Dehertoghe

MEMORANDUM *

Stacie Ann Dehertoghe and her three children (collectively, Dehertoghe) appeal the district court’s summary judgment in favor of the City of Hemet and officers Chris Gigandet, Gordon Champagne, and Max Beamesderfer in her action under 42 U.S.C. § 1983 . We affirm in most respects, but we vacate, reverse, and remand the district court’s award of attorney’s fees.

I

As qualified immunity for Gigandet is at issue, we must first determine whether there was a constitutional violation. Saucier v. Katz, 533 U.S. 194 , 200, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001).

“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985); Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (determining whether force used was excessive by evaluating “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…