facts. We lack jurisdiction to consider these arguments because they effectively ask this court to evaluate on this interlocutory appeal whether the district court properly determined that there was a genuine issue of material fact. See Foster, 908 F.3d at 1212–13.

3 yelling that he did not have a weapon. According to Warden, Officers Cowan and

Weaver began shooting immediately after he moved his previously outstretched

arms towards his shoulder area and pressed down on the concrete to “do a pushup.”

Warden testified that he made this movement so that he could lift his upper body

off the ground, turn his head, and again tell the officers that he did not have a

weapon.

“In evaluating a Fourth Amendment claim of excessive force, we ask

‘whether the officers’ actions [wer]e “objectively reasonable” in light of the facts

and circumstances confronting them.’” Rice v. Morehouse, 989 F.3d, 1112, 1121

(9th Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) (alteration

added). In doing so, we judge the reasonableness of a particular use of force “from

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

vision of hindsight.” Id. (internal quotation marks and citation omitted). To assess

reasonableness, we consider the Graham factors, including the “severity of the

crime at issue, whether the suspect 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.” Wilkinson, 610 F.3d at 550 (quoting Graham, 490 U.S. at 396).

Officers Cowan and Weaver were aware at the time of the shooting that

Warden was suspected of committing a number of crimes earlier that morning. See

S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019) (explaining that the

4 government’s interest in apprehending criminals, and particularly felons, factors

“strongly” in favor of the use of force). Additionally, Warden had resisted arrest in

his interactions with Corporal Williams but was lying on his stomach by the time

Officers Cowan and Weaver arrived on the scene. See Rice, 989 F.3d at 1123

(discussing the distinction between active and passive resistance).

However, the second, and “most important,” factor, which assesses whether

Warden posed an immediate threat to the safety of the officers and others, id. at

1121, involves genuine issues of disputed facts. In assessing this factor, we focus

on the movement which, by Officers Cowan’s and Weaver’s own admission,

precipitated their use of deadly force—Warden’s self-described “pushup”

movement. We consider whether, as a matter of law, this movement would cause a

reasonable officer on the scene to believe that Warden posed an immediate threat

to the safety of the officers or others.

Officers Cowan and Weaver were informed by their fellow officer, Corporal

Williams, that Warden had a gun in his waistband. Officers Cowan and Weaver

were entitled to rely on this information as if they had personal knowledge of it

themselves. See United States v. Bernard, 623 F.2d 551, 560–61 (9th Cir. 1979),

as revised (Apr. 28, 1980); see also United States v. Del Vizo, 918 F.2d 821, 826

(9th Cir.1990) (“When there has been communication among agents, probable

cause can rest upon the investigating agents’ collective knowledge.” (internal

5 quotation marks omitted)); United States v. Hensley, 469 U.S. 221, 232 (1985);

Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027–28 (9th Cir. 2002) (line

officers acted reasonably by accepting their superiors’ representations that they had

a valid warrant; even if the superiors might be liable, the line officers were not).

However, the fact that a person is armed does not end the reasonableness

inquiry. See Hayes v. County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013).

Under the second Graham factor, we must consider whether a reasonable officer

on the scene would have perceived Warden, even if armed, to pose an immediate

threat to the safety of the officers and others given the totality of the circumstances

at the time he made his “pushup” movement, taking the facts as Warden describes

them. See Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010).

On this interlocutory appeal, given that the facts and all reasonable

inferences must be drawn in Warden’s favor, we cannot accept as true the disputed

testimony of Officers Cowan and Weaver that Warden’s pushup movement gave

him access to his waistband in a way that would allow him to shoot the officers or

others, or otherwise create an immediate threat to their safety. Therefore, given

Warden’s version of events, we cannot conclude that as a matter of law Officers

Cowan and Weaver acted objectively reasonably when they shot Warden.

Therefore, the district court did not err in finding that the question of whether a

constitutional violation occurred was a matter for the jury to determine. See

6 George, 736 F.3d at 838; Jones v. Las Vegas Metro. Police Dep’t., 873 F.3d 1123,

1131 (9th Cir. 2017); Longoria v. Pinal County, 873 F.3d 699, 706–07 (9th Cir.

2017).

3. Because Officers Cowan and Weaver may have committed

constitutional violations, we consider the second element of qualified immunity:

whether the right allegedly violated was clearly established at the time. See Jones,

873 F.3d at 1131. Conduct violates a “clearly established” right if “the

unlawfulness of the action in question [is] apparent in light of some pre-existing

law.” Benavidez v. County of San Diego, 993 F.3d 1134, 1152 (9th Cir. 2021)

(quoting Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)). There need

not be a Supreme Court or circuit case directly on point, but existing precedent

must place the lawfulness of the conduct “beyond debate.” Rivas-Villegas v.

Cortesluna, 142 S. Ct. 4, 7–8 (2021) (per curiam).

It is clearly established that firing on someone who makes no “furtive

movement, harrowing gesture, or serious verbal threat” is unreasonable, even

where the suspect is still armed with a deadly weapon. See George, 736 F.3d at

838–39 (holding that summary judgment for the officers was inappropriate given

evidence that the suspect was pointing a gun away from the officers when they

shot him). More specifically, Cruz v. City of Anaheim defines the bounds of

clearly established law on a furtive movement like the one asserted by Officers

7 Cowan and Weaver:

It would be unquestionably reasonable for police to shoot a suspect in Cruz’s position if he reaches for a gun in his waistband, or even if he reaches there for some other reason….Conversely, if the suspect doesn’t reach for his waistband or make some similar threatening gesture, it would clearly be unreasonable for the officers to shoot him after he stopped his vehicle and opened the door.

765 F.3d 1076, 1078–79 (9th Cir. 2014).

Because the facts surrounding Warden’s alleged “furtive movement” and

whether it objectively posed an immediate threat to a reasonable officer under the

circumstances are in dispute, we cannot conclude on the present record that

Officers Cowan and Weaver are entitled to qualified immunity as a matter of law.

AFFIRMED.

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