NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEANINE LIBERTI; MICHAEL LIBERTI, No. 18-16938 individually and as surviving parents of Dylan Liberti, decedent, D.C. No. 2:17-cv-02813-DLR

Plaintiffs-Appellants,

MEMORANDUM*

v.

CITY OF SCOTTSDALE, et al.,

Defendants-Appellees,

and

DOES, named as John and/or Jane Does I through V, fictitious individuals; ABC Corporations and/or Partnerships and/or Sole Proprietorships and/or Joint Ventures I-X, fictitious entities,

Defendant.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted March 5, 2020 Phoenix, Arizona

Before: HAWKINS, OWENS, and BENNETT, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs Jeanine Liberti and Michael Liberti appeal from the district court’s

grant of summary judgment to Defendants. Plaintiffs’ claims arise out of the

interaction between Officer Wilmer Fernandez-Kafati, Officer Marjorie Bailey, and

Dylan Liberti (“Liberti”), which tragically ended in the fatal shooting of Liberti. The

district court granted summary judgment on Plaintiffs’ 42 U.S.C. § 1983 claim based

on qualified immunity, and granted summary judgment on Plaintiffs’ negligence and

wrongful death claims after finding Plaintiffs’ counsel had conceded that the state

law counts rose or fell with their § 1983 claim.1 We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. The district court correctly found that qualified immunity barred Plaintiffs’

claim that the officers violated Liberti’s Fourth Amendment rights by using

excessive and deadly force against him. Qualified immunity’s availability depends

upon (1) whether the facts “taken in the light most favorable to the party asserting

the injury show[s] that the officers’ conduct violated a constitutional right and (2)

[whether] the right was clearly established at the time of the alleged violation.”

Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal quotation marks and

alterations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). We need

only address the second prong.

1 The district court overread counsel’s “concession.” However, we nonetheless affirm the district court’s grant of summary judgment on the state law claims for the reasons stated below.

2 Even if we agree that the officers violated one of Liberti’s constitutional

rights, Supreme Court precedent prevents us from considering it a “clearly

established right.” An officer “cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that any reasonable

[officer] in the defendant’s shoes would have understood that he was violating it.”

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (internal quotation marks and

citation omitted). The Supreme Court has explicitly warned against defining “clearly

established law at a high level of generality.” Id. at 1152 (internal quotation marks

and citations omitted).

No existing precedent would have given the officers notice that Officer

Bailey’s grabbing of Liberti’s elbow in an attempt to get him to sit down or that the

officers’ additional attempts to subdue him when he fled were unconstitutional.

These uses of force fall “far from an obvious case in which any competent officer

would have known [their uses of force] . . . would violate the Fourth Amendment.”

Id. at 1153. Likewise, there is no case that would establish that Officer Fernandez-

Kafati’s use of deadly force was obviously unconstitutional where: (1) Liberti had

already fled from the officers and was not complying with their orders; (2) Liberti

had a knife in his hand; (3) Officer Bailey’s prior use of a Taser to subdue Liberti

had proven ineffective; (4) Liberti was moving toward either Officer Fernandez-

Kafati or the shopping center with a knife in hand; and (5) Officer Fernandez-Kafati

3 was the only officer standing between Liberti and the rest of the open-air shopping

center where members of the public were present. This keeps us from finding that

the officers had “fair and clear warning” that their actions were unconstitutional. Id.

(citation omitted).

2. We are similarly constrained by Arizona law with respect to Plaintiffs’ state

law claims based on officer negligence. In Arizona, plaintiffs cannot base a

negligence claim on an intentional use of force nor on a law enforcement officer’s

negligent “‘evaluation’ of whether to intentionally use force.” Ryan v. Napier, 425

P.3d 230, 236 (Ariz. 2018). Any negligence claim must be based on conduct

independent of the intentional use of force. Id. at 238.

3. Plaintiffs’ remaining claims fail as there are no wrongful acts for which the

officers can be liable. No reasonable juror could find that the initial use of force was

wrongful, given the information known to the officers. They were responding to a

hang-up 911 call; they had been told that the man making the call did not look well;

and a bystander had flagged down Officer Fernandez-Kafati to point out Liberti. In

addition, when they wanted to reasonably limit Liberti’s movements while they were

talking to him, giving Liberti many verbal commands and requests to sit down,

Liberti refused. The officers were faced with a difficult situation: they did not know

exactly why Liberti was behaving the way he was but wanted to continue the

conversation while maintaining control and limiting Liberti’s options to escalate the

4 situation. Their actions were modest and tailored to the situation, and no reasonable

juror could have found them wrongful. When Liberti subsequently attempted to run

away, no reasonable juror could find that the officers’ increased use of force to

attempt to subdue him was wrongful. Furthermore, once Liberti had his knife in

hand, he clearly posed a danger to himself and others. No reasonable juror could find

that the officers’ escalating attempts to subdue him, up to and including Officer

Fernandez-Kafati’s use of deadly force, constituted wrongful acts.

AFFIRMED.

5

FILED

Liberti v. City of Scottsdale, No. 18-16938

JUN 5 2020

BENNETT, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Dylan Liberti died tragically on a hot summer Arizona day in July 2016,

shot by police officers in a Scottsdale shopping mall. Dylan was just twenty-four

when he died. Many of the salient events of that tragic day are captured on police

video. Police officers approached Dylan, primarily because he had made a hang-

up 911 call from a nearby restaurant and a passer-by thought Dylan was acting

erratic and “looked weird.” The restaurant manager gave no indication that Dylan

posed any danger and neither did the passer-by. Though it likely exceeded 100

degrees at the time the police approached Dylan, they were intent and insistent on

physically forcing Dylan to sit down on hot concrete. The video demonstrates that

Dylan answered their questions cogently and lucidly, though because of their

errors in processing what Dylan said, they may have believed Dylan was not being

as cooperative as the video shows him to be. Dylan became obviously agitated

(but still not threatening) as they became more and more insistent that he sit down.

One officer then physically grabbed Dylan’s arm to force him to the ground. The

tragic aftermath is accurately described by the majority.

Dylan’s parents, the Plaintiffs, brought this case. Though I agree with the

majority that the Defendants are entitled to summary judgment on Plaintiffs’

federal claims and state law negligence claims, I respectfully dissent from the majority’s affirmance of the district court’s grant of summary judgment on

Plaintiffs’ wrongful death claims. I believe the evidence, when viewed in the light

most favorable to Plaintiffs, would allow a reasonable jury to find that the officers

committed a battery and false arrest, both wrongful acts under Arizona’s wrongful

death statute, and that either or both proximately caused Dylan’s death. I would

therefore reverse the district court’s grant of summary judgment on the wrongful

death claims and remand those claims for further proceedings. 1

Arizona’s wrongful death statute provides that “when the death of a person

is caused by wrongful act, neglect or default, [the actor] who would have been

liable if death had not ensued shall be liable to an action for damages.” Walsh v.

Advanced Cardiac Specialists Chartered, 273 P.3d 645, 648 (Ariz. 2012) (internal

alterations omitted) (quoting A.R.S. § 12-611).

The events that eventually led to Dylan’s death started out as a welfare

check in response to a hang-up 911 call. Officers Fernandez-Kafati and Bailey

knew that a male who had used a phone in a restaurant to make the call had

subsequently left the restaurant without incident. The officers were told that the

male did not look well, but there was no report that he posed a danger to anyone, or

even that he looked like he might pose a danger to anyone. Officer Fernandez-

1 I would not simply remand for trial, as I believe Defendants should be given the opportunity to try to show that Plaintiffs’ wrongful death claims are barred, as a matter of law, by state law defenses, such as state law qualified immunity. 2 Kafati was directed toward Dylan by a shopper who thought that Dylan “looked

weird” and “didn’t look right.” Officer Bailey arrived shortly thereafter with her

on-body camera actively recording. The on-body camera video shows that the

officers spoke to Dylan in front of a grocery store, asking him for identifying

information and whether he wanted them to call paramedics because he did not

look well. Dylan answers the officers’ questions cogently and accurately but

declines additional assistance. For example, Dylan accurately provided the

officers his name, date of birth, and home address. Dylan does not appear

irrational, dangerous, in obvious need of assistance, or obviously intoxicated.2

Dylan is not acting in a threatening manner—either to the officers or anyone else.

The officers are in possession of no evidence that Dylan committed a crime. The

officers repeatedly ask (and then demand) that Dylan sit down. As Plaintiffs note,

it was a hot day and the concrete the officers wanted Dylan to sit on was possibly

painfully hot. Historic records show that the temperature in Scottsdale was as high

2 The district court’s conclusions that Dylan’s failure to follow the officers’ directions constituted an ignoring of “questions and commands,” appears to disregard that Dylan answered the officers’ questions regarding his identifying information and clarified when asked to do so. Though the video speaks for itself; to the extent the video is ambiguous on these points, of course we must construe the facts in the light most favorable to Plaintiffs. C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). In its finding that the officers acted reasonably in response to “Liberti’s jittery, confused demeanor, [and] complaints of feeling ill,” the district court substituted its own reasoning for that of the factfinder and improperly resolved a question of fact against the non- moving party on summary judgment. 3 as 111 degrees the day Dylan was shot.3 Dylan obviously does not want to sit, but

continues to answer the officers’ questions, while not following their commands to

sit.

After approximately six minutes of discussion, Officer Bailey grabs Dylan’s

elbow to get him to sit down because Dylan was “moving around too much” for

her. Again, there is nothing in the video that demonstrates (and certainly not in the

light most favorable to Plaintiffs) that Dylan’s “moving around” is dangerous,

evidence of a crime, or another reason for the officers to arrest him. Dylan pulls

away from Officer Bailey’s grasp and attempts to run away. The officers attempt

to subdue Dylan but he pulls free and runs into the open-air shopping area. The

officers give chase and find Dylan with a small knife. The officers order him to

drop the weapon, but he resumes running away from the officers. When they catch

up to him a second time, Officer Bailey deploys her Taser, but it does not

incapacitate Dylan. He gets up and begins to run. Officer Fernandez-Kafati then

fatally shoots Dylan.

Viewing the facts in the light most favorable to Plaintiffs, the chase,

tasering, and shooting might not have occurred at all had Officer Bailey not

grabbed Dylan and tried to force him to sit down against his wishes. Put another

3 See Record of Climatological Observations at Scottsdale Municipal Airport, AZ—July 27, 2016, NOAA, https://www.ncdc.noaa.gov/cdo-web/search. 4 way, a reasonable trier of fact could find that that initial use of force was the

proximate cause of all that followed. Thus, under Arizona’s wrongful death

statute, if that use of force (and the actions surrounding it) was a “wrongful act,

neglect or default,” then Plaintiffs could make out a case for wrongful death.

The videotape simply does not resolve all questions of material fact. A

reasonable factfinder could, for example, find that Officer Bailey’s initial use of

force to grab Dylan’s shoulder to force him to sit down on painfully hot concrete,

could constitute false arrest or battery which proximately caused the chase,

tasering, shooting, and death. The video shows Dylan politely, cogently, and fully

answering the officers’ questions. Sadly, it appears from the video that part of the

officers’ unease was caused because they perhaps felt that Dylan gave them a false

name (like they thought he was somehow making up a name—like “Liberty”).

Also, Officer Bailey called in Dylan’s date of birth incorrectly, possibly adding to

her unease when the information does not appear to turn up anything.

Dylan only attempts to flee when Officer Bailey grabs him in order to force

him to do something he clearly does not want to do—sit down on hot concrete.

Construing the facts in the light most favorable to Plaintiffs, there is a question of

fact as to whether Officer Bailey had probable cause to believe that Dylan had

committed an offense when she grabbed him. See State v. Keener, 75 P.3d 119,

122 (Ariz. Ct. App. 2003) (defining probable cause as “reasonably trustworthy

5 information and circumstances that would lead a person . . . to believe that a

suspect has committed an offense” (internal quotation marks, alterations, and

citation omitted)). Without probable cause, a jury could find that Officer Bailey

had no legal authority to effect a detention of Dylan, therefore falsely arresting

him. See Torrez v. Knowlton, 73 P.3d 1285, 1287 (Ariz. Ct. App. 2003) (“[T]he

tort of false arrest occurs when a person is unlawfully detained without consent.”). 4

The facts surrounding Officer Bailey’s use of force, construed in the light

most favorable to Plaintiffs, may also support a battery claim. See Ryan v. Napier,

425 P.3d 230, 238 (Ariz. 2018) (acknowledging that the facts pled for a police

officer’s intentional use of force supported an intentional battery claim). Battery is

a wrongful act, and on the record before us, a reasonable jury could find such a

battery proximately caused Dylan’s death. For these reasons, Officer Bailey’s use

of force could constitute a wrongful act that ultimately led to and proximately

caused Dylan’s death. That the officers are entitled to qualified immunity for

Plaintiffs’ constitutional claims does not bear on this question.

4 While a jury could find that Officer Bailey’s use of force was reasonably used in the exercise of her community care role or that it was merely detention pursuant to reasonable suspicion, the evidence simply does not compel this conclusion. Similarly, while the jury might find that the officers were justified in using force because Dylan’s actions violated certain Arizona state laws and city ordinances, as argued by Defendants on appeal, the evidence similarly does not compel such a conclusion, and certainly not when viewed in the light most favorable to Plaintiffs. 6 A reasonable jury could find that Dylan should not have died that hot

Arizona summer day. And that jury could find that the proximate cause of Dylan’s

death were wrongful acts under Arizona law. As I believe that Dylan’s parents, the

Plaintiffs here, should have the opportunity to further proceed with their wrongful

death claims, I respectfully dissent from that portion of the majority’s disposition

upholding summary judgment in favor of Defendants on those claims.

7