F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E R N E S T F O S T E R , S R

. , as personal representative of Ernest F oster, J r .; R. F ., minor, by

and throug h his Guardian Ad L item Ray

mond F oster; A. F

. , minor, by

and throug h her Guardian Ad L item Ray mond F oster; R

A Y M O N D F O S T E R , individually

, and as successors in interest to Ernest F oster, J r., deceased, Plaintiffs-Appellees

,

v

.

C I T Y O F I

N D I O ; R I C H A R

D P. T W I S S , individually and in his capacity as I ndio Police Chief; D O E S , 1 throug h 10, inclusive, Defendants

,

and

J E R E M Y H E L L A W E L L , individually and in his capacity

as an officer of the I ndio Police Department,

Defendant-Appellant. N o. 17-55167

D.C. No. 5:15-cv-01175- F MO-DTB

OPI NI ONF O S T E R V

. H E L L A W E L L 2

A ppeal from the United States District Court

for the Central District of California F ernando M. Olg

uin, District J udg e, Presiding

Arg ued and Submitted March 6, 2018 Pasadena, California

F iled November 20, 2018

B efore: A. W allace Tashima, Sandra S. I kuta, and J acqueline H. Ng

uy en, Circuit J u d g es.

Per Curiam Opinion; Dissent by

J udg e I k uta

SUMMARY *

Civil Rights

The p anel dismiss ed i n part an appeal from the district

c o urt’s order deny ing qualified immunity

, and reversed in part the order, in an action broug ht pursuant to 4 2 U .S.C. § 1983 alleg ing that a police o fficer c o n d u c t ed an unlawful investig atory stop and used ex cessive deadly fo r c e when he shot Ernest F oster thr e e times in the back d uring a response to a 911 call.

The panel h eld that it lacked jurisdiction, on interlocutory review, to consider questions of evidentiary sufficiency as to

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F O S T E R V

. H E L L A W E L L 3

the claims that the shooting violated F oster’s F our t h Amendme nt rig ht and the surviving family ’s F ourteenth Amendment rig hts. T h e panel held that on interlocutory appeal it could not reweig h the e vidence to evaluate whether the district court properly determined there was a g e n u ine issue of material fact, a nd therefore could neither c r edit defendant’s testimony that F oster turned and pointed a g un at defendant, nor assume that Fo s ter took other actions that would have been objectively threatening

. Addressing plaintiffs’ claim that the officer v iolated F oster’ s F ourth Amendment rig hts by making an investig ative stop of F oster and by a pproaching him w ith an

u n h o lstered g un, the panel held that it had jurisdiction t o consider the claims because the facts were undisputed a nd the
ap p e a l r a i s e d a purely leg al issue. The panel held that the officer d id not violate clearly established law when he concluded, based on the 911 call, th a t h e had reasonable suspicion to stop and investig ate F o ster. The p a n e l f urther held that a reasonable officer in defendan t ’ s p o sition could reasonably conclude that unholsterin g a g un during the stop did not constitute a violation of F oster’s rig ht to be f ree from

ex c e ssive force.

Dissenting

, J udg e I kuta stated that she disag reed with the major i t y ’s conclusion that it lacked jurisdiction to consider the district c ourt’s denial o f qualified immunity as to plaintiffs’ F ourteenth Amendment claim. J udg e I kuta wrote that, viewing the evidence in the lig ht most f a v orable to the plaintiffs, no reasonable jury could find that the officer acted with a purpose to harm Fo s t e r for reasons unrelated to leg itimate law enforcement objectives.F O S T E R V

. H E L L A W E L L 4

COUNSEL

Konrad Muth Rasmussen (arg ued) and J ohn P. McCormick, McCormick Mitchell & Rasmussen, San Dieg o, Califor n i a, for Defendant-Appellant.

J u s t i n Palmer (arg

ued), F iler Palmer L L P, L ong B each

, Califo rn i a ; N aShaun Neal a nd Peter L

. Carr I V, Sias Carr L L P, L os Ang eles, California; for Plaintiffs-Appellees.

OP INION

PER CURI AM:

Officer J eremy Hellawell was d ispatched to investig a te a 911 call f rom a citiz en who reported that a man matching Ernest F oster’s description was walking toward a shopping plaz a armed with a concealed handg un. A s the incident unfolded, Hellawell approached F oster a t the shopping plaz a to investig ate the report, F oster fled, and Hellawell ultimately shot F oster fatally three times in the b ac k

. F oster’s family (the plaintiffs) claim that Hellawell violated F oster’s F ourth Amendment rig hts and the plaintiffs’ F ourteenth A mendment rig hts. The d istrict c ourt denied Hellawell’s motion for
summary judg ment based on q ualified immunity

. B ec a u s e

we lack jurisdiction to consider questions of evident i a ry sufficiency on interlocutory r eview, w e dismiss Hellawell’s appeal of the court’s order with respect to the claims that the

s h o o ting violated F oster’s F ourth Amendment rig ht a nd plaintiffs’ F o urteenth Amendment r ig hts. W e reverse the district c ourt’s denial of qualified immunity on F oster’s other F ourth Amendment claims, because Hellawell’s actionsF O S T E R V

. H E L L A W E L L 5

during the investig a t i v e stop did not violate any clearly established law.

I

B e cause t h i s case arises from the denial of Officer Hellawell’s motion for summary judg ment, we view the facts in the lig ht most favorable t o t h e nonmoving party , h ere, F oster’s father a n d minor children (collectively

, the “plaintiffs”). 1 On J uly 4, 2013, at a r ound 1:30 p.m., the City of I ndio Police Department received an anony mous 911 c all reporting an individual carry ing a g un. The caller stated that a man “with a brown hat, aqua shirt, a blue aqua shirt, [ and] black b lue jeans” was “ w alking down Hig hway 111 toward subway s and smoke shops with a handg u n, with a

. . . g un in his rig ht side p o c k et.” The caller also described the man a s

a “55-y e ar-old African-American g entleman weig hing about 250 pounds with a hand g un in his rig ht s i d e pocket” and a “baby brown or beig e ball cap.” The c aller further stated that the man did not point the g un at him, but “walked out of the liquor store” and “just opened the g u n

. ” The caller f urther stated that the man “was no stress to me, but

. . . he wants to let people know who he is.”

The information provided by the caller was immediately dispatched over the police r adio. Officer Hellawell received information that “a B lack male wearing a tan hat, a[ n] aquacolored shirt, an d dark-colored pants with a handg un in his pocket” w as “ last seen g o ing towards Subway .” Hellawell, who w as wearing h i s police uniform, drove to the I ndio Sho p p i n g Plaz a near Hig hway 111, where the Subway was located. B ecause the Subway and Pay day Advance Money

1 W e n o te w

h ere th e f acts are in d isp u

te.F O S T E R V

. H E L L A W E L L 6

Store had been robbed in the past, Hellawell’s first thoug hts

were that the tip mig h t indicate a robbery was about to occur. Hellawell did n ot use his patrol car sirens o n t h e w ay to the plaz a and did not believe he was in d ang er “at that moment.”

As Hellawell pulled into the parking lot near the Subway

, he saw “ a B lack male wearing a[ n] aqua-g reen shirt, wearing

a tan hat and dark-colored p ants” near the Subway

. The man matched the description of t h e 9 1 1 call and, according to Hellawell, appeared nervous. T he man, Ernest F oster, was standing ag ainst the wall nex t to the smoke shop adjacent to Subway

. Hellawell e x ited h is v e h i c l e about ten feet from F oster. Hellawel l d i d n o t see a g un in F oster’s hands or on his person. Hellawell ident i f i e d himself as a police officer and stated: “L et me see y our h a n ds

. K e e p y our hands where I can see them

. I just n eed to talk to y ou for a minute.” At that point, F oster started runni n g away from Hellawell. Hellawell g a ve chase. A ccording to H ellawell, he mig ht have drawn his g un either wh en Foster made a movement o r started to run. 2 Hellawell subsequently re-holstered the g un, because he would not run with a g un in his hand.

Hellawell chased F oster throug h the shopping plaz a then down an alley between two stores. A c c o r d ing to Hellawell, throug hout the pursuit, Hellawell told F o ster to “stop,” and to “show me y our hands.” Hellawell y elled: “I believe y ou have

a g un. Stop or I a m g oing to shoot.” Hellawell testified that F oster’s left hand w as visible, but his rig ht hand appeared to be holding something ag ainst his body

. Hellawell d id not see F oster holding a g un. At on e p o i n t , Hellawell shot F oster

2 A lth o u g h o n e w itn ess leav in g Su b w ay , J ose Flo res, stated th at h e

saw so m eth in g in Hellaw ell’ s h an d s du rin g th e ch ase, n o w itn ess testif ied th at Hellaw ell d rew

h is g u n as h e ap p ro ach ed Fo ster.F O S T E R V

. H E L L A W E L L 7

with his taser; alth o u gh o n e dart hit F oster, the taser did not affect him because, according to Hellawell, the other dart was drag g ing along the g r ound.

As the chase went on, H ellawell shot F oster with his service firearm either just before or shortly after Foster rounded the corner of a nearby store. According to Hellawell, he shot F oster when he was turning toward him with a g un in his hand. This account was c orroborated by Officer F elipe Escalante a n d a civilian witness, D aniel Kelley

. Escalante had d riven to the shopping center in response to Hellawell’s report of foot pursuit. He testified that h e saw F oster turn towards Hellawell and that F oster mig ht have h ad “something ” in his hands, but Escalante coul d n o t tell for

sure. I n a March 31, 2 016 declaration, K elley testified that he

was smoking a cig arette outside of the J ack-in-the-B ox , a nd saw Hellawell chase F o ster behind the restaurant. He stated that a s F oster ran by him, he saw F oster holding something in his hand. Kelley followed H ellawell, and saw F o ster ly ing on the g round with a g un nex t to him.

Other witnesses o ffered differing accounts. J aime Perez
, who was waiting in his car i n t h e p a r king lot, stated in his initial declaration on April 1, 2 016, that he “saw a male running around the northeast corner of the AutoZ one g rasping

an o b j e c t u p ag ainst his chest.” He “watched the man g o down” and he “noticed an o bject fall from his hand and land

on t h e g round two feet in front of him.” He stated that the object w as a handg un. B ut in a second declaration on Aug ust 31, 2016, he stated that he had previously testified that he saw

a g un f all f rom F oster’ s hands only because the police officers who interviewed him said they had found a g

un and he w a s scared and nervous during his interview. I n the Aug ust 3 1st declaration, Perez s tated, “ I did n ot see a g un.F O S T E R V

. H E L L A W E L L 8

Mr F oster did not point a g u n at any one, nor did I see a g un in his hand.” Rather

, according to Perez
, Hellawell shot F oster in the back “for no r eason,” and Pere z “did not see [ ] F oster bend, shift, tw i s t , or make any sudden movements before [ Hellawell] shot him.”

A third witness, J ohn-David Vallesillo, witnessed th e chase from his car. I n his interview w ith t h e p o l ice on the day of the shooting

, Vallesillo stated that he heard a volley o f shots, after which he turned his head and saw F oster “facing
away from [Hellawell]

, falling forward o nto h is face onto the
g round.” Vallesillo f urther ex p lained that from his
p e r s p ective, “I didn’t see a g un in [ F oster’s] h ands at any point and it looked like he was, he g ot shot i n t h e b ack.” I n

a later d e c laration, dated A ug ust 3 1, 2016, Vallesillo ag ain

ex p lained: “I heard a volle y o f shots coming from [ the]
g eneral direction [ of the police chase] . I also saw Mr. F oster fall face down onto the concrete.” Vallesillo added t hat he “did n ot see Mr. F o ster turn or bend towar d s t h e police officer” b efore the g u nshots, “did not see Mr. F oster with a g un in his h and,” and “did not see a g un o n the sidewalk a fter the police officer shot him in the back.”

F inally

, J ose F lores, who observed the chase from his mother’s car, tes t i f

ied that F oster did not turn toward Hellawell during the chase. F lo r e s saw F oster “ly ing face down on the concre t e , ” but “ d id not see a g un in [ F oster’s] hands or on the g round.”

F oster was treated o n the scene and later died a t t he hospital. The plaintiffs broug ht suit under 42 U.S.C. § 1983
ag ainst Hellawell, the City of I ndio, the I ndio Police Departmen t , a n d Chief of Police Richard Twiss. They claimed violations o f F oster’s r ig ht to be free from e x cessiveF O S T E R V

. H E L L A W E L L 9

force under the F ourth Amendment; v iolations of the family ’s rig ht to familial association un d er the F ourteenth Amendment; and unconstitutional municipal customs, pr a c t i c e s, and policies, see M onell v. Dep’t o

f Soc. Servs.
, 436 U .S. 658 (1978). The plaintiffs alleg ed that Hellawell (1) c onducted an unlawfu l investig atory stop without reasonable suspicion; (2) used e x cessive force by drawing his firearm in conjunction with the investig at o r y stop; (3) used

ex c e ssive force by shooting F oster wi t h h i s taser during the foot chase; a

nd (4) u sed ex cessive force by shooting F oster three times and killing him. The defendants moved for

s ummary judg ment on all claims, arg uing that qualifi e d immunity applied and no violation occurred.

The court denied Hellawell’s summary judg ment motion

on the majority of plaintiffs’ Fo u rth and F ourteenth Amendment claims. T h e court concluded that a g e nuine issue

o f m a terial fact ex isted as to (1) whether Hellawell violated F oster’s F ourth Amend m e n t rig hts in making the investig ative stop without reasonable suspicion; (2) whether Hellawell violated F oster’s F ourth Amendment r i g ht to be free from ex cessive force by draw i n g h i s firearm during the investig atory stop; (3) whethe r Hellawell violated F oster’s F ourth Amendment r ig ht to be free from ex ce s s i v e force b y fatally shooting him; and (4) whether Hellawell violated the plaintiffs’ F o u

r t e e n t h A m e n d m e n t r i g hts because a reasonable jury co u l d fi n d that Hellawell shot F oster with a purpose to harm him without reg ard to le gi t imate law enforcement objectives. 3

3 T h e d istrict co u rt g ran ted su m m ary j u d g m en t in f

av o r o f Hellaw ell

o n p lain tif

f s’ claim th at Hel law ell’ s u se o f a taser co n stitu t ed ex cessiv e f o rce. T h e co u rt also g ran t ed su m m ary j u d g m en t in f

av o r o f th e City ofF O S T E R V

. H E L L A W E L L 10

Hellawell filed this i n t erlocutory a p p eal from the denial of summary

judg ment.

I I

The Supreme Court has held that “pretrial orders deny ing qualified immuni t y g enerally f all within the collateral order doctrine,” P lumhoff v. Rickard

, 134 S. Ct. 2012, 2019 (2014), and therefore, in the qualified immunity contex t, “ w e have jurisdiction ove r t h e d enial of summary judg ment, an interlocutory decision not normally appealable, ” George v

. Morris
, 7 3 6 F. 3d 829, 834 (9th Cir. 2013). “This is so becau s e such orders c onclusively determine w hether the defendant is entitled to immunity from suit; t h is immunity issue is both important and c ompletely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judg ment b ecause by that time the immunity from standing trial will have been irretrievably

lost.” Plumhoff

, 134 S. Ct. at 2019.

Despite this g e n eral rule, “the scope of our review over the appeal [in this contex t] is circumscribed.” G e o r g e , 736 F .3 d a t 8 3 4

. A public official may not immediately appeal “a fact -related dispute a bout the pr e t r i a l record, namely

, whether or not the evidence in the pretrial record was sufficient to show a g enuine issue of fact for trial.” Johnson

v. Jones
, 515 U.S. 304, 307 (1995). I n other words, where “a portion of a district court’s summary judg ment o rder” in a qualified immunity case “determines only a question o f ‘evidence sufficiency ,’ i.e.
, which fa cts a party may , or may not, be able to prove at trial,” it is not a final d e ci sion under

In d io o n p lain tif

f s’ m u n icip al liab ility claim

, an d in f av o r o f Ch ief T w i ss

o n p lain t if f s’ claim o f su p erv iso ry liab i lity

.F O S T E R V

. H E L L A W E L L 11

the collateral o r d e r doctrine. Id. at 3 13. According ly

, we have jurisdiction only to the ex tent “ the issue appealed concerned, not which f

acts the p arties mig ht be able to prove, but, rather, whether or not c ertain g iven facts sh o we d a violation of ‘clearly establis h e d law.’” Id. at 311 (quoting Mitchell v. Forsyth , 472 U.S. 511, 528 (1985)).

To the e x tent the district court’s order d e n i e s summary judg m e nt on purely leg al issues, however, we do have jurisdiction. As Plumhoff ex plained, d efendants’ contention that their c ond uct “did not violate the F ourth A mendment and, in any event, did n ot violate clearly established law,” raises leg al issues that are “ quite d i f fe r ent from any purely factual issues that the trial court mig ht conf r o n t i f the case

were tried.” 134 S. C t

. at 2019. D eciding such leg al issues “i s a c o r e r esponsibility o f appellate courts, and requiring appellate courts to decide such i s s u e s i s not an undue burd e n

. ” Id. Therefore, we may address them on interlocutory

appeal.

I n deciding such leg al c laims, we apply the Supreme Court’s qualified immunity standard. “Qu alified immunity attaches when an o fficial’s conduct does not violate clearly established statutory or constitutional righ t s of which a reasonable person would h ave known.” Kisela v. Hughes

, 138 S. Ct. 1 1 48, 1152 ( 2018) ( quoting W hite v. Pauly

, 137 S. Ct. 548, 551 (2017) (per curiam)). “B ecause the focus is on whether the officer h ad fair notice that her conduct was unlawful, reasonableness is j u dg ed ag ainst the backdrop o f the law at the time of the conduct.” Id. (quoting Brosseau v

. Haugen
, 5 43 U.S. 194, 198 (2004) (per curiam)). A lthoug h

we do “not require a cas e d i r e c t l y on point for a rig h t to be clearly established, ex isting precede n t m ust have placed the statutory or constitutional q uestion bey ond debate.” Id.F O S T E R V

. H E L L A W E L L 12

(quotin g P auly

, 137 S. Ct. at 551). W e may not “define clearly e stablished law at a hig h level of g enerality .” Id. at 1152 (quoting City & Cty. of San Francisco v

. S heehan

, 135 S. Ct. 1765, 1776 (2015)). Rather, the clearly e stablished law at issue “must be ‘particulariz ed’ to the facts o f the case.” P a u l y , 137 S. Ct. at 552 (quoting A n derson v. Creighton

, 483 U .S. 635, 640 (1987)); see also Mullenix v. Luna
, 136 S. Ct. 305, 308 (2015) (per curiam) (“The d ispositive
q uestion is ‘whether the violative nature of particular co n d

u c t is clearly established.’”) (quoting Ashcroft v. al-Kidd

, 563 U.S. 731, 742 (2011)). An officer cannot “have violated a clearly established rig ht unless the rig ht’s c o ntours were sufficiently definite that any r e a s onable official in the defendant ’ s s h oes w ould have understood that he was violating it.” Kisel a , 1 3 8 S. Ct. at 1 153 (quoting Plumhoff

, 134 S. Ct. at 2023). “I n other words, immunity protects ‘all but the p lainly incompetent or those who k n owing ly violate the law.’” Pauly

, 137 S. Ct. at 551 (quoting Mullenix

, 136 S. Ct. at 308).

I I I

W e turn first to Hellawell’s appeal of the district court’s denial of summary judg ment on p laintiffs’ c l a i ms that the fatal shooting o f F oster violated his F ourth Amendment rig hts and plaintiffs’ F ourteenth Amend m e n t rig hts. The district
court here concluded that g enuine issues of ma t e r i a l fact precluded s u mmary judg ment o n both the F ourth a nd F ourteent h A m endment claims, because a reasonable jury could find that Hellawell shot F oster in the back while F oster

was running away from him; that F oster was unar m e d ; a nd that F oster did not turn, bend, or look back at Hellawell in a

manner that c ould make a r easonable o fficer fear being shot.F O S T E R V

. H E L L A W E L L 13

The leg al standards for plaintiffs’ F ourth and F ourteenth Amendm en t c l a ims a

r e not in dispute. I t is clearly established law that shooting a fleeing suspect in the back violates the suspect’s F ourth Amendment rig hts. “W here the suspect poses no immediate threat to the officer and no threat
to others, the harm re s u l ting f rom failing to apprehend him does not justify the use of deadly f orce to do so.

. . . A police officer may n ot seiz e an un a r m ed, nondang erous suspect b y shooting h im d ead.” Tennessee v

. Garner
, 471 U .S. 1
, 11 (1985); see a lso Gonzalez v. City of Anaheim

, 747 F .3d 789, 793 ( 9 th Cir. 2014) (en banc). By co n trast, “[ w] h ere the officer has probable cause to believe that the suspect poses a threat of serious p h y sical harm, either to the officer or to others, it is n ot constitutionally unreasonable to prevent escape by using deadly force.” Garner
, 471 U.S. at 11. “T h us, if the suspect threatens the officer with a weapon o r there is probable cause to believe that h e h a s co mmitted a crime involving the infliction or threat e n e d infliction o f serious phy sical harm, deadly force may be used if necessary to prevent escape, a

nd if, where feasib l e, some warning has been g iven.” Id. at 11–12.

I n the F o urteenth Amendment contex t, it has been clearly established since 1998 “that a pol i c e officer violates the F o u rteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a leg itimate law enforcement objective.” A.D. v. Cal. Highway Patrol

, 712 F .3d 446, 450 (9th C i r

. 2 013). L eg itimate law enforcement o b

j e ctives include, a mong others, arrest, selfprotection, and protection of the p ubl i c

. S e e id

. at 454. A police officer lacks such leg itimate law enforcement objectives w hen the officer “had any ulterior motives for

u s i n g f orce a g ainst” the suspect, see Gonzalez

, 747 F .3d a t 797, such as “ to bully a suspect or ‘g et even,’” W ilkinson v

.F O S T E R V

. H E L L A W E L L 14

Torres
, 610 F

. 3 d 546, 554 (9th Cir. 2 010) (quoting Porter v

. Osborn

, 546 F .3d 1 131, 1140 ( 9th Cir. 2008))

, o r when an officer uses force ag ainst a clearly harmless o r subdued suspect, Johnson v. Bay Area Rapid Transit Dist. , 724 F .3d 1159, 1170 (9th Cir. 2013); see also Zion v. Cty. of Orange

, 874 F .3d 1072, 1077 (9th Cir. 2017) (holding that an officer
may have violated t h e F ourteenth Amendment when, a fter shooting the suspect multiple times at c lose rang e , the officer took “ a r u n n i n g start” and stomped on the suspect’s head multiple times in succession), c e r t. denied

, 138 S. Ct. 1548 (2018).

Rather than claim that an o ffice r i n H ellawell’s position could have r easonably thoug ht it was lawful to shoot a f leeing

, u narmed suspect in the back, Hellawell a rg ues t h at the evidence was insufficient to create a ge n u i ne issue o f materia l f act reg arding the plaintiffs’ F ourth and F ourteenth Amendment claims. According to Hella well, the district
court erred b y c onsidering the evidence supporting plaintiffs’

v ersion of e vents. Hellawell arg ues that Vallesillo’s testimony was immaterial because he was not in a p osition to

see w hether or not there was a g un and his declaration contradicted h is initial statement to the police that he did not

see the shots fired. 4 L ikewise, Hellawell arg ues that Perez ’s

4 Co n trary to Hellaw ell’ s arg u m en t, Vallesillo ’ s in itial in t erv iew w i th th e p o lice d o es n o t co n trad i ct h is earlier d eclaratio n . In h is J u l y 4 , 2 0 1 3 in terv iew

, Vallesillo stated : “ I cau g h t th e last [sh o t] f ired

, I cau g h t th e last
tw o s h o t s an d at th at tim e [Fo ster] w as f acin g aw ay [f

ro m Hellaw ell] an d still in th e sam e p o sitio n I saw h i m co m in g , lik e ru n n in g , ru n n i n g aw ay f ro m [Hellaw ell], f

acin g aw ay f

ro m [Hellaw ell], f

allin g f o rw ard o n t o h is f ace o n to th e g ro u n d .” In th e A u g u st 3 1
, 2 01 6 d eclaratio n , h e stated th at h e “ d id n ot see Mr. F o ster tu rn o r b en d to w ard s th e p o lice o f f i cer b ef ore I h eard th e g u n sh ots.” Wh ile th ese t w o statem en ts are n o t id en tical, th ey

are n o t in co n sisten t. Fu

rth er, to th e ex ten t th e tw o statem en ts co n trad i ctF O S T E R V

. H E L L A W E L L 15

Aug ust 31, 2 016 declaration is not entitled to w eig ht because it contradicted his April 1, 2016 declaration. Hellawell contends that because the Perez a n d Vallesillo d eclarations contradict their e arlier s t at e ments, the latter declarations a re inadmissible as sham affidavits.

I nstead of rely ing on these witnesses, Hellawell a rg u es, the court should have re lied on Hellawell’s testimony

. Hellawell contends that his statement that he saw a gu n in F oster’s hand is effectively undisputed, because the witnesses’ testimony that t h e y d i d not see a g u n in F oster’s possession does no t m e an t here was no g un. According to Hellawell, he did not violate the F ourth Amendment, let alone
any clearly established law, wher e he reasonably believed F oster posed a threat o f s e r ious phy sical harm. On the F ourteenth Amendment claim, Hellawell arg ues that he was eng ag ed in a fast-moving situation and f ired his g un when he believed F oster w as turning toward him to shoot him. Thus, according to Hellawell, b ecause h is actions undisputedly served a leg itimate g overnmental objective of d e fending himself and p reventing an a rmed suspect’s escape, there was

no g enuine issue of material fact re ga r d i n g whether he h ad violated plaintiffs’ F o urteenth Amendment rig hts.

W e h ave previously rejected similar arg uments. Se e George
, 736 F. 3 d at 834–35. George involved a § 1983

ex c e ssive force claim ag ainst three sheriff’s deputies w ho fatally shot an armed homeowner. Id. a t 832–33. The district court denied the deputies’ motion for qualified immunity on the g round that there “were g e nuine d isputes of fact such that

a reasonable jury could ‘ disbelieve the officer s ’ testimony ’

each o t h er, w e m u st r e s o lv e all f

actu al d isp u tes an d d raw all reaso n ab le in f eren ces in th e p lain t if

f s’ f av o r. S ee Geo r g e , 7 3 6 F.3 d at 8 3 6

.F O S T E R V

. H E L L A W E L L 16

and rely on record evidence to conclude that [ the victim] h ad
not ig n ored commands to drop the gu n , or taken other threatening measure s such a s pointing the weapon at deputies.” I

d. at 835. On appeal, the d e p uties arg ued that the dis trict court erred, because the plaintiff could not prove at trial that the homeowner d id not turn and point his g u n at deputies. Id. at 834. L ike Officer Hellawell, the defendants in that case c la i m e d “that a review of the district court’s ‘reasoning e stablishes that rather than delineating actual material disputed facts

, [ the court] comming led a gr o u p o f insig nificant discrepancies in statements’ in order to conclude that a dispute ex isted a b o u t what had transpired d uring [ the victim’s] final minutes.” I d. W e d isag reed, stating that even thoug h the o ff

i c ers u sed “the lang uag e of materiality

, their
arg ument actually g oes to the suffici e n c y of [ the plaintiff’s] evidence,” b ecause “[ a] t bottom, their contention is that [ the plaintiff] could n ot ‘prove a t tr i a l ’ that [ the victim] did not turn a nd p oint his g un at d eputies.” Id. (qu o t i n g Johnson

, 515 U.S. at 313). W e concluded that we could “not decide at this interlocutory stag e if the district court p r o p erly performed” its review o f “whether the r e i s enoug h evidence in the record for a jury to c o nclude that certain facts are true.” Id. at 835 (quoting Kinney v. W eaver , 367 F .3d 337, 3 47 (5th Cir. 2004) (en banc)).

W e decline review of Hellawell’s arg uments for the same

reason. As in George
, Hellawell challeng es the sufficiency of the plaintiffs’ evidence; he arg ues that plaintiffs will not be able to prove at trial that he shot an unarmed suspect in the back with o u t a

ny provocation in violation of the F ourth a nd F ourteenth Amendments. B ut this sort of “evidence sufficiency

” claim d oes n ot raise a leg al question. Johnson

, 515 U.S. a t 3 1 4

. We may not reweig h the evidence to evaluate whether the district court properly d etermined thereF O S T E R V

. H E L L A W E L L 17

was a ge n u i n e issue of material fact, and therefore may “neither credit [ H ellawell’s] testimony that [F oster] turned and pointed his g un at [ Hellawell]

, nor assume that [ F oster] took o ther a ctions that would ha v e b e en objectively threatening

. ” See George
, 736 F .3d at 834, 838. And even if

we could consider Hellawell’s sham affidavit arg ument on interlocutory review, we would r eject it as meritless because the sham a ffidav i t rule a pplies only to declarations by the parties, not to declarations by non-party witnesses like Perez and Valles i l l o

. S

e e Nelson v. City of Davis
, 571 F .3d 924, 928 ( 9th Cir. 2009) ( “The rationale underlying the sham affidavit rule is that a party oug h t not be allowed to manufacture a bog us dispute with himself to defeat summary judg ment. That concern does not necessarily apply when the dispute comes from t h e sworn deposition testimony o f another witness.”). 5

Therefore, under George
, we lack jurisdiction to consider Hellawell’s arg ument that w e should rev e rse the district court’s determination that there was a g enuine i s s u e o f material fact reg arding plaintiffs’ F our t h and F ourteenth Amendment c laims relating to Hellawe l l ’s fatal shooting o f F oster. S ee George
, 7 36 F .3d a t 835. W e therefore dismiss Hellawell’s appeal of these claims.

I V

W e now turn to the plaintiffs’ claims that Hellawell violated F oster’s F ourth Amendment rig hts by making an

5 Hellaw ell also arg u es th at th e d istrict co u rt erred in co n sid erin g th e p l a i n tif f s’ ex p ert’ s rep o rt. Ev en if th is w as an erro r, it w as h arm l e s s b ecau se o th er ev id e n c e in th e reco rd creates a g en u in e issu e o f m aterial f act.F O S T E R V

. H E L L A W E L L 18

investig ative stop o f F oster and by approaching him with an unholstered g un. B ecause the f acts r elated to these claims a re undisputed, Hellawell’s appeal r a i s e s a purely leg al issue: whether, bas e d o n u

n d isputed facts, Hellawell violated clearly established law. See Plumhoff , 134 S. Ct. at 2019; Mitchell

, 4 7 2 U .S. at 5 28. Thus, we have jurisdiction to consider Hellawell’s appeal on interlocutory review.

A

A law enforcement o f

f i cer may , consistent with the F ourth Amendment, conduct a “br ief investig atory stop” o f

a suspect when the officer has “a particulariz e d and objective basis for suspecting the particular person stopped of criminal activity

. ” United States v. Corte z , 4 4 9 U.S. 411, 417–18 (1981); see also Terry v. Ohio

, 392 U .S. 1, 21–22 (1968). The “reasonable suspicion” necessary to justify such a Terry stop d epends “upon both the content of information p ossessed by police a

nd its deg ree of reliability .” A l a b a m a v. W hite

, 496 U.S. 3 25, 330 (1990). I n apply ing this standard, we take into account the “totality of the circumstances.” Id. (quoting Cortez , 449 U.S. at 417).

F or an anony

mous tip to provide r easonable suspicion, the tip must contain “ s ufficient indicia of reliability

, ” W hite

, 496 U.S. a t 327, that “criminal activity may be afoot,” Terry
, 392 U.S. at 30 (internal quotations omitted). Thus, we must consider, b ased on the undispute d f acts, w hether it was clearly e stablished at the t i me of the incident that the tip in this case: (1) was not sufficiently reliable and (2) d id not provide information on potential illeg al activity

.

F irst, a reasonable officer in Hellawell’s position could have concluded that the 9 1 1 c a ll in this case demonstratedF O S T E R V

. H E L L A W E L L 19

“sufficient indicia of reliability to pro v i de reasonable suspicion to make [ an] investig a tory stop.” W hite , 496 U.S.
at 327. One factor supporting the reliability of a tip is that the tipster claims ey ewitness knowledg e, c oupled with sufficient detail in his description. Illinois v. Gates
, 462 U.S. 213, 234 (1983) (stating that the t ipster’s “ex plicit and detailed description of alleg ed wro n g doing

, along with a statement that the event w a s o b s erved first-hand, entitles h is tip to g reater w eig ht than mig ht otherwise be the case”). A second factor s u p porting the reliability of the tip is that it predicts a suspect’s future actions. Thus, W hite held that a

n anony mous tip had sufficient indici a o f r eliability to support reasonable suspicion in p art because “ the anony mous [tip ] c ontained a

ran ge o f details relating not just to easily obtained f acts a nd conditions ex isting at the time of the tip, but to future actions of third p arties ordinarily not easily predi c t ed.” 496 U.S. at 332 (alteration in orig inal) (quoting Gates
, 462 U.S. at 245). W hite d ifferentiated between a c aller’s description o f a c ar parked in front of an apartment building

, which any one could have “predicted” because it was ex istin g at the time of the call, and a caller’s ability to predict that t h e s uspect would drive along a particular route. Id. B ec a u s e t he tipster correctly predicted the sus pect’s movement, a police officer could reason ab l y c onclude that there was some d eg ree o f reliability to the tipster’s claim that the suspect was eng ag ed in criminal activity

. Id. at 331–32. F inally , a caller’s use o f

a 911 number makes the tip more credible because a 911 c all

can be recorded and c allers can be traced. See Florida v. J.L.
, 529 U.S. 2 6 6
, 275–76 (2000) (Kennedy

, J
., concurring ); United States v

. Terry-Crespo
, 356 F .3d 1170, 1175–76 (9th Cir. 2004). I n addition, 911 calls are more credible “ because the police must take 911 emerge n c y calls seriously a nd respond with dispatch,” when compared t o non-emerg encyF O S T E R V

. H E L L A W E L L 20

t ips concerning “g eneral criminality .” Terry-Cresp o , 356 F .3d at 1176.

The tip in this case had several indicia of reliability

. F irst, the tipster made a recorded 911 call. See id. at 1 175–76. The tipster also claimed ey ewitness knowledg e of the con c ealed handg un a

nd provided ex plicit detail about his observations, including that he personally observed the s u s p ect taking out his g un in a m a n n e r “let[ ting ] people k now w ho he is.” See Gates
, 462 U.S. at 234. F inally

, t h e tipster stated that the suspect was wal k i n g down Hig h way 111 in the direction o f the Subway and the smoke shops. W hether this was a prediction or merely a

n observation is unclear, but Hellawell corroborated this statement w hen h e encountered the suspect at the specified location. See W hite , 496 U.S. at 331–32.

The plaintiffs arg u e that Florida v. J.L

. clearly establishes that a reasonable officer should not have rel i e d on the 911 call in this case because it lacked the necessary indicia o f reliability

. I n J.L.
, the police received an anony mous tip that “a y oung black male standing at a particular bus stop a nd wearing a p laid shirt was carry i n g a g un.” 529 U.S. at 268. An officer arrived a t the b u s s t o p , frisked J .L
., a nd seiz ed a g un from h is pocket

. I

d

. T he Court held that the tip lacked “the moderate indicia of reliability ” necessary to g ive rise to reasonable suspicion. Id. at 271. I n reaching this conclusion, the Court noted that “[ a] ll the police had to g o on in this case

was the b are report of an u nknown, unaccountable informant

w h o neither ex plained how he knew about the g u n n or supplied any basis for belie v i n g h e had inside information about J .L .” Id. at 271. Moreover, the tip its e l f consisted

mer e ly of “[ a] n accurate description of a subject’s readily observable location and a ppearance” and did n ot “show thatF O S T E R V

. H E L L A W E L L 21

the tipster has knowledg e of c oncealed criminal activity .” Id. at 272.

Given the body of Supreme C o urt case law in ex istence
at the time of the incident here, we cannot say that J .L. would have made it clear to a r easonable officer in Hellawell’s position that th e 9 1 1 call r eg arding F oster lacked sufficient indicia of reliability or p laced this question “bey ond debate.” Se e Kisela

, 138 S. Ct. a t 1152 (quoting Pauly

, 137 S. Ct. at 551). J.L. emphasiz ed that the t i p ster in that case had not indicated the basis for his tip and h a d reported mere observations. 5 29 U.S. at 271. B ut here the tipster ex p lained the b asis of his knowledg e, predicted the suspect’s route, a nd

m a d e t he tip via a recorded 911 call. A reasonable offic e r could rely on these facts when assessing the tip’s reli ability

. See J.L.
, 529 U.S. a t 274–7 6 ( K e nnedy

, J
., concurring ); Terry-Crespo
, 356 F .3d at 1175–76. F urther, in J.L. “the record d id not indicate how long the p o l i c e w aited before responding to the tip,” United States v. Fernan de z-Castillo

, 324 F .3d 1114, 1117 n.3 (9th Cir. 2003) ( d i s c ussing J.L.
, 529 U.S. at 2 68); in contrast, here Hellawell r esponded within minutes.

According ly

, althoug h the facts in J.L. are similar to the facts in thi s case, they are not identical, and other Supreme Court d ecisions provi d e a b asis for a reasonable officer to conclude that the 911 call in this case had sufficient indicia o f reliability

. This c o nclusion is confirmed by t h e S u p reme Court’s subsequent determination in Navarette v

. California

, which disting u ished J.L. o n s i m ilar g rounds to the ones at issue h ere. 572 U.S. 393, 3 97–400 (2014). I n Navarette
, the Court h eld that an anony mo u s tip has sufficient indicia o f reliability to provide reasonable sus picion when the tipster accurately p redicts a di rection of travel, the tip is madeF O S T E R V

. H E L L A W E L L 22

“contemporaneous[ ly ] with the observation of crimin al activity

, ” and the tip is made on the 911 sy stem. Id. at 400.

Second, a r easonable officer in Hellawell’s position could have concluded that the tip in this case provided information

o n p o t ential illeg al activity

. W here state law makes it
g en erally unlawful to carry a concealed weapon w ithout a permit, a tip th a t a p erson is carry ing a concealed firearm

ra i s e s a reasonable suspicion of potential criminal a ctivity

, even if the tip does not state that the person is carry ing the firearm illeg ally or is abo u t to commit a crime. See United States v. W

oods

, 747 F .3d 552, 5 56 (8th Cir. 2 014) (“Considering Missouri law, and based on the call that there

was an indiv i d ual carry

ing a concealed weapon that h ad

e x ited the bus, the officers had reason to believe cri m i n al activity was a fo o t.”); United States v. Gatlin

, 613 F .3d 374, 378 (3rd Cir. 2010) (“[ W ] e hold that reasonable suspicion

e x isted in this case b ased solely on the reliable ti p f r o m a known informant b ecause carry ing a conceal ed h andg un is presumptively

a crime in Delaware.”). 6

6 U n p u blish ed au th o rity f

u r t h er b o l sters o u r co n clu sio n t h at a

reaso n ab le o f

f icer co u ld co n sid er th e 9 1 1 call in th is case to h av e

su f f icien t in d icia o f reliab i lity

. S e e Un ited S ta tes v. Bia s , 3 5 2 F. A p p ’ x 1 6 2
, 1 6 3 (9 th Cir. 2 0 0 9 ) (h o ld in g th at th e fact th at a “ Terry sto p w as

co n clu d ed i n a co u n ty in w h ich less th an 1 % o f t

h e p o p u latio n h ad a p erm i t to carry a co n cealed w eap o n ” co n trib u ted to reaso n ab le su sp icio n th at a perso n w as carry in g a co n c e a l ed w eap on an d po sed a th reat of crim in al activ i ty ); Un ited S t a tes v. Mo n ta gu e , 4 3 7 F. A p p ’ x 8 3 3
, 8 3 5

– 3 6 (1 1 th Cir. 2 0 1 1 ) (p er cu riam ) (rej ectin g th e a r g u m en t th at “ th e o f f icers

co u ld n o t h av e reaso n ab l y su sp ected th at [d ef en d a n t] w as en g ag in g in crim in al activ ity b ecau se u n d er Flo rid a law it is n o t illeg al to p o ssess a

co n cealed w eap o n i f th e carrier h as a p e r m i t ”). W e m ay l oo k to su ch d ecisio n s w

h en d eterm in in g w

h eth er a rig h t is clearly estab lish ed an d

w h eth er reaso n ab le o ffi c i als w o u ld k n o w th eir actio n s v io lated su ch a rig h t. Priso n Leg a l News v. Leh ma n , 3 9 7 F.3 d 6 9 2
, 7 0 2 (9 th Cir. 2 0 0 5 ).F O S T E R V

. H E L L A W E L L 23

Here, California l aw “g enerally prohibits carry ing concealed firearms in public, w hether loaded or unloaded

. ” Peruta v. Cty. of San Diego
, 824 F .3d 919, 925 (9th Cir. 2016) (en banc); see a lso Cal. Penal Code § 25400 (crime o f
carry ing a concealed fire a r m), § 25850 (crime of carry ing a loaded f irearm in public). Altho u gh “ the prohibition o f § 2 5400 does not apply to those who h ave been issued licenses to carry concealed weapons,” Peruta
, 824 F

. 3d at 926, Cali f

ornia officials strictly limit the issuance o f concealed c arry permits, Cal. Penal Code § 26150(a). 7 As o f December 2 015, California h a d issued concealed carry permits to approx imately .2% of its adult population o f 2 9

. 9 million. 8 J ohn R. L ott, J r., Concealed Carry Permit Holders Ac r o s s the United States: 2016
, 17, 21, Crime Prevention Research Center (J uly 2 6
, 2016), https://ss r n

. co m/abstract=2814691. Given the insig nificant number o f concealed carry permits issued in California, a reasonable officer co u l d c onclude that there is a hig h probability that a person identified in a 9 11 call as carry in g a concealed handg un is violating California’s g un laws.

7 Calif o rn ia law ex em

p t s certain sm all g ro u

ps f ro m th e p erm i t req u irem en t, in clu d in g retired o r h on o rary p eace o f f icers, m em

b ers of th e A rm y , Nav y , A ir Fo rce, Co ast Gu ard , Marin e Co rp s, o r Natio n al Gu ard

, an d licen sed h u n ters o r f i sh erm en

. Cal. P e na l Co d e § § 2 5 4 5 0
, 2 5 6 2 0
, 2 5 6 4 0

.

8 In Riv ersid e Co u n ty in 2 0 16
, less th an .1 % o f ad u lts h ad a co n cealed
carry p erm it. S

ee B rett K e l m an , W

a n t to Ca rry a Gu n in Riversid e Co u nty? Yo u Ha ve to W

ait 2 Yea r

s Ju st to Be Co n sid

e r e d

, D e s e rt Su

n (J an

. 4, 2 0 18 ), h ttp ://w

w w .d esertsu n .co m

/sto ry /n ew s/crim e_ co u rts/2 0 1 8 /0 1 /0 4 /w an t- carry

- g u n

- riv ersid e- co u nt y -y o u -h a v e -w a i t -tw o

- y ears- j u stco n sid ered /9 9 1 7 0 4 0 0 1 /; Q u ickFa cts: Riversid e Co u n ty, Ca lifo rn ia
, U .S. Cen su s B u reau , h t tp ://w

w w .cen su s.g o v

/q u ick f acts/f act/tab le/riv ersid eco

u n ty calif orn ia/P ST 0 4 52 1 7 (last v i sited Oct. 5 , 2 0 1 8 ).F O S T E R V

. H E L L A W E L L 24

Moreover, the Supreme Court has long held th a t even factors consistent w i th innocent c o nduct may g ive rise to

reasona b l e suspicion. See United States v. Arvizu
, 534 U.S. 266, 274 ( 2002); United States v. Sokolow

, 4 90 U .S

. 1
, 9 (1989). F or instance, althoug h there is a small p ossibility that

a person transporting c o c a i n e has lawfully obtained it from the National I n stit u t e o n Drug Abuse for research purposes,

a reasonable officer c an nevertheless have a r easonable suspicion of illeg al activity when told that a person h a s been spotted transporting cocaine. L ikewise, other circuits have rejected the arg ument that the possibility a person is lawfully
carry in g a firearm precludes reasonable suspicion. See W oods

, 747 F .3d at 556; Gatlin , 613 F .3d at 378–79.

According ly

, althoug h a person ex iting a liquor store with

a concealed handg u n in his rig ht-hand pocket, walking in the direction of stores that had previously been robbed, may have had a concealed carry p ermit and been e n ga ged in innocent

a c t i vities, it would not v iolate clearly established law for a reasonable officer in H ellawell’s position to conclude that the tip, corroborated by his own observation s , g ave rise to a reasonable suspicion that the man was eng ag e d in criminal conduct. 9 Therefore, we det e r m i n e that Hellawell did not

9 We f u rth er n o te th at “ th e ex isten ce o f a statu te o r o rd in an ce

au th orizin g p articu lar co n d u ct” f av o rs “ th e co n clu sio n th at a reaso n ab le

o f f i c i al w ou ld f

in d th at co n d u ct co n stitu t io n al.” Gro ssma n v. City o f Po rtla n d

, 3 3 F.3 d 1 2 0 0 , 1 2 0 9 (9 th Cir. 1 9 9 4 ); see a lso Aco sta v. City o f Co sta Mesa , 7 1 8 F.3 d 8 0 0, 8 2 4

– 2 6 (9 th Cir. 2 0 1 3 ). Here, § 2 5 8 5 0 (b ) o f th e Calif o rn ia P en al Co de au th o rizes p olice o f f icers “ to ex am in e an y f irearm carried b y an y o n e o n th e p erso n o r in a v eh icle w h ile i n an y p u

b l ic
p lace o r o n an y p u

b lic s treet i n an in co rp o rated city o r p ro h ib i ted area of

an u n in co rp o rated territo ry .” T h eref ore, an o f f i cer in Hellaw ell’ s situ atio n

co u ld reaso n ab ly

b eliev e h e h ad au th o rity

to ex am in e an y

f i rearm Fo s terF O S T E R V

. H E L L A W E L L 25

violate clearly

established law when he concluded, based on
t h e 9 1 1 call, that he had reasonable suspicion to stop a n d investig ate F oster. See Kisela

, 138 S. Ct. at 1 1 5 2. W e

reverse the d istrict court’s conclusion that Hellawell was not entitled to qualified immunity with respect to the stop.

B

W e ne x t t u r n to the p laintiffs’ claim that Hellawell violated F os t e r’s F ourth Amendment rig hts in approaching him with a drawn g un.

I n his deposition, Hellawell testified as follows:

I don’t recall draw i n g my g un, but I do remember f

u mbling with my holster as I ran behind J ack in the B ox or on the side of J ack in the B ox

. I h o n e s t ly can’t sit there and tell
y ou when I drew it

. . . . W hether I drew it when he started to run o r when he made some ty pe of a movemen t a s he beg an to run, I mig ht have. I don’t remember. B ut I do

remem b e r

– as we ran along the west side o f J ack in the B ox , I re m e m b e r fumbling with
my holster because I w ill not run with my g un in my hand. So that’ s all I c an recall on that subject.

Similarly

, in his initial interview with the police investig ator, Hellawell stated that “ I initially had my g un out when he first started running because I believed he had a g un

m ig h t be carry in g a n d c ou ld reaso n ab l y rely o n § 2 5 8 5 0 (b ) in sto p p in g Fo ster.F O S T E R V

. H E L L A W E L L 26

– and because I don’t like to run wit h m y g un in my hand, I ended u p holstering my g u n .” There is no other evidence in the record on this issue. A lthoug h the p laintiffs arg ue in their brief on appeal that Hellawell approached F oster “with h is police firearm drawn,” and p ointed his f irearm at F oster, no evidence in the record s u pports this claim. I n addition to Hellawell’s statements , t

h e p l a i n t i f fs cite F lores’s declaration, which states only that he saw Hellawell with something in his hand d uring the chase. F lores did not see Hellawell draw his firearm as he approached F oster.

B a se d o n this record, the district c ourt erred in finding a g enuine dispute as to w hether He llawell approached F oster with his g un drawn. 1 0 The bare allegation alone, without any evidence in the record, is i n s u ff icient to conclude that Hellawell d id any

thing more than un h o l s t e r his g un during the initial encount e r w i t h F oster. T h e parties have not cited
any case holding that merely unholste ring a g un without pointing it at the suspect constitutes ex c e ssive f o rce. W e have held o nly that “

pointing a loaded g u n a t a suspect, employ ing the threat of deadly fo r c e ” may constitute

ex c e ssive force. Espinosa v. Cit y & C t y

. of San Francisco
, 598 F .3d 528, 537 (9th Cir. 2010) (emphasis added); see also Tekle v. United States
, 5 11 F .3d 839, 845 ( 9 t h C i r. 2 007) ( “ W e h ave held that the pointing of a g un a t someone may constitute ex cessive force, even if it does not cause phy sical injury .”); Robinson v

. S

olano Cty.
, 278 F .3d 1 007, 1015 (9th

10 A lth o u g h w e do n o t o rd in arily h av e j u risd ictio n o n an in terlo cu to ry ap p eal to rev iew a d en ial o f q u alif ied im m u n ity b ased o n th e ex isten ce of

a disp u ted f

act, “ [w ]h en th ere is an a lleg a t io n ab o u t t h e co n d u ct p art of th e eq u atio n , b u t in su f

f icien t evid

en ce o f th at co n d u ct to create a g en u in e issu e o f m aterial fa c t , o u r cases p erm i t rev iew .” S ee Jeffers v. Go mez , 2 6 7 F.3 d 8 9 5 , 9 07 (9 th

Cir. 2 0 0 1 ).F O S T E R V

. H E L L A W E L L 27

Cir. 2002) (en banc) ( recog niz ing “ as a g eneral principle that pointing a g un to the head of an apparently unarmed suspect during an investig ation can b e a v iolation o f t h e F ourth Amendment, especially where the i ndividual p oses no particular dang er”). Neither we nor the Supreme Court have held that merely unholstering a firearm, without more, constitutes ex cessive forc e

. The plaintiffs’ reliance on Espinosa
, Robinson

, and sim ilar decisions is unpersuasive because e ach o f those cases focuses on whether a g un was pointed a t the suspect. See, e.g.
, Espinosa
, 5 98 F .3d at 537; Tekle

, 511 F .3d at 845; Hopkins v. Bonvicino
, 573 F .3d 752, 761, 776–77 (9th Cir. 2009); Robinson , 278 F .3d at 1013.

B e cause a reasonable officer in Hellawell’s p o s i tion could reasonably conclude that unholstering a g un d u ring the s t op did not constitute a violation of F oster’s rig ht to be f ree from

ex c e ssive force, we reverse the district c o urt’s conclusion that Hellawell was not entitled to qualif i e d immunity on this point.

V

B e cause we lack jurisdiction to review Hellawell’s claim that the d istrict court e rred in d eny ing him qualified immunity for the f atal shooting of F o ster, we dismiss Hellawell’s appeal of this portion of the district c ourt’s ruling

. W e conclude that Hellawell is entitled to qualified immunity for his initial stop of F oster, and therefore reverse the d i s t r i ct c ourt’s denial o f
summary judg ment on these F ourth Amendment claims. 1 1

DISMISSED IN P ART AND REVERSED IN P ART

.

11 T h e p arties sh all b ear th eir o w n co sts o n ap p eal.F O S T E R V

. H E L L A W E L L 28

I KUTA, Circuit J udg e, dissenting :

I disag ree with the majority ’s conclusion t h a t we lack jurisdiction to consider Hel l awell’s appeal of the district court’s denial of qualified immunity for the plaintif f s’ F ourteenth A mendment c laim. H ere, viewing the e vidence in the lig ht most favorable to the plaintiffs, no r easonable jury could find that Hellawell a ct e d with a “‘purpose to harm’ [ F oster] for reasons u nrelated to leg itimate law enforcement objectives.” Gonzalez v. City of Anaheim

, 747 F .3d 7 89, 797 (9th Cir. 2014) (en banc) (quoting Porter v. Osborn

, 546 F .3d 1131, 1137 (9th Cir. 2008)).

B e cause F oster ma tched the description of an individual reportedly carry

ing a firearm in the area, there is no g enuine issue of triab l e fact as to whether Hellawell believed F oster to be armed. T he evidence in the record is cons i s t ent with Hellawell’s testimony that he used deadl y f o rce because he believed F oster was a fleeing and dang erous suspect in a crowded area on the F ourth of J u ly

.

Mo r e o v e r, the plaintiffs h ave produced no evidence that Hellawell h ad “any ulterior motives for using force ag a inst” F oster, Gonzalez

, 747 F

. 3d at 798, t h a t H ellawell “did not be l ieve h e w as responding to an emerg ency ,” Bingue v

. Prunchak

, 512 F .3d 1 169, 1177 (9th Cir. 20 0 8 )

, or that Hellawell intended to “g et even ” with F oster, W ilkinson v

. Torres
, 610 F .3d 546, 554 ( 9th Cir. 2010) (quoting Porter v

. Osborn

, 546 F .3d 1131, 1140 (9th Cir. 2 0 0 8 ))

. Any “speculation” reg arding “improper motive does not rise to the level o f evidence sufficien t to survive summary judg ment.” See G onzalez

, 747 F .3d at 798 ( quoting Karam v. City o f Burbank , 352 F .3d 1188, 1194 (9th Cir. 2003)).F O S T E R V

. H E L L A W E L L 29

B e cause, taken in the lig ht most favorabl e t o the plaintiffs, t h e undisputed facts show that Hellawell did not

v i olate the F ourteenth Amendment, Hellawell is entitled t o qualified immunity

. I would hold that we have jurisdiction to consider h is a

ppeal of t h is claim and would remand to the district court to dismiss plaintiffs’ F ourteenth A me n dment claim.