NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GOROSTIETA, as a personal 

representative of the Estate of Jesus Orduno 

Luviano, 

Plaintiff-Appellant, 

and 

ALEXANDRA GABRIELA ORDUNO, 

Plaintiff, 

 v. 

T. HENDRIX, CHP Officer; et al., 

Defendants-Appellees, 

and 

CASEY J. FARWICK, CHP Officer; et al., 

Defendants.

No. 19-55030

D.C. No. 

5:16-cv-02288-DOC-JDE

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Submitted May 4, 2020**

Pasadena, California

Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,*** District 

Judge.

Plaintiff Jose Gorostieta appeals from the district court’s grant of summary 

judgment in this 42 U.S.C. § 1983 action alleging that Officers Hendrix, Fakih, 

Milien, Chavez, and Cerna (Defendants) used excessive force when they fatally 

shot Jesus Zuriel Orduno Luviano. Gorostieta brings a Fourth Amendment claim 

on behalf of Luviano’s estate for excessive force, and a Fourteenth Amendment 

claim based on the deprivation of Luviano’s companionship and society. As the 

parties are familiar with the facts, we do not recount them here. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court properly granted summary judgment on Gorostieta’s 

Fourth Amendment claim. To determine whether an officer is entitled to qualified 

immunity, we ask “(1) whether there has been a violation of a constitutional right; 

and (2) whether that right was clearly established at the time of the officer’s 

alleged misconduct.” C.V. by & through Villegas v. City of Anaheim, 823 F.3d 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Barry Ted Moskowitz, United States District Judge for 

the Southern District of California, sitting by designation.
3 

1252, 1255 (9th Cir. 2016) (internal quotation marks and citations omitted). We 

may exercise our discretion to decide either prong first. Pearson v. Callahan, 555 

U.S. 223, 236 (2009). We begin with the second.

Under the second prong of the qualified immunity test, Defendants are 

entitled to judgment as a matter of law because they did not violate clearly 

established Fourth Amendment law existing “at the time of the conduct.” Kisela v. 

Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation 

omitted). As of November 2, 2014, it was not clearly established that using deadly 

force in this situation would constitute excessive force, even when viewing the 

facts in the light most favorable to Gorostieta. Because no existing precedent 

“squarely governs” the facts of this case, Defendants are entitled to qualified 

immunity. Id. at 1153.

2. The district court also properly granted summary judgment on 

Gorostieta’s Fourteenth Amendment claim. A plaintiff bringing a familial 

association claim must show that a government official’s conduct “shocks the 

conscience.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (internal 

quotation marks and citation omitted). When an officer “makes a snap judgment

because of an escalating situation, his conduct may be found to shock the 

conscience only if he acts with a purpose to harm unrelated to legitimate law 
4 

enforcement objectives.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1230 (9th 

Cir. 2013) (citing Wilkinson, 610 F.3d at 554). 

Gorostieta argues the deliberate indifference standard applies because 

“actual deliberation [wa]s practical.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 

851 (1998). The undisputed evidence shows that Defendants faced an escalating 

situation and had to make snap judgments to protect their safety, especially once 

Luviano raised his shotgun into the air. Thus, the purpose to harm standard 

applies. Gorostieta concedes he cannot meet this heightened standard, so the 

district court properly granted summary judgment.

AFFIRMED.