UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ESTATE OF GABRIEL No. 22-15761 STRICKLAND; N.S., a minor guardian ad litem Leah Jolley; D.C. No. SHAWNA ALEXANDER, 2:21-cv-00175- Plaintiffs-Appellants, MCE-AC

v. OPINION NEVADA COUNTY; SHANNON MOON, Sheriff, Nevada County; TAYLOR KING, Deputy; BRANDON TRIPP, Deputy; JOSEPH MCCORMACK, Officer; CITY OF GRASS VALLEY; ALEX GAMMELGARD, Chief, Grass Valley Police Dept.; BRIAN HOOPER, Officer; DENNIS GRUBE, Officer; CONRAD BALL, Officer; WELLPATH MANAGEMENT INC.; BRENT WELDEMERE; RICHARD DONOFRIO, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding 2 ESTATE OF STRICKLAND V. NEVADA COUNTY

Argued and Submitted February 7, 2023 San Francisco, California

Filed May 31, 2023

Before: Jay S. Bybee and Patrick J. Bumatay, Circuit Judges, and Richard D. Bennett,* Senior District Judge.

Opinion by Judge Bumatay

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal for failure to state a claim of an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that police officers used excessive force when they shot and killed Gabriel Strickland, who was known to the officers to be homeless and mentally ill, after he pointed a black toy airsoft rifle in their direction. The panel held that, under the totality of the circumstances, it was objectively reasonable for the officers to believe that Strickland posed an immediate threat. Construing the facts in the light most favorable to Strickland, he was carrying a replica gun, disregarded * The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ESTATE OF STRICKLAND V. NEVADA COUNTY 3

multiple warnings to drop it, and pointed it at the officers. While the misidentification of the replica gun added to the tragedy of this situation, it did not render the officers’ use of force objectively unreasonable. The panel held that the district court did not abuse its discretion in denying Strickland’s estate leave to amend the complaint. The complaint established that Strickland pointed the replica gun’s barrel at the officers and so it was objectively reasonable for the officers to respond with lethal force. Under these pleaded facts, it would be futile to allow leave to amend.

COUNSEL Patrick H. Dwyer (argued), Patrick H. Dwyer Attorney at Law, Penn Valley, California, for Plaintiffs-Appellants. Steven J. Renick (argued), Mildred K. O’Linn, Lynn Carpenter, and Kayleigh Andersen, Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Defendants-Appellees Nevada County, Shannon Moon, Taylor King, Brandon Tripp, and Joseph McCormack. John A. Whitesides (argued), Derick E. Konz, and Bruce A. Kilday, Angelo Kilday & Kilduff LLP, Sacramento, California, for Defendants-Appellees City of Grass Valley, Alex Gammelgard, Brian Hooper, Dennis Grube, and Conrad Ball. Jerome Varanini, Trimble Sherinian & Varanini, Sacramento, California, for Defendants-Appellees Wellpath Management Inc., Brent Weldemere, and Richard Donofrio. 4 ESTATE OF STRICKLAND V. NEVADA COUNTY

OPINION BUMATAY, Circuit Judge:

When someone points a gun at a law enforcement officer, the Constitution “undoubtedly entitles the officer to respond with deadly force.” George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013). But wh