UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FREDRICK WAID, appointed co- No. 22-15382 special administrator of the Estate of Robert Anderson Jr.; JENNIFER D.C. No. ANDERSON, as co-special 3:20-cv-00435- administrator of the Estate of Robert LRH-CSD Anderson Jr.; JENNIFER ANDERSON, individually; M. R. A., a minor, through parent and guardian OPINION Jennifer Anderson; S. G. A., a minor, through parent and guardian Jennifer Anderson,

Plaintiffs-Appellants, v. COUNTY OF LYON; TIMOTHY WRIGHT; BRETT WILLEY,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 5, 2022 Pasadena, California

Filed November 21, 2023 2 WAID V. COUNTY OF LYON

Before: Marsha S. Berzon, Ryan D. Nelson, and Bridget S. Bade, Circuit Judges.

Opinion by Judge R. Nelson; Partial Concurrence and Partial Dissent by Judge Berzon

SUMMARY *

Qualified Immunity/Deadly Force

The panel affirmed the district court’s summary judgment granting qualified immunity to two police officers in an action alleging, in part, that the officers used excessive deadly force when they shot and killed Robert Anderson during a response to a 911 call seeking help with a domestic violence incident. After officers arrived at Anderson’s home, Anderson’s two minor children exited the house and told the officers that their parents were fighting, that their mother needed an ambulance, and that there were no weapons in the house other than a BB gun. When officers entered the house, Anderson shouted “Fuck you, punks,” ignored a command to get to the ground, and ran down a short hallway towards the officers, at which point the officers shot him five times. The panel held that defendants were entitled to qualified immunity on plaintiffs’ Fourth Amendment excessive force claim because plaintiffs’ rights were not clearly

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WAID V. COUNTY OF LYON 3

established. First, it was not obvious that defendants were constitutionally precluded from firing given that they were responding to an active domestic violence situation, lacked the benefit of having time to fully assess the circumstances, and needed to make split-second decisions as they were being charged. Second, plaintiffs failed to show controlling authorities (or a consensus of persuasive ones) that would have put every reasonable officer on notice that defendants’ conduct violated the Fourth Amendment. Distinguishing this case from other cases, the panel noted that Anderson was in a narrow hall and rapidly approaching the officers, with no barrier between them. He could have accessed the officers’ weapons at any time or otherwise harmed them. Further, if the officers took the option to retreat to the house’s entryway, they would have left Jennifer Anderson—for whom they had just called an ambulance—alone with her husband or risked injury themselves if Anderson obtained a weapon from somewhere in his home. The panel held that defendants did not violate plaintiffs’ Fourteenth Amendment substantive due process rights because there was no evidence suggesting that the officers acted with a purpose to harm unrelated to the legitimate law- enforcement objective of defending themselves. Concurring in part and dissenting in part, Judge Berzon would hold that defendants’ use of force was unconstitutionally excessive, and they were not entitled to qualified immunity on the Fourth Amendment claim. The officers’ repeated, rapid use of deadly force was objectively unreasonable given