FILED

NOT FOR PUBLICATION

JAN 24 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WARREN PROSTROLLO, on behalf of No. 14-16921 himself and the statutory beneficiaries of Jason Prostrollo and as the personal D.C. No. 2:12-cv-01815-SMM representative of the Estate of Jason Prostrollo,

MEMORANDUM*

Plaintiff-Appellant,

v.

CITY OF SCOTTSDALE, a municipality organized under the laws of the State of Arizona, and RONALD BAYNE, in his individual and official capacities as a Lieutenant with the City of Scottsdale Police Department,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding

Argued and Submitted November 15, 2016 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 3 Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.

The district court properly granted summary judgment in favor of

defendants. Viewing the facts in the light most favorable to plaintiff, no

reasonable jury could conclude that Lt. Bayne’s use of deadly force was

objectively unreasonable. It is undisputed that the decedent, Jason Prostrollo, had

threatened two people with a knife earlier in the evening. It is also undisputed that

when Prostrollo emerged from the house, he was armed with a potentially deadly

weapon (two halves of a pool cue), and that he disregarded officers’ warnings to

halt his advance. Lt. Bayne did not know whether Prostrollo still had the knife on

his person as he continued to advance. Lt. Bayne fired only when Prostrollo had

advanced within 21 feet of the other officers, the distance officers are taught can be

closed by an attacker before an officer can react to protect himself.

The main disputed fact—where the police dog was when Lt. Bayne

fired—does not preclude summary judgment. Even if the dog had been released

and was attempting to subdue Prostrollo at the time Lt. Bayne fired, that would not

render his use of force unreasonable. Officers do not need to avail themselves of

the least intrusive means of responding to a threat; the Fourth Amendment requires

** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. Page 3 of 3 only that their conduct be reasonable. See Billington v. Smith, 292 F.3d 1177,

1188–89 (9th Cir. 2002). Here, Prostrollo was armed with a potentially deadly

weapon and had refused the officers’ commands to halt his approach. Lt. Bayne

was not required to wait until Prostrollo was within striking distance of the officers

given the threat he posed at the time Lt. Bayne fired.

Because Lt. Bayne’s use of force was objectively reasonable under the

circumstances, plaintiff’s claims under the Fourth and Fourteenth Amendments

fail. See Wilkinson v. Torres, 610 F.3d 546, 553–54 (9th Cir. 2010). In the

absence of a constitutional violation, plaintiff’s claim under Monell v. Department

of Social Services of N.Y., 436 U.S. 658 (1978), was properly dismissed. See City

of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). And plaintiff’s

state law claims were also properly dismissed because Arizona’s justification

statutes permit the use of deadly force when an officer reasonably believes the

suspect is likely to endanger human life. See Ariz. Rev. Stat. §§ 13-410, 13-413;

Marquez v. City of Phoenix, 693 F.3d 1167, 1176 (9th Cir. 2012).

AFFIRMED.

FILED

Prostrollo v. City of Scottsdale, No. 14-16921

JAN 24 2017

WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In my view, this is not a case that can be resolved at the summary judgment

stage. A reasonable jury could conclude that the events leading up to the fatal

shooting of Jason Prostrollo unfolded as follows: Prostrollo had consumed a large

amount of alcohol on the night in question and was staggering toward the officers

in slow motion. The officers could see that he held only a short stick in each

hand—what turned out to be the two halves of a pool cue. When he was still more

than 20 feet from the officers—a distance at which the two sticks could not have

posed a threat of any significance—one of the officers released the police dog to

subdue Prostrollo. The dog had bitten Prostrollo in the chest area and was in the

process of subduing him when Lt. Bayne fired two shots in rapid succession. The

first shot struck the dog in the back of the neck; the second shot struck Prostrollo in

the chest and killed him.

On these facts, a reasonable jury could conclude that Lt. Bayne’s use of

deadly force was unjustified. The jury could find that, at the time Lt. Bayne fired,

the police dog had halted Prostrollo’s advance and neutralized whatever potential

threat he might have posed. Prostrollo was still 17 feet from the officers when he

died, armed only with two halves of a pool cue. A jury could reasonably conclude

that at that distance, with a trained police dog attacking him, Prostrollo did not Page 2 of 2 pose an immediate threat of death or serious physical injury to the officers or

anyone else. In the absence of such a threat, the Fourth Amendment prohibits the

use of deadly force. See Tennessee v. Garner, 471 U.S. 1, 3 (1985).

I would reverse and allow the jury to decide whether Prostrollo’s father is

entitled to prevail on the Fourth Amendment excessive force claim.