NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LYDIA VASQUEZ

- BRENES; RICARDO BRENES, Plaintiffs

- Appellees,

v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT,

Defendant, and SEAN MILLER,

Defendant

- Appellant. No. 14

- 16939
D.C. No. 2:12

- cv - 01635

- JCM

- VCF

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted October 19, 2016

Stanford, California Before: CALLAHAN, HURWITZ, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

NOV 10 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

After Officer Sean Miller of the Las Vegas Metropolitan Police Department shot and killed Anthony Brenes, Brenes’s wife and father (collectively, “Vasquez

Brenes”) filed a 42 U.S.C. § 198 3 action claiming that Miller’s use of deadly force violated Brenes’s constitutional rights. The district court denied Miller’s motion seeking summary judgment on the basis of qualified immunity. We reverse.
1. Vasquez

- Brenes argues that we lack jurisdictio n under 28 U.S.C. § 1291 over this appeal because the district court relied upon material disputed facts in denying summary judgment. See Johnson v. Jones , 515 U.S. 304, 319

– 20 (1995). But on appeal, Miller argues that even if all contested facts are con strued in the light most favorable to Vasquez

- Brenes, he was nonetheless entitled to qualified immunity as a matter of law. The denial of qualified immunity is an appealable final decision under § 1291 “to the extent that it turns on an issue of law,” Mit chell v. Forsyth , 472 U.S. 511, 530 (1985), and we therefore have jurisdiction over Miller’s appeal.
2. A police officer is entitled to qualified immunity unless his conduct violated a constitutional right that was clearly established at the time of the viola tion. Sorrels v. McKee , 290 F.3d 965, 969 (9th Cir. 2002). The inquiry into whether a right was clearly established “ must be undertaken in light of the specific context of the case, not as a broad general proposition

. . . .” Saucier v. Katz , 533 U.S. 1 94, 201 (2001). The contours of the right must have been sufficiently clear that any3

reasonable official would have understood that his conduct violated the right; “existing precedent must have placed the .

. . constitutional question beyond debate.” Ash croft v. al

- Kidd , 563 U.S. 731, 741 (2011). Vasquez

- Brenes argues that Miller’s conduct violated the clearly established federal law set forth in Curnow v. Ridgecrest Police , 952 F.2d 321 (9th Cir. 1991). But that case involved an officer’s use of deadly force on a fleeing armed suspect. Id. at 325. This case involves the use of deadly force on a large man wielding a blunt object who continued to advance on Miller after repeated warnings and after being tased twice and shot twice with beanbag rounds. C urnow thus is plainly distinguishable, and no other case cited by Vasquez

- Brenes provides the specific guidance required by the Supreme Court. See Saucier , 533 U.S. at 201. Thus, even assuming that Miller’s conduct violated Brenes’s constitutional rights , it did not violate clearly established law. 1

1 Nor do the cases cited by the dissent place the “constitutional question beyond debate.” See al

- Kidd , 563 U.S. at 7 41. In A.K.H. v. City of Tustin , an officer fatally shot an unarmed suspect as he was removing his hand from his sweatshirt pocket. No. 14

- 55184, 2016 WL 4932330, at *2

– 3 (9th Cir. Sept. 16, 2016). In Glenn v. Washington County , officers fatally shot an intoxicated man who held a pocketknife to his own neck while threaten ing to commit suicide. 673 F.3d 864, 868

– 69 (9th Cir. 2011). These cases address whether the defendant officer reasonably believed deadly force “ was necessary to protect himself or oth ers from death or serious bodily harm

. ” See Ting v. United States , 927 F.2d 1504, 1511 (9th Cir. 1991)

. But w e have assumed arguendo that Miller’s use of deadly force violated Brenes’s constitutional rights. T he jury’s resolution of an issue of disputed fact under these circumstances is only material if Miller’s conduct viola te s clearly established law under Brenes’s version of events, but not under Miller’s version . Even if we resolve all factual4

3. We reverse and remand with instructions to grant Miller’s motion for summary judgment on qualified immunity

. REVERSED AND REMANDED.

disputes in Brenes’s favor, neither Vasquez

- Brenes nor t he dissent have cited authority showing that Miller’s conduct violated clearly established law

.Vasquez

- Brenes v. LVMPD , No. 14

- 16939

CALLAHAN, Circuit Judge, concurring:
I fully concur in the memorandum disposition. I write separately only to state that I also find that, taking the facts in the light most favorable to Brenes , Officer Miller’s conduct did not violate a constitutional right. See Gonzalez v. City of Anaheim , 747 F.3d 789, 793 (9th Cir.) ( deadly force reasonable if officer has probable cause to believe suspect poses significant threat of de ath or serious physica l injury), cert. denied sub nom. Wyatt v. F.E.V. , 135 S. Ct . 676 (2014)

. 

# FILED

NOV 10 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL SVasque

z-Bre ne s v
. LVMPD , No. 14-16939
OW ENS, C irc uit Judge , disse nting:
On the m orning of Nove m be r 15, 2010, Anthony

B re ne s wa lke d a

round a
pa rking lot with a

c a ne a n d a t one point thre w a roc k. Le ss tha n thre e m inute s a fte r polic e a rrive d to e nsure public sa fe ty , B re ne s wa s de a d. W he the r be a n ba g rounds

a nd ta se r jolts fa ile d to stop his wa lking is, in m

y vie w, irre l e va

nt. W ha t m a tte rs –

a nd wha t a jury should de c ide – is if the offic e r re a s ona bly be l ie ve d tha

t de a dly
forc e wa s ne e de d to sa

ve his own life

. Se e

, e
. g. , A.K

. H. v . C ity of Tustin , No. 14- 55184, 2016 W

L 4932330, a

t *5-6 (9th C ir. Se pt. 16, 2016) (a ffirm ing de nia l of
qua lifie d im

m unity to offic e r who “ e sc a la te d to de a dly forc e ve ry quic kly ” a fte r the s uspe c t, whose c rim e did not “ involve [] the use of se rious or de a dly forc e ,”
fa ile d to im

m e dia te l y ta ke his ha nd out of his poc ke t); G le nn v . W ashington
C ounty , 673 F.3d 864, 866, 873-74, 878 (9th C i r. 2011) (re v e rsing gra nt of

sum m a ry judgm e nt to offic e rs who, within four m inute s of the ir a

rriva l, shot with
be a n ba g rounds a

nd the n fa ta lly

shot the suic ida l a

nd intoxic a te d vic tim , who did
not c om ply with orde rs to put down a poc ke tknife , whic h he did not bra ndish a t

a ny one ). The re a re too m a ny una nswe re d que stions to ta

ke this que stion a

wa y from the jury

. 

# FIL ED

N OV 10 2016
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS