facts and inferences therefrom in favor of the [P]laintiff[s], the [Deputy]

[D]efendant[s] nevertheless [are] entitled to qualified immunity as a matter of

2 23-4180 law.” Jeffers v. Gomez, 267 F.3d 895, 905–06 (9th Cir. 2001). We have

jurisdiction to review this legal question. See Pauluk v. Savage, 836 F.3d 1117,

1121 (9th Cir. 2016) (holding we “have jurisdiction, construing the facts and

drawing all inferences in favor of Plaintiffs, to decide whether the evidence

demonstrate[d] a [constitutional] violation by [the defendants], and whether such

violation was in contravention of federal law that was clearly established at the

time.”).

2. We review the district court’s denial of qualified immunity de novo. See

Est. of Aguirre v. County of Riverside, 29 F.4th 624, 627 (9th Cir. 2022). We must

affirm the district court’s denial of qualified immunity if, resolving all factual

disputes and drawing all inferences in Plaintiffs’ favor, Defendants’ conduct (1)

violated a constitutional right (2) that “was clearly established at the time of the

officer[s’] alleged misconduct.” Id. (citation omitted).

a. As to claim one, the district court concluded that viewing the facts

in the light most favorable to Plaintiffs, a jury could find the Deputy Defendants

violated Plaintiffs’ constitutional rights. We agree. Here, the facts viewed in

Plaintiffs’ favor demonstrate that Ruiz’s vehicle moved slowly backward and did

not make contact with the Deputy Defendants’ vehicle. Based on the record

evidence, a jury could reasonably determine that Ruiz and his vehicle did not pose

a threat of serious physical harm and find Defendants violated Ruiz’s right against

3 23-4180 excessive force. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the

suspect poses no immediate threat to the officer and no threat to others, the harm

resulting from failing to apprehend him does not justify the use of deadly force to

do so.”).

Next, the district court, relying on Acosta v. City and County of San

Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996), as amended (June 18, 1996),

determined that “it ‘was clearly established at the time of the incident that police

officers are not justified in shooting at a suspect fleeing in a car if the car was

moving or rolling sufficiently slowly that a reasonable officer in the defendant’s

position would not have perceived himself to be in danger of serious bodily

harm.’” J.A. by & through Plascencia v. Cnty. of San Bernardino, No. 5:20-CV-

02468-MEMF-KK, 2023 WL 7434950, at *13 (C.D. Cal. Nov. 9, 2023). The

district court’s determination was proper. See Acosta, 83 F.3d at 1148 (“law

governing ‘shooting to kill’ a fleeing suspect is clearly established and [] a

reasonable officer could not have reasonably believed that shooting at the driver of

the slowly moving car was lawful”).

b. Claim two is rooted in the Fourteenth Amendment. Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010). To establish this constitutional

violation, the Deputy Defendants’ conduct must “shock the conscience.” Id.

Where “a law enforcement officer makes a snap judgment because of an escalating

4 23-4180 situation,” the officer’s “conduct may only be found to shock the conscience if he

acts with a purpose to harm unrelated to legitimate law enforcement objectives.”

Id. Here, the district court reasoned that the single statement by Fakhoury of “I’ma

shoot him,” in these circumstances, could lead a reasonable juror to conclude the

Deputy Defendants had a “purpose to harm.” We disagree. The district court cites

no case where such a limited statement could constitute subjective intent to harm,

and we have found none. Therefore, we find this statement alone is insufficient to

establish subjective intent. Because we find there was no constitutional violation,

we need not determine whether the right was clearly established. See Marquez v.

City of Phoenix, 693 F.3d 1167, 1176 n.8 (9th Cir. 2012), as amended on denial of

reh’g (Oct. 4, 2012) (“Because we conclude that there was no constitutional

violation here, we need not reach . . . [whether the right was] not clearly

established at the time of the incident.”).

c. As to claim three, the district court noted “[b]oth Defendants and

Plaintiffs discuss this claim only briefly—simply referencing the arguments made

on the previous two claims.” J.A., 2023 WL 7434950, at *15. The district court

then denied qualified immunity “[b]ecuase the court found that a jury could find

for Plaintiffs on the previous claims.” Id. We disagree. It is unclear whether the

alleged constitutional right was violated, which alone is sufficient to reverse the

district court. See Marquez, 693 F.3d at 1176 n.8. Moreover, Plaintiffs fail to

5 23-4180 identify a case clearly establishing this constitutional right. We thus cannot

conclude that Plaintiffs’ constitutional rights were violated or that those rights were

clearly established. Therefore, denial of qualified immunity as to claim three was

inappropriate. See Scott v. Smith, 109 F.4th 1215, 1229 (9th Cir. 2024).

Accordingly, we affirm the judgment of the district court as to claim one and

reverse the judgment of the district court as to claims two and three and remand.

On remand we instruct the district court to enter judgment in favor of the Deputy

Defendants as to claims two and three based on qualified immunity. Each party

shall bear its own costs.

AFFIRMED in part, REVERSED in part, and REMANDED.

6 23-4180