facts show an “evolving set of circumstances” taking place over a short period of

time, necessitating “fast action” and “repeated split-second decisions,” we apply

the “purpose to harm” standard to determine if an officer’s actions shock the

conscience. Porter v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008).

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 The district court granted summary judgment on Wear’s Fourteenth Amendment claims, but denied summary judgment on the Fourth Amendment excessive force claims and the state law claims against Deputy Pawluk. Those claims will proceed to trial and are not before us.

2 Here, we apply the “purpose to harm” standard because there was no

“opportunity for actual deliberation.” Id. at 1138. Deputies Pawluk and De Casas

arrived at a chaotic scene near an elementary school when postal officers were

unsuccessfully attempting to detain Joseph. Deputy Pawluk immediately went to

assist, and it took several minutes for him to handcuff Joseph, who continued to

struggle during the entire incident. Accordingly, the district court properly applied

the “purpose to harm” standard.

2. Wear argues that even under the “purpose to harm” standard, a genuine

issue of material fact exists as to whether Deputy Pawluk intended to harm Joseph

by kneeling on his back unnecessarily or longer than necessary to effectuate arrest.

After Deputy Pawluk successfully handcuffed Joseph and realized that

Joseph was unresponsive, Deputy Pawluk immediately turned him over and began

chest compressions. The entire incident with Deputy Pawluk lasted only a few

minutes, according to witnesses at the scene.2 We agree with the district court that

there is no evidence of a purpose to harm that is unrelated to the “legitimate object

of arrest.” Porter, 546 F.3d at 1140; Ochoa, 26 F.4th at 1057.

2 Wear points to the statement of witness Mario Palacios who stated that the incident lasted 15 to 20 minutes. But as Palacios himself clarified in his deposition, the “15 to 20 minutes that [he] referenced earlier was in reference to the whole incident from the time it started,” not solely after Deputy Pawluk arrived on the scene. Therefore, there is no genuine issue of material fact as to the duration of Deputy Pawluk’s involvement in attempting to handcuff Joseph.

3 3. Finally, Wear argues that there is a genuine issue of material fact as to

whether Deputy De Casas acted with purpose to harm. Deputy De Casas’s role

was “controlling the crowd.” Wear presents no evidence that Deputy De Casas

saw Joseph struggling or was even aware that Deputy Pawluk’s knee was on

Joseph’s back. Because Deputy De Casas had no “realistic opportunity” to

intervene, the district court properly granted summary judgment in his favor. See

Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000), as amended (Oct. 31,

2000) (“Moreover, the undisputed evidence shows that the non-shooting officers

who were present at the shootouts had no ‘realistic opportunity’ to intercede.”).

AFFIRMED.

4