NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. K. B., a minor, by and through his No. 24-3667 Guardian Ad Litem Nakisha Mitchell; D.C. No. NAKISHA MITCHELL, Individually and 2:23-cv-01067-KK-JDE as Administrator of the Estate of Jerome Rory Barber,

MEMORANDUM*

Plaintiffs - Appellants,

v.

CITY OF AZUSA, a public entity; MICHAEL BERTELSON, a public employee; DAVID AGUILAR, a public employee previously known as Doe 1; RICHARD MARTINEZ, a public employee previously known as Doe 2; MICHAEL DEANDA, a public employee previously known as Doe 3; THOMAS AVILA, Lieutenant, previously known as Doe 4; DOES, 5-10, Inclusive,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Kenly Kiya Kato, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted July 18, 2025** Pasadena, California

Before: WARDLAW, MENDOZA, and JOHNSTONE, Circuit Judges.

E.K.B. and Nakisha Mitchell appeal the district court’s grant of summary

judgment on their claims arising under 42 U.S.C. § 1983 in favor of police officers

and the City of Azusa (“City”), which concern the death of their father and partner

Jerome Barber. We have jurisdiction under 28 U.S.C. § 1291. We review a district

court’s order granting summary judgment de novo. Frlekin v. Apple, Inc., 979 F.3d

639, 643 (9th Cir. 2020). We affirm.

1. “A claim that a law enforcement officer used excessive force during a

stop or arrest is ‘analyzed under the Fourth Amendment.’” Barnes v. Felix, 145 S.

Ct. 1353, 1357 (2025) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

“Unless the officer ‘violate[d] clearly established statutory or constitutional rights

of which a reasonable person would have known,’ she is entitled to qualified

immunity.” Hernandez v. City of Los Angeles, 139 F.4th 790, 802 (9th Cir. 2025)

(en banc) (alteration in original) (quoting City of Escondido v. Emmons, 586 U.S.

38, 42 (2019) (per curiam)).

It is undisputed that Barber was armed with a knife, moving rapidly toward

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 24-3667 the officers, and the officers attempted to use less-than-lethal force before Officer

Aguilar fired his gun. See id. at 799. Although special considerations arise where

law enforcement is confronted with mentally unstable individuals, see Deorle v.

Rutherford, 272 F.3d 1272, 1280–81 (9th Cir. 2001), those considerations wane

when the circumstances are dangerous and urgent. Hernandez, 139 F.4th at 799–

800. Plaintiffs offer no authority that would place the officers on notice that their

actions with regard to Barber would violate his constitutional rights; therefore, the

officers did not violate clearly established law and are entitled to qualified immunity.

See id. at 802.

2. “Parents and children have a well-elaborated constitutional right to live

together without governmental interference.” Hardwick v. County of Orange, 980

F.3d 733, 740 (9th Cir. 2020) (quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th

Cir. 2000)). “Official conduct that ‘shocks the conscience’ in depriving” individuals

“of that interest is cognizable as a violation of due process.” Wilkinson v. Torres,

610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1137

(9th Cir. 2008)). Where an officer had opportunity to deliberate before undertaking

the conduct at issue, “deliberate indifference” is the standard; but if the conduct

resulted from a snap judgment, an officer is liable only where they acted with a

“purpose to harm.” Id.

The undisputed record indicates that officers exhibited neither deliberate

3 24-3667 indifference nor a purpose to harm Barber. The officers attempted to reason with

Barber, were attentive to the risk of him harming others, deployed less-than-lethal

means, and used lethal force only at the last moment. Plaintiffs offer no

contravening facts or authority preventing the conclusion that the officers are

entitled to judgment as a matter of law on this record.

3. Third parties may not be held liable for a violation of the constitution

merely because they were present for it, but may “be liable for the constitutional

violations of others under Section 1983 if they are a supervisor, and ‘(1) [they were]

personally involved in the constitutional deprivation, or (2) a sufficient causal

connection exists between the supervisor’s wrongful conduct and the constitutional

violation.’” Olson v. County of Grant, 127 F.4th 1193, 1197 (9th Cir. 2025)

(alteration in original) (quoting Felarca v. Birgeneau, 891 F.3d 809, 819–820 (9th

Cir. 2018) (internal quotation marks omitted)).

To the extent that Plaintiffs attempt to parse out “supervisory liability” claims

against Martinez and Avila for their “tactical decisions” leading up to the shooting—

i.e., deciding not to call mental health providers to the scene—they must demonstrate

that Martinez and Avila “knew or reasonably should have known” that those

decisions would “inflict a constitutional injury.” Felarca, 891 F.3d at 820. Plaintiffs

offer no evidence in support of this notion; Avila testified that he did not

immediately call mental health providers because the officers were confronted with

4 24-3667 an immediate problem, and the situation came to a close within minutes. Therefore,

there is no record support indicating that Martinez and Avila’s “tactical decisions”

caused Barber’s death, and all available evidence points to the contrary.

4. To establish municipal liability for a § 1983 violation, “a plaintiff must

show that a ‘policy or custom’ led to the plaintiff’s injury.” Castro v. County of Los

Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc) (citing Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978)). A Monell claim has four elements: “(1) that

the plaintiff possessed a constitutional right of which she was deprived; (2) that the

municipality had a policy; (3) that this policy amounts to deliberate indifference to

the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind

the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th

Cir. 2011) (cleaned up).

Plaintiffs argue that the City 1 failed to train its officers and failed to have

mental health crisis response personnel available on weekends, and that each failure

caused Barber’s death. But there is no evidence that the City’s lack of staffing a

mental health crisis specialist on weekends caused Barber’s death, because Avila

1 Plaintiffs suggest that Defendant Bertelson is liable under this theory as well. Although Monell claims are circumscribed to entity defendants, we have observed that a Monell “[f]ailure to train” theory is “[s]imilar[]” to a “failure to supervise” theory. Dougherty, 654 F.3d at 900. To whatever extent a supervisory liability claim against Bertelson is preserved in the opening brief, we hold that it fails for the same reasons as Plaintiffs’ Monell claim against the City.

5 24-3667 testified that he would not have called such a specialist to the scene if one had been

available.

AFFIRMED.

6 24-3667