FILED

NOT FOR PUBLICATION

MAY 6 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD OLANGO ABUKA, an No. 19-55335 individual, D.C. Nos. Plaintiff-Appellant, 3:17-cv-00089-BAS-NLS 3:17-cv-00347-BAS-NLS and

H. C., a minor, individually and as MEMORANDUM* Successor in Interest to Alfred Okwera Olango, deceased, by and through her Guardian Ad Litem, Celanese Small; et al.,

Plaintiffs,

v.

THE CITY OF EL CAJON, a municipal entity; RICHARD GONSALVES,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted May 4, 2020** Pasadena, California

Before: GOULD and CHRISTEN, Circuit Judges, and STEIN,*** District Judge.

Richard Abuka appeals the district court’s order granting the City of El

Cajon and police officer Richard Gonsalves’s motion for summary judgment in a

§ 1983 action arising from the fatal shooting of Abuka’s son. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.1

We review de novo the district court’s order granting summary judgment.

Booth v. United States, 914 F.3d 1199, 1203 (9th Cir. 2019).

Abuka contends that the district court erred by applying the wrong standard

of culpability when assessing whether Gonsalves violated his Fourteenth

Amendment substantive due process right to familial association. A police

officer’s conduct “shocks the conscience,” and therefore violates substantive due

process, if the officer acts with either: (1) deliberate indifference; or (2) a purpose

to harm unrelated to legitimate law enforcement objectives. S.R. Nehad v.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. 1 Because the parties are familiar with the facts and procedural history of this case, we do not recite them here. 2 Browder, 929 F.3d 1125, 1139 (9th Cir. 2019). The deliberate indifference

standard applies if it was practical under the circumstances for the officer to

engage in actual deliberation. Nicholson v. City of Los Angeles, 935 F.3d 685,

692–93 (9th Cir. 2019). But if the officer made “a snap judgment because of an

escalating situation,” the officer’s conduct shocks the conscience only if it was

undertaken “with a purpose to harm unrelated to legitimate law enforcement

objectives.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013).

Here, the district court applied the purpose-to-harm standard because it

concluded that Gonsalves made a snap decision in an escalating situation. Abuka

does not directly challenge the court’s conclusion that Gonsalves was in an

escalating situation, but instead argues that the court failed to account for

Gonsalves’s role in creating that situation. Abuka contends that the court should

have applied the deliberate-indifference standard because Gonsalves’s conduct

“unreasonably created the need to use . . . force.” But we have previously applied

the purpose-to-harm standard even where the officer helped create the

confrontation or committed tactical mistakes. See Porter v. Osborn, 546 F.3d

1131, 1133 (9th Cir. 2008); Nehad, 929 F.3d at 1135, 1139. Abuka points to cases

that suggest those facts might be relevant to the Fourth Amendment excessive

force analysis, see Nehad, 929 F.3d at 1135, and we have also said those facts

3 might show that an officer acted with a purpose to harm in the Fourteenth

Amendment context, see Porter, 546 F.3d at 1140, but those cases do not establish

that the Fourteenth Amendment standard changes to deliberate indifference if the

officer helped create the escalating situation. We conclude that the district court

did not err by applying the purpose-to-harm standard.

Abuka makes no claim that Gonsalves acted with a purpose to harm

unrelated to the legitimate law enforcement objective of defending himself,

arguing only that the district court should have applied the deliberate-indifference

standard. See Hayes, 736 F.3d at 1230–31. Accordingly, we affirm the district

court’s order granting summary judgment to defendants on Abuka’s Fourteenth

Amendment claim.

AFFIRMED.

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