Ortega v. San Diego Police Department

MEMORANDUM

On the morning of June 4, 2012, Officer Jonathan McCarthy shot and killed Victor Ortega while attempting to take Ortega into custody. Ortega’s surviving family members brought a lawsuit against McCarthy; asserting violations of Ortega’s Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 . McCarthy moved for summary judgment based on qualified immunity. The district court denied qualified immunity for both the Fourth and Fourteenth Amendment claims, and McCarthy appeals. We have jurisdiction to decide the questions of law, including the materiality of disputed facts, presented by this appeal. See 28 U.S.C. § 1291 ; Behrens v. Pelletier, 516 U.S. 299, 312-13 , 116 S.Ct. 834 , 133 L.Ed.2d 773 (1996); George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). We review questions of law de novo. Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009). For the following reasons, we affirm.

1. The district court correctly applied Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014). In cases of officer-involved deadly shootings in which the officer and decedent are the only witnesses, courts must “carefully examine all the evidence in the record ...…