Lvmpd

MEMORANDUM *

After Officer Sean Miller of the Las Vegas Metropolitan Police Department shot and killed Anthony Brenes, Brenes’s wife and father (collectively,' ‘Vasquez-Brenes”) filed a 42 U.S.C. § 1983 action claiming that Miller’s use of deadly force violated Brenes’s constitutional rights. The district court denied Miller’s motion seeking summary judgment on the basis of qualified immunity. We reverse.

1. Vasquez-Brenes argues that we lack jurisdiction under 28 U.S.C. § 1291 over this appeal because the district court relied upon material disputed facts in denying summary judgment. See Johnson v. Jones, 515 U.S. 304, 319-20 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). But on appeal, Miller argues that even if all contested facts are construed in the light most favorable to Vasquez-Brenes, he was nonetheless entitled to qualified immunity as a matter of law. The denial of qualified immunity ,is an appealable final decision under § 1291 “to the extent that it turns on an issue of law,” Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), and we therefore have jurisdiction over Miller’s appeal.

2. A police officer is entitled to qualified immunity…

concurring:

I fully concur in the memorandum disposition. I write separately only to state that I also find that, taking the facts in the light most favorable to Brenes, Officer Miller’s conduct did not violate a constitutional right. See Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir.) (deadly force reasonable if officer has probable cause to believe suspect poses significant threat of death or serious physical injury), cert. denied sub nom. Wyatt v. F.E.V., — U.S. -, 135 S.Ct. 676 , 190 L.Ed.2d 389 (2014).

dissenting:

On the morning of November 15, 2010, Anthony Brenes walked around a parking lot with a cane and at one point threw a rock. Less than three minutes after police arrived to ensure public safety, Brenes was dead. Whether bean bag rounds and taser jolts failed to stop his walking is, in my view, irrelevant. What matters—and what a jury should decide—is if the officer reasonably believed that deadly force was needed to save his own life. See, e.g., A.K.H. v. City of Tustin, 837 F.3d 1005, 1012-14 (9th Cir. 2016) (affirming denial of qualified immunity to officer who “escalated to deadly force very quickly” after the suspect, whose crime did not “involve[] the use of serious or deadly force,” failed to immediately take his hand out of his pocket); Glenn v. Washington County, 673 F.3d 864, 866, 873-74, 878 (9th Cir. 2011) (reversing grant of summary judgment to officers who, within four minutes of their arrival, shot with bean bag rounds and then fatally shot the suicidal and intoxicated 'victim, who did not comply with orders to put down a pocketknife, which he did not brandish at anyone). There are too many unanswered questions to take this question away from the jury.

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 10 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYDIA VASQUEZ-BRENES; RICARDO No. 14-16939

BRENES,

D.C. No. Plaintiffs-Appellees, 2:12-cv-01635-JCM-VCF

v.

MEMORANDUM*

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT,

Defendant,

and

SEAN MILLER,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted October 19, 2016 Stanford, California

Before: CALLAHAN, HURWITZ, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. After Officer Sean Miller of the Las Vegas Metropolitan Police Department

shot and killed Anthony Brenes, Brenes’s wife and father (collectively, “Vasquez-

Brenes”) filed a 42 U.S.C. § 1983 action claiming that Miller’s use of deadly force

violated Brenes’s constitutional rights. The district court denied Miller’s motion

seeking summary judgment on the basis of qualified immunity. We reverse.

1.…