d at 780

. We reasoned that the use of the
device was “part of the search operation in which every
officer participated in some meaningful way.”                

Id.

Moreover, each officer “was aware of the decision . . . , did
not object to it, and participated in the search operation
knowing the flash-bang was to be deployed.” 

Id.

 By
contrast, in Torres v. City of Los Angeles, we found that a
detective was not an integral participant in an allegedly
unlawful arrest, in part because she “was not present [at the
arrest], and there is no evidence that [she] instructed the
other detectives to arrest [the plaintiff] or that any of those
detectives consulted with her before making the arrest.”

548 F.3d 1197, 1206

 (9th Cir. 2008).

    Here, viewing the evidence in the light most favorable to
Plaintiffs, Gutierrez was more than a “mere bystander” in the
alleged constitutional violations. See Chuman, 

76 F.3d at 294

. Plaintiffs alleged that Officers Amaral and Gutierrez
“directed the other officers to handcuff, search and arrest all
of us for reasons unknown to any of us.” Gutierrez himself
acknowledged that he was “involved in the decision to
handcuff [Plaintiffs].” In contrast to the absent officer who
was not consulted prior to the arrest in Torres, Gutierrez was
the initial officer who set these events into motion, and either
instructed the other officers to arrest Plaintiffs or consulted
with them in that decision. See 

548 F.3d at 1206

. The
district court did not decide exactly when during the
prolonged detention probable cause dissipated and,
similarly, how proximate Gutierrez’s conduct was to that
violation. But these issues present questions for the jury
because their resolution depends on disputed material facts.
Ultimately, because a reasonable jury could conclude that
Gutierrez played an integral role in the unlawfully prolonged
                  NICHOLSON V. GUTIERREZ                     13

detention and sustained handcuffing of Plaintiffs, we affirm
the district court’s denial of qualified immunity on the
Fourth Amendment violation.

            II. Fourteenth Amendment Claim

    Plaintiffs contend that the unlawful shooting violated
their substantive due process rights under the Fourteenth
Amendment. The district court denied Gutierrez qualified
immunity because a jury could reasonably conclude that his
conduct amounted to deliberate indifference. The district
court also found that the substantive due process right at
issue was clearly established. We first address whether
Gutierrez’s conduct violated Plaintiffs’ substantive due
process rights under the Fourteenth Amendment, and then
whether the right was clearly established at the time of the
incident.

                              A.

    To prevail on a substantive due process claim under the
Fourteenth Amendment, Plaintiffs must show that an
officer’s conduct “shocks the conscience.” See Wilkinson v.
Torres, 

610 F.3d 546, 554

 (9th Cir. 2010). The “critical
consideration [is] whether the circumstances are such that
actual deliberation is practical.” Porter v. Osborn, 

546 F.3d 1131, 1137

 (9th Cir. 2008) (quoting Moreland v. Las Vegas
Metro. Police Dep’t, 

159 F.3d 365, 372

 (9th Cir. 1998)). If
so, “an officer’s ‘deliberate indifference’ may suffice to
shock the conscience,” Wilkinson, 

610 F.3d at 554

, and the
plaintiff may prevail by showing that the officer
“disregarded a known or obvious consequence of his
action,” Patel v. Kent Sch. Dist., 

648 F.3d 965, 974

 (9th Cir.
2011). The “deliberate-indifference inquiry should go to the
jury if any rational factfinder could find this requisite mental
state.” 

Id.

 Here, having found a triable issue on whether
14                NICHOLSON V. GUTIERREZ

“deliberation was practical under the circumstances,” the
district court held that “[a] finder of fact could conclude . . .
that Gutierrez disregarded the known or obvious risks of
injury to J.H. and J.N.G. when he fired at Sanders without
taking time to assess the situation.”

    We agree with the district court and hold that, viewing
the totality of the evidence in the light most favorable to the
Plaintiffs, the shooting violated Plaintiffs’ due process
rights. We do not discount the seriousness of the situation
that Officer Gutierrez thought he observed: a person holding
what appeared to be a gun standing near others who may
have been in danger. But Sanders “was not engaged in any
threatening or menacing behavior, and he kept the airsoft
gun securely pointed toward the ground.” The alleyway was
near a school, and Plaintiffs were “equipped with school
uniforms and backpacks . . . [appearing] to be minors on
their way to school and not gang members.” Yet within
seconds of observing the “gun,” without consulting with his
partner, Gutierrez rushed down the alleyway. As he ran, he
fired his gun toward both Sanders, the perceived perpetrator
of a possible crime, and innocent bystanders, with one bullet
ultimately striking J.N.G. in the back. Under these
circumstances, a rational finder of fact could find that
Gutierrez’s use of deadly force shocks the conscience and
was unconstitutional under the Fourteenth Amendment.

    Gutierrez’s arguments to the contrary are unpersuasive.
As a preliminary matter, Gutierrez challenges the district
court’s finding that a reasonable jury could find that
deliberation was practical under the circumstances. But
because this is an interlocutory appeal, we are not free to
revisit the district court’s conclusions as to “which facts a
party may, or may not, be able to prove at trial.” See Morris,

736 F.3d at 834

. Our review is limited to whether “the denial
                  NICHOLSON V. GUTIERREZ                      15

of qualified immunity was appropriate by assuming that the
version of the material facts asserted by the non-moving
party is correct.” Bingue v. Prunchak, 

512 F.3d 1169

, 1172–
73 (9th Cir. 2008). Assuming the facts in Plaintiffs’ favor,
no attendant circumstances weighed in favor of the
immediate use of deadly force, other than Gutierrez’s belief
that Sanders was holding a gun. As the district court noted,
under these circumstances, Gutierrez’s immediate use of
force without communicating with his partner, his failure to
seek cover, and his failure to formulate a plan before acting
were all contrary to LAPD’s training and policy. We agree
with the district court that the evidence is sufficient to create
a genuine dispute of fact on whether deliberation was
practical under the circumstances, and, in any event, we
would be without power to reverse on this ground.

    Gutierrez next argues that, as a matter of law, the district
court erred in failing to apply the “intent to harm” standard,
under which Plaintiffs must show that he acted “with a
purpose to harm unrelated to legitimate law enforcement
objectives.” Wilkinson, 

610 F.3d at 554

. By that standard,
Gutierrez argues, he is entitled to qualified immunity even if
he acted with deliberate indifference, because he did not
intend to shoot J.N.G.

     We have previously carved out a narrow situation—
high-speed police car chases—in which we have found,
categorically, that an officer does not have time to deliberate.
Bingue, 

512 F.3d at 1177

. In Bingue v. Prunchak, we
considered whether high-speed pursuits should categorically
give rise to the application of the “intent to harm” standard,
or whether the “deliberate indifference” standard may apply
depending on the circumstances. In holding that “the intent
to harm” standard “applies to all high-speed police chases,”

id.,

 we reasoned that such a rule best accounts for an officer’s
16                NICHOLSON V. GUTIERREZ

“repeated split-second decisions about how best to
apprehend the fleeing suspect in a manner that will minimize
risk to [the officer’s] own safety and the safety of the general
public.” 

Id. at 1176

. A suspect fleeing in a car at high speed
gives an officer “no time for reflection and precious little
time for deliberation concerning either the decision to join
the chase in the first place or the serial decisions about how
best to pursue the suspect.” 

Id.

    Here, in contrast, under Plaintiffs’ version of the facts,
Gutierrez may have seen what he believed to be a gun
(although it had the orange tip signifying a toy), but he did
not see Sanders point it at anyone. Sanders was standing
among a group of school-aged youths with their backpacks
and school uniforms. Without more, we cannot say that this
situation gives an officer “no time for reflection,” as in a
high-speed chase involving a fleeing suspect in a fast-
moving vehicle. Cf. Estate of Lopez v. Gelhaus, 

871 F.3d 998, 1011

 (9th Cir. 2017), cert. denied, 

138 S. Ct. 2680

(2018) (holding that mistaking a child’s toy gun for an
assault rifle did not as a matter of law justify an officer’s use
of deadly force).

    Gutierrez also relies on cases involving serious and
immediate threats to public safety, but these cases too are
easily distinguishable. In Porter v. Osborn, the suspect
engaged in “evasive actions” in response to questions and
direct orders from police officers, including refusing to exit
his vehicle and then driving his vehicle in the direction of
one of the officers in a perceived attempt to run over the
officer. 546 F.3d at 1134–35, 1137. There, we held that the
“rapidly escalating nature” of the confrontation between the
officer and the suspect behind the wheel left too little time
for adequate deliberation and thus necessitated application
of the “intent to harm” standard. 

Id.

 In Moreland v. Las
                 NICHOLSON V. GUTIERREZ                     17

Vegas Metropolitan Police Department, the officers were
responding to “the extreme emergency” of an active
“gunfight in progress threaten[ing] the lives of the 50 to 100
people who were trapped in the parking lot.” 159 F.3d
at 372–73.      The suspect was indisputably firing a
semiautomatic handgun and refusing to comply with the
officers’ orders to stop. Id. at 372. Given the ongoing crisis,
we held that the officers had no opportunity to deliberate in
light of the “immediate risk of serious harm or death to the
many innocent individuals trapped in the parking lot.” Id.
Thus, the “intent to harm” standard was appropriate. By
contrast, assuming Plaintiffs’ contentions that Sanders was
not pointing the toy gun at anyone and had not given any
indication that he was likely to harm anyone, there was no
“rapidly escalating” confrontation or “extreme emergency”
here that would have deprived Gutierrez of the opportunity
to confer with his partner and formulate a plan to ascertain
what was happening before charging in with gunfire.
Contrary to Gutierrez’s argument, we have not previously
applied the intent to harm standard to Fourteenth
Amendment claims involving facts similar to this case, and
we decline to do so now.

    We thus agree that application of the deliberate
indifference standard is warranted under these
circumstances. As the district court explained, in “minimal
information” situations, an officer must take some time to
assess what is happening before employing deadly force.
Holding otherwise would result in an “intolerably high risk
of a tragic shooting that may otherwise have been avoided
by proper deliberation whenever practical.” As such,
applying the deliberate indifference standard to Plaintiffs’
version of the facts, we hold that Gutierrez’s shooting
violated their substantive due process rights under the
Fourteenth Amendment.
18                NICHOLSON V. GUTIERREZ

                              B.

    Even if a constitutional violation occurred, qualified
immunity nevertheless applies unless the violation was
clearly established. Because no analogous case existed at
the time of the shooting, we hold that the district court erred
in denying Gutierrez qualified immunity for this claim.

    Kisela v. Hughes is instructive. 138 S. Ct. at 1151. In
Kisela, the Supreme Court reversed our decision denying
qualified immunity to an officer for an excessive force claim
after he shot an individual armed with a knife as she
approached a bystander. Id. The Court reiterated its
repeated admonition to courts “and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” Id. at 1152 (quoting City and County of
San Francisco v. Sheehan, 

135 S. Ct. 1765

, 1775–76
(2015)). The Court explained that, where “the result
depends very much on the facts of each case . . . officers are
entitled to qualified immunity unless existing precedent
‘squarely governs’ the specific facts at issue.” 

Id.

 at 1153
(quoting Mullenix v. Luna, 

136 S. Ct. 305, 309

 (2015) (per
curiam)).

    Here, Plaintiffs failed to identify any authority that
rendered the contours of the substantive due process right at
issue “sufficiently definite that any reasonable official in the
defendant’s shoes would have understood he was violating
it.” See Kisela, 

138 S. Ct. at 1153

. In their briefing,
Plaintiffs cited cases establishing broadly that “the
Constitution protects a citizen’s liberty interest in her own
bodily security,” which define the right at much too high a
level of generality to clearly establish a rule of conduct. See,
e.g., Ingraham v. Wright, 

430 U.S. 651

, 673–74 (1977).
They also discuss our “state-created danger exception”
cases, but these involve failures to act that lead to injuries
                    NICHOLSON V. GUTIERREZ                          19

from third parties, rather than affirmative actions by officers
that directly cause injury to the plaintiff. See, e.g., Kennedy
v. City of Ridgefield, 

439 F.3d 1055

 (9th Cir. 2006) (failure
to warn allegedly caused shooting by neighbor); Patel,

648 F.3d 965

 (failure to adequately supervise a disabled high
school student allegedly caused sexual abuse by another
student); Wood v. Ostrander, 

879 F.2d 583

 (9th Cir. 1989)
(failure to leave plaintiff in safe location allegedly caused
rape in a high-crime area). These cases are too factually
dissimilar to clearly establish a constitutional violation by an
officer’s accidental shooting of a bystander.

    At oral argument, Plaintiffs conceded that it was “it was
difficult to find a case that was squarely on point,” where a
court found a constitutional violation in the context of a
bystander shooting. Instead, the gravamen of Plaintiffs’
analysis is that the use of deadly force against Sanders was
likely unreasonable, relying principally on our cases
analyzing Fourth Amendment claims of excessive force.
E.g., Hughes v. Kisela, 

862 F.3d 775, 789

 (9th Cir. 2016),
rev’d sub nom. Kisela v. Hughes, 

138 S. Ct. 1148

 (2018);
Emmons v. City of Escondido, No. 16-55771, 

2018 WL 1531064

 (9th Cir. Mar. 29, 2018), rev’d sub nom. City of
Escondido v. Emmons, 

139 S. Ct. 500

 (2019). 4 While these
cases may help to identify whether the use of force against
Sanders amounted to a Fourth Amendment violation, they
do not clearly establish that a shooting in these

    4
       Similarly, the district court also relied principally on Fourth
Amendment cases in denying qualified immunity on this claim.
However, as with Plaintiffs’ citations, some of these cases were decided
after the incident, e.g., Gelhaus, 

871 F.3d 998

, and one has since been
reversed by the Supreme Court on the “clearly established” question.
See Kisela, 

138 S. Ct. 1148

. These problems present additional reasons
why we find that the law was not clearly established on Plaintiffs’
Fourteenth Amendment claim.
20                  NICHOLSON V. GUTIERREZ

circumstances constitutes deliberate indifference to
Plaintiffs. Sanders is not a plaintiff in this lawsuit, and
Plaintiffs would not have standing to raise a Fourth
Amendment claim on his behalf. See Plumhoff, 

572 U.S. at 778

 (“Our cases make it clear that ‘Fourth Amendment
rights are personal rights which . . . may not be vicariously
asserted.’” (quoting Alderman v. United States, 

394 U.S. 165, 174

 (1969)). The Fourth Amendment cases therefore
do not clearly establish the contours of the Fourteenth
Amendment substantive due process rights at hand. 5

    Because no binding circuit or Supreme Court precedent
has established a substantive due process violation under
comparable circumstances, the Fourteenth Amendment right
at issue lacked “contours . . . sufficiently definite” to place
the issue “beyond debate.” See Kisela, 138 S. Ct. at 1152–
53 (quoting Plumhoff, 

572 U.S. at 779

). We accordingly
reverse the district court and remand for an entry of qualified
immunity on this claim.



     5
       Certainly, considerations of reasonableness germane to a Fourth
Amendment analysis are relevant to the substantive due process inquiry.
Historically, our cases have recognized some overlap in these two
constitutional protections. See, e.g., P.B. v. Koch, 

96 F.3d 1298

, 1303
n.4 (9th Cir. 1996) (holding that, “[r]egardless of the appropriate ‘home’
for plaintiffs’ right to be free from excessive force, there was a clearly
established right to be free such force” because “[u]nder any standard,
[the defendant’s] alleged actions were clearly unlawful.”). But we have
held that a Fourteenth Amendment claim of excessive force “must be
governed by a different standard than” a Fourth Amendment claim of
excessive force. Byrd v. Guess, 

137 F.3d 1126

, 1133–34 (9th Cir. 1998),
superseded by statute on other grounds as recognized in Little v. City of
Manhattan Beach, 21 Fed. App’x 651 (9th Cir. 2001). Thus, our Fourth
Amendment cases cannot clearly establish the contours of the Fourteenth
Amendment right, despite similarities between the standards.
               NICHOLSON V. GUTIERREZ               21

                         III.

                   CONCLUSION

    We reverse the district court’s denial of qualified
immunity to Gutierrez as to the Fourteenth Amendment
claim and affirm the court’s ruling as to the Fourth
Amendment claim. We remand for proceedings consistent
with this opinion.

  REVERSED in part, AFFIRMED in part, and
REMANDED.