facts, Lockwood is not entitled to qualified immunity. As the parties are familiar

with the facts, we do not recount them here. We affirm.

We review the district court’s summary judgment order and qualified

immunity analysis de novo. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)

(en banc). Because this case comes to us on interlocutory appeal of a denial of

qualified immunity, we have jurisdiction only over Lockwood’s argument that he

is entitled to qualified immunity as a matter of law. Villanueva v. California, 986

F.3d 1158, 1164-65 (9th Cir. 2021). As a result, we “constru[e] the facts and

draw[] all inferences in favor of” Edmond. Id. at 1165 (citation omitted).

If a police officer’s conduct violated a constitutional right and the

unlawfulness of their conduct was clearly established at the time of the incident,

the officer is not entitled to qualified immunity. District of Columbia v. Wesby,

138 S. Ct. 577, 589 (2018).

Here, a reasonable jury could adopt Edmond’s version of events: a

reasonable police officer would have perceived no more than an armed man

running away from the police on a path through an apartment complex and

2 changing direction by ninety degrees. Lockwood testified that he did not believe

Edmond had a gun in his right hand and, drawing all inferences in Edmond’s favor,

we must assume that Edmond never reached for his pocket or held his gun with his

left hand. Rather, his arms were at his sides pumping back and forth as he was

running, and the gun dropped out of his pocket when he was shot and fell to the

ground. Under this version of the facts, Lockwood’s shooting of Edmond violated

the Fourth Amendment because a reasonable officer would not have believed that

Edmond posed a threat of death or serious physical injury to Lockwood or others.

See Graham v. Connor, 490 U.S. 386, 396 (1989); Mattos, 661 F.3d at 441

(observing that the most important factor in the reasonable force analysis is

whether a reasonable officer would have perceived an immediate threat).

Lockwood’s conduct also violated clearly established law because the Ninth

Circuit has clearly established that police officers may not use deadly force on an

individual who has not acted threateningly at any time during or prior to the

encounter, even if they believe the individual has a firearm. See Est. of Lopez ex

rel. Lopez v. Gelhaus, 871 F.3d 998, 1010-11 (9th Cir. 2017); C.V. ex rel. Villegas

v. City of Anaheim, 823 F.3d 1252, 1254, 1256 (9th Cir. 2016); George v. Morris,

736 F.3d 829, 832-33, 838 (9th Cir. 2013); see also Cruz v. City of Anaheim, 765

F.3d 1076, 1078-79 (9th Cir. 2014). This is true even where the suspect is fleeing

on foot. Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 322-23, 325

3 (9th Cir. 1991) (affirming the district court’s denial of qualified immunity at

summary judgment where an officer shot a suspect for the second time as the

suspect fled his house holding a semiautomatic rifle by the muzzle).

A jury may (or may not) ultimately resolve the disputed facts such that

Lockwood is entitled to qualified immunity, but at this stage of the proceedings we

are jurisdictionally limited to viewing the disputed facts in Edmond’s favor, and

under those facts, Lockwood is not entitled to qualified immunity.

Each party shall bear its own costs.

AFFIRMED.

4

FILED

MAR 9 2023

Edmond v. Lockwood, No. 22-55024

MOLLY C. DWYER, CLERK

BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

The status of qualified immunity has been a subject of national debate in

recent years. But until Congress or the Supreme Court says otherwise, our duty is

to apply the doctrine fairly. And this case presents precisely the situation for which

qualified immunity was developed—to prevent courts and litigants from second-

guessing split-second, life-and-death decisions made by law enforcement officers.

Here, body-camera footage shows officers identify Jarron Edmond as a “man

with a gun.” Edmond flees from officers into a dimly lit alleyway leading to an

apartment complex.1 One of the officers, Officer Lockwood, orders Edmond to stop

and warns him he will use deadly force. But Edmond continues on. As Edmond

turns a corner, he lowers his hands to his pockets. Edmond retrieves a cellphone in

his right hand. What Edmond does with his left hand is disputed. Some frames of

the footage suggest a black object in his left hand. Either way, it’s clear that

Edmond’s left hand is in close proximity to where he stashed his gun in his pants.

Fractions of a second later, Officer Lockwood fires four shots in quick succession at

Edmond. Before he falls to the ground, Edmond drops a gun to the floor. True,

Edmond contests whether the gun was in his left hand and so we must construe that

fact in his favor. Villanueva v. California, 986 F.3d 1158, 1164–65 (9th Cir. 2021).

1 https://www.youtube.com/watch?v=gtzgzrZjBWE&t=198s. But even under Edmond’s version of events, no clearly established law shows that

Officer Lockwood used excessive force in violation of the Constitution. Thus,

Lockwood is entitled to qualified immunity.

In the light most favorable to Edmond, Officer Lockwood confronted a fleeing

armed suspect, in the middle of the night, who started to turn in Lockwood’s direction while lowering his hands to his pockets where he had a gun. This turn

presented a perilous situation for Officer Lockwood because it takes only a fraction

of a second to convert a 90° turn into a firing stance. And nothing in the law requires

that an officer “wait until a gun is pointed at [him] before [he] is entitled to take

action.” Anderson v. Russell, 247 F.3d 125, 131 (4th Cir. 2001). Instead, deadly

force is authorized when an officer “reasonably believed [that] such force was

necessary to protect himself or others from death or serious physical harm.” Curnow

ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).

It’s clearly established that a police officer can’t use deadly force against a

nonthreatening suspect—even if armed. But no case holds that an officer violates

the Constitution by using deadly force on a fleeing suspect with a gun who abruptly

turns in the officer’s direction and moves his hands toward where he is believed to

be carrying a gun. We certainly did not reach that conclusion in Curnow. In

Curnow, we concluded the officers could not shoot a suspect in the back who never

reached for a nearby gun. Id. at 323, 325.

By contrast, while fleeing from the officers here, Edmond ignored

Lockwood’s repeated commands and deadly force warnings, moved his hands from

above his head down to the area near his pockets where his gun was, and turned 90°ׄ

to his right—halfway from facing Officer Lockwood head-on. Simply, the facts here

are too different from Curnow to place this constitutional question “beyond debate.” Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021) (simplified). And none of the

majority’s other cited cases fares better in clearly establishing that Lockwood’s

conduct was unconstitutional.

I respectfully dissent.