UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ESTATE OF CLEMENTE NAJERA No. 19-56462 AGUIRRE; J.S.; A.S.; Y.S., Plaintiffs-Appellees, D.C. No. 5:18-cv-00762- v. DMG-SP

COUNTY OF RIVERSIDE; DAN PONDER, OPINION Defendants-Appellants.

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

Argued and Submitted November 15, 2021 San Francisco, California

Filed March 24, 2022

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Jane A. Restani, * Judge.

Opinion by Judge McKeown

* The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

SUMMARY **

Civil Rights

The panel affirmed the district court's denial of qualified immunity to Sergeant Dan Ponder of the Riverside County Sheriff’s Department in an action brought pursuant to 42 U.S.C. § 1983 alleging, among other things, that Ponder used excessive force in violation of the Fourth Amendment when he shot Clemente Najera-Aguirre six times without warning and killed him.

The panel first determined, as a threshold matter, that it had jurisdiction over this interlocutory appeal and that Ponder’s characterization of the facts did not result in waiver of his qualified immunity defense.

The panel stated that police shootings, like all Fourth Amendment seizures, must be objectively reasonable—and when a suspect poses no immediate threat to an officer or others, killing the suspect violates his Fourth Amendment rights. Here, in dispute was the level of threat Najera posed immediately before he died. A key disputed fact was whether Najera was facing the officer and coming “on the attack,” as Ponder contended, or whether Najera was turned away from the officer, as indicated by the coroner’s report. Additionally, although eyewitnesses agreed that Najera was holding at least one bat-like object when he was shot, it was disputed how he held that object. Nothing in the record suggested that Najera was threatening bystanders or advancing toward them when he was killed. Based on ** 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 NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 3 Najera’s facts, he presented no threat at all to the officer— or anyone else—in that moment. The panel concluded that on interlocutory appeal, construing the evidence in favor of nonmovant Najera, Ponder’s conduct was not objectively reasonable, and his use of excessive force violated the Fourth Amendment.

Because Najera’s estate presented facts sufficient to establish a Fourth Amendment violation, the panel considered the second prong of qualified immunity: whether the law was clearly established. The panel held that although no body of relevant case law was necessary in an “obvious case” like this one, this Circuit’s precedent also put Ponder on notice that his specific conduct was unlawful.

COUNSEL Tony M. Sain (argued), Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California, for Defendants-Appellants. Dale K. Galipo (argued) and Hang D. Le, Law Offices of Dale K. Galipo, Woodland Hills, California; Christian F. Pereira and Ian A. Cuthbertson, Pereira Law, Long Beach, California; for Plaintiffs-Appellees. 4 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

OPINION McKEOWN, Circuit Judge:

Police shootings, like all Fourth Amendment seizures, must be objec