NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. H., a minor, by and through her guardian No. 22-15361 ad litem, Sheila Brown; ESTATE OF ERIC JAY HAMES, by and through its personal D.C. No. representative, Crystal Dunlap-Bennett, 2:20-cv-01435-WBS-DMC

Plaintiffs-Appellants,

MEMORANDUM*

v.

CITY OF REDDING, a public entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted December 7, 2022 San Francisco, California

Before: GRABER, WALLACH,** and WATFORD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. Page 2 of 6

Plaintiffs appeal from an order granting summary judgment in favor of four

City of Redding police officers who fatally shot Eric Jay Hames in August 2018.

The district court held that the officers are entitled to qualified immunity on

Plaintiffs’ Fourth and Fourteenth Amendment claims asserted under 42 U.S.C.

§ 1983. With respect to the Fourth Amendment claim, the district court exercised

its discretion to address only the second step of the qualified immunity analysis.

See Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (setting forth the two

steps of the analysis). The court did not separately analyze the Fourteenth

Amendment claim. We reverse and remand as to the Fourth Amendment claim

and vacate and remand as to the Fourteenth Amendment claim.

1. At the first step of the qualified immunity analysis, we conclude that a

reasonable jury could find that the officers violated Hames’s Fourth Amendment

right to be free from the use of excessive force. The officers were permitted to use

deadly force only if Hames posed an immediate threat of serious physical harm to

the officers or others. See Tennessee v. Garner, 471 U.S. 1, 11–12 (1985).

Viewed in the light most favorable to Plaintiffs, the facts support a finding that

Hames did not pose a sufficiently immediate threat to justify the use of deadly

force.

Our analysis is aided by clear video footage depicting the fatal shooting

from two angles. See Scott v. Harris, 550 U.S. 372, 378 (2007). The footage Page 3 of 6

shows Hames standing against several industrial air conditioning units, visibly

winded and out of breath, after running from officers who had responded to reports

that Hames was acting erratically in the middle of traffic on a busy street. The four

officers form a semi-circle around Hames to prevent him from running past them,

with each officer pointing his service weapon at Hames. The footage further

depicts one officer return to his car to retrieve a shotgun, which he then points at

Hames. Hames’s arms are crossed, and he is holding a six-inch knife tucked under

his armpit. When Hames takes several steps at a walking pace in the direction of

one of the officers, all four officers immediately open fire. At that point, Hames

was more than 23 feet away from the officer in whose direction he was moving and

at least 15–20 feet away from the closest officer.

We agree with Plaintiffs that a reasonable jury viewing this footage could

conclude that the officers’ use of deadly force was unreasonable. A jury could find

that Hames was not running or charging toward any of the officers and that he was

not wielding the knife in a threatening manner. A jury also could find that, given

the moderate pace at which Hames was advancing, he was too far away from any

of the officers to pose an immediate threat, particularly because the officers appear

to have had enough space behind them to back up without sacrificing their ability

to prevent Hames from escaping. Page 4 of 6

The officers contend that Hames posed an immediate threat to them because

(1) he was brandishing the knife as a weapon, (2) he ignored their commands to

drop it, and (3) he advanced toward one of the officers while holding the knife in

“an offensive position” with the blade pointed down. As noted above, that is not

the only reasonable interpretation of the video footage. Whether Hames posed a

sufficiently immediate threat of serious physical harm to the officers is a disputed

factual issue that a jury must resolve. See Glenn v. Washington County, 673 F.3d

864, 879–80 (9th Cir. 2011) (“[T]he disputed facts and inferences could support a

verdict for either party, and the jury must resolve these factual disputes.”).

2. At the second step of the qualified immunity analysis, we also must

construe the facts in the light most favorable to Plaintiffs. See Tolan v. Cotton, 572

U.S. 650, 657 (2014) (per curiam). Viewed in that light, our decision in Glenn,

which predated the officers’ actions in this case by several years, clearly

established the law with sufficient particularity to place the officers on fair notice

that their use of deadly force in these circumstances was unlawful.

In Glenn, we reversed a summary judgment in favor of officers who had

fatally shot an intoxicated teenager outside his family home because material

questions of fact precluded us from holding that the officers’ use of force was

reasonable as a matter of law. 673 F.3d at 866. In that case, the decedent was

holding a three-inch pocketknife and threatening to kill himself. Id. at 873. He Page 5 of 6

ignored officers’ commands to drop the weapon. Id. at 876. After a short standoff,

the officers opened fire because they believed that the decedent was moving

toward the front door of the home, thereby posing a threat to the safety of the

family members who were inside. Id. at 879. But the facts construed in the light

most favorable to the plaintiff could have led a jury to find that the decedent “was

not running toward the front door to attack his family, but instead took one or two

steps seeking cover from the beanbag rounds” that the officers had just fired. Id.

Under that version of the facts, we held, a reasonable jury could conclude that the

officers’ use of deadly force was unreasonable. Id. at 879–80.

The facts of this case, when construed in the light most favorable to

Plaintiffs, are analogous to those in Glenn. Like the decedent in Glenn, Hames had

not committed a serious crime and had ignored commands to drop the knife that he

was holding. And like the decedent in Glenn, Hames’s movements while holding

the knife did not suggest that he intended to use the weapon to attack anyone.

Under the version of the facts most favorable to Plaintiffs, it cannot be said that

Hames posed an immediate threat of serious physical harm to those around him.

Glenn holds, and clearly establishes, that using deadly force in circumstances

similar to those present here is unlawful unless the suspect poses an immediate

threat to others. Page 6 of 6

The district court relied primarily on Kisela v. Hughes, 138 S. Ct. 1148

(2018) (per curiam), but that case is distinguishable. In Kisela, officers shot the

plaintiff because she approached within “striking distance” of another person while

holding a large kitchen knife and ignoring officers’ commands to drop it. See id. at

1151, 1154. Here, by contrast, Hames was not within striking distance of anyone,

and a reasonable jury could conclude that he was not wielding the knife in a

manner that posed an immediate threat of serious physical harm to any of the

officers.

3. The district court did not separately analyze the Fourteenth Amendment

claim, which is governed by a different legal standard. See A.D. v. Cal. Highway

Patrol, 712 F.3d 446, 453 (9th Cir. 2013). Accordingly, we vacate the district

court’s dismissal of the Fourteenth Amendment claim and remand for the court to

consider in the first instance whether that claim can properly be resolved at the

summary judgment stage.

REVERSED in part, VACATED in part, and REMANDED.