FILED

NOT FOR PUBLICATION

NOV 30 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF TYLER S. RUSHING; No. 20-16428

SCOTT K. RUSHING; PAULA L.

RUSHING, D.C. No. 2:18-cv-01692-MCE-AC Plaintiffs-Appellants,

v. MEMORANDUM*

AG PRIVATE PROTECTION, INC.;

EDGAR SANCHEZ; CITY OF CHICO;

CHICO POLICE DEPARTMENT;

SCOTT RUPPEL; CEDRIC SCHWYZER;

ALEX FLIEHR; JEREMY GAGNEBIN;

COUNTY OF BUTTE; BUTTE COUNTY

SHERIFF’S OFFICE; IAN DICKERSON,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted October 5, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and CLIFTON and FRIEDLAND, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs-Appellants Estate of Tyler S. Rushing (“Rushing”), Scott K.

Rushing, and Paula L. Rushing brought claims in the District Court arising from an

encounter resulting in Rushing’s death against Defendants-Appellees the City of

Chico, the Chico Police Department, and Chico officers Scott Ruppel, Cedric

Schwyzer, Alex Fliehr, and Jeremy Gagnebin (collectively the “City Defendants”);

the County of Butte, the Butte County Sheriff’s Department, and Butte County

Deputy Sheriff Ian Dickerson (the “County Defendants”); and AG Private

Protection, Inc., and its employee Edgar Sanchez (the “Security Defendants”).

Plaintiffs challenge the District Court’s grant of summary judgment, which we

review de novo, on the federal and state claims (Claims 1-8) in favor of the

individual City and County Defendants, on the state claims (Claims 4-8) in favor

of the non-individual City and County Defendants, and on the state tort claims

(Claims 6-8) in favor of the Security Defendants.1 See Lopez-Valenzuela v. Arpaio,

770 F.3d 772, 777 (9th Cir. 2014) (en banc).

We may not affirm a grant of summary judgment if, when viewing the

record, as we must, in the light most favorable to Plaintiffs, we conclude that “a

1 As the District Court noted, Plaintiffs only oppose the grant of summary judgment in favor of the Security Defendants on Claims 6-8 “because discovery revealed that [the Security Defendants’] conduct does not qualify as state action” as required by Claims 1-5.

2 20-16428 rational trier of fact could resolve a genuine issue of material fact in the nonmoving

party’s favor[.]” Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir.

2011). We conclude that such genuine issues of material fact remain that could

lead a reasonable jury to find that Fliehr’s tasering of Rushing violated a right of

Rushing’s. Because the District Court relied entirely on its erroneous holding that

the officers’ “reasonable behavior justifies granting each of their motions in their

entirety on the merits,” we vacate the District Court’s grant of summary judgment

in favor of the individual City Defendants on the federal and state claims (Claims

1-8) and the non-individual City Defendants on the state claims (Claims 4-8). We

remand for the District Court to address in the first instance whether the individual

City Defendants are protected by qualified immunity and which, if any, of the City

Defendants other than Fliehr may be liable for the tasering. We affirm the District

Court’s grant of summary judgment in favor of Dickerson on the federal and state

claims (Claims 1-8) and the non-individual County Defendants on the state claims

3 20-16428 (Claims 4-8). Finally, we affirm the District Court’s grant of summary judgment in

favor of the Security Defendants on the state tort claims (Claims 6-8).2

1. Summary judgment should not have been granted in favor of the

individual City Defendants on the federal and state claims (Claims 1-8) or the non-

individual City Defendants on the state claims (Claims 4-8). Genuine disputes of

material fact exist that could lead a reasonable jury, viewing the facts in the light

most favorable to Plaintiffs, to conclude that Fliehr violated a right of Rushing’s

when he tasered Rushing in the back over one minute after Rushing fell face down

on the floor after being shot twice by Ruppel. See George v. Edholm, 752 F.3d

1206, 1214 (9th Cir. 2014).

A genuine issue of material fact exists concerning the location of Rushing’s

right hand and his motionlessness after falling to the floor. The video shows that

after Rushing was shot twice by Ruppel and fell to the floor, Rushing’s right hand

was extended away from his torso. At most, his right hand was partially concealed

by a bathroom furnishing, which contradicts Fliehr’s claim, restated by the District

Court, that Rushing “fell face forward on the ground with his left arm out and his

2 We grant Plaintiffs’ Motion to Supplement the Record with the complete transcripts of the depositions of Fliehr and Ruppel. See Fed. R. App. P. 10(e) and 27. While the complete transcripts were not filed, they were provided as courtesy copies to the District Court per E.D. Cal. Local Rule 113(j), which only permits parties to file the pages cited in their pleadings and motions.

4 20-16428 right arm underneath him.” Similarly, the video conflicts, albeit less starkly, with

Fliehr’s claim that Rushing “flinch[ed]” and moved slightly after falling to the

floor. Though not entirely clear, the video would permit a reasonable jury to

conclude that Rushing remained motionless for over one minute before Fliehr

tasered him in the back.

In light of these disputes, we turn to whether those disputes are “genuine

disputes of material fact” that could lead a reasonable jury to find that the

individual City Defendants violated a right of Rushing’s. Applying the “objective

reasonableness” standard, we hold that a reasonable jury could conclude that a

right of Rushing’s was violated by Fliehr’s tasering of Rushing but could not

conclude that a right was violated by the officers’ conduct beforehand. See

Graham v. Connor, 490 U.S. 386, 396 (1989).

First, taking the events in order, a reasonable jury could not find that the

initial dog bite or Ruppel’s first shot were unreasonable given the “threat of serious

physical harm” that Rushing posed. Plaintiffs identify the key question governing

the reasonableness of these uses of force: whether the officers “had an objectively

reasonable basis for believing that [Rushing] posed a threat of serious physical

harm[.]” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020). Plaintiffs

argue that Rushing’s “resistance was ineffectual” because he only wielded

5 20-16428 “makeshift weapons,” but concede that he used a porcelain shard of a broken toilet

to attack Schwyzer. We conclude that Rushing posed a threat that was sufficient to

justify Ruppel’s first shot.

Second, a reasonable jury could not find Ruppel’s second shot, which

occurred just two seconds after his first shot, unreasonable. The “reasonableness”

inquiry “must embody allowance for the fact that police officers are often forced to

make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving[.]” Graham, 490 U.S. at 396-97. Here, the rapid succession of the

first and second shots, which is undisputed and evidenced by the video, favors the

officers.

Third, in contrast to Ruppel’s first and second shots, a reasonable jury could

find Fliehr’s tasering of Rushing unreasonable. We have held that a taser in dart

mode “constitute[s] an intermediate, significant level of force,” Bryan v.

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010), that can be unreasonable when

applied to a suspect who is already “rendered helpless,” LaLonde v. County of

Riverside, 204 F.3d 947, 961 (9th Cir. 2000), or is “adequately subdued,” Johnson

v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1170 (9th Cir. 2013). Our analysis

of reasonableness in Cortesluna v. Leon provides a useful comparison and was not

addressed by the Supreme Court’s recent reversal solely on the issue of whether

6 20-16428 the officer in Cortesluna violated clearly established law and thus is entitled to

qualified immunity. 979 F.3d 645 (9th Cir. 2020), rev’d on qualified immunity

grounds sub nom. Rivas-Villegas v. Cortesluna, No. 20-1539, 2021 WL 4822662,

at *1 (U.S. Oct. 18, 2021). In Cortesluna, we held that, “[t]aking Plaintiff’s version

of the facts as true,” an officer’s use of intermediate force was unreasonable in a

case in which the officer “lean[ed] too hard on [the suspect’s] back” while the

suspect was prone, had been previously injured by other officers, and was “not

resisting” and “no longer posed a risk.” Id. at 653. The facts here are even more

suggestive that Fliehr’s tasering was unreasonable, given that the suspect in

Cortesluna was shot by beanbag rounds and was undisputedly moving while “lying

face down on the ground.” Id.

In Jones v. Las Vegas Metro. Police Dep’t, we found “a triable issue of fact

as to whether the officers were reasonable in the degree of force they deployed”

after the suspect’s body “‘locked up’ as a result of repeated taser shocks” while “he

had no weapon and was making no threatening sounds or gestures” and “was prone

and surrounded by multiple officers.” 873 F.3d 1123, 1130-31 (9th Cir. 2017). We

held in Guy v. City of San Diego:

[E]ven when police officers reasonably must take forceful actions in

response to an incident, and even when such forceful actions are permissible

7 20-16428 at first, if the officers go too far by unnecessarily inflicting force and pain

after a person is subdued, then the force, unnecessary in part of the action,

can still be considered excessive.

608 F.3d 582, 589 (9th Cir. 2010). A reasonable jury could find that the officers in

this case similarly went “too far.” Id.

Although the District Court did not reach qualified immunity,3 we have

discretion to decide “in the first instance” the legal question whether the “asserted

federal right was clearly established” at the time of the offense. DeBoer v.

Pennington, 206 F.3d 857, 964 (9th Cir. 2000) (quoting Elder v. Holloway, 510

U.S. 510, 516 (1993)) (denying qualified immunity in the first instance), vacated

on other grounds sub nom. City of Bellingham v. DeBoer, 532 U.S. 992 (2001);

accord Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994) (“Because this

[qualified immunity] inquiry involves a question of law, there is no reason we

cannot, in our discretion, decide it in the first instance.”).

We conclude that, construing the facts in the light most favorable to

Plaintiffs, “a reasonable officer would have had fair notice that the force employed

3 Although Prong 2 was not reached, the District Court was correct in holding that the individual City and County Defendants properly asserted the defense of qualified immunity by affirmatively stating the defense in a responsive pleading as required by Federal Rule of Civil Procedure 8(c)(1).

8 20-16428 was unlawful.” Boyd v. Benton County, 372 F.3d 773, 781 (9th Cir. 2004). As our

citations to Bryan, LaLonde, Johnson, Jones, and Guy make clear, it was clearly

established at the time of these events that an officer has a significantly diminished

interest in even the use of an intermediate level of force, such as a taser, after a

suspect has been rendered helpless. In Jones, for example, we denied qualified

immunity to an officer who applied “continuous, repeated, and simultaneous

tasings” to a suspect who posed no “immediate or significant risk of serious injury

or death to the officers.” Jones, 873 F.3d at 1132 (noting that suspect was lying

prone, no longer resisting, and surrounded by officers); see also Deorle v.

Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (holding use of less-than-lethal

force unreasonable where suspect presented “no objectively reasonable threat”).

If the jury concluded factually that Rushing did not pose an immediate threat

because after being shot three times he laid still, face down, with his hands visible,

in a pool of his own blood, any reasonable officer should have known that repeated

tasings of Rushing violated clearly established law on excessive force.

Accordingly, we reverse the District Court’s grant of summary judgment in favor

of Officer Fliehr on the federal and state claims (Claims 1-8). We vacate the

District Court’s grant of summary judgment to the remaining individual City

Defendants on the federal and state claims (Claims 1-8) and the non-individual

9 20-16428 City Defendants on the state claims (Claims 4-8). We remand for the District

Court to address in the first instance which, if any, of the City Defendants other

than Fliehr may be liable for Fliehr’s tasering of Rushing. The issue of liability

should be addressed in the first instance by the District Court because it turns on

the facts of the particular City Defendants’ roles—for example, who heard Fliehr

announce his intention to use the taser before deploying it and Ruppel’s being in

command of the operation. Our ruling does not foreclose future motions for

summary judgment brought by the City Defendants other than Fliehr.

2. We affirm the District Court’s grant of summary judgment in favor of the

County Defendants. Even when viewing the facts in the light most favorable to

Plaintiffs, a reasonable jury could not conclude that Dickerson’s ordering of his

dog to bite Rushing was unreasonable. Indeed, it is undisputed that Dickerson

directed the dog to bite Rushing only after Rushing struck and cut Officer

Schwyzer with a porcelain shard. Moreover, a reasonable jury could not conclude

that Dickerson was an “integral participant” in Fliehr’s tasering of Rushing merely

because Dickerson “assisted and acquiesced at various points” to the officers’

common plan. See Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir.

2019) (ruling that when an officer is not the “sole party responsible for a

constitutional violation,” § 1983 liability is based on his “integral participation”).

10 20-16428 Plaintiffs cannot prevail against Dickerson on the federal and state claims (Claims

1-8) or the non-individual County Defendants on the state claims (Claims 4-8),

because those claims require that, upon viewing the facts in the light most

favorable to Plaintiffs, we conclude that a reasonable jury could find Dickerson’s

conduct unreasonable.

3. We affirm the District Court’s grant of summary judgment in favor of the

Security Defendants on Claims 6-8—the only claims that Plaintiffs challenge on

appeal with regard to the Security Defendants. Plaintiffs have not established that

Sanchez’s unholstering of his firearm made his subsequent use of the firearm in

self-defense unreasonable. We agree with the District Court’s ruling that, even

when viewing the facts in the light most favorable to Plaintiffs, a reasonable jury

could not find Sanchez’s conduct unreasonable because he “did not shoot wildly or

without provocation” but instead shot “only after [he] had been ambushed [and]

stabbed at least twice[.]” Sanchez cannot be liable based on his “integral

participation” in the subsequent uses of force inside the building, for which he was

not present. Plaintiffs cannot prevail against the Security Defendants on Claims 6-

8, which all, at minimum, require that a reasonable jury could find that Sanchez

acted unreasonably.

11 20-16428 With regard to the County Defendants and the Security Defendants, costs are

taxed against Plaintiffs and in favor of those defendants. With regard to the City

Defendants, Plaintiffs and those defendants shall bear their own costs.

REVERSED IN PART, AFFIRMED IN PART, VACATED IN PART,

AND REMANDED.

12 20-16428