FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSA CUEVAS, 

Plaintiff-Appellant, 

and 

LETITIA TUGGLE, as Representative 

of The Estate of Quinntin Castro; 

CAMERON WARE, 

Plaintiffs, 

 v. 

CITY OF TULARE; MATT 

MACHADO, Police Chief; RYAN 

GARCIA; ANDY GARCIA; 

EDWARD PUENTE, Officer; 

DANIEL BRADLEY, Officer, 

Defendants-Appellees.

No. 23-15953 

D.C. No. 

1:19-cv-01525-

JLT-SAB 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, District Judge, Presiding

Argued and Submitted June 13, 2024
2 CUEVAS V. CITY OF TULARE

San Francisco, California 

Filed July 10, 2024 

Before: Ronald M. Gould, Richard C. Tallman, and Ryan 

D. Nelson, Circuit Judges. 

Opinion by Judge R. Nelson 

SUMMARY*

Excessive Force/Qualified Immunity

The panel affirmed on qualified immunity grounds the 

district court’s summary judgment in favor of police officers 

in an action brought pursuant to 42 U.S.C. § 1983 and 

California law alleging that the officers used excessive force 

by shooting into a vehicle following a high-speed felony 

chase, seriously injuring passenger Rosa Cuevas. 

Quinntin Castro led police on a high-speed chase and 

kept trying to flee after he got stuck in mud. A responding 

officer broke his car window to order him to stop and another 

officer put his police dog through the window. Castro 

responded by shooting—and killing—the dog, hitting the 

dog’s handler in the process. The remaining officers 

returned fire in defense of themselves and the fallen officer, 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
CUEVAS V. CITY OF TULARE 3 

ultimately killing Castro. During the gunfight, they 

accidentally hit Cuevas multiple times. 

The panel held that under clearly established Fourth 

Amendment law, Cuevas was seized. It was not clearly 

established, however, that the force the officers used was 

excessive. None of Cuevas’s cited cases clearly establish 

that officers violated her rights when they shot her while 

defensively returning fire during an active shooting. Nor 

was it obvious that the officers could not return fire after 

Castro killed their police dog and shot an officer. In 

excessive-force cases where police officers face a threat, the 

obviousness principle will rarely—if ever—be available as 

an end-run to the requirement that law must be clearly 

established.

COUNSEL

Michael J. Haddad (argued), Julia Sherwin, and Teresa 

Allen, Haddad & Sherwin LLP, Oakland, California, for 

Plaintiffs-Appellants. 

Bruce D. Praet (argued), Ferguson Praet & Sherman APC, 

Santa Ana, California; for Defendants-Appellees.
4 CUEVAS V. CITY OF TULARE

OPINION

R. NELSON, Circuit Judge:

Quinntin Castro led police on a high-speed felony chase. 

Although Castro got stuck in mud, he kept trying to flee. A

responding officer broke the car window to order him to stop 

and another officer put his police dog through the car’s 

window. Castro responded by shooting—and killing—the 

dog, hitting the dog’s handler in the process. The remaining 

officers returned fire in defense of themselves and the fallen 

officer, ultimately killing Castro. During the gunfight, they 

accidentally hit Rosa Cuevas, a passenger in the front seat,

multiple times. She survived, but she was severely injured. 

She sued under 42 U.S.C. § 1983 and California law. The 

district court granted summary judgment to defendants 

based on an erroneous finding that Cuevas was not seized for 

Fourth Amendment purposes, and alternatively, that even if 

she were seized the officers are entitled to qualified 

immunity. Because we find that the officers are entitled to 

qualified immunity, we affirm.

I

We begin by reviewing the facts in the light most 

favorable to Rosa Cuevas. A few weeks after Cuevas 

befriended Quinntin Castro in 2018,she met up with him and 

his friend, Cameron Ware. They gave Ware a ride in 

Cuevas’s car. Castro drove, Cuevas sat in the front 

passenger seat, and Ware sat in the back. 

Officer Daniel Bradley observed their car as Castro 

rolled through several intersections without stopping. 

Officer Bradley decided not to pull him over for the first 

infraction, but he started a stop after Castro turned left 
CUEVAS V. CITY OF TULARE 5

without using a blinker and rolled through another stop sign. 

Officer Bradley told dispatch that two other people were 

with Castro. 

Rather than stopping, Castro fled, driving over several 

residential lawns. This was only a misdemeanor. But as 

officers pursued him for the next four to ten miles, he drove 

recklessly, resulting in multiple near collisions with other 

drivers. Because of this, the officers intended to perform a 

typical felony stop.1 Although the police were pursuing 

Castro, no one had any reason to suspect either Cuevas or 

Ware of any wrongdoing. 

The chase ended after Castro got stuck in mud on the 

roadside. Officer Bradley’s vehicle also got stuck in the 

mud. Soon after, K-9 Officer Ryan Garcia and Officer 

Edward Puente arrived with Sergeant Andy Garcia. The 

officers surrounded Cuevas’s car as Castro kept trying to 

escape.2 But the more Castro revved the engine, the more 

Cuevas’s car sank into the mud. As this happened, Cuevas 

sat terrified in the front seat with her hands up, waiting for 

orders. 

Castro continued hitting the gas, and the officers 

repeatedly shouted at him to stop. The engine, however, was 

so loud that the officers did not believe Castro could hear 

their orders. Sergeant Garcia broke the driver’s side window 

and quickly retreated to continue ordering Castro to turn off 

the car. Once Sergeant Garcia broke the window, Castro 

1 California Vehicular Code § 2800.2, which criminalizes driving in 

wanton or willful disregard for public safety while fleeing an officer, can 

be charged as a misdemeanor or a felony.

2 The officers offer inconsistent testimony about whether Castro was in 

drive, which would have propelled him into a wheat field, or whether he 

was in reverse, which would have thrown the car into the officers. 
6 CUEVAS V. CITY OF TULARE

stopped revving the engine. Without warning, K-9 Officer 

Garcia threw his police dog, Bane, through the window with 

a command to bite Castro. 

Castro grabbed a gun from the car’s center console and 

fired at least five shots. Two hit and killed Bane. Another 

two hit K-9 Officer Garcia. Throughout the encounter, 

Cuevas sat in the front passenger seat with her hands raised. 

The officers—without warning that they would shoot 

back—returned thirty-four shots into the vehicle. Although 

they aimed for Castro, the officers hit Cuevas several times. 

Once the shooting stopped, Castro climbed out of the car’s 

passenger side, firing two additional shots. These last shots 

did not hit an officer, but one did hit Officer Bradley’s patrol 

car. Castro died at the scene. 

Cuevas sued the City of Tulare, its Police Chief Matt 

Machado, Sergeant Garcia, and Officers Garcia (who 

survived the encounter), Puente, and Bradley under 42 

U.S.C. § 1983.

3 Cuevas alleged that the officers violated her 

Fourth Amendment right to be free from excessive force, 

that the city was liable under Monell v. Department of Social 

Services of New York, 436 U.S. 658 (1978), and that Chief 

Machado was liable as the officers’ supervisor. She also 

raised a bevy of state-law claims. Tuggle v. City of Tulare, 

No. 1:19-cv-01525-JLT-SAB, 2023 WL 4273900, at *3 

(E.D. Cal. June 29, 2023). K-9 Officer Garcia and the City 

of Tulare counterclaimed against Cuevas and the other 

plaintiffs. Id. 

Cuevas and the defendants cross-moved for summary 

judgment. Id. at *1. The district court granted summary 

3 Castro’s executor and Ware were also plaintiffs, but this appeal deals 

only with Cuevas’s claims.
CUEVAS V. CITY OF TULARE 7

judgment to the defendants on the federal claims. Id. It first 

held that Cuevas’s excessive-force claim failed because 

Cuevas was never seized. Id. at *16. It then held that, even 

if the officers had seized Cuevas, it was not clearly 

established that the officers’ use of force was constitutionally 

excessive. Id. at *16–17. The district court thus concluded 

that they were entitled to qualified immunity.

Having rejected the federal claims, the district court 

declined to exercise supplemental jurisdiction over either the 

state claims or the defendants’ counterclaims. It denied 

Cuevas’s motion for summary judgment as moot. Id. at *19. 

This appeal followed.

II

We review a grant of summary judgment de novo. Waid 

v. County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023). “In 

qualified immunity cases, as in other cases, we view the facts 

in the light most favorable to the nonmoving party.” Id.

(internal quotation marks and citations omitted).

III

Qualified immunity protects government officials from 

liability 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.” Id.

(internal quotation marks and citations omitted). “A 

[g]overnment official’s conduct violates clearly established 

law when, at the time of the challenged conduct, ‘[t]he 

contours of [a] right [are] sufficiently clear’ that every 

‘reasonable official would [have understood] that what he is 

doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 

741 (2011) (alteration in original) (quoting Anderson v. 

Creighton, 483 U.S. 635, 640 (1987)). A case need not be 
8 CUEVAS V. CITY OF TULARE

“directly on point, but existing precedent must have placed 

the . . . constitutional question beyond debate.” Id.

“The dispositive question is therefore ‘whether the 

violative nature of particular conduct is clearly established’ 

in the specific context of the case.” Vos v. City of Newport 

Beach, 892 F.3d 1024, 1035 (9th Cir. 2018) (quoting 

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The Supreme 

Court has “repeatedly told courts—and the Ninth Circuit in 

particular—not to define clearly established law at a high 

level of generality.” al-Kidd, 563 U.S. at 742 (internal 

citation omitted). The “specificity” of clearly established 

law “is especially important in the Fourth Amendment 

context, where the Court has recognized that ‘[i]t is 

sometimes difficult for an officer to determine how the 

relevant legal doctrine . . . will apply to the factual situation 

the officer confronts.’” Mullenix, 577 U.S. at 12 (alteration 

in original) (quoting Saucier v. Katz, 533 U.S. 194, 205 

(2001)).

A

Cuevas argues that the district court erred in granting 

qualified immunity to the officers on her excessive-force 

claim. The Fourth Amendment protects “[t]he right of the 

people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures.” U.S.

CONST. amend. IV. The Supreme Court has interpreted that 

amendment to prevent excessive force. Scott v. Harris, 550 

U.S. 372, 381 (2007). Excessive force claims require (1) a 

seizure and (2) excessive force. See id. We first hold that, 

under clearly established law, Cuevas was seized. We then 

hold that it was not clearly established that the force the 

officers used was excessive. 
CUEVAS V. CITY OF TULARE 9

1

The district court held that Cuevas was not seized. We 

disagree.

There are two types of Fourth Amendment seizures. 

“[A]n officer seizes a person when he uses force to 

apprehend her.” Torres v. Madrid, 592 U.S. 306, 309 (2021). 

An officer can also seize a person through a “show of 

authority” that “in some way restrain[s] the liberty” of a 

person. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). For this 

latter type of stop, “there is no seizure without actual 

submission.” Brendlin v. California, 551 U.S. 249, 254 

(2007); accord California v. Hodari D., 499 U.S. 621, 626 

(1991) (“An arrest requires either physical force . . . or, 

where that is absent, submission to the assertion of 

authority.”). “Attempted seizures . . . are beyond the scope 

of the Fourth Amendment.” County of Sacramento v. Lewis, 

523 U.S. 833, 845 n.7 (1998) (discussing Hodari D., 499 

U.S. at 626 n.2). Without actual force, an officer’s pursuit 

of a fleeing felon or misdemeanant, though a “show of 

authority,” is not a seizure if the person does not “comply 

with” commands to halt. Hodari D., 499 U.S. at 629. 

Thus, when a person is pulled over by the police, that 

person is seized because she complied with a show of 

authority. Passengers in the car are seized together with the 

driver. Brendlin, 551 U.S. at 251. In 2021, we held that, as 

of 2016, it was established “that a passenger struck by a 

bullet intended to stop the driver of a vehicle” has been 

seized. Villanueva v. California, 986 F.3d 1158, 1165 (9th 

Cir. 2021). 

Under these clearly established principles, the officers 

seized Castro. True, Castro was not seized when he first got 

stuck in the mud. His repeated attempts to flee suggest that 
10 CUEVAS V. CITY OF TULARE

he did not consider himself restrained and belie that he 

submitted to the officers. But there are multiple points at 

which Castro—and therefore Cuevas—was seized after he 

became stuck in the mud. The exact point at which the 

seizure occurred is less important. 

Castro was seized, at the very least, when K-9 Officer 

Garcia put Bane through the broken window instructing him 

to bite Castro. This was a use of force. So too were the shots 

that the officers fired at Castro after he shot Bane and his 

handler. See id.at 1165. Since Cuevas was Castro’s 

passenger, she too was seized. The district court’s contrary 

conclusion was incorrect. 

2 

Because Cuevas was seized, we next turn to the 

excessive-force prong. The district court held that no case 

clearly established that the officers could not return fire at 

Castro, collaterally hitting Cuevas. We agree. And because 

“we find the clearly established prong dispositive,” we 

“exercise our discretion to resolve [the] case only on” that 

ground. Waid, 87 F.4th at 387 (internal citation omitted).

Cuevas relies on several cases to argue that her rights 

were established when the officers, returning fire at Castro, 

also shot her. None of them have facts similar enough to 

“clearly establish” that the officers used excessive force.

The first case is Boyd v. Benton County, 374 F.3d 773 

(9th Cir. 2004). There, officers executed a search warrant on 

an apartment where they believed “five to eight people,” 

including “an armed robbery suspect,” may have been

located. Id. at 777. They used “a flash-bang device . . . to 

gain entry and secure the premises.” Id. To minimize the 

risk to “someone sleeping,” the officers “determined that the 
CUEVAS V. CITY OF TULARE 11

flash-bang should be deployed against the apartment’s front 

wall and near the door.” Id. They did just that. Boyd, who 

was sleeping on the floor, “suffered burns on her forearm” 

from the flash bang. Id. at 778. We held that this violated 

Boyd’s right to be free from excessive force because, given 

the time available, they did not “consider[] alternatives such 

as a controlled evacuation followed by a search.” Id. at 779. 

But we recognized that there may be “circumstances in 

which a risk to officers’ safety would make the use of a flashbang device appropriate.” Id. Boyd thus established that a 

flash bang cannot be blindly thrown into a room with 

innocent bystanders “absent a strong governmental interest, 

careful consideration of alternatives and appropriate 

measures to reduce the risk of injury.” Id.

The material facts here differ from those in Boyd. 

Although Boyd involved a high-risk raid with armed 

suspects, the Boyd suspect was neither trying to escape nor 

shooting at the officers when Boyd herself was injured. 

Further, the officers in Boyd had the benefit of time to decide 

how to proceed—they had a plan before they deployed the 

flash bang. The officers devised that plan recognizing the 

risk that the flash bang could hurt someone in the apartment. 

And even with the benefit of time and a plan, the Boyd 

officers deployed the flash bang indiscriminately by 

throwing it into a building, meaning that they did not know 

whether they would be affecting the suspect they were 

seeking to arrest. 

By contrast, the officers here did not use force until 

Castro killed Bane and shot K-9 Officer Garcia. Boyd’s facts 

differ enough from this case that it cannot have clearly 

established that officers returning fire aimed at an armed 

suspect who has shot an officer and killed a police dog

violates the Fourth Amendment. The officers had a 
12 CUEVAS V. CITY OF TULARE

compelling interest in ensuring that Castro did not harm 

themselves or others. And they did not have time to come 

up with a better plan—they needed to act to prevent further 

harm to themselves, Cuevas, or Ware. While some bullets 

hit Cuevas, the officers were not firing indiscriminately into 

the car but were instead aiming—as best they could—at 

Castro as he moved from the front driver’s seat to the right 

passenger side during the gunfight. This is apparent because

Ware left the encounter unharmed despite being in the car 

with Castro and Cuevas. Boyd does not establish Cuevas’s

rights. 

Cuevas next cites Nelson v. City of Davis, 685 F.3d 867 

(9th Cir. 2012). There, we considered whether officers used 

excessive force against Nelson, a university student, when 

they fired a pepperball into a crowd to “clear an apartment 

complex of partying students,” including a group of 

“individuals hurling both bottles and expletives at officers.” 

Id. at 872, 883. Nelson was not in that group, and the officers 

“did not see anyone in Nelson’s group throwing bottles or 

engaging in any other threatening or dangerous behavior.” 

Id. at 880. Still, the officers shot “projectiles in the direction 

of Nelson” as he “stood in the breezeway of the apartment 

complex, attempting to leave the party and awaiting 

instruction from the officers.” Id. at 872. On these facts, we 

held that the officers violated Nelson’s right to be free from 

excessive force because the application of force was not 

“justified by the government’s interest in stopping any and 

all disorderly behavior,” particularly when the rowdy 

students could have been “dispersed by less forceful means.” 

Id. at 883.

Nelson is also distinguishable. There, while some

students were engaged in the dangerous activity of throwing 

bottles at the police, others—including Nelson’s group—
CUEVAS V. CITY OF TULARE 13

were not. They were partying. Worse, Nelson was trying to 

leave the party when he was hit. He thus posed no risk to 

the responding officers. And while the evidence shows that, 

like Nelson, Cuevas was submitting to police orders, no one 

around Nelson had done anything to harm the police that 

would have warranted a violent response. Once more, 

Castro’s firing at the officers before they returned fire in 

Cuevas’s direction is a material fact—indeed, the material 

fact—that hinders Nelson’s ability to establish Cuevas’s

rights.

Cuevas’s final case is Villanueva, 986 F.3d 1158. That

case, which was decided after the shooting here, held that it 

was “clearly established that an officer who shoots at a slowmoving car when he can easily step out of the way violates 

the Fourth Amendment” as of 2016. Id. at 1171 (citations 

omitted). We are bound by that conclusion. But that 

established rule does not control here. The car was stuck in 

the mud, and unlike in Villanueva, Castro was shooting at 

the officers. And there is no evidence that, in this intense 

scenario, any of the officers could have safely moved out of 

the way. Bullets, unlike slow-moving cars, are not so easy 

to dodge—K-9 Officer Garcia had already been hit. 

In short, none of Cuevas’s cases clearly establish that 

officers violated her rights when they shot her while 

defensively returning fire during an active shooting. Cuevas 

has not carried her burden. See Romero v. Kitsap County,

931 F.2d 624, 627 (9th Cir. 1991).

4

4 The number of shots fired does not alter our conclusion. “[I]f police 

officers are justified in firing at a suspect in order to end a severe threat 

to public safety, the officers need not stop shooting until the threat has 
14 CUEVAS V. CITY OF TULARE

B

Although it was not clearly established that the officers’ 

force was excessive, that does not end our analysis. Cuevas 

also argues that the constitutional violation was obvious. We 

are not persuaded.

Although the Supreme Court has recognized that some 

constitutional violations are so obvious that qualified 

immunity is inappropriate, it has only done so in Eighth 

Amendment cases. See generally Hope v. Pelzer, 536 U.S. 

730, 734–38 (2002); Taylor v. Riojas, 592 U.S. 7 (2020) (per 

curiam). And while our court has found an obvious 

constitutional violation in an excessive-force case, it did so 

only where officers killed a man who posed “no immediate 

threat.” Est. of Aguirre v. County of Riverside, 29 F.4th 624, 

626–27, 629 (9th Cir. 2022). As we have already explained, 

the officer in Estate of Aguirre obviously violated the 

Constitution when he “shot and killed a suspect holding a 

baseball bat because the suspect was not facing the officer, 

was holding the bat pointed downwards, and was not 

threatening anyone else when he was shot.” Waid, 87 F.4th 

at 389 (discussing Est. of Aguirre, 29 F.4th at 626–27, 629). 

But the fact that officers cannot kill a man who is not a 

threat says little about what they can do in the myriad cases 

where a suspect does pose a threat. The Supreme Court has 

instructed us that “[t]he calculus of reasonableness must 

embody allowance for the fact that police officers are often 

forced to make split-second judgments—in circumstances 

that are tense, uncertain, and rapidly evolving—about the 

ended.” Plumhoff v. Rickard, 572 U.S. 765, 777 (2014). That Castro 

continued firing shots even after he was hit makes clear that the threat 

had not ended.
CUEVAS V. CITY OF TULARE 15

amount of force that is necessary in a particular 

situation.” Graham v. Connor, 490 U.S. 386, 396–97 

(1989). Indeed, “[w]e have noted that ‘this obviousness 

principle, an exception to the specific-case requirement, is 

especially problematic in the Fourth-Amendment context.’” 

Waid, 87 F.4th at 388 (quoting Sharp v. County of Orange, 

871 F.3d 901, 912 (9th Cir. 2017)). A categorical statement 

that conduct obviously violates the Fourth Amendment “is 

particularly hard to make when officers encounter suspects 

every day in never-before-seen ways,” including “countless 

confrontations . . . that yield endless permutations of 

outcomes and responses.” Sharp, 871 F.3d at 912. For this 

reason, in excessive-force cases where police officers face a 

threat, the obviousness principle will rarely—if ever—be 

available as an end-run to the requirement that law must be 

clearly established.

With this understanding in mind, the officers’ returning 

fire was not obviously unconstitutional—even though they 

collaterally hit Cuevas. The alternative would be untenable. 

Officers would have to either not defend themselves or risk 

liability if they accidentally hit a bystander when they return 

fire. The officers are therefore entitled to qualified 

immunity.

IV

No case clearly established, and it was not obvious, that 

the officers could not return fire after Castro killed their 

police dog and shot K-9 Officer Garcia. Accordingly, the 

officers are entitled to qualified immunity.

AFFIRMED.