NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 30 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULA ANN BIFELT, as Personal No. 20-35338 Representative of the Estate of Tristan Percy Vent D.C. No. 4:18-cv-00017-JWS

Plaintiff - Appellant,

MEMORANDUM*

v.

STATE OF ALASKA; RONALD WALL,

Trooper; JACOB HAYUNGS, Trooper; EDWARD HALBERT, Trooper; EDWIN CARLSON, Trooper,

Defendants - Appellees.

Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding

Argued and Submitted June 16, 2021 Anchorage, Alaska

Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 On September 8, 2015, Tristan Percy Vent (“Vent”) was fatally shot during

a standoff with Alaska State Troopers (“Troopers”) and Fairbanks Police

Department Officers. As personal representative of Vent’s Estate, Paula Ann

Bifelt sued the Troopers under both 42 U.S.C. § 1983 and Alaska law for excessive

force, and sued the State of Alaska (“Alaska”) under a failure-to-train theory based

on state negligence law. 1 The Troopers and Alaska moved for summary judgment

on all claims, which the district court granted. We affirm.

Because the facts leading up to the shooting of Vent are undisputed, we do

not recite them here.2 On appeal, Bifelt contends the district court erred in

rejecting the submission of a “police practices expert” report that opined that the

encounter with Vent was a preventable “suicide by cop” scenario and “that certain

less-lethal weapons were on the scene and available to the troopers for their

immediate use.” However, because objective video evidence captured the

Troopers’ encounter with Vent, the district court correctly concluded that Bifelt

cannot “avoid[ ] summary judgment by simply producing an expert’s report that an

officer’s conduct leading up to a deadly confrontation was imprudent,

1 On appeal, Bifelt does not brief the district court’s dismissal of the negligence claim, accordingly, this claim is abandoned. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988). 2 See Bifelt v. Alaska, No. 4:18-CV-00017 JWS, 2020 WL 1046816, at *2 (D. Alaska Mar. 3, 2020).

2 inappropriate, or even reckless.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.

2002) abrogated on other grounds by County of Los Angeles v. Mendez, 137 S. Ct.

1539, 1546 (2017); City & County of San Francisco v. Sheehan, 575 U.S. 600, 616

(2015) (same).

The district court also concluded that the Troopers’ use of force was

reasonable and that “regardless of the constitutionality of their actions, the

Troopers would be entitled to qualified immunity here.” We address “whether the

right at issue was ‘clearly established’ at the time of [the Troopers’] alleged

misconduct.” See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that

either prong of the qualified immunity analysis may be addressed first).

Vent’s right to be free from lethal force at the time the fatal shooting

occurred was not clearly established. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); Mullenix v. Luna, 577 U.S. 7, 16 (2015). “[N]either Supreme Court nor

circuit precedent in existence as of” September 8, 2015, “would have put a

reasonable officer in the [Troopers’] position on notice that using deadly force in

the particular circumstances”—after multiple attempts at de-escalation—“would

violate [Vent’s] Fourth Amendment rights.” Blanford v. Sacramento County, 406

F.3d 1110, 1119 (9th Cir. 2005); Smith v. City of Hemet, 394 F.3d 689, 704 (9th

3 Cir. 2005).3 The Estate does not identify any case clearly establishing that officers

acting under similar circumstances—who undertook extensive efforts to deescalate

a standoff yet the suspect grabbed a firearm off the ground—were held to have

violated the suspect’s Fourth Amendment rights. We recognize Vent’s death

represents a tragic loss. However, under our precedent, the officers were entitled

to qualified immunity.

AFFIRMED.

3 The qualified immunity analysis is equally applicable to the state excessive force claim: “The use of excessive force is a statutory violation under Alaska law and may also run afoul of the Fourth Amendment to the United States Constitution and article I, section 14 of the Alaska Constitution, both of which grant citizens a right to be secure in their persons and protect against unreasonable searches and seizures.” Maness v. Daily, 307 P.3d 894, 900–01 (Alaska 2013) (internal quotations omitted). See Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 803 (Alaska 2011) (“[A]n officer is entitled to qualified immunity if the officer’s conduct was an objectively reasonable use of force or the officer reasonably believed that the conduct was lawful” which analysis “recognizes that there may be behavior that is objectively unreasonable but that nonetheless an officer might have reasonably believed was reasonable. If this is the case, then the officer should be entitled to qualified immunity for his behavior.”). 4