FILED

NOT FOR PUBLICATION

AUG 30 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA KENDRICK, individually and No. 18-55480 as successor in interest to er now deceased husband Gary Kendrick, D.C. No. 3:15-cv-02615-GPC-AGS Plaintiff-Appellee,

v. MEMORANDUM*

COUNTY OF SAN DIEGO; WILLIAM

GORE, Sheriff; DANIEL BARNES;

STEVEN BLOCK; AMY BROWN-LISK;

JEREMY COLLIS; TROY DUGAL;

DAVE HILLEN; DUSTIN LOPEZ;

MATTHEW MAYS; KEVIN NORIE;

JASON WORTHINGTON,

Defendants-Appellants.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted August 16, 2019 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District Judge.

This is an interlocutory appeal of the denial of qualified immunity in a

§ 1983 action. A San Diego Sheriff Deputy fatally shot Gary Kendrick in front of

his wife, Cynthia Kendrick. Deputies immediately took Mrs. Kendrick into

custody as a material witness, holding her for almost seven hours. She has asserted

an excessive force claim on her husband’s behalf and an unreasonable seizure

claim on her own behalf. The district court denied defendants’ motion for

summary judgment on the merits and denied defendants’ attempt to invoke

qualified immunity. We affirm the denial of qualified immunity.

In March 2015, when this incident occurred, it was clearly established that

the use of lethal force against someone who is armed and mentally unstable, but

not suspected of any criminal wrongdoing, is reasonable only if that individual

made a “furtive movement,” “harrowing gesture,” or “serious verbal threat.”

George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013). Construing the facts in

plaintiff’s favor, Mr. Kendrick did no such thing. He was shot by Deputy Steven

Block while he was standing with his arms outstretched, parallel to the ground.

Our holding in George clearly established Mr. Kendrick’s Fourth Amendment

** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 2 right to be free from deadly force in this situation. Accordingly, the district court

correctly denied qualified immunity as to Deputy Block.

It was also clearly established that citizens cannot be detained for hours on

account of being witnesses to a crime. See Maxwell v. County of San Diego, 708

F.3d 1075, 1083–84 (9th Cir. 2013). In Maxwell, we held that a five-hour

detention and interrogation of a family that had witnessed a shooting presented an

“obvious” constitutional violation. Id. We explained that the state’s interest in

detaining witnesses for questioning is relatively low, and so to be constitutionally

reasonable such detentions must be “minimally intrusive.” Id. at 1083.

Here, after watching a deputy shoot her husband, Cynthia was taken from

her husband’s body, effectively locked in the back of a police car, transported to a

police station, placed in a guarded interrogation room for almost four hours, then

subjected to two and a half hours of questioning, and another hour of being

photographed. As plaintiff argues, there were several less intrusive ways in which

officers could have questioned Mrs. Kendrick about the shooting, so this

investigative detention was not “minimally intrusive.” Our decision in Maxwell

clearly established that Mrs. Kendrick’s seizure in this situation was unreasonable.

Defendants further contend that even if Mrs. Kendrick’s detention violated a

clearly established right, the seven individual defendants involved in the detention

3 are entitled to qualified immunity because the conduct of each defendant in

isolation did not cross a clear constitutional boundary. Construing the record in

plaintiff’s favor, all seven defendants must have been on notice at the time of their

participation that the detention was not minimally intrusive and that their

involvement in it therefore violated principles that we clearly established in

Maxwell. We recently reached a similar conclusion. See Nicholson v. City of Los

Angeles, No. 17-56648, 2019 WL 3939352, at *4–*5 (9th Cir. Aug. 21, 2019)

(affirming denial of qualified immunity where officer was “just one participant in a

sequence of events that gives rise to a constitutional violation.”). It is for the jury

to discern whether each of the seven defendants’ participation in this unlawfully

prolonged detention was “integral.” See Blankenhorn v. City of Orange, 485 F.3d

463, 481 n.12 (9th Cir. 2007) (explaining liability may attach if the officer has

“some fundamental involvement in the conduct that allegedly caused the

violation.”). Accordingly, the district court properly denied qualified immunity as

to the seven defendants involved in Mrs. Kendrick’s detention.

AFFIRMED.

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