FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF DANIEL HERNANDEZ, 

by and through successors in interest, 

Manuel Hernandez, Maria Hernandez 

and M.L.H.; MANUEL 

HERNANDEZ, individually; MARIA 

HERNANDEZ, individually, 

Plaintiffs-Appellants, 

and 

M. L. H., a minor, by and through her 

guardian ad litem Claudia Sugey 

Chavez, 

Plaintiff, 

 v. 

CITY OF LOS ANGELES; LOS 

ANGELES POLICE DEPARTMENT; 

TONI MCBRIDE, 

Defendants-Appellees.

No. 21-55994 

D.C. Nos. 

2:20-cv-04477-

SB-KS 

2:20-cv-05154-

DMG-KS 

OPINION
2 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

M. L. H., a minor, by and through her 

guardian ad litem Claudia Sugey 

Chavez, 

Plaintiff-Appellant, 

and 

ESTATE OF DANIEL HERNANDEZ, 

by and through successors in interest, 

Manuel Hernandez, Maria Hernandez 

and M.L.H.; MANUEL 

HERNANDEZ, individually; MARIA 

HERNANDEZ, individually, 

Plaintiffs, 

 v. 

CITY OF LOS ANGELES; LOS 

ANGELES POLICE DEPARTMENT; 

TONI MCBRIDE, 

Defendants-Appellees.

No. 21-55995 

D.C. Nos. 

2:20-cv-04477-

SB-KS 

2:20-cv-05154-

DMG-KS 

Appeal from the United States District Court

for the Central District of California

Stanley Blumenfeld, Jr., District Judge, Presiding
 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 3 

Argued and Submitted March 2, 2023 

Pasadena, California

Filed March 21, 2024 

Before: Milan D. Smith, Jr., Daniel P. Collins, and 

Kenneth K. Lee, Circuit Judges. 

Opinion by Judge Collins 

SUMMARY*

Deadly Force/Qualified Immunity

The panel affirmed the district court’s grant of summary 

judgment to the City of Los Angeles, the Los Angeles Police 

Department (“LAPD”), and Officer McBride on plaintiffs’ 

federal claims, and reversed the district court’s grant of 

summary judgment on several of plaintiffs’ state law claims 

in plaintiffs’ 42 U.S.C. § 1983 action arising from the 

shooting death of Daniel Hernandez during a confrontation 

with LAPD officers.

Affirming the district court’s grant of summary 

judgment to McBride, the officer who shot Hernandez, on 

plaintiffs’ Fourth Amendment excessive force claim, the 

panel held that although a reasonable jury could find that the 

force employed by McBride in firing her fifth and sixth shots 

at Hernandez was excessive, she was nonetheless entitled to 

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

been prepared by court staff for the convenience of the reader.
4 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

qualified immunity because McBride did not violate clearly 

established law. 

Affirming the district court’s grant of summary 

judgment to all defendants on plaintiffs’ Fourteenth 

Amendment claim, the panel held that plaintiffs failed to 

show that McBride acted with a purpose to harm without 

regard to legitimate law enforcement objectives, and 

therefore there was no Fourteenth Amendment violation. 

Affirming the district court’s grant of summary 

judgment to the City of Los Angeles and the LAPD on 

plaintiffs’ Monell claim, the panel agreed with the district 

court that even if there was an underlying constitutional 

violation, plaintiffs failed to provide any basis for holding 

the City and LAPD liable for McBride’s shooting of 

Hernandez.

The panel reversed the district court’s grant of summary 

judgment to defendants with respect to plaintiffs’ state law 

claims for assault, wrongful death, and violation of the Bane 

Act. Because the reasonableness of McBride’s final volley 

of shots presented a question for a trier of fact, the district 

court erred in dismissing these state law claims based on its 

determination that McBride’s use of force was reasonable. 

COUNSEL

Gerald P. Peters (argued), Law Office of Gerald Philip 

Peters, Thousand Oaks, California; Arnoldo Casillas, 

Casillas & Associates, Long Beach, California; Denisse O. 

Gastelum, Gastelum Law APC, Long Beach, California; for 

Plaintiff-Appellants Estate of Daniel Hernandez, Manuel 

Hernandez and Maria Hernandez.
 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 5 

Narine Mkrtchyan (argued), Glendale, California; Melanie 

T. Partow, Law Offices of Melanie Partow, Long Beach, 

California; Paul L. Hoffman, Schonbrun Seplow Harris 

Hoffman & Zeldes LLP, Hermosa Beach, California; for 

Plaintiff-Appellant M.L.H. 

Kevin E. Gilbert (argued) and Carolyn Aguilar, Orbach Huff 

& Henderson LLP, Pleasanton, California; Colleen R. Smith 

and Jonathan H Eisenman, Deputy City Attorneys, Los 

Angeles City Attorney’s Office, Los Angeles, California; for 

Defendants-Appellees.

James L. Buchal, Murphy & Buchal LLP, Portland, Oregon, 

for Amicus Curiae National Police Association.

OPINION

COLLINS, Circuit Judge: 

These consolidated actions under 42 U.S.C. § 1983 arise 

from the shooting death of Daniel Hernandez during a 

confrontation with officers of the Los Angeles Police 

Department (“LAPD”) on April 22, 2020. PlaintiffsAppellants, who are the Estate, parents, and minor daughter 

of Hernandez, asserted a variety of federal and state law 

claims against the City of Los Angeles (“City”), the LAPD, 

and the officer who shot Hernandez, Toni McBride. The 

district court granted summary judgment to Defendants on 

all claims, and Plaintiffs appeal. We conclude that, although 

a reasonable jury could find that the force employed by 

McBride was excessive, she is nonetheless entitled to 

qualified immunity on Plaintiffs’ Fourth Amendment 

excessive force claim. We also hold that the district court 
6 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

properly granted summary judgment to all Defendants on 

Plaintiffs’ remaining federal claims. However, because the 

reasonableness of McBride’s force presents a triable issue, 

the district court erred in granting summary judgment on that 

basis as to certain of Plaintiffs’ state law claims. 

Accordingly, we affirm in part, reverse in part, and remand.

I

A

During the late afternoon of April 22, 2020, uniformed 

officers Toni McBride and Shuhei Fuchigami came upon a 

multi-vehicle accident at the intersection of San Pedro Street 

and East 32nd Street in Los Angeles. They decided to stop 

and investigate the situation. Video footage from the patrol 

car and from McBride’s body camera captured much of what 

then transpired.1

As the officers arrived near the intersection, they 

observed multiple seriously damaged vehicles, some with 

people still inside, and at least two dozen people gathered at 

the sides of the road. As the officers exited their patrol car, 

the car’s police radio stated that the “suspect’s vehicle” was 

“black” and that the suspect was a “male armed with a 

knife.” A bystander immediately told the officers about 

someone trying to “hurt himself,” and Fuchigami stated

loudly, “Where is he? Where’s he at?” In response, several 

bystanders pointed to a black pickup truck with a heavily 

damaged front end that was facing in the wrong direction 

1 Because no party contends these videotapes were “doctored” or 

“altered,” or that they lack foundation, we “view[] the facts in the light 

depicted by the videotape.” See Scott v. Harris, 550 U.S. 372, 378, 380–

81 (2007). However, to the extent that a fact is not clearly established 

by the videotape, we view the evidence “in the light most favorable to 

the nonmoving part[ies],” i.e., Plaintiffs. Id. at 380.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 7

near two parked vehicles on the southbound side of San 

Pedro Street. The officers instructed the crowd to get back, 

and McBride drew her weapon. One nearby driver, who was 

sitting in her stopped sedan, told McBride through her open 

car window that “he has a knife.” McBride asked her, “Why 

does he want to hurt himself?” and the bystander responded, 

“We don’t know. He’s the one who caused the accident.” 

McBride instructed that bystander to exit her car and go to 

the sidewalk, which she promptly did. McBride then 

shouted to the bystanders in both English and Spanish that 

they needed to get away. At the same time, the police radio 

announced that the suspect was “cutting himself” and was 

“inside his vehicle.” McBride then asked her partner, “Do 

we have less lethal?” Referencing the smashed pickup truck, 

McBride said, “Is there anybody in there?” She then stated, 

“Hey, partner, he might be running.”

As McBride faced the passenger side of the truck, which 

was down the street, she then saw someone climb out of the 

driver’s side window. McBride yelled out, “Hey man, let me 

see your hands. Let me see your hands man,” while a 

bystander yelled, “He’s coming out!” Daniel Hernandez

then emerged shirtless from behind the smashed black 

pickup truck, holding a weapon in his right hand. As he did 

so, Officer McBride held her left hand out towards 

Hernandez and shouted, “Stay right there!” Hernandez 

nonetheless advanced towards McBride in the street, and he 

continued to do so as McBride yelled three times, “Drop the 

knife!” While Hernandez was coming towards her, McBride 

backed up several steps, until she was standing in front of 

the patrol car.

Hernandez began yelling as he continued approaching 

McBride, and he raised his arms out by his sides to about a 

45-degree angle. McBride again shouted, “Drop it!” As 
8 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

Hernandez continued yelling and advancing with his arms 

out at a 45-degree angle, Officer McBride fired an initial

volley of two shots, causing Hernandez to fall to the ground 

on his right side, with the weapon still in his right hand. At 

the point that McBride fired at Hernandez, he was between 

41–44 feet away from her. 

Still shouting, Hernandez rolled over and leaned his 

weight on his hands, which were pressed against the 

pavement. He began pushing himself up, and he managed 

to get his knees off the pavement. As Hernandez started 

shifting his weight to his feet to stand up, McBride again

yelled “Drop it!” and fired a second volley of two shots, 

causing Hernandez to fall on his back with his legs bent in 

the air, pointing away from McBride. Hernandez began to 

roll over onto his left side, and as he did this, McBride fired 

a fifth shot. Hernandez then continued to roll over, so that 

he was again facing McBride. His bent left knee was pressed 

against the ground, and he placed his left elbow on the street, 

as if to push himself upwards. But Hernandez started to 

collapse to the ground, and just as he did so, McBride fired 

a sixth shot. Hernandez then lay still, face-down on the 

street, as McBride and other officers approached him with 

their pistols drawn. McBride’s body camera clearly shows 

that the weapon was still in Hernandez’s right hand as an 

officer approached and took it out of his hand.

2 The weapon 

turned out not to be a knife, but a box cutter with two short 

blades at the end. Starting from the point at which 

Hernandez came out from behind the truck until he collapsed 

2 M.L.H.’s assertion that Hernandez was unarmed during the latter part 

of the incident is thus “blatantly contradicted” by the videotape. Scott, 

550 U.S. at 380–81.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 9

on the ground, the entire confrontation lasted no more than 

20 seconds. All six shots were fired within eight seconds.

Hernandez died from his injuries. A forensic pathologist 

retained by Plaintiffs opined that McBride’s sixth shot—

which the pathologist concluded “more likely than not” 

struck Hernandez in the top of his head before ultimately 

lodging inside the tissues in his neck—caused “[t]he 

immediately fatal wound in [Hernandez’s] death.” The 

pathologist further concluded that “[t]he next most serious 

wound was the wound to [Hernandez’s] right shoulder that 

involved the lung and liver,” which he opined was “more 

likely than not” inflicted by McBride’s fourth shot. 

However, he stated that the shoulder wound “would not . . . 

have produced immediate death” and that “[w]ith immediate 

expert treatment, this wound alone may have been 

survivable.” In Defendants’ response to Plaintiffs’ 

oppositions to summary judgment, Defendants did not raise 

evidentiary objections to the forensic pathologist’s report, 

nor did they provide any basis for rejecting its conclusions 

as a matter of law.

B

In May and June of 2020, Hernandez’s parents (Manuel 

and Maria Hernandez) and his minor daughter (M.L.H.) 

(collectively, “Plaintiffs”) filed separate § 1983 actions

alleging constitutional violations in connection with the 

shooting death of Hernandez. Shortly thereafter, the district 

court formally consolidated the two cases for all purposes, 

and Plaintiffs filed a consolidated complaint against the City 

of Los Angeles (“the City”), the Los Angeles Police 

Department (“LAPD”), and McBride (collectively, 

“Defendants”). The operative consolidated complaint

alleged three federal claims that remain at issue in this 
10 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

appeal: (1) a Fourth Amendment excessive force claim 

brought against McBride by Plaintiffs, acting on behalf of 

Hernandez’s Estate; (2) a Fourteenth Amendment claim for 

interference with familial relations brought by Plaintiffs on 

their own behalf against all Defendants; and (3) a claim 

under Monell v. Department of Social Services of the City of 

N.Y., 436 U.S. 658 (1978), by Plaintiffs, on behalf of the 

Estate and themselves, against the City and LAPD. The 

complaint also asserted pendent state law claims for, inter 

alia, assault, wrongful death, and violation of the Bane Act 

(Cal. Civ. Code § 52.1).

In August 2021, the district court granted Defendants’ 

motion for summary judgment on all claims. The court held 

that, as a matter of law, McBride did not use excessive force 

in violation of the Fourth Amendment but that, even if she 

did, she was entitled to qualified immunity. The court also

held that McBride’s actions did not “shock the conscience” 

and that the Fourteenth Amendment claim therefore lacked 

merit as a matter of law. The court concluded that the Monell

claim failed both because there was no underlying 

constitutional violation and because, even if there were such 

a violation, Plaintiffs had not established any basis for

holding the City and LAPD liable. Finally, the court held 

that, because all parties agreed that the remaining state law 

claims for assault, wrongful death, and violation of the Bane 

Act “r[o]se or f[e]ll based on the reasonableness of Officer 

McBride’s use of force,” summary judgment was warranted 

on these claims as well.

Plaintiffs timely appealed, and we have jurisdiction 

under 28 U.S.C. § 1291. 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 11

II

We first address Plaintiffs’ claim, asserted on behalf of 

Hernandez’s Estate, that McBride used excessive force in 

violation of the Fourth Amendment.

A

A police officer’s application of deadly force to restrain 

a subject’s movements “is a seizure subject to the 

reasonableness requirement of the Fourth Amendment.” 

Tennessee v, Garner, 471 U.S. 1, 7 (1985); see Kisela v. 

Hughes, 584 U.S. 100, 103–07 (2018) (applying Fourth 

Amendment standards to a police shooting of a suspect 

confronting another person with a knife). Accordingly, any 

such use of deadly force must be “objectively reasonable.” 

Graham v. O’Connor, 490 U.S. 386, 397 (1989). 

In evaluating whether a particular use of force against a 

person is objectively reasonable under the Fourth 

Amendment, “the trier of fact should consider all relevant 

circumstances,” including, as applicable, “the following 

illustrative but non-exhaustive factors: ‘the relationship 

between the need for the use of force and the amount of force 

used; the extent of the plaintiff’s injury; any effort made by 

the officer to temper or to limit the amount of force; the 

severity of the security problem at issue; the threat 

reasonably perceived by the officer; and whether the plaintiff 

was actively resisting.’” Demarest v. City of Vallejo, 44 

F.4th 1209, 1225 (9th Cir. 2022) (quoting Kingsley v. 

Hendrickson, 576 U.S. 389, 397 (2015)). The overall

assessment of these competing factors must be undertaken 

with two key principles in mind. First, “[t]he 

‘reasonableness’ of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, 

rather than with the 20/20 vision of hindsight.” Kisela, 584 
12 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

U.S. at 103 (citation omitted). Second, “[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 amount of force that is 

necessary in a particular situation.” Id. (citation omitted).

We first consider whether, under these standards,

McBride “acted reasonably in using deadly force” at all. 

Plumhoff v. Rickard, 572 U.S. 765, 777 (2014). We agree 

with the district court that, based on the undisputed facts, 

McBride’s initial decision to fire her weapon at Hernandez 

was reasonable as a matter of law. 

The “most important” consideration in assessing the 

reasonableness of using deadly force is “whether the suspect 

posed an ‘immediate threat to the safety of the officers or 

others,’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 

2011) (en banc) (citations omitted), and here the undisputed 

facts establish that the “threat reasonably perceived by the 

officer,” Demarest, 44 F.4th at 1225 (citation omitted), was 

substantial and imminent. At the time that McBride fired her 

first shot, Hernandez had ignored her instruction to “Stay 

right there!” and instead advanced towards her while holding 

a weapon that McBride had been told repeatedly was a knife.

He did so while extending his arms out and yelling in 

McBride’s direction, and, as he continued approaching her, 

he ignored four separate commands to drop the knife. Under 

these circumstances, use of deadly force to eliminate the 

objectively apparent threat that Hernandez imminently 

posed was reasonable as a matter of law. See Hayes v. 

County of San Diego, 736 F.3d 1223, 1234 (9th Cir. 2013) 

(“[T]hreatening an officer with a weapon does justify the use 

of deadly force.”); Smith v. City of Hemet, 394 F.3d 689, 704

(9th Cir. 2005) (en banc) (“[W]here a suspect threatens an 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 13

officer with a weapon such as a gun or a knife, the officer is 

justified in using deadly force.”). While Plaintiffs 

emphasize that Hernandez was still approximately 40 feet 

away from McBride when she fired, “[t]here is no rule that 

officers must wait until a [knife-wielding] suspect is literally 

within striking range, risking their own and others’ lives, 

before resorting to deadly force.” Reich v. City of 

Elizabethtown, 945 F.3d 968, 982 (6th Cir. 2019) (holding 

that shooting of approaching knife-wielding suspect within 

six feet was reasonable and that even shooting a knifewielding suspect 36 feet away would not violate clearly 

established law). 

We also conclude, however, that the evidence in this case 

would permit a reasonable trier of fact to find that McBride 

fired three temporally distinct volleys of two shots each. See 

supra at 7–9. Indeed, there is almost a two-second pause 

between McBride’s second and third shots, and there is 

about a one-second pause between her fourth and fifth shots. 

Accordingly, even though McBride’s first volley of shots 

was reasonable as a matter of law, we must still consider 

whether she “acted unreasonably in firing a total of [six] 

shots.” Plumhoff, 572 U.S. at 777. On that score, Plumhoff

holds that, “if 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 ended.” 

Id. We have cautioned, though, that “terminating a threat

doesn’t necessarily mean terminating [a] suspect.” Zion v. 

County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) 

(emphasis added). Thus, if an initial volley of shots has 

succeeded in disabling the suspect and placing him “in a 

position where he could [not] easily harm anyone or flee,” a 

“reasonable officer would reassess the situation rather than 

continue shooting.” Id. 
14 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

Applying these principles to this case, we agree with the 

district court that the undisputed video evidence confirms 

that, at the time McBride fired the second volley of shots, the 

“threat” that Hernandez posed had not yet “ended.” 

Plumhoff, 572 U.S. at 777. Despite falling down after having

been hit by two bullets, Hernandez immediately rolled over, 

pressed his hands against the ground, and began shifting his 

weight to his feet in order to stand up. All the while, he 

continued shouting, and he still held his weapon in his hand 

despite yet another instruction by McBride to drop it. 

McBride’s third and fourth shots were thus reasonable as a 

matter of law.

However, McBride’s final volley of shots—i.e., shots 

five and six—present a much closer question. Immediately 

after the fourth shot, Hernandez was lying on his back with 

his legs in the air, pointing away from where McBride was. 

Hernandez then rolled over onto his left side such that his 

back was towards McBride. He was in that position—facing 

away from McBride and still lying on his side on the 

ground—when McBride fired her fifth shot. Although 

Hernandez was still moving at the time of that shot, he had 

not yet shown that he was in any position to get back up. 

Hernandez then continued to roll over, so that he was again 

facing McBride. As Hernandez, while still down on the 

ground, first appeared to shift his weight onto his left elbow, 

McBride fired her sixth shot. Under these circumstances, a 

reasonable trier of fact could find that, at the time McBride 

fired these two additional shots, the threat from 

Hernandez—who was still on the ground—had sufficiently 

been halted to warrant “reassess[ing] the situation rather than 

continu[ing] shooting.” Zion, 874 F.3d at 1076. A 

reasonable jury could find that, at the time of the fifth and 

sixth shots, Hernandez “was no longer an immediate threat, 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 15

and that [McBride] should have held [her] fire unless and 

until [Hernandez] showed signs of danger or flight.” Id. 

Alternatively, a reasonable “jury could find that the [third]

round of bullets was justified.” Id. On this record, the 

reasonableness of the fifth and sixth shots was thus a

question for the trier of fact, and the district court erred in 

granting summary judgment on that issue.

B

McBride alternatively contends that, even if a reasonable 

jury could find excessive force, she is nonetheless entitled to 

qualified immunity. We agree.

“The doctrine of qualified immunity shields officers 

from civil liability so long as their conduct ‘does not violate 

clearly established statutory or constitutional rights of which 

a reasonable person would have known.’” City of Tahlequah 

v. Bond, 595 U.S. 9, 12 (2021) (quoting Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (emphasis added)). In 

determining whether the applicable law is “clearly 

established,” so as to defeat qualified immunity, 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.” Kisela, 584 U.S. at 104 (citations 

and internal quotation marks omitted). Thus, “it does not 

suffice for a court simply to state that an officer may not use 

unreasonable and excessive force, deny qualified immunity, 

and then remit the case for a trial on the question of 

reasonableness.” Id. at 105. Rather, the “law at the time of 

the conduct” must have defined the relevant constitutional 

“right’s contours” in a manner that is “sufficiently definite 

that any reasonable official in the defendant’s shoes would 

have understood that he was violating it.” Id. at 104–05 

(citations omitted). 
16 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

This need for “[s]pecificity is especially important in the 

Fourth Amendment context, where the Court has recognized 

that it is sometimes difficult for an officer to determine how 

the relevant legal doctrine, here excessive force, will apply 

to the factual situation the officer confronts.” Kisela, 584 

U.S. at 104 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(simplified)). Because “[u]se of excessive force is an area 

of the law ‘in which the result depends very much on the 

facts of each case,’ . . . police officers are entitled to 

qualified immunity unless existing precedent ‘squarely 

governs’ the specific facts at issue.” Id. (emphasis added) 

(citation omitted). Here, there is no such pre-existing 

precedent that squarely governs the factual scenario 

presented here. 

In arguing that McBride violated clearly established law, 

Plaintiffs place particular emphasis on this court’s decision 

in Zion, 874 F.3d at 1075–76. That is understandable 

because, as our earlier analysis shows, the legal principles 

discussed in Zion help to elucidate why McBride’s fifth and 

sixth shots could be unreasonable under Fourth Amendment 

standards. See supra at 13–15. But there is a difference 

between concluding that Zion supports Plaintiffs’ position 

on the merits and concluding that Zion places the outcome 

of this case “beyond debate.” Kisela, 584 U.S. at 104 

(citation omitted). The Supreme Court has repeatedly 

emphasized that, in addressing whether a particular 

precedent meets that latter standard, we must take account of 

any material factual differences in that precedent that would 

preclude us from saying that it “‘squarely governs’ the 

specific facts at issue.” Id. (citation omitted); see also City 

of Tahlequah, 595 U.S. at 13–14; Brosseau v. Haugen, 543 

U.S. 194, 200–01 (2004); Ventura v. Rutledge, 978 F.3d 

1088, 1092 (9th Cir. 2020). Examination of our decision in 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 17

Zion confirms that it differs in several critical respects from 

the instant case and that it therefore cannot be said to have 

clearly established the law that governs here.

In Zion, the officers were called to Zion’s apartment 

complex after he had suffered several seizures and assaulted 

his mother and roommate with a knife. 874 F.3d at 1075. 

As the first officer arrived at the complex, “Zion ran at him 

and stabbed him in the arms.” Id. A second arriving officer 

witnessed the stabbing and then shot at Zion nine times from 

about 15 feet away while Zion was running back towards the 

apartment complex. Id. After Zion fell to the ground, the 

second officer ran up to him and fired “nine more rounds at 

Zion’s body from a distance of about four feet, emptying his 

weapon.” Id. At that point, Zion “curl[ed] up on his side” 

but was “still moving.” Id. After taking a pause and 

“walk[ing] in a circle,” the officer then took “a running start 

and stomp[ed] on Zion’s head three times.” Id. “Zion died 

at the scene.” Id. On appeal from a grant of summary 

judgment to the defendants, the plaintiff (Zion’s mother) did 

not challenge the “initial nine-round volley,” and instead 

only “challenge[d] the second volley (fired at close range 

while Zion was lying on the ground) and the headstomping.” Id. In concluding that there was a triable issue 

of excessive force, we emphasized that there were several 

disputed issues of fact that, if resolved in the plaintiff’s 

favor, would warrant a finding that the second volley of 

shots was unreasonable. Id. at 1075–76. In particular, we 

held that a jury needed to resolve the parties’ factual disputes 

as to whether “Zion was trying to get up”; “[w]hether the 

knife was still in Zion’s hand or within his reach”; and 

“whether [the officer] thought Zion was still armed.” Id. at 

1076 & n.2. 
18 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

This case differs from Zion as to each of these critical 

facts. The video evidence in this case clearly shows that, 

even after the fourth shot, Hernandez continuously moved in 

a way that gave the objective appearance of trying to get up; 

the video evidence shows that Hernandez never dropped his 

weapon and still had it in his hand at the end of the episode; 

and McBride’s continued instructions to Hernandez to drop 

the knife confirm that she continued to believe that he was 

armed. Although we conclude that Zion is persuasive 

authority that supports a finding of unreasonableness here, 

the case is sufficiently and materially different on its facts 

that we cannot say that it “‘squarely govern[ed]’ the specific 

facts” of this case or placed that outcome “beyond debate.” 

Kisela, 584 U.S. at 104 (citations omitted). 

Plaintiffs also rely on Deorle v. Rutherford, 272 F.3d 

1272, 1280 (9th Cir. 2001), but the Supreme Court “has 

already instructed the Court of Appeals not to read its 

decision in that case too broadly in deciding whether a new 

set of facts is governed by clearly established law.” Kisela, 

584 U.S. at 106. The Court’s summary of Deorle in Kisela

equally confirms why it does not squarely govern the facts 

of this case: “Deorle involved a police officer who shot an 

unarmed man in the face, without warning, even though the 

officer had a clear line of retreat; there were no bystanders 

nearby; the man had been ‘physically compliant and 

generally followed all the officers’ instructions’; and he had 

been under police observation for roughly 40 minutes.” Id. 

at 106–07 (citing Deorle, 272 F.3d at 1276, 1281–82). 

Nearly all of these key factual premises underlying Deorle’s 

holding are missing in this case.

The other Ninth Circuit cases on which Plaintiffs rely are 

even more strikingly distinguishable from this case. Indeed, 

in addition to other significant differences, none of the cited 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 19

cases even involves a situation (such as this one or Zion) in 

which the use of deadly force initially was reasonable. See 

Nehad v. Browder, 929 F.3d 1125, 1141 (9th Cir. 2019)

(holding that the officer’s shooting of a suspect reported to 

have earlier threatened someone with a knife was 

unreasonable under clearly established law where a jury 

could find that the officer “responded to a misdemeanor call, 

pulled his car into a well-lit alley with his high beam 

headlights shining into [the suspect’s] face, never identified 

himself as a police officer, gave no commands or warnings, 

and then shot [the suspect] within a matter of seconds, even 

though [the suspect] was unarmed, had not said anything, 

was not threatening anyone, and posed little to no danger to 

[the officer] or anyone else”); Hayes, 736 F.3d at 1235

(holding that immediate shooting of suicidal man who 

revealed a knife, without ordering him to stop or drop the 

knife, was unreasonable). 

Plaintiffs argue that, even apart from its specific facts,

Zion clearly establishes the broader proposition that “the use 

of deadly force against a non-threatening suspect is 

unreasonable.” Zion, 874 F.3d at 1076. But this overbroad 

reading of Zion is directly contrary to Kisela, which squarely 

held that we may not define “clearly established” law in the 

excessive force context at this “high level of generality.” 

Kisela, 584 U.S. at 104 (citation omitted). Indeed, Zion

noted that the “boundary” line is “murky” when it comes to 

defining exactly when the permissible use of deadly force 

against a suspect who “poses an immediate threat” must be 

halted on the ground that “the suspect no longer poses a 

threat.” Zion, 874 F.3d at 1075. Given that Zion itself noted 

that the relevant line is “murky,” it can hardly be said to have 

clearly established a general rule that places the outcome of 

this case beyond debate.
20 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

We acknowledge that, even when, as here, there is no 

relevant “[p]recedent involving similar facts” that “can help 

move a case beyond the otherwise ‘hazy border between 

excessive and acceptable force,’” generally framed rules can 

still “create clearly established law” in “an ‘obvious case.’” 

Kisela, 584 U.S. at 105 (citation omitted). But to meet that 

high standard, Plaintiffs would have to show that “any

reasonable official in the defendant’s shoes would have 

understood that he was violating” the Constitution. Id. 

(quoting Plumhoff, 572 U.S. at 778–79 (emphasis added)). 

That demanding standard reflects the long-standing 

principle that “qualified immunity protects ‘all but the 

plainly incompetent or those who knowingly violate the 

law.’” Mullenix, 577 U.S. at 12 (citation omitted). Plaintiffs 

have not satisfied that standard here. As our earlier 

discussion of the merits of this case makes clear, this is not 

an obvious case, but rather a close and difficult one. Thus, 

even granting that McBride’s fifth and sixth shots may have 

been unreasonable, this is not an obvious situation in which 

every reasonable officer would have understood that the law 

forbade firing additional shots at the already wounded 

Hernandez as he plainly appeared to continue to try to get 

up. 

Because McBride did not violate clearly established law 

in firing her third volley of shots, we conclude that she is 

entitled to qualified immunity. On that basis, we affirm the 

grant of summary judgment to McBride on Plaintiffs’ Fourth 

Amendment excessive force claim.

III

We next address Plaintiffs’ challenge to the district 

court’s dismissal of their Fourteenth Amendment claim 

against all Defendants. 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 21

We have held that “parents have a Fourteenth 

Amendment liberty interest in the companionship and 

society of their children” and that “[o]fficial conduct that 

‘shocks the conscience’ in depriving parents of that interest 

is cognizable as a violation of due process.” Wilkinson v. 

Torres, 610 F.3d 546, 554 (9th Cir. 2010) (citation omitted). 

We have extended this reasoning to also cover the converse 

situation of “a ‘child’s interest in her relationship with a 

parent.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th 

Cir. 2022) (quoting, inter alia, Smith v. City of Fontana, 818 

F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds 

by Hodgers-Durgin v. De la Viña, 199 F.3d 1037, 1040 n.1

(9th Cir. 1999) (en banc)). In describing the sort of conduct 

that would qualify as “shock[ing] the conscience” under this 

line of cases, we have drawn a distinction between cases 

where “actual deliberation is practical” and those in which it 

is not. Zion, 874 F.3d at 1077 (citation omitted). In the 

former situation, liability may be established by showing 

that the officer acted with “deliberate indifference.” Id. 

(citation omitted). But where deliberation is impractical, we 

require a showing that the officer “acted with ‘a purpose to 

harm without regard to legitimate law enforcement 

objectives.’” Id. (citation omitted).

The outcome of this case, under these standards, is 

dictated by our decision in Zion. In that case, we held that 

the “two volleys [of shots] came in rapid succession, without 

time for reflection” and that the more demanding liability 

standard therefore applied. Zion, 874 F.3d at 1077. Given 

that the two volleys in Zion occurred six seconds apart, see

id. at 1075, the one-second gap between McBride’s second 

and third volleys likewise constitutes, under Zion, 

insufficient time to reflect. Plaintiffs therefore must show 

that McBride “acted with ‘a purpose to harm without regard 
22 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

to legitimate law enforcement objectives.’” Id. at 1077

(citation omitted). 

Plaintiffs wholly failed to raise a triable issue under this 

standard. Here, as in Zion, “[w]hether excessive or not, the 

shootings served the legitimate purpose of stopping a 

dangerous suspect.” Zion, 874 F.3d at 1077; see also Nehad, 

929 F.3d at 1134, 1139 (holding that, although there was a 

triable issue as to whether officer used excessive force in 

firing on a knife-wielding suspect who “didn’t make any 

offensive motions” and “was actually not a lethal threat” to 

the officer, the plaintiffs’ Fourteenth Amendment claim 

nonetheless failed because there was “no evidence that [the 

officer] fired on [the decedent] for any purpose other than 

self-defense, notwithstanding the evidence that the use of 

force was unreasonable”).

3

Because there was no Fourteenth Amendment violation, 

the district court correctly granted summary judgment to all 

Defendants on this claim.

IV

As noted earlier, the district court dismissed Plaintiffs’ 

Monell claim against the City and LAPD, concluding that 

(1) there could be no municipal liability when there was no 

underlying constitutional violation; and (2) even if there was 

such a violation, Plaintiffs had failed to provide any basis for 

holding the City and LAPD liable for McBride’s shooting of 

Hernandez. The district court’s first rationale fails in light 

of our conclusion that there is a triable issue as to whether 

3 To the extent that M.L.H. contends that she was not provided a 

sufficient opportunity to conduct additional discovery with respect to her 

claims, including her Fourteenth Amendment claim, we reject that 

argument for reasons explained below. See infra section IV.
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 23

McBride’s final volley of shots was excessive under the 

applicable Fourth Amendment standards. We nonetheless 

agree with the district court’s second rationale, and on that 

basis, we affirm the grant of summary judgment to the City 

and LAPD on the Monell claim. 

As to Hernandez’s parents and Estate, the district court 

noted that their summary judgment “opposition [was] almost 

entirely silent as to municipal liability” and merely argued 

that LAPD was properly named as an additional municipal 

Defendant with the City. The same is true of their opening 

brief in this court. Even assuming arguendo that 

Hernandez’s parents and Estate have not thereby completely 

forfeited their Monell claim, they have failed to provide any 

basis for reversal beyond what is stated by their co-Plaintiff 

(M.L.H.) in the latter’s opening brief. 

For her part, M.L.H. does not contest the district court’s 

determination that, based on the existing summary judgment 

record, there was insufficient evidence to establish 

municipal liability under Monell. Instead, M.L.H. seeks 

reversal of the dismissal of the Monell claim solely on the 

ground that the district court assertedly abused its discretion 

in refusing to extend the discovery cut-off deadline 

established under the court’s scheduling order issued under 

Federal Rule of Civil Procedure 16(b). We reject this 

contention.

In requesting a modification of the discovery schedule 

set forth in a Rule 16(b) scheduling order, a party must make 

a showing of “good cause.” FED. R. CIV. P. 16(b)(4). As we 

have explained, “[t]he good cause standard of Rule 16(b) 

‘primarily considers the diligence of the party seeking’” the

modification, and “[i]f that party was not diligent, the 

inquiry should end.” Branch Banking & Tr. Co., v. D.M.S.I.,
24 ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES

LLC, 871 F.3d 751, 764 (9th Cir. 2017) (citation omitted). 

The district court did not abuse its discretion in concluding 

that M.L.H. had failed to show diligence in pursuing 

discovery. 

As the court noted, M.L.H. did not serve any formal 

discovery for almost six months, and she “waited until the 

very end of discovery to notice depositions that she knew she 

wanted to take at the outset of the case.” By proceeding in 

this fashion, the court concluded, M.L.H. “left herself no 

margin for error.” On appeal, M.L.H. contends that the 

discovery deadline should have been extended in light of the 

asserted inadequacy of Defendants’ responses to the 

discovery propounded by the other separately represented 

Plaintiffs (i.e., Hernandez’s parents and Estate). But as 

M.L.H. herself notes, M.L.H. “could not immediately act” to 

address those deficiencies “by way of a motion to compel 

because she was not the party who propounded the requests”

(emphasis added). By failing to take any steps to serve her 

own formal discovery requests for six months, M.L.H. 

unnecessarily placed herself in a position in which she was 

unable to bring discovery motions until fairly late in the 

process, and thus needed to conduct a range of discovery at 

the eleventh hour. M.L.H. also argues that the failure to 

serve discovery during the six-month period from August 

2020 until February 2021 should have been excused in light 

of the Covid pandemic, but that explanation does not justify 

a complete failure to serve even written discovery before 

February 2021. Although the district court’s ruling may 

have been harsh, we cannot say that the court abused its 

discretion in concluding that M.L.H. had not shown 

sufficient diligence and that an extension of the discovery 

cut-off was unwarranted. 
ESTATE OF HERNANDEZ V. CITY OF LOS ANGELES 25

Because Plaintiffs have provided no other basis for 

concluding that the Monell claim should not have been 

dismissed, we affirm the district court’s grant of summary 

judgment on that claim.

V

Finally, we turn to Plaintiffs’ state-law claims for 

(1) assault, (2) wrongful death, and (3) violation of 

California Civil Code § 52.1. The district court’s sole reason 

for granting summary judgment to Defendants on these 

claims was its “determinat[ion] that Officer McBride’s use 

of force was reasonable.” Because we conclude that the 

reasonableness of McBride’s final volley of shots presents a 

question for a trier of fact, the district court erred in 

dismissing these state law claims on that ground. We 

therefore reverse the district court’s dismissal of these 

claims. 

VI

For the reasons we have stated, we affirm the district 

court’s grant of summary judgment to Defendants on all of 

Plaintiffs’ federal claims, and we reverse the district court’s 

summary judgment with respect to Plaintiffs’ state law 

claims for assault, wrongful death, and violation of the Bane 

Act (Cal. Civ. Code § 52.1).

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.