NOT FOR PUBLICATION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

- 55 030

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 APPEALS2 Submitted Ma y 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 Luvian o

. 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 recou nt 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 Villega s 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 designatio n.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.

U nder 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

. ” Kis ela 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 s itu ation would constitute excessive force, even when viewing the

facts in the light most favorable to Gorostiet a. 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 a n 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 law4

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

Cir. 2013) (citi ng 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) . T he undisputed evidence shows that Defendants faced a n e scalating

situation and had to make snap judgment s 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

.