and Submitted February 6, 2018 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 5:14-cv-00117-TJH-SP Terry J.
Hatter, Senior District Judge, Presiding
K. Galipo (argued) and Hang D. Le, Law Offices of Dale K.
Galipo, Woodland Hills, California, for
H. Rotter (argued) and Timothy T. Coates, Greines Martin
Stein & Richland LLP, Los Angeles, California; John M.
Porter, Lewis Brisbois Bisgaard & Smith LLP, San
Bernardino, California; Neil Okazaki, Deputy City Attorney;
Gary Geuss, City Attorney; Office of the City Attorney,
Riverside, California; for Defendants-Appellees.
Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
Circuit Judges, and Robert W. Pratt, [*] District Judge.
panel affirmed the district court's grant, on summary
judgment, of qualified immunity to a police officer in a 42
U.S.C. § 1983 action alleging that the officer used
excessive force when he shot plaintiff three times following
a traffic stop.
panel first held that the district court did not err by
raising the issue of qualified immunity sua sponte and
addressing it on summary judgment because the district court
retains this authority and because defendant raised and
preserved qualified immunity as a defense. On the merits, the
panel held that the district court correctly granted
qualified immunity and summary judgment in defendant's
favor because his application of deadly force was objectively
reasonable under the Fourth Amendment. The panel noted that
based on the undisputed facts, a reasonable officer may have
reasonably feared that plaintiff had a gun and was turning to
District Judge Pratt stated that he perceived genuine,
material factual disputes in the record that the district
court and the majority had either improperly purported to
resolve or improperly ignored. Judge Pratt would reverse the
summary judgment and remand for further proceedings.
CALLAHAN, Circuit Judge
December 22, 2011, Michael Easley ("Easley") was
shot three times by Officer Silvio Macias
("Macias") following a traffic stop. Based on his
resulting injuries, which include permanent physical
disability and paralysis, Easley filed this action alleging
that Macias violated 42 U.S.C. § 1983 through the use of
excessive force. The district court sua sponte ordered an
evidentiary hearing regarding Macias' entitlement to
qualified immunity. Following the two-day hearing, the
district court ruled Macias was entitled to qualified
immunity and granted summary judgment in his favor. Easley
appeals, challenging the district court's sua sponte
grant of summary judgment as procedurally impermissible and
arguing that the record construed in the light most favorable
to Easley reflects that genuine issues of material fact
remain as to Macias' entitlement to qualified immunity.
We affirm because the district court properly considered
qualified immunity sua sponte and because, viewing the record
in the light most favorable to Easley, Macias' use of
deadly force was objectively reasonable under the Fourth
FACTUAL AND PROCEDURAL BACKGROUND
night of December 22, 2011, at around 8:20 p.m., Macias and
his partner, Officer Anthony Watkins ("Watkins"),
were on patrol in the 12th Street area of Riverside,
California, in their police car. They noticed a pink
Chevrolet Monte Carlo with what appeared to be
illegally-tinted windows. Macias thought he recognized the
driver, Stephania Session ("Session"), from a prior
encounter. Easley, her husband, was a passenger in the car.
As the Chevrolet passed the police car, Macias shone his
flashlight into the car and the passenger leaned back in the
and Watkins began following the Chevrolet, which made a
U-turn, sped up, and entered a strip mall parking lot. When
the Chevrolet sped across the parking lot, fishtailing and
barely avoiding hitting another car, the officers activated
the patrol car's lights and sirens. The Chevrolet did not
initially heed the lights and sirens, but then it suddenly
bolted out of the car and, clutching the waistband of his
pants with his right hand, ran away from the patrol car.
Macias and Watkins exited their patrol car and Watkins
shouted "Gun" or "He's got a
gun." Macias pursued Easley on foot.
continued to clutch his waistband with his right hand.
However, with his left hand he removed an object, later
determined to be a gun, from his right pants' pocket and
flung the item to his left. Macias fired three shots,
striking Easley twice in the right arm and once in the back.
Easley was shot within two to four seconds of throwing the
and Session filed this action in California state court
alleging, among other claims, the unreasonable and excessive
use of force in violation of the Fourth and Fourteenth
Amendments, made actionable under 42 U.S.C. § 1983. The
case was removed to the United States District Court for the
Central District of California. Plaintiffs filed a First
Amended Complaint, which Macias answered asserting that his
actions "were objectively reasonable under the
circumstances" and that he was entitled to
"qualified immunity from suit, liability and
parties negotiated a partial dismissal of some of the claims
in the complaint and Macias agreed not to seek summary
judgment on the remaining claims. On February 29, 2016, the
district court conducted a pretrial status conference and sua
sponte raised the issue of Macias' entitlement to
qualified immunity. The district court ordered an evidentiary
hearing on the issue, which was held on April 7 and 8, 2016.
The court heard testimony from Macias, Easley, and several
fact and expert witnesses. On June 1, 2016, the district
court issued its order determining that there remained no
genuine issue of material fact for determination by a jury
and that Macias was entitled to qualified immunity and
judgment as a matter of law. Easley and Session filed a
timely notice of appeal.
STANDARD OF REVIEW
review a district court's summary judgment determination
de novo. Longoria v. Pinal Cty., 873 F.3d 699, 703
(9th Cir. 2017); see also Glenn v. Wash. Cty., 673
F.3d 864, 870 (9th Cir. 2011) ("We review a district
court's decision to grant summary judgment de novo,
considering all facts in dispute in the light most favorable
to the nonmoving party.").
addressing the merits, we consider whether the district court
erred by raising sua sponte the issue of qualified immunity.
We have held that "[d]istrict courts unquestionably
possess the power to enter summary judgment sua sponte even
on the eve of trial." Norse v. City of Santa
Cruz, 629 F.3d 966, 971 (9th Cir. 2010). In so ruling,
we followed the Supreme Court's command. See Celotex
Corp. v. Catrett, 477 U.S. 317, 326 (1986)
("[D]istrict courts are widely acknowledged to possess
the power to enter summary judgments sua sponte, so
long as the losing party was on notice that she had to come
forward with all of her evidence.").
questions the district court's ability to raise the
matter of qualified immunity sua sponte, and alternatively
argues that Macias waived his right to raise qualified
immunity as a defense. Neither argument is persuasive.
Although qualified immunity is an affirmative defense,
see Siegert v. Gilley, 500 U.S. 226, 231 (1991)
("Qualified immunity is a defense that must be pleaded
by a defendant official."), a district court is not
proscribed from directing the parties to brief the issue when
it has been properly raised. Here, Macias raised qualified
immunity as a defense in his answer, and he never waived or
abandoned his claim of qualified immunity. Macias did not
move for summary judgment, but reasonably asserted qualified
immunity when directed by the district court to brief the
district court did not err by raising the issue of qualified
immunity sua sponte and addressing it on summary judgment.
doctrine of qualified immunity protects government officials
'from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Stanton v. Sims, 571 U.S. 3, 4-5
(2013) (per curiam) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). The doctrine is
designed to balance "two important, competing interests:
the need to hold public officials accountable for
irresponsible actions, and the need to shield them from
liability when they make reasonable mistakes."
Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017);
see Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
("Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments
about open legal questions."); Green v. City &
Cty. of S.F., 751 F.3d 1039, 1051 (9th Cir. 2014).
"When properly applied, it protects 'all but the
plainly incompetent or those who knowingly violate the
law.'" al-Kidd, 563 U.S. at 743 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
engage in a two-pronged analysis to determine whether
qualified immunity applies: "[O]fficers are entitled to
qualified immunity under § 1983 unless (1) they violated
a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was 'clearly established at
the time.'" District of Columbia v. Wesby,
138 S.Ct. 577, 589 (2018) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). The second prong
requires us to analyze two discrete sub-elements:
"whether the law governing the conduct at issue was
clearly established" and "whether the facts as