FILED

NOT FOR PUBLICATION

JUN 18 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINDY LOSEE, individually and as No. 16-16541 successor in interest to Breanne Sharpe, deceased, D.C. No. 2:14-cv-02199-KJM-CMK Plaintiff-Appellant,

v. MEMORANDUM*

CITY OF CHICO; SCOTT ZUSCHIN;

DAMON SELLAND; JARED CUMBER;

NICK VEGA; DAVID QUIGLEY,

Defendants-Appellees.

Appeals from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted April 13, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER,** District Judge.

Mindy Losee (“Losee”) brought this action as the next of kin of Breanne

Sharpe (“Sharpe”), who was killed after police officers fired shots into her moving

vehicle. Losee timely appeals the district court’s order granting summary

judgment to all defendants in this 42 U.S.C. § 1983 action. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for

further proceedings.

1. The district court did not err in granting summary judgment on the basis

of qualified immunity to Officers Selland, Vega, Cumber, and Quigley on Losee’s

excessive force claim. Viewing the facts in the light most favorable to Losee, the

record demonstrates that those officers had a reasonable fear of imminent physical

harm at the time they fired their shots. By the time these officers fired their

weapons, Sharpe was driving the Honda directly at them or other officers after

either evading officers and crashing into a utility pole, or after crashing into a

patrol car, a tree, and narrowly missing at least one officer. See Graham v.

Connor, 490 U.S. 386, 396 (1989) (explaining that the Fourth Amendment inquiry

in excessive force cases “requires careful attention to the facts and circumstances

** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. 2 of each particular case, including . . . whether the suspect poses an immediate

threat to the safety of the officers or others”); Tennessee v. Garner, 471 U.S. 1, 11

(1985) (“Where the officer has probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to others, it is not

constitutionally unreasonable to prevent escape by using deadly force.”).

The district court also did not err in granting summary judgment to those

officers on Losee’s state law claims for battery, negligence, and a violation of the

Bane Act, because each of those claims require a showing that the officers’

conduct was objectively unreasonable. See Chaudhry v. City of L.A., 751 F.3d

1096, 1105 (9th Cir. 2014) (explaining that “the elements of the excessive force

claim under [the Bane Act] are the same as under § 1983” (quoting Cameron v.

Craig, 713 F.3d 1012, 1022 (9th Cir. 2013))); Bowoto v. Chevron Corp., 621 F.3d

1116, 1129 (9th Cir. 2010) (explaining that, “[u]nder California law, a plaintiff

bringing a battery claim against a law enforcement official has the burden of

proving the officer used unreasonable force”); Hayes v. Cty. of San Diego, 305

P.3d 252, 258 (Cal. 2013) (considering a plaintiff’s negligence claim “in relation to

the question whether the officers’ ultimate use of deadly force was reasonable”).

2. However, the district court erred when it determined that Sergeant

Zuschin was entitled to qualified immunity on Losee’s excessive force claim. The

3 right not to be shot in a car that poses no immediate danger to police officers or

others is clearly established. See Acosta v. City & Cty. of S.F., 83 F.3d 1143, 1148

(9th Cir. 1996) (holding that “the law governing ‘shooting to kill’ a fleeing suspect

is clearly established and . . . a reasonable officer could not have reasonably

believed that shooting at the driver of the slowly moving car was lawful”).

Viewed in the light most favorable to Losee, there is a disputed question of

fact as to whether Sergeant Zuschin had an objectively reasonable fear of serious

physical harm to himself or others when firing his four shots at the Honda.

Sergeant Zuschin was the first officer to fire his weapon. Although it is not clear

which, if any, of Sergeant Zuschin’s shots struck Sharpe in the head, on appellant’s

version of the facts, Sergeant Zuschin was not in immediate danger of being struck

when he fired his first two shots because he could have avoided the Honda as it

slowly backed away from the utility pole. See Acosta, 83 F.3d at 1146 (finding

excessive force where “a reasonable officer . . . would have recognized that he

could avoid being injured when the car moved slowly” towards him (footnote

omitted)). Nor was there an immediate threat of physical harm when Sergeant

Zuschin fired his last two shots at the Honda, through the back window, as it began

to pull forward in a direction away from him and the other officers positioned

behind him. See Adams v. Speers, 473 F.3d 989, 991–92, 994 (9th Cir. 2007)

4 (holding that an officer who shot at a vehicle “as it rolled backwards away from

him” was not entitled to qualified immunity because of “the lack of danger to the

shooter”).

3. Because a jury could conclude that Sergeant Zuschin’s conduct, including

his preshooting conduct, was objectively unreasonable, the district court also erred

in granting summary judgment to Sergeant Zuschin on Losee’s state law battery

and negligence claims. See Bowoto, 621 F.3d at 1129; Hayes, 305 P.3d at 257

(explaining that an “officer’s duty to act reasonably when using deadly force

extends to preshooting conduct”).

4. The district court did not err, however, in granting summary judgment to

Sergeant Zuschin on Losee’s Bane Act claim. Liability under the Bane Act

requires an officer to have had “a specific intent to violate the arrestee’s right to

freedom from unreasonable seizure.” Reese v. Cty. of Sacramento, 888 F.3d 1030,

1043 (9th Cir. 2018) (quoting Cornell v. City & Cty. of S.F., 225 Cal. Rptr. 3d 356,

384 (Ct. App. 2017)). Evidence simply showing that an officer’s conduct amounts

to a constitutional violation under an “objectively reasonable” standard is

insufficient to satisfy the additional intent requirement under the Bane Act. See id.

at 1045. Rather, Losee must show that Sergeant Zuschin “intended not only the

force, but its unreasonableness, its character as more than necessary under the

5 circumstances.” See id. (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir.

1993)). Losee proffered no such evidence.

5. The district court did not err in granting summary judgment to the

defendants on Losee’s substantive due process claim for interference of familial

relations in violation of the Fourteenth Amendment because Losee failed to

demonstrate that any of the officers acted with a subjective “purpose . . . to cause

harm unrelated to the legitimate object of arrest.” Porter v. Osborn, 546 F.3d

1131, 1140 (9th Cir. 2008) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833,

836 (1998)); see also Gonzalez v. City of Anaheim, 747 F.3d 789, 798 (9th Cir.

2014) (noting that “speculation as to . . . improper motive does not rise to the level

of evidence sufficient to survive summary judgment” (quoting Karem v. City of

Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003))); Porter, 546 F.3d at 1141

(explaining that, to support a substantive due process claim, an officer’s actions

must be “undertaken to induce . . . lawlessness, or to terrorize, cause harm, or kill”

(alteration in original) (quoting Lewis, 523 U.S. at 855)).

Losee’s argument that the various officers must have shot at Sharpe in order

to teach her a lesson for fleeing or failing to follow commands also fails. Even

Losee’s expert opined that each officer had a subjective fear for his safety and the

safety of others, and there is no other evidence in the record to support the

6 conclusion that these officers shot for anything but a legitimate law enforcement

purpose. Similarly, even assuming that Sergeant Zuschin did not have an

objectively reasonable fear for his safety or the safety of others when he shot at the

Honda, the record is devoid of evidence from which one could conclude that he

acted with a purpose beyond legitimate law enforcement objectives.

6. In light of the district court’s conclusion that the officers’ conduct was

not unreasonable, it dismissed each of Losee’s state law claims against each of the

defendants, including Losee’s battery and negligence claims against the City of

Chico. Because a reasonable jury could find that Sergeant Zuschin used excessive

force, Losee’s battery and negligence claims against the City of Chico must also

proceed. See Cal. Gov’t Code § 815.2 (imposing vicarious liability on public

entities for the tortious acts and omissions of their employees).

Each side shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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