NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 8 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN SYLVESTER PENNY, No. 22-55572

Plaintiff-Appellee, D.C. No. 2:20-cv-07211-DMG-MAA v.

SAMI AZMY; JONATHAN A. CONCETTI, MEMORANDUM*

Defendants-Appellants,

and

CITY OF LOS ANGELES; et al.,

Defendants.

JOHN SYLVESTER PENNY, No. 22-55579

Plaintiff-Appellee, D.C. No. 2:20-cv-07211-DMG-MAA v.

CITY OF LOS ANGELES; et al.,

Defendants-Appellants,

and

SAMI AZMY; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted August 21, 2023 Pasadena, California

Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.

In this § 1983 excessive force case, Jonathan Concetti, a City of Los Angeles

police officer, appeals the denial of his motion for summary judgment based on

qualified immunity.1

“A district court’s decision denying summary judgment on the ground of

qualified immunity is reviewed de novo.” Hopkins v. Bonvicino, 573 F.3d 752,

762 (9th Cir. 2009). To conclude that qualified immunity is improper, we must

first “ask whether the facts, viewed in the light most favorable to the plaintiff,

demonstrate that the [officer] violated a constitutional right.” Peck v. Montoya, 51

F.4th 877, 887 (9th Cir. 2022). Second, we ask “whether that right was clearly

established at the time of the alleged constitutional violation.” Id. (internal

quotation marks and citation omitted). Where relevant, “[w]e do not credit a

1 John Penny represents that he will no longer pursue his secondary liability claim

against Sergeant Sami Azmy due to the stipulated dismissal of the relevant officer. We therefore remand with instructions to dismiss that claim with prejudice.

2 party’s version of events that the record, such as an unchallenged video recording

of the incident quite clearly contradicts.” Rice v. Morehouse, 989 F.3d 1112, 1120

(9th Cir. 2021) (internal quotation marks omitted) (citing Scott v. Cnty. of San

Bernadino, 903 F.3d 943, 952 (9th Cir. 2018)).

1. To evaluate a Fourth Amendment excessive force claim, we ask “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).

Graham identified three factors that indicate an action was objectively reasonable:

(1) the severity of the suspect’s alleged crime, (2) the presence or lack of an

immediate threat to officer or bystander safety, and (3) the suspect’s resistance to

or evasion of arrest. Id. at 396. “Other relevant factors include the availability of

less intrusive force, whether proper warnings were given, and whether it should

have been apparent to the officers that the subject of the force used was mentally

disturbed.” Vos v. City of Newport Beach, 892 F.3d 1024, 1033–34 (9th Cir.

2018). Additionally, “the ratio of officers to suspects present” can be considered.

Washington v. Lambert, 98 F.3d 1181, 1190 (9th Cir. 1996).

None of the Graham factors indicate that Concetti’s use of force was

reasonable. First, Penny did not commit any serious crime. The only potential

crime committed was resisting arrest, a “minor” offense. Mattos v. Agarano, 661

F.3d 433, 445–46 (9th Cir. 2011). Second, Penny did not pose an immediate threat

3 to Officer Concetti or any of the twelve other officers present. Although Penny

held onto a wooden board at the time of the shooting, he held it perpendicular to

his body, like a shield, and “did not brandish [it] at anyone.” Glenn v. Washington

Cnty., 673 F.3d 864, 873 (9th Cir. 2011). Officer Concetti had plenty of officer

cover as well as space to move away from Penny. Third, when Officer Concetti

shot him, Penny was not attempting to flee. See Tennessee v. Garner, 471 U.S. 1,

11–12 (1985). And although he disobeyed Officer Concetti’s repeated command

to “get back,” thereby arguably resisting arrest, Penny’s noncompliance did not

present an immediate threat. Penny’s noncompliance thus did not rise to a level of

behavior justifying the use of deadly force against him. Cf. O’Doan v. Sanford,

991 F.3d 1027, 1033, 1037 (9th Cir. 2021) (holding that the third Graham factor

weighs in favor of qualified immunity when a suspect is “combative” while

repeatedly resisting officer commands).

Finally, each of the “other relevant factors” weigh against Officer Concetti’s

use of deadly force. Vos, 892 F.3d at 1033. Officer Concetti relayed no warnings;

the officers had less intrusive means of force available such as a taser, a beanbag

shotgun, or a projectile launcher;2 and Penny was visibly emotionally disturbed

during the confrontation in a way that did not present an immediate threat. See

2 Officer Concetti in particular had non-lethal alternatives to the use of deadly

force—pepper spray and two types of batons.

4 Vos, 892 F.3d at 1033–34. There were thirteen officers on the scene when Concetti

shot Penny. Further, Officer Concetti in his mind determined that he would shoot

if Penny came a certain distance from him but did not warn Penny not to come that

close or he would be shot. Instead, Officer Concetti continued to walk towards

Penny, an emotionally disturbed individual, rather than backing off into the large

surrounding open space. Officer Concetti’s decision to shoot Penny was

objectively unreasonable and therefore excessive force, in violation of Penny’s

Fourth Amendment rights.

2. As to whether the law regarding the Fourth Amendment excessive force

claim was clearly established, “at the time of [Officer Concetti’s] conduct, the law

was sufficiently clear that every reasonable official would understand that what he

[did was] unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)

(citations and quotation marks omitted). The decision in Vos confirms that as of

2018, a reasonable police officer would have understood that the use of deadly

force against a possibly mentally ill suspect when there were numerous officers

present, multiple less intrusive options readily available, and no immediate threat

of serious physical injury—even where the suspect held an object that officers

could have perceived to be dangerous if used as a weapon—was excessive force

and so a Fourth Amendment violation. 892 F.3d at 1034–35.

In Vos, “[t]he officers knew that Vos had been simulating having a gun and that

5 he was agitated, appeared angry, and was potentially mentally unstable or under

the influence of drugs.” Id. at 1029. Officers at the scene believed that Vos was

holding a pair of scissors when he ran towards them. Id. Vos asked the police to

shoot him on multiple occasions and acted erratically during the encounter. Id. at

1028–29. Eight police officers were on the scene, armed with AR-15 rifles,

handguns, and at least one “40-millimeter less-lethal projectile launcher.” Id. at

1029. When Vos left the 7-Eleven, one police officer shot him using less-lethal

force, and two fatally shot him using lethal force. Id. at 1029–30. After the

incident, medical records confirmed that Vos had a diagnosis of schizophrenia. Id.

at 1030. We held in Vos that, although at that time the law was not clearly

established, “a reasonable jury could find that the force employed was greater than

is reasonable under the circumstances.” Id. at 1034, 1035–36 (internal quotation

marks and citations omitted).

Here, Penny exhibited consistently erratic behavior signaling mental illness,

including repeatedly speaking to the officers in incoherent non-sequiturs and

referencing his own death several times. Penny held various objects during the

encounter, including (at the time of the shooting) a wooden board, but did not use

or threaten to use any objects in a way that presented a risk of immediate harm to

the officers. Officer Concetti shot Penny with his pistol without issuing a warning

of deadly force. Several officers, including Officer Concetti himself, had access to

6 and adequate time to deploy less-intrusive means of force including a beanbag

shotgun, a 40-millimiter projectile launcher, or a taser; two did so, at the same time

Officer Concetti used lethal force. On these facts, Vos makes it “sufficiently clear”

that Officer Concetti’s actions were unlawful. Wesby, 583 U.S. at 63. If anything,

this presents a considerably more obvious violation of the Fourth Amendment than

in Vos. We therefore affirm the district court’s denial of summary judgment.

3. Several LAPD officers involved in the events leading to this case stipulated

to their dismissal from the appeal. Those officers ask this Court to vacate the

district court order “as it applies to [those] individual officers.” Because the

parties settled during the pendency of the appeal, the Appellants “forfeited the right

to appeal and therefore lost their equitable entitlement to vacatur.” NASD Disp.

Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065, 1069 (9th Cir. 2007).

Appellants’ request for vacatur is denied.

We therefore REMAND with instructions to dismiss Penny’s secondary

liability claim against Sergeant Azmy, and AFFIRM the district court’s denial of

summary judgment.

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