NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 15 2021

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

TERRANCE AMONS, TERRELL No. 20-16351 AMONS, and SANDRA TALBERT, D.C. No. 4:19-cv-00301-KAW Plaintiffs-Appellees,

v.

MEMORANDUM*

DILLON TINDALL and JESUS

ARELLANO,

Defendants-Appellants,

and

CITY OF PITTSBURG,

Defendant.

Appeal from the United States District Court for the Northern District of California Kandis A. Westmore, Magistrate Judge, Presiding Argued and Submitted May 10, 2021 San Francisco, California

Before: WALLACE and COLLINS, Circuit Judges, and RAKOFF,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. On the evening of January 12, 2018, Pittsburg Police Department Officer

Dillon Tindall fatally shot decedent Terry Amons. Mr. Amons’s sons and mother

sued Officer Tindall and the other officer on the scene, Jesus Arellano, as well as the

City of Pittsburg, alleging that Officer Tindall and Officer Arellano (collectively,

“the officers”) used excessive force. The officers moved for summary judgment,

including on grounds of qualified immunity, and the district court denied the motion.

The officers now appeal, and we reverse in part, vacate in part, and remand for

further proceedings.

I

This incident began when a caller reported a possible drug sale in a Nation’s

Hamburgers parking lot; Officers Tindall and Arellano were dispatched to the scene.

Upon their separate arrival, they noticed a blue Chevrolet Cruze backed into a

parking space with its headlights on. This roughly matched the caller’s description

of the car involved in the possible drug sale. Someone was sitting in the driver’s

seat. The subsequent events unfolded rapidly, but they were recorded on the

officers’ body-worn cameras. The footage forms part of the record on appeal.

The officers parked their cars and spoke briefly. Officer Arellano directed his

flashlight at the windshield of the blue Chevrolet. Officer Arellano began walking

toward the Chevrolet, approaching from the front of the vehicle. Officer Tindall

followed a few feet behind. Officer Arellano again directed his flashlight toward the

2 Chevrolet as he neared the front of the vehicle and walked around the front passenger

side. Mr. Amons was sitting in the driver’s seat, looking at Officer Arellano.

Officer Arellano noticed a gun in plain view within the center console

cupholder between the driver’s seat and the passenger seat. Officer Arellano drew

his service weapon and pointed it at Mr. Amons. Officer Tindall drew his weapon

as well. Mr. Amons put his hands up. Officer Arellano radioed dispatch, “I got a

gun.” Officer Tindall circled around to the driver’s side of the vehicle.

After arriving on the driver’s side of the vehicle, a few feet from the driver’s

side door, Officer Tindall said, “If you reach for that fucking gun.” Officer Arellano

said, “Put your hands on the fucking steering wheel! Right now!”

Beginning immediately after Officer Arellano drew his weapon, Mr. Amons

kept his hands in the air and continued to do so until Officer Arellano commanded

him to put his hands on the steering wheel, a period of about nine seconds.

Following Officer Arellano’s command, Mr. Amons immediately put his hands on

the steering wheel. Officer Arellano illuminated the inside of the vehicle again with

his flashlight, and Mr. Amons lifted his hands very slightly off the steering wheel in

a shrugging motion. Mr. Amons said something to Officer Arellano which was too

faint to be audible on Officer Tindall’s body-worn camera, which was the only one

for which audio was activated at that moment.

3 Officer Arellano said, apparently in response to Mr. Amons, “OK. Leave your

hands right there. My partner’s going to take you out of the car, alright?” As Officer

Arellano said this, Officer Tindall reached for the driver’s side door handle and

opened the door.

From when Officer Arellano first commanded Mr. Amons to place his hands

on the steering wheel until Officer Tindall opened the door, a period of

approximately six seconds, Mr. Amons kept his hands on or slightly above the

steering wheel. As Officer Tindall opened the door, however, Mr. Amons slid his

right hand down along the right side of the steering wheel and down toward his right

hip.

Officers Tindall and Arellano then issued a series of loud, urgent commands

over the course of five seconds. Officer Tindall yelled, “Do not reach for that

fucking gun! Put your hands up! Put your fucking hands up! Put your fucking

hands up!” Officer Arellano yelled something unintelligible ending with the word

“gun!”

During this same five-second period, Mr. Amons initially kept his left hand

up, but he did not put his right hand up. Rather, his right hand was above and slightly

to the right of his right knee, a few inches from the gun, and then on the car’s gear

shift knob. He then moved his right hand across his lap from right to left and grabbed

gloves that were on his lap. He lowered his left hand and passed the gloves into that

4 hand. Then, he moved his right hand back toward his right hip again, while saying,

“But I’m not reaching for — !” As Mr. Amons reached back down toward his right

hip, Officer Arellano stepped back slightly and began to say, “Hey — !” Officer

Tindall fired six shots in rapid succession, hitting Mr. Amons several times in the

side and back.

Mr. Amons screamed and said, “I’m not reaching for nothing.” The officers

commanded Mr. Amons to get out of the vehicle, which he did, lying face down.

The officers radioed for medical assistance, handcuffed Mr. Amons, and emptied his

pockets. They looked into the rear seat to confirm that no one else was in the car.

An ambulance arrived about two minutes after the shooting. EMTs provided

medical assistance, but Mr. Amons succumbed to his wounds and was pronounced

dead at the hospital.

Mr. Amons’s sons sued the officers for excessive use of force, in violation of

the Fourth Amendment, and for related violations of state law (negligence, battery,

and violation of California Civil Code § 52.1 (the “Bane Act”)). Mr. Amons’s sons

and mother also brought a claim for loss of familial relationship, alleging that the

officers’ conduct violated the substantive due process protections of the Fourteenth

Amendment. The district court denied the defendants’ motion for summary

judgment and held that the officers were not entitled to qualified immunity on any

claim.

5 II

Plaintiffs-Appellees argue that we lack jurisdiction over this interlocutory

appeal. Ordinarily, courts of appeals may only review district courts’ “final

decisions.” 28 U.S.C. § 1291. However, we may review prejudgment or collateral

orders if review would “(1) conclusively determine the disputed question,

(2) resolve an important issue completely separate from the merits of the action, and

(3) be effectively unreviewable on appeal from a final judgment.” Midland Asphalt

Corp. v. United States, 489 U.S. 794, 799 (1989) (quotation marks and citation

omitted). Because qualified immunity with respect to the federal claims is an

immunity not only from liability but also from standing trial, “[w]e have jurisdiction

to review a district court’s order denying summary judgment on a qualified

immunity defense under the collateral order doctrine. However, our jurisdiction is

limited to purely legal issues.” Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.

2000) (quotation marks and citations omitted). When the district court denies

qualified immunity and the only issues raised on appeal are factual, we lack

jurisdiction. E.g., Velasquez v. Senko, 813 F.2d 1509, 1511 (9th Cir. 1987) (deciding

there is no jurisdiction to consider factual disputes regarding whether the defendant

officers were present at the scene).

Here, however, the questions presented on appeal are legal, not factual.

Officers Tindall and Arellano do not dispute that Officer Tindall fatally shot Mr.

6 Amons. Rather, the officers argue that, even viewing the evidence in the light most

favorable to the plaintiffs and drawing reasonable inferences in favor of the

plaintiffs, the officers are entitled to summary judgment and qualified immunity as

a matter of law. We have jurisdiction to address these legal issues under Mitchell v.

Forsyth, 472 U.S. 511 (1985), and its progeny. See Plumhoff v. Rickard, 572 U.S.

765, 773 (2014) (“Petitioners do not claim that other officers were responsible for

shooting Rickard; rather, they contend that their conduct did not violate the Fourth

Amendment and, in any event, did not violate clearly established law. Thus, they

raise legal issues[.]”). “Where there are disputed issues of material fact, our review

is limited to whether the defendant would be entitled to qualified immunity as a

matter of law, assuming all factual disputes are resolved, and all reasonable

inferences are drawn, in plaintiff’s favor.” Karl v. City of Mountlake Terrace,

678 F.3d 1062, 1068 (9th Cir. 2012).

III

“We review summary judgment determinations de novo. We also review de

novo a defendant officer’s entitlement to qualified immunity.” Estate of Lopez v.

Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (citations omitted). A court “shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56. We view the facts in the light most favorable to the nonmoving party and

7 draw reasonable inferences in favor of that party. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150–51 (2000). We must, however, reject as

unreasonable proffered facts or inferences that are manifestly inconsistent with

videotape evidence, the authenticity of which is not challenged. Scott v. Harris, 550

U.S. 372, 380–81 (2007) (“Respondent’s version of events is so utterly discredited

by the record that no reasonable jury could have believed him. The Court of Appeals

should not have relied on such visible fiction; it should have viewed the facts in the

light depicted by the videotape.”).

“Our de novo review of a grant of summary judgment based on qualified

immunity involves two distinct steps.” Sandoval v. Las Vegas Metro. Police Dep’t,

756 F.3d 1154, 1160 (9th Cir. 2014). A government official is entitled to qualified

immunity unless (1) “the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right” and (2) “the right at issue was ‘clearly established’

at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223,

232 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “We may address

these two prongs in either order.” Sandoval, 756 F.3d at 1160 (citing Pearson,

555 U.S. at 236). We address the former prong first.

A.

Plaintiffs-Appellees’ federal claims arise under 42 U.S.C. § 1983. “Section

1983 provides a cause of action against any person who, under the color of state law,

8 abridges rights unambiguously created by the Constitution or laws of the United

States.” Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012) (quotation marks and

citations omitted). There is no dispute that Officer Tindall—an armed, uniformed,

on-duty police officer—was acting under color of state law when he shot and killed

Mr. Amons. The sole dispute is whether Officer Tindall violated a right secured by

the Constitution or laws of the United States.

Plaintiffs-Appellees first assert that Officer Tindall violated the decedent’s

rights under the Fourth Amendment, which prohibits “unreasonable searches and

seizures.” U.S. Const. amend. IV. “Apprehension by deadly force is a seizure

subject to the Fourth Amendment’s reasonableness requirement.” Wilkinson v.

Torres, 610 F.3d 546, 550 (9th Cir. 2010). To prove a claim for excessive force

under the Fourth Amendment, a plaintiff must demonstrate, on “the facts and

circumstances of [the] particular case,” that the officer used unreasonable force.

Graham v. Connor, 490 U.S. 386, 396 (1989). “The ‘reasonableness’ of a particular

use of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight,” and we must consider “that police

officers are often forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of force that is necessary

in a particular situation.” Id. at 396–97. In assessing reasonableness, relevant factors

include, without limitation, “the severity of the crime at issue, whether the suspect

9 poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. Whether

the suspect poses an immediate threat is the “most important” factor. George v.

Morris, 736 F.3d 829, 838 (9th Cir. 2013) (citation omitted).

Here, viewing the sequence of events as depicted in the videotapes, we

conclude that no material facts are in genuine dispute and that a reasonable factfinder

would necessarily find that the officers’ use of force was objectively reasonable.

To be sure, the officers were responding to a report of a nonviolent crime, and

when they first arrived, the officers had no reason to believe that Mr. Amons posed

a threat. But then they saw a firearm in plain view and within arm’s reach,

suggesting the possibility that an imminent threat could arise. The officers

responded reasonably by drawing their weapons and issuing commands:

“If you reach for that fucking gun.” “Put your hands on the fucking steering wheel! Right now!” “Okay. Leave your hands right there. My partner’s going to take you out of the car right now, alright?”

Mr. Amons initially complied with the officers’ commands. However, after

Officer Tindall opened the driver’s side door, Mr. Amons reached his right hand

down toward his right hip, inches away from the gun. Whether firing at that time

would have been unreasonable we need not decide, because the officers did not

shoot. Instead, before using deadly force, they redoubled their commands:

“Do not reach for that fucking gun!”

10 “Put your hands up!” “Put your fucking hands up!” “Right now!” “Put your fucking hands up!”

The driver’s side door was open, the passenger’s side window was open, and

these commands were loud, urgent, and reiterated over the course of five seconds.

There is no reason to believe that Mr. Amons would not have heard or understood

them. Yet Mr. Amons did not put his right hand up. Instead, he again moved it

down toward his right hip in the direction of the gun. A fraction of a second later,

Officer Tindall opened fire.

When Mr. Amons violated the officers’ clear, repeated commands and again

reached in the direction of the gun that was inches away, an objectively reasonable

officer in Officer Tindall’s position would have viewed Mr. Amons’s gesture as a

threat to his life and to the life of Officer Arellano. Cf. Cruz v. City of Anaheim, 765

F.3d 1076, 1078–79 (9th Cir. 2014) (“Usually when we’re deciding whether to grant

summary judgment for the police in deadly force cases we must wade through the

factbound morass of ‘reasonableness.’ Not so here: It would be unquestionably

reasonable for police to shoot a suspect in Cruz’s position if he reaches for a gun in

11 his waistband, or even if he reaches there for some other reason.” (some internal

quotation marks and citations omitted) (emphasis added)).1

Plaintiffs-Appellees’ reliance on Estate of Lopez v. Gelhaus, 871 F.3d 998

(9th Cir. 2017), is misplaced. In Lopez, two officers saw a teenager walking along

the side of the road with what appeared to be an AK-47. They ordered him to drop

the gun, but he did not. He began to turn in their direction and one officer

immediately and fatally shot him. We started from the principle that “summary

judgment should be granted sparingly in excessive force cases,” especially where

“the only witness other than the officers was killed during the encounter.” Id. at

1006 (quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en

banc)). We concluded that summary judgment was inappropriate because, to decide

whether the decedent posed an immediate threat to the officers, a factfinder would

need to “resolve a number of genuine factual disputes.” Id.

Here, however, Lopez’s reasoning does not apply because we do not rely at

all upon the officers’ testimony; rather, we ascertain the reasonableness of the

1 We do not read Cruz to suggest that officers may open fire whenever a suspect reaches for his waistband or hip. In Cruz, we found that the officers would have been justified in shooting if Mr. Cruz reached for his waistband because, among other reasons, they were aware of “Cruz’s dangerous and erratic behavior” in prior interactions with police. 765 F.3d at 1078. The same cannot be said of Mr. Amons. On the other hand, in Cruz the officers only suspected that the decedent had a gun in his waistband; here, the officers knew that Mr. Amons had a gun within arm’s reach and that he did, in fact, reach in that direction, despite repeated orders not to do so.

12 officers’ conduct from a neutral and undisputed source—the body-worn camera

footage. Because of that footage, there are no genuine disputes regarding any

material facts.

The district court erred in holding to the contrary. The magistrate judge

reasoned:

Officer Arellano’s body worn camera footage clearly shows that Decedent was wearing a seatbelt when he was approached by the officers. Officer Tindall’s body worn camera footage does not clearly show where Decedent is reaching immediately prior to shots being fired. That said, given that Decedent appears to be following the officers’ commands, and viewing the evidence in the light most favorable to Plaintiffs, the Court must infer that he was reaching to unbuckle his seatbelt, so that he could exit the vehicle as ordered. A jury could also find that Officer Tindall panicked when he shot Decedent.

ER 7 (citations omitted).

The district court’s analysis contains two errors, one of fact and one of law.

First, as a factual matter, the videotape plainly demonstrates that Mr. Amons did not

follow the officers’ commands. The district court was apparently persuaded that a

factfinder might reasonably have accepted Plaintiffs-Appellees’ argument that Mr.

Amons was confronted with “contradictory commands” because Officer Arellano

said, “Okay. Leave your hands right there. My partner’s going to take you out of

the car right now, alright?” But this statement contains only one command: “Leave

your hands right there.” By informing Mr. Amons that his partner was going to take

13 him out of the car, Officer Arellano did not command Mr. Amons to unbuckle his

seatbelt.

Second, as a legal matter, the district court erred by considering Mr. Amons’s

subjective intent rather than viewing the evidence objectively from the perspective

of an officer in Officer Tindall’s position. With the benefit of hindsight, and with

the ability to minutely parse the body-worn camera footage, we agree that Amons

may have intended to unbuckle his seatbelt, not to reach for his weapon. However,

Mr. Amons’s subjective intent is legally irrelevant to the question presented here.

“The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight,” and “[w]e cannot consider evidence of which the officers were unaware.”

Hayes v. County of San Diego, 736 F.3d 1223, 1232–33 (9th Cir. 2013) (quotation

marks and citations omitted). A reasonable factfinder would necessarily find that in

the face of repeated commands to put his hands up, Mr. Amons failed to do so and

instead reached in the direction of a gun that was mere inches from his hand. Thus,

whatever Mr. Amons intended to do, Officer Tindall’s decision to respond with

deadly force was objectively reasonable. The district court erred by denying his

motion for summary judgment.

14 B

Plaintiffs-Appellees’ second federal claim, also under Section 1983, is for loss

of familial relationship. The Fourteenth Amendment prohibits state deprivation of

“life, liberty or property, without due process of law.” U.S. Const. amend. XIV.

Executive action can violate the Due Process Clause when it amounts to “an abuse

of executive power . . . clearly unjustified by any legitimate objective of law

enforcement,” County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998), and such

“substantive due process violations are actionable under § 1983,” id. However, “the

substantive component of the Due Process Clause is violated by executive action

only when it ‘can properly be characterized as arbitrary, or conscience shocking, in

a constitutional sense.’” Id. at 847 (quoting Collins v. Harker Heights, 503 U.S.

115, 128 (1992)). Because a reasonable jury would necessarily find that Officer

Tindall’s use of force was objectively reasonable, it would also find that Officer

Tindall’s actions were not conscience shocking in a constitutional sense. Therefore,

Officer Tindall is also entitled to summary judgment on the Fourteenth Amendment

claim.

C

Plaintiffs-Appellees argue that Officer Arellano is liable under § 1983 on two

theories: first, as an “integral participant” in Officer Tindall’s use of force; and

second, because Officer Arellano, too, used force by brandishing a firearm. We

15 disagree. Because we hold that a reasonable factfinder would necessarily conclude

that Officer Tindall’s use of force was objectively reasonable under Fourth

Amendment standards, we also hold that, regardless of whether Officer Arellano is

properly characterized as an “integral participant,” Plaintiffs-Appellees cannot

recover against him under § 1983 for Officer Tindall’s use of force. Furthermore,

no factfinder could reasonably conclude that Officer Arellano’s own use of force

was objectively unreasonable under Fourth Amendment standards. He was

responding to a reported drug transaction and witnessed a firearm in plain view,

within arm’s reach. A reasonable factfinder would necessarily conclude that

drawing and pointing his service weapon at Mr. Amons, without firing, was an

objectively reasonable response.2

D

Plaintiffs-Appellees also bring state-law claims for negligence, battery, and

violation of the Bane Act. The district court denied summary judgment with respect

to these claims on the ground that the applicable state and federal standards were

largely the same and therefore required the same result. In view of our reversal of

the denial of summary judgment on the federal claims, the district court’s reason for

denying summary judgment on the state-law claims necessarily fails. We cannot,

2 At the very least, we are satisfied that the officers did not violate clearly established law in light of Cruz, 765 F.3d at 1078–79. Therefore, the second prong required to abrogate qualified immunity is not satisfied either. Pearson, 555 U.S. at 232.

16 however, accept the officers’ request that we go further and order the district court

to enter summary judgment in their favor on the state-law claims. Our federal-law

ruling does not necessarily dictate the outcome on the state-law claims, because the

district court was wrong in assuming that the applicable state-law standards are

identical to the federal standards. See Tabares v. City of Huntington Beach, 988 F.3d

1119 (9th Cir. 2021) (holding that, because “California negligence law overall is

broader than federal Fourth Amendment law in excessive force cases,” the district

court erred in “conflat[ing] Fourth Amendment excessive force standards with

California negligence law” (citation and internal quotation marks omitted)); see also

Reese v. City of Sacramento, 888 F.3d 1030, 1045 (9th Cir. 2018) (noting that a Bane

Act claim requires an inquiry into the officer’s intent). Resolution of the state-law

claims would thus require us to address additional questions beyond the federal

qualified-immunity issues, and we lack jurisdiction to do so, in part because the

officers do not argue that state qualified immunity applies. See Billington v. Smith,

292 F.3d 1177, 1191 (9th Cir. 2002), overruled on other grounds by County of Los

Angeles v. Mendez, 137 S. Ct. 1539 (2017); see also Johnson v. Bay Area Rapid

Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013) (“[The defendant] could have

appealed the district court’s decision to deny him immunity under California state

law, rather than under the federal law doctrine of qualified immunity; he did not.”).

17 Accordingly, we go no further than to vacate the district court’s denial of summary

judgment on the state-law claims and remand for further proceedings.

REVERSED in part, VACATED in part, and REMANDED.

18