NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 9 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALEB SMITH, by and through his No. 24-7541 Guardian Ad Litem; TAMOSHIA MASON, D.C. No. individually and as Co-Successor-in-Interest 4:21-cv-08467-YGR to Decedent; K. S., individually and as Co- Successor-in-Interest to Decedent;

TIFFANY TRAMMELL, MEMORANDUM*

Plaintiffs - Appellees,

v.

CITY OF HAYWARD, a municipal corporation; CHRISTOPHER SUOZZO, in his individual capacity as a police officer for the City of Hayward; DYNATON TRAN, in his individual capacity as a police officer for the City of Hayward; MICHAEL MILLER, in his individual capacity as a police officer for the City of Hayward,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted October 20, 2025 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD, OWENS, and BUMATAY, Circuit Judges. Dissent by Judge BUMATAY.

Defendant-Appellants Officers Michael Miller, Christopher Suozzo, and

Dynaton Tran appeal from the district court’s denial of their motion for summary

judgment based on qualified immunity.1 We have jurisdiction under 28 U.S.C.

§ 1291 and the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 527–

28 (1985). As the parties are familiar with the facts, we need not recount them

here. We affirm in part and dismiss in part.

We review the district court’s denial of qualified immunity de novo. Peck v.

Montoya, 51 F.4th 877, 884 (9th Cir. 2022). We lack jurisdiction to assess the

sufficiency of the evidence supporting the district court’s finding that genuine

issues of material fact exist. Johnson v. Jones, 515 U.S. 304, 313 (1995).

1. The district court found genuine disputes of material fact regarding

whether the Officers violated Smith’s Fourth Amendment rights, including

whether Smith’s vehicle posed an immediate threat to the Officers. Where the

district court determines that “genuine issues of material fact [exist], such

determinations are not reviewable on interlocutory appeal.” Ames v. King County,

846 F.3d 340, 347 (9th Cir. 2017). Yet the Officers improperly challenge the

1 The City of Hayward lacks standing to challenge the district court’s denial of qualified immunity to the Officers. Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 41 (1995).

2 24-7541 district court’s factual determinations, asking us to adopt their version of events

rather than view the facts “in the light most favorable to the plaintiff.” Orn v. City

of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020). We thus lack jurisdiction to

review the Officers’ factual arguments and must accept the district court’s

conclusion that material factual disputes exist. Ames, 846 F.3d at 347.

2. The district court properly concluded that a reasonable jury could find that

the Officers violated Smith’s Fourth Amendment rights. Tennessee v. Garner, 471

U.S. 1, 11 (1985); Ames, 846 F.3d at 347.

We view the facts in the light most favorable to Smith: the Officers were

each either out of the Volvo’s path or in a position to step away; the Volvo, pinned

between the SUVs, moved slowly; and Smith did not accelerate until after the

Officers fired. A reasonable jury could find that the Officers did not face an

immediate threat of serious physical harm and that the use of deadly force was

objectively unreasonable. The Officers could have remained in safe positions or

moved to safety rather than deploy deadly force. Accordingly, a reasonable jury

could conclude that the Officers violated the Fourth Amendment.

3. The district court correctly determined that as of March 16, 2021, it was

clearly established that officers could not use deadly force against a slow-moving

vehicle when the officers could easily step out of the vehicle’s path. A right is

clearly established when “existing law . . . placed the constitutionality of the

3 24-7541 officer’s conduct beyond debate.” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (internal quotation marks and citations omitted). Precedent must hold that

the challenged conduct is a constitutional violation “under facts not distinguishable

in a fair way from the facts presented in the case at hand.” Saucier v. Katz, 533

U.S. 194, 202 (2001). The rule prohibiting the Officers’ conduct was squarely

established in Orn v. City of Tacoma, 949 F.3d 1167, 1175–76 (9th Cir. 2020).

In Orn, decided more than a year before this incident, we held that a jury

could find deadly force unreasonable because “the car was moving slowly enough

that the officer could have avoided any risk of injury by simply stepping to the

side.” Id. at 1179 (internal quotation marks omitted). We explained that “[a]

moving vehicle can of course pose a threat of serious physical harm, but only if

someone is at risk of being struck by it.” Id. at 1174.

Viewing the evidence in the light most favorable to Smith, the facts here

closely resemble those in Orn. Smith’s vehicle, pinned between two SUVs, moved

slowly. All three Officers had the opportunity to remain in a safe position, step

back, or reverse away from Smith’s path. Officer Suozzo stepped laterally toward

the gap to fire, demonstrating he was not in immediate danger. Officer Tran fired

from inside his vehicle when the Volvo was lateral to him. Finally, the initial

vehicle contact was minor, and Smith did not accelerate until after he was shot.

Any acceleration made by Smith toward the Officers was slow and thus did not

4 24-7541 pose a risk of serious harm under Orn. 949 F.3d at 1174.

The Officers cite Monzon v. City of Murrieta, 978 F.3d 1150 (9th Cir. 2020),

Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010), and Plumhoff v. Rickard, 572

U.S. 765 (2014). These cases are distinguishable. Monzon and Plumhoff involved

drivers who led police on high-speed chases exceeding 100 miles per hour.

Monzon, 978 F.3d at 1157; Plumhoff, 572 U.S. at 769, 776. Wilkinson involved

poor visibility and slippery ground, circumstances irrelevant here. 610 F.3d at 552.

Viewing the facts in the light most favorable to Smith, the Officers’ conduct

on March 16, 2021 violated clearly established law. We affirm the district court’s

denial of qualified immunity on the Fourth Amendment claim.

4. We decline to exercise pendent jurisdiction over the state law claims,

which are not “inextricably intertwined” with the qualified immunity

determination. Andrews v. City of Henderson, 35 F.4th 710, 720 (9th Cir. 2022).

We also lack jurisdiction to review the district court’s evidentiary ruling excluding

the Officers’ post-shooting statements. Coursen v. A.H. Robins Co., Inc., 764 F.2d

1329, 1342 (9th Cir. 1985).

5. We AFFIRM the district court’s denial of qualified immunity on the

Fourth Amendment excessive force claim and DISMISS for lack of appellate

jurisdiction the Officers’ remaining challenges.

AFFIRMED IN PART; DISMISSED IN PART.

5 24-7541

FILED

DEC 9 2025

No. 24-7541, Smith v. City of Hayward

MOLLY C. DWYER, CLERK

BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Are officers entitled to fire at a suspect coming directly at them with his

vehicle? Because the answer must be yes, I respectfully dissent.

1. “In evaluating a Fourth Amendment claim of excessive force, we ask

‘whether the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them.’” Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir.

2021) (simplified). We examine the totality of circumstances based on three non-

exclusive factors: (1) the “severity of the crime at issue,” (2) “whether the suspect

poses an immediate threat to the safety of the officers or others,” and (3) “whether

[the suspect] is actively resisting arrest or attempting to evade arrest by flight.”

Graham v. Connor, 490 U.S. 386, 396 (1989); see Tennessee v. Garner, 471 U.S. 1,

8–9 (1985).

Each of the Graham factors shows that Officers Michael Miller, Christopher

Suozzo, and Dynaton Tran’s conduct was reasonable. First, the “most important

Graham factor”—whether Caleb Smith, Jr. posed an immediate threat—weighs

strongly in the officers’ favor. S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir.

2019). Smith operated his Volvo as a deadly weapon against the officers. See United

States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987) (An automobile “can

be used as a deadly weapon” and “inflict deadly force on a person.”); see also Orn

v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) (“A moving vehicle can of 1 course pose a threat of serious physical harm . . . if someone is at risk of being struck

by it.”).

Even in the light most favorable to Smith, it is uncontested that: After Smith

rammed Officer Tran’s vehicle, he backed up—seeking room to maneuver around

the officers’ attempted blockade. The officers then exited or leaned out of their cars,

pointing their guns at him and repeatedly ordering him to surrender. Instead of

complying with the officers’ orders, as the district court found, he accelerated the

Volvo at them. Only then did officers fire their service weapons at Smith.1

Because of the close proximity to Smith’s car and the risk that he possessed a

gun, the officers were in reasonable fear of their lives—whether they were positioned

outside their vehicles or seated in the driver’s seat. Officers don’t have “to wait and

be seriously injured or killed before exercising [their] judgment and bringing the

situation under control.” Monroe v. City of Phoenix, 248 F.3d 851, 862 (9th Cir.

2001) (overruled on other grounds in Acosta v. Hill, 504 F.3d 1323 (9th Cir. 2007)).

They just need “probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.” Orn, 949 F.3d at 1174 (simplified).

1 The majority is simply wrong that Smith did not accelerate until after the officers fired. The district court found otherwise and even Smith’s counsel conceded this at oral argument. It’s uncontested that Smith’s Volvo moved forward toward the officers and then the officers fired—at which point the vehicle quickly slammed into the officers’ vehicle. So everyone, except the majority, agrees Smith started moving toward the officers first. Further, officers are not expected to be Spiderman—able to leap out of the way of a moving car—as the majority apparently believes. 2 Reasonable officers would know that a car “could accelerate dangerously and

without notice at any moment”—even if it only accelerated over a short period.

Monzon v. City of Murrieta, 978 F.3d 1150, 1160 (9th Cir. 2020). That Smith

accelerated directly at the exposed officers—threatening to ram them as he attempted

to escape—established the existence of an immediate threat enough to meet the

requirements under this factor.

The severity of the crime also favors the officers. Here, this factor serves “as

a proxy for the danger a suspect poses at the time force is applied.” Browder, 929

F.3d at 1136. The underlying alleged crimes here—violent, armed robberies and a

home invasion—are serious felonies. Armed violent crimes like burglary “are

considered to carry an inherent risk of violence.” Sandoval v. Las Vegas Metro.

Police Dep’t, 756 F.3d 1154, 1163 (9th Cir. 2014). The officers had good reason to

believe that the Volvo’s driver was involved in armed violence and so the prospect

that Smith was armed was reasonable. And sure enough, Smith possessed a firearm

in his car. So while Smith chose to use his car as a deadly weapon—instead of his

gun—this factor shows the officers’ reasonableness.

Finally, whether the suspect was “actively resisting arrest or attempting to

evade arrest by flight,” Graham, 490 U.S. at 396, clearly favors the officers. Smith

repeatedly tried to escape and resisted arrest, first accelerating at Officers Miller and

Suozzo’s Tahoe and then, after being boxed in, backing up, disregarding the officers’

3 warnings to surrender, and accelerating at them, heedless of the harm he posed to

the exposed officers. Cf. Napouk v. Las Vegas Metro. Police Dep’t, 123 F.4th 906,

919–20 (9th Cir. 2024).

2. In any case, the officers’ use of force in self-defense wasn’t prohibited by

clearly established law. To be clearly established, it must be “sufficiently clear that

every reasonable officer would have understood that what he is doing violates that

right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (simplified). This “demanding”

requirement “protects ‘all but the plainly incompetent or those who knowingly

violate the law,’” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (simplified),

and calls for “a high ‘degree of specificity,’” id. (simplified). So “police officers are

entitled to qualified immunity unless existing precedent ‘squarely governs’ the

specific facts at issue.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (simplified).

The majority relies on Orn to find that Smith’s estate had a clearly established

right. But Orn doesn’t squarely govern this case for several reasons. In Orn, the

plaintiff consistently tried to drive away from the officers and drove at a slow pace—

not in a way that was reckless or threatening. Orn, 949 F.3d at 1172–73. Instead,

everyone agreed that the suspect tried “to avoid hitting [the officer’s] vehicle.” Id.

at 1175 (emphasis added). And the officers “had no reason to believe that [the

suspect] had a firearm, and in fact he did not.” Id. at 1172. The upshot of the

4 situation was that the suspect never drove at either officer and the officer who fired

on him did so from the side and rear. Id. at 1175.

So Orn offers no guidance to Officers Miller, Suozzo, and Tran, who faced a

car coming directly at them. See id. at 1174 (“A moving vehicle can of course pose

a threat of serious physical harm . . . if someone is at risk of being struck by it.”).

And a car accelerating at officers, even slowly, can turn deadly in an instant. See

Monzon, 978 F.3d at 1160 (recognizing that a car “headed in [officers’] direction

could accelerate dangerously and without notice at any moment”).

3. Because the officers’ conduct was objectively reasonable, I would also

dismiss the state-law claims.

I respectfully dissent.

5