FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY NEWMAKER; SUSAN

OLESEN,

Plaintiffs-Appellants,

v.

CITY OF FORTUNA; MAXWELL

SOETH; CHARLES ELLEBRECHT,

Defendants-Appellees.

No. 14-15098

D.C. No.

4:12-cv-04675-PJH

OPINION

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, Chief District Judge, Presiding

Argued and Submitted March 14, 2016

San Francisco, California

Filed November 22, 2016

Before: William A. Fletcher, Johnnie B. Rawlinson,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge W. Fletcher
2 NEWMAKER V. CITY OF FORTUNA

SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment

and remanded in a 42 U.S.C. § 1983 action in which plaintiffs

alleged that City of Fortuna police officer Maxwell Soeth

used excessive force when he fatally shot Jacob Newmaker

during an attempted arrest.

Officer Soeth maintained in the district court that he shot

Newmaker after Newmaker grabbed Soeth’s police baton. 

The panel held that summary judgment is not appropriate in

§ 1983 deadly force cases that turn on the officer’s credibility

that is genuinely in doubt. The panel determined that the

version of events offered by Officer Soeth and Sergeant

Ellebrecht to the district court was materially contradicted by

evidence in the record. The panel concluded that because this

case required a jury to sift through disputed factual

contentions — including whether the officers were telling the

truth about when, why, and how Soeth shot Newmaker —

summary judgment was inappropriate.

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

been prepared by court staff for the convenience of the reader.
NEWMAKER V. CITY OF FORTUNA 3

COUNSEL

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of

Dale K. Galipo, Woodland Hills, California, for PlaintiffsAppellants.

Nancy K. Delaney (argued) and Nicholas R. Kloeppel,

Mitchell Brisso Delaney & Vrieze LLP, Eureka, California,

for Defendants-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

Maxwell Soeth, a police officer in Fortuna, California,

fatally shot Jacob Newmaker during an attempted arrest. In

this 42 U.S.C. § 1983 case alleging excessive force, Officer

Soeth maintained in the district court that he shot Newmaker

after he grabbed Soeth’s police baton. According to Soeth,

Newmaker was standing upright and was swinging the baton

violently toward Sergeant Charles Ellebrecht at head height

when he was shot. According to Soeth, Newmaker then fell

to the ground. Soeth maintained he shot Newmaker again as

Newmaker was getting up and again swinging the baton.

The district court granted summary judgment to Officer

Soeth based on qualified immunity. Because evidence in the

record contradicts Soeth’s testimony, we reverse and remand.

I. Procedural Background

In 2012, Newmaker’s parents (“Plaintiffs”) filed this suit

against the City of Fortuna, Officer Soeth, and Fortuna Police
4 NEWMAKER V. CITY OF FORTUNA

Sergeant Ellebrecht. Plaintiffs allege that Soeth used

unconstitutionally excessive force by striking Newmaker

multiple times with his police baton and then fatally shooting

him. Plaintiffs originally asserted various federal and state

law claims, but eventually agreed to dismiss several of them,

leaving only the excessive force and substantive due process

claims against Soeth and a few state law claims against both

the City and Soeth.

After excluding some of Plaintiffs’ proffered evidence,

the district court concluded on summary judgment that

Officer Soeth was entitled to qualified immunity. Based on

Soeth’s testimony that Newmaker had taken his police baton,

the court concluded that “it was reasonable for Officer Soeth

to conclude that Newmaker might use the baton in a

dangerous way against Ellebrecht, merely by virtue of having

it in his possession.” After granting summary judgment on

the § 1983 claims, the district court dismissed the remaining

state law claims without prejudice. Plaintiffs appeal the grant

of summary judgment to Soeth.

II. Standard of Review

We review a district court’s grant of summary judgment

de novo. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047

(9th Cir. 2009). We review for abuse of discretion a district

court’s decision to exclude expert testimony and other

evidence during summary judgment proceedings. See

Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807,

813 (9th Cir. 2014).
NEWMAKER V. CITY OF FORTUNA 5

III. Discussion

Because we are reviewing a grant of summary judgment

in favor of defendant Soeth, we view the evidence in the light

most favorable to Plaintiffs. “The evidence of the nonmovant

is to be believed, and all justifiable inferences are to be drawn

in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

A. Evidence in the Record

1. Officer Soeth’s Deposition Testimony

Officer Soeth testified in his deposition that Newmaker

walked into the Fortuna Police Station at about midnight on

the morning of March 16, 2012. Newmaker told Soeth that

unidentified people had just chased him down an alley and

that he was afraid. Soeth told Newmaker that he needed

either to file a report or to leave the station. Newmaker

declined to file a report and asked for a ride home. Soeth

refused, and Newmaker left. Newmaker was acting

strangely, and Soeth thought he might be mentally impaired

or on drugs.

About two hours later, while in a patrol car, Officer Soeth

encountered Newmaker on a street in Fortuna. Newmaker

was fully clothed, wearing a jacket, but shoeless. Newmaker

told Soeth that he was going to the hospital and asked for a

ride to his mother’s house. Soeth refused to give Newmaker

a ride, but followed Newmaker until he arrived at his

mother’s house and went inside. A check with dispatch to

determine whether Newmaker was on probation or parole or

had any outstanding warrants came up negative.
6 NEWMAKER V. CITY OF FORTUNA

At about 6:00 a.m. that morning, Officer Soeth received

a call at the station about a “male subject . . . banging on the

doors and windows of an occupied dwelling.” While Soeth

went in his patrol car to investigate, Sergeant Ellebrecht

spoke to the caller, who reported that the subject had left on

a bicycle. The caller stated that the subject had said his “skin

was crawling” and “[t]hat he was in contact with radiation.” 

Ellebrecht relayed this information to Soeth. Soeth

encountered Newmaker on a bicycle at an intersection. 

Newmaker was no longer wearing his jacket. Soeth

attempted a stop, but Newmaker rode away.

Officer Soeth followed Newmaker and “called out” a

pursuit. After about two blocks, Newmaker got off his

bicycle and started running. Soeth got out of his patrol car

and pursued on foot. Newmaker turned around and came

back toward Soeth. Soeth ordered Newmaker to get on the

ground. Newmaker responded by lying on the hood of a

parked car. Soeth ordered Newmaker to get on the ground

and show his hands. When Newmaker did not comply, Soeth

physically forced him to the ground.

Officer Soeth stated in his deposition that he again

ordered Newmaker to show his hands. When Newmaker did

not comply, Soeth used his Taser in “drive” mode (without

darts) to stun Newmaker in the lower back. Soeth stated that

Newmaker reacted by grabbing the Taser with one hand and

Soeth’s leg with the other. Soeth stepped back, and

Newmaker got up and ran away. Soeth again pursued

Newmaker on foot. At some point, Newmaker had lost his

pants. He was now naked from the waist down and wearing

only a t-shirt. He had no weapon.
NEWMAKER V. CITY OF FORTUNA 7

Officer Soeth stated in his deposition that Newmaker

stopped running and assumed a “fighter’s stance.” Soeth

pointed his Taser at Newmaker and told him to get on the

ground. When Newmaker failed to comply, Soeth fired the

Taser in “probe” mode (with darts). The darts hit Newmaker

in the torso, and he fell onto his back. Soeth ordered

Newmaker to roll on his stomach and put his hands on his

back. When Newmaker failed to comply, Soeth activated

another Taser cycle. Newmaker grabbed the Taser wires and

bit through them.

Sergeant Ellebrecht, who had just arrived in a separate

patrol car, joined Officer Soeth in the attempt to subdue

Newmaker. Officer Soeth stated in his deposition that he hit

Newmaker twice with his police baton to prevent him from

getting up, although video from Ellebrecht’s dashboard

camera shows a greater number of strikes. Soeth stated that

he then tried to close the baton to put it back in its holster, but

he could not do so. He threw the baton to the edge of the

sidewalk next to a fence. Ellebrecht succeeded in

handcuffing Newmaker’s right wrist. Soeth and Ellebrecht

then dragged Newmaker onto the street behind a parked car,

out of view of the dashboard camera. What happened next is

at the core of this case.

The video taken by the dashboard camera shows Officer

Soeth going to retrieve his baton from beside the fence and

then returning behind the parked car. Soeth stated in his

deposition that he intended to use the baton to pry

Newmaker’s left arm free so Ellebrecht could handcuff his

left wrist. Soeth stated that Newmaker grabbed the baton and

that he shouted, “He’s got my baton.” According to Soeth,

Newmaker stood up and swung the baton “violently” and

“aggressively” at Ellebrecht’s head. Soeth stated in his
8 NEWMAKER V. CITY OF FORTUNA

deposition that he then drew his firearm and told Newmaker

to drop the baton. Soeth stated that he then shot Newmaker

from a standing position in order to protect Ellebrecht. Soeth

stated that Newmaker fell to the ground, either because he

was shot or because he “was swinging so violently that he

fell.” Soeth stated that he shot Newmaker again as he was

getting up and starting to swing the baton again. Soeth

estimated that the time between the two shots was “[t]wo

seconds tops” and could have been less than a second. The

shots killed Newmaker.

2. Carol Harris’s Declaration

A witness to the encounter, Carol Harris, provided a

sworn declaration. Harris stated that she lived “directly to the

south” of where Officer Soeth and Sergeant Ellebrecht were

attempting to subdue Newmaker. She did not specify how far

away she was. She stated that she “exited [her] residence and

stood on the front porch from where [she] observed a man

fighting in the street with officers[.]” She stated that she

“either blinked or looked away for a moment.” When she

“looked back,” one of the officers had drawn his gun and

stated, “‘Put the weapon down.’” That officer “again stated,

‘Put the weapon down, put the weapon down.’” Harris stated

that she “saw two muzzle flashes from the gun . . . ,

approximately two seconds apart[.]” “After the male was

transported by ambulance from the scene, [she] observed

items in the roadway, including one that had a handle and

appeared to be ‘telescoped’ out[.]”
NEWMAKER V. CITY OF FORTUNA 9

3. Evidence Conflicting with Officer Soeth’s Testimony

a. The Hislop Interviews

The day after the shooting, Officer Soeth and Sergeant

Ellebrecht were interviewed by Investigator Michael Hislop

of the Humboldt County District Attorney’s Office,

accompanied by a detective from the Fortuna Police

Department. Before the interviews, Soeth and Ellebrecht had

viewed the dashboard camera video. Only after receiving

suggestions from Investigator Hislop did Soeth and

Ellebrecht arrive at the version of events they ultimately

presented to the district court.

At the beginning of his first interview, Officer Soeth gave

the following description of what happened after he and

Sergeant Ellebrecht dragged Newmaker behind the parked

car:

I run back to the sidewalk, grab my baton,

get towards the subject, go to initiate that

move, that technique [of using the baton as a

tool to pry Newmaker’s left hand], he jerks

his right hand out of [Ellebrecht’s] grasp. 

Latches onto my baton with both hands. I

latch onto my baton with both hands. We

struggle. Charles yells, ‘Pepper spray him.’ 

I said, “He’s get — he’s getting my baton.”

He jerks the batons [sic] out of my hand. 

I yell, “He’s got my baton.” I create distance

between me and him. Draw my weapon, my

firearm. He is — he has the baton in both
10 NEWMAKER V. CITY OF FORTUNA

hands and he’s — he’s just swinging it back

and forth towards Charles.

He takes a step or two towards Charles. 

I’m ordering him to drop it. . . . Giving . . .

him orders to comply.

I shoot him twice. Subject drops.

Soeth stated that Newmaker was “aggressively swinging [the

baton] towards Charles” at about “head height” when he shot

him.

Near the end of the interview, Investigator Hislop

suggested to Officer Soeth that it might not have happened

the way Soeth had initially described it, with Newmaker

falling to the ground only after Soeth had shot him twice:

Investigator Hislop: Okay. So you shot two

shots and — let’s go back to that real quick. 

You shot two shots. And on the videotape

which you’ve watched . . .

. . .

[He’s] doing this big overt swing towards

Sergeant Ellebrecht. You shoot him. And

then he falls down and he’s getting back up

again. And then you shoot him again?

Maxwell Soeth: After seeing the video, I —

I believe that is what happened.

. . .
NEWMAKER V. CITY OF FORTUNA 11

Investigator Hislop: Okay. Good. Anything

else?

In his deposition approximately one year later, Soeth repeated

the version of events suggested by Investigator Hislop.

Investigator Hislop next interviewed Sergeant Ellebrecht. 

Ellebrecht stated early in the interview, “I knew he had

Soeth’s baton. And at that point, I saw him, like, swing at

me. And I remember backing up trying to get away from

him. And then that’s when Soeth fired.” “It was head

high. . . . And it was a full swing, so definitely head high at

some point.” Ellebrecht remembered two shots, resulting in

Newmaker on his knees:

Investigator Hislop: Okay. So once Jacob

[Newmaker] swung at you with the baton and

you backed up, what happened right after

that?

Charles Ellebrecht: That’s when Officer

Soeth who was a little bit away from

Newmaker at that point. I don’t know at what

point he backed up. But he — I saw his gun

and I remember him firing two shots.

. . .

Investigator Hislop: What happened to Jacob

after that?

Charles Ellebrecht: He was on his knees[.]
12 NEWMAKER V. CITY OF FORTUNA

Investigator Hislop then suggested to Ellebrecht the same

sequence of events that he had suggested to Officer Soeth:

Investigator Hislop: You watched the video

and in how he kind of lunges. There’s a large,

like, lunge as you’re backing up.

Charles Ellebrecht: I think it was right at —

right at the same time Newmaker began

swinging.

Investigator Hislop: Okay. And the second

shot —

Charles Ellebrecht: It was like less than a

second later, if I recall correctly. Like, it was

pretty much back to back as much as I can

remember.

Investigator Hislop: Okay. Now if — if you

referred back to the video if you can, so when

he does the big lunge and then he gets shot

and it looks like he way over-extended and he

fell.

Charles Ellebrecht: He —

Investigator Hislop: He fell and then again

didn’t seem like it stopped him. He fell and

then he started to get back up again.

Charles Ellebrecht: That, I think is — that

might be when Soeth —
NEWMAKER V. CITY OF FORTUNA 13

Investigator Hislop: Would it be possible that

he shot once while he swung at you and then

when he fell, he got back up and Soeth shot

again?

Charles Ellebrecht: It’s possible.

Investigator Hislop: Okay. Okay.

Charles Ellebrecht: I don’t remember.

Investigator Hislop interviewedSergeantEllebrecht again

a month later, on April 19. At the end of the first interview,

Ellebrecht had said only that it was “possible” that Newmaker

had fallen to the ground between shots. Ellebrecht was still

hesitant in the second interview, but he now recited,

unassisted, the version of events that had been suggested by

Hislop:

Once Newmaker got the baton from

Soeth, I guess he turned — he was kind of

facing towards me. And I remember him,

like, coming down with it at me. And that’s

when I — I tried backing up when he was

swinging it at me.

And then my recollection is that’s when

Soeth fired the first shot. And I’m not one

hundred percent positive.

And then I remember Newmaker falling

down, down to his knees, I guess. And then

seeing another shot. I — I think after the
14 NEWMAKER V. CITY OF FORTUNA

second shot, he started to get up. He fell. I

remember him falling and trying to get up.

And then I guess the second shot went off,

he tried to get up again. And then shortly

later that’s when he, like fell forward, like, on

the pavement and had the baton.

b. The Autopsy Report

The report from the autopsy performed on Newmaker’s

body conflicts with Officer Soeth and Sergeant Ellebrecht’s

version of events. When Investigator Hislop initially

interviewed Soeth and Ellebrecht, no autopsy had been

performed. The autopsy, performed three days later, showed

that two bullets killed Newmaker. They both entered his

lower back and traveled at thirty degree angles upward

toward his chest. One bullet entered the left lower back,

broke a rib, traveled through the left lung, and lodged in the

left pectoral muscle. The other entered the right lower back,

traveled through the lower right lung, lacerated two lower

thoracic vertebrae, and lodged in the descending right aorta.

The video from Sergeant Ellebrecht’s dashboard camera

and Officer Soeth’s own statements make plain that Soeth

was standing upright, holding his gun at about chest level,

when he shot Newmaker. Soeth claimed that he fired the first

shot when Newmaker was standing upright, swinging the

baton violently toward Ellebrecht, and the second shot as

Newmaker was getting up off the ground, again swinging the

baton. The autopsy report contradicts Soeth’s testimony. 

The autopsy results can be explained only by Newmaker

having been turned away from Soeth, bending over, and low

to the ground in both shots — not, as Soeth maintains,
NEWMAKER V. CITY OF FORTUNA 15

standing up and swinging the baton at head height (the first

shot) or attempting to stand up and swinging the baton again

(the second shot).

c. The Video

The video taken by Sergeant Ellebrecht’s dashboard

camera is also inconsistent with Officer Soeth’s version of the

events. Plaintiffs had the video “enhanced” in an attempt to

improve the lighting and image quality. The district court

had before it both an “enhanced” and “unenhanced” version

of the video. We rely for our analysis on the unenhanced

version.

The quality of the video is poor, as the recording was

made a little after 6:00 a.m., while it was dark and raining. 

The dashboard camera was supposed to record sound, but for

reasons that are unexplained, none has been preserved. The

following can nonetheless be discerned. After Newmaker has

bitten through the Taser wires, Officer Soeth and Sergeant

Ellebrecht struggle with him on the sidewalk. The video

shows Soeth hitting Newmaker about five times with his

baton while still on the sidewalk. (During his deposition,

Soeth stated that he hit Newmaker two times.) Ellebrecht

succeeds in handcuffing Newmaker’s right wrist. Soeth and

Ellebrecht drag Newmaker off the sidewalk onto the street

behind a parked car. Ellebrecht’s patrol car is in front of the

parked car, and what happens on the ground behind the

parked car cannot be seen in the video. Soeth goes to the

fence, on the left-hand side of the video screen, to retrieve his

baton. He returns with the baton to the rear of the parked car

and disappears from sight. Soeth’s head appears briefly,

rising high enough behind the parked car that it can be seen. 

Ellebrecht stands, and then Newmaker comes into view. He
16 NEWMAKER V. CITY OF FORTUNA

rises behind the car, and almost immediately twists and falls

toward the right, onto the street. There is nothing clearly

visible in his hands. After he has fallen, only his legs are

visible on the video. The rest of his body is off the screen to

the right. At 06:17:44 on the videotape clock, just after

Newmaker has fallen to the street, Soeth appears to shoot.

d. Internal Inconsistencies in the Defendants’ Statements

Officer Soeth’s and Sergeant Ellebrecht’s statements are

inconsistent with one another on several points. They

disagreed over the number of times Newmaker swung the

baton. Soeth stated that Newmaker “aggressively” and

“violently” swung the baton multiple times, while Ellebrecht

stated that Newmaker swung the baton only once. They also

offered conflicting testimony about what happened to the

baton after Newmaker was shot. Soeth stated that Newmaker

fell to the ground with a baton in his hand and that Ellebrecht

later kicked the baton away from Newmaker. Ellebrecht

originally did not remember Newmaker having the baton in

his hand after being shot. He later remembered Newmaker

with the baton, but denied kicking the baton away. A

photograph taken after the shooting shows the baton lying

several feet away from where Newmaker fell.

B. Summary Judgment Is Inappropriate

The district court granted summary judgment because of

qualified immunity. Qualified immunity analysis entails a

two-pronged inquiry. Tolan v. Cotton, 134 S. Ct. 1861, 1865

(2014). First, we “ask[] whether the facts, ‘taken in the light

most favorable to the party asserting the injury, . . . show the

officer’s conduct violated a federal right.’” Id. (alterations

omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). 
NEWMAKER V. CITY OF FORTUNA 17

Second, we “ask[] whether the right in question was ‘clearly

established’ at the time of the violation.” Id. at 1866 (citing

Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

Plaintiffs maintain that Officer Soeth violated

Newmaker’s clearlyestablished Fourth Amendment rights by

using excessive, and ultimately deadly, force. Excessive

force claims are analyzed under a Fourth Amendment

reasonableness inquiry. Graham v. Connor, 490 U.S. 386,

395 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985). In

conducting this analysis, a court must balance the severity of

the intrusion on the individual’s Fourth Amendment rights

against the government’s need to use force. Graham, 490

U.S. at 396; Espinosa v. City & Cty. of San Francisco, 598

F.3d 528, 537 (9th Cir. 2010). Relevant factors include “(1)

the severity of the crime; (2) whether the suspect posed an

immediate threat to the officers’ or public’s safety; and (3)

whether the suspect was resisting arrest or attempting to

escape.” Espinosa, 598 F.3d at 537. The second factor —

whether the suspect posed an immediate threat — is the most

important. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

2011). Deadly force is not permitted “[w]here the suspect

poses no immediate threat to the officer and no threat to

others.” Garner, 471 U.S. at 11; see also Espinosa, 598 F.3d

at 538.

We hold that the district court erred in granting qualified

immunity to Officer Soeth. Summary judgment is not

appropriate in § 1983 deadly force cases that turn on the

officer’s credibility that is genuinely in doubt. Gonzalez v.

City of Anaheim, 747 F.3d 789, 791 (9th Cir. 2014); see also

C.V. v. City of Anaheim, 823 F.3d 1252, 1256 (9th Cir. 2016);

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Wilson v.

City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002). 
18 NEWMAKER V. CITY OF FORTUNA

Qualified immunity should not be granted when other

evidence in the record, “such as medical reports,

contemporaneous statements by the officer[,] the available

physical evidence, [and] any expert testimony proffered by

the plaintiff” is inconsistent with material evidence proffered

by the defendant. Scott, 39 F.3d at 915; see Gonzalez, 747

F.3d at 791.

The version of events offered by Officer Soeth and

Sergeant Ellebrecht to the district court is materially

contradicted by evidence in the record. Their versions of

events changed over time. The version they presented to the

district court was suggested to them by Investigator Hislop. 

Both their original version of events (that Officer Soeth shot

Newmaker twice in quick succession while he was standing

up and swinging the baton at Ellebrecht) and their second

version of events (that Officer Soeth first shot while

Newmaker was standing and swinging the baton, and quickly

shot again as Newmaker attempted to stand back up while

swinging the baton) conflict with the autopsy report and with

the video evidence. A reasonable jury could conclude that

Soeth and Ellebrecht were wrong when they claimed that

Newmaker grabbed the baton. In the alternative, a reasonable

jury could conclude, given the trajectory of the bullets

through Newmaker’s body, that even if Newmaker had

grabbed the baton Officer Soeth could not have fired his first

shot while Newmaker was standing up and swinging the

baton. See Curnow v. Ridgecrest Police, 952 F.2d 321, 322,

325 (9th Cir. 1991) (holding that officers were not entitled to

qualified immunity for shooting a suspect who was holding

a semiautomatic rifle when the suspect’s back was to the

officers and the suspect was not pointing the rifle at them);

Ting v. United States, 927 F.2d 1504, 1508, 1511 (9th Cir.

1991) (holding officers were not entitled to qualified
NEWMAKER V. CITY OF FORTUNA 19

immunity because, although the suspect was originally armed

with a gun, the plaintiff’s version of events suggested that the

officers shot “an unarmed and injured felon lying or kneeling

on the floor surrounded by five heavily armed agents”). 

Because this case “requires a jury to sift through disputed

factual contentions” — including whether the officers were

telling the truth about when, why, and how Soeth shot

Newmaker — summary judgment was inappropriate. Santos

v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

Conclusion

Based on the foregoing, we reverse the decision of the

district court and remand for further proceedings.

REVERSED and REMANDED.