FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF CLEMENTE NAJERA 

AGUIRRE; J.S.; A.S.; Y.S.,

Plaintiffs-Appellees,

v.

COUNTY OF RIVERSIDE; DAN 

PONDER,

Defendants-Appellants.

No. 19-56462

D.C. No.

5:18-cv-00762-

DMG-SP

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted November 15, 2021

San Francisco, California

Filed March 24, 2022

Before: M. Margaret McKeown and Ronald M. Gould, 

Circuit Judges, and Jane A. Restani,* Judge.

Opinion by Judge McKeown

* The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
2 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

SUMMARY**

Civil Rights

The panel affirmed the district court's denial of qualified 

immunity to Sergeant Dan Ponder of the Riverside County 

Sheriff’s Department in an action brought pursuant to 

42 U.S.C. § 1983 alleging, among other things, that Ponder 

used excessive force in violation of the Fourth Amendment 

when he shot Clemente Najera-Aguirre six times without 

warning and killed him.

The panel first determined, as a threshold matter, that it 

had jurisdiction over this interlocutory appeal and that 

Ponder’s characterization of the facts did not result in waiver 

of his qualified immunity defense.

The panel stated that police shootings, like all Fourth 

Amendment seizures, must be objectively reasonable—and 

when a suspect poses no immediate threat to an officer or 

others, killing the suspect violates his Fourth Amendment 

rights. Here, in dispute was the level of threat Najera posed 

immediately before he died. A key disputed fact was 

whether Najera was facing the officer and coming “on the 

attack,” as Ponder contended, or whether Najera was turned 

away from the officer, as indicated by the coroner’s report. 

Additionally, although eyewitnesses agreed that Najera was 

holding at least one bat-like object when he was shot, it was 

disputed how he held that object. Nothing in the record 

suggested that Najera was threatening bystanders or 

advancing toward them when he was killed. Based on 

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

has been prepared by court staff for the convenience of the reader.
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 3

Najera’s facts, he presented no threat at all to the officer—

or anyone else—in that moment. The panel concluded that 

on interlocutory appeal, construing the evidence in favor of 

nonmovant Najera, Ponder’s conduct was not objectively 

reasonable, and his use of excessive force violated the Fourth 

Amendment.

Because Najera’s estate presented facts sufficient to 

establish a Fourth Amendment violation, the panel 

considered the second prong of qualified immunity: whether 

the law was clearly established. The panel held that although 

no body of relevant case law was necessary in an “obvious 

case” like this one, this Circuit’s precedent also put Ponder 

on notice that his specific conduct was unlawful.

COUNSEL

Tony M. Sain (argued), Lewis Brisbois Bisgaard & Smith 

LLP, Los Angeles, California, for Defendants-Appellants.

Dale K. Galipo (argued) and Hang D. Le, Law Offices of 

Dale K. Galipo, Woodland Hills, California; Christian F.

Pereira and Ian A. Cuthbertson, Pereira Law, Long Beach, 

California; for Plaintiffs-Appellees.
4 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

OPINION

McKEOWN, Circuit Judge:

Police shootings, like all Fourth Amendment seizures, 

must be objectively reasonable—and when a suspect poses 

no immediate threat to an officer or others, killing the 

suspect violates his Fourth Amendment rights. Here, an 

officer shot Clemente Najera-Aguirre (“Najera”) six times 

without warning and killed him. In dispute is the level of 

threat Najera posed immediately before he died. That 

quintessential question of fact is reserved for the jury and 

precludes summary judgment on the excessive-force claim. 

We affirm the district court’s denial of qualified immunity.

I. Background

On April 15, 2016, Sergeant Dan Ponder of the Riverside 

County Sheriff’s Department received radio reports that 

someone in Lake Elsinore, California, was destroying 

property with a bat-like object, and had threatened a woman 

with a baby. Crucially, key facts are disputed in this 

summary judgment record: whether the officer saw 

bystanders bleeding; how close Najera stood to the 

bystanders; whether Najera was retreating from the property; 

and whether, as he interacted with observers and the police, 

Najera was holding his stick upright in a batter’s position in 

an ostensibly threatening manner, or with the tip pointed 

down in a way that did not pose a threat.

Upon arriving, Ponder exited the patrol car with his gun 

drawn and confronted Najera. Ponder motioned for Najera 

to back away and demanded that he drop the stick. Najera 

did not drop it, and by some accounts verbally refused to do 

so. Ponder next tried to pepper-spray Najera, but the spray 

blew back in Ponder’s face, and Najera appeared largely 
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 5

unaffected. Ponder pointed his gun at Najera and again 

ordered him to drop the stick, but Najera did not comply. By 

some eyewitness accounts, Najera next retrieved a baseball 

bat from nearby bushes and advanced quickly toward Ponder 

with at least one weapon raised; other witnesses say Najera 

stood still, holding a single stick pointed down. Whichever 

the case, Ponder, without issuing a warning, shot Najera six 

times from no more than fifteen feet away. Najera died.

Ponder contends that Najera stood facing him during all 

six shots, but the coroner’s report found that Najera died 

from two shots to his back. The bullet paths suggested that 

Najera had turned away from the officer and was falling to 

the ground when the bullets struck.

Three of Najera’s children (collectively, “the Najeras”) 

sued Ponder and his employer, Riverside County, under 

42 U.S.C. § 1983, alleging that Ponder violated the Fourth 

and Fourteenth Amendments. Ponder and Riverside County 

moved for summary judgment. The district court granted 

summary judgment on the claims against the county and on 

the Fourteenth Amendment claim against Ponder but denied 

summary judgment on the Fourth Amendment claim, thus 

denying Ponder qualified immunity. Ponder asks us to 

reverse the district court’s denial of qualified immunity.

II. Jurisdiction

As a threshold matter, we conclude that we have 

jurisdiction over this interlocutory appeal. The Najeras 

argue that we lack jurisdiction because the district court 

found that triable issues of fact precluded summary 

judgment, and because Ponder waived his qualifiedimmunity defense by failing to present the facts in the light 

most favorable to the Najeras. Both arguments miss the 

mark. We “undoubtedly” have jurisdiction to consider the 
6 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

district court’s denial of qualified immunity. Rodriguez v. 

Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 707 

(9th Cir. 2010). Likewise, Ponder’s defense-friendly 

presentation of the facts does not deprive us of jurisdiction. 

Although Ponder’s appellate briefing arguably “lapse[d] into 

disputing [plaintiffs’] version of the facts,” we are fully 

capable of distinguishing between advocacy and the record 

itself. George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013) 

(quoting Adams v. Speers, 473 F.3d 989, 990 (9th Cir. 

2007)). Ponder’s characterization of the facts did not result 

in waiver of his qualified-immunity defense.

III. Qualified Immunity

We now turn to the principal question on appeal: 

Whether qualified immunity shields Ponder from Najera’s 

§ 1983 claim. The purpose of 42 U.S.C. § 1983 is “to deter 

state actors from using the badge of their authority to deprive 

individuals of their federally guaranteed rights and to 

provide relief to victims if such deterrence fails.” Bracken 

v. Okura, 869 F.3d 771, 776 (9th Cir. 2017) (quoting Wyatt 

v. Cole, 504 U.S. 158, 161 (1992)). The doctrine of qualified 

immunity—though absent from the text of § 1983—“acts to 

safeguard government, and thereby to protect the public at 

large, not to benefit its agents.” Wyatt, 504 U.S. at 168. As 

the architects of qualified immunity, courts must ensure that 

the doctrine remains tethered to this principle.

On interlocutory appeal, we review de novo the district 

court’s denial of qualified immunity and view the facts in the 

light most favorable to the Najeras, the nonmovants here. 

See Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021) 

(citations omitted). We then ask two questions: (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.” Lam v. City of Los Banos, 
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 7

976 F.3d 986, 997 (9th Cir. 2020), cert. denied, 142 S. Ct. 

77 (2021) (citation omitted). The answer to both questions 

here is “yes.”

A. The Constitutional Violation

Our touchstone in evaluating an officer’s use of force is 

objective reasonableness. See Graham v. Connor, 490 U.S. 

386, 397 (1989) (citing Scott v. United States, 436 U.S. 128, 

137–39 (1978)). The reasonableness standard “nearly 

always requires a jury to sift through disputed factual 

contentions,” so summary judgment in an excessive-force 

case “should be granted sparingly.” Torres v. City of 

Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting 

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

reasonableness of Ponder’s conduct is assessed by balancing 

the “nature and quality of the intrusion” on Najera’s Fourth 

Amendment rights against the government’s countervailing 

interest in the force used. Graham, 490 U.S. at 396 (quoting 

Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

The “nature and quality of the intrusion” here was 

undoubtedly extreme. Id. Deadly force is the most severe 

intrusion on Fourth Amendment interests because an 

individual has a “fundamental interest in his own life” and 

because, once deceased, an individual can no longer stand 

trial to have his “guilt and punishment” determined. Garner, 

471 U.S. at 9. Before using deadly force, law enforcement 

must, “where feasible,” issue a warning. Id. at 11–12. 

Nothing in this summary judgment record suggests that it

was not “feasible” for Ponder to warn Najera before firing 

his weapon six times. Id. at 12.

Turning to the government’s countervailing interest in 

the force, three factors inform our analysis: (1) the level of 

immediate threat Najera posed to the officer or others, 
8 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

(2) whether Najera was “actively resisting arrest or 

attempting to evade arrest by flight,” and (3) “the severity of 

the crime at issue.” Graham, 490 U.S. at 396 (citing Garner, 

471 U.S. at 8–9). Without doubt, the suspected crime in this 

case was severe, but that is the only Graham factor that 

weighs clearly in the officer’s favor. Ponder does not 

contend that Najera was attempting to flee or evade arrest; 

quite the opposite, Ponder says that Najera was squarely 

facing him when all six shots were fired. This contention 

conflicts with forensic evidence. The coroner’s report 

showed that Najera died from gunshot wounds to his back 

strongly suggesting he was turned away from Ponder rather 

than, as Ponder claims, facing him and coming “on the 

attack.”

That leaves the “most important” Graham factor—and 

the central issue in this appeal—the level of threat Najera 

posed immediately before his death. Mattos v. Agarano, 

661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith 

v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en 

banc)). A key disputed fact is whether Najera was facing the 

officer and coming “on the attack,” as Ponder contends, or 

whether Najera was turned away from the officer, as 

indicated by the coroner’s report. Additionally, although 

eyewitnesses agree that Najera was holding at least one batlike object when he was shot, it is disputed how he held that

object. Nothing in the record suggests that Najera was 

threatening bystanders or advancing toward them when he 

was killed. Here, on Najera’s facts, he presented no threat at 

all to the officer—or anyone else—in that moment.

In this scenario, the government’s interest in the use of 

force did not justify the “unmatched” intrusion on Najera’s 

constitutional rights. Garner, 471 U.S. at 9. Thus, we hold 

that, construing the evidence in favor of the Najeras, 
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 9

Ponder’s conduct was not objectively reasonable, and his use 

of excessive force violated the Fourth Amendment.1

B. The Clearly Established Inquiry

Because the Najeras have presented facts sufficient to 

establish a Fourth Amendment violation, we consider the 

second prong of qualified immunity: whether the law was 

clearly established. The Supreme Court’s recent decision in 

Rivas-Villegas v. Cortesluna is instructive. As the Court 

explained, in an “obvious case,” the standards set forth in 

Graham and Garner, though “cast ‘at a high level of 

generality,’” can “clearly establish” that a constitutional 

violation has occurred “even without a body of relevant case 

law.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) 

(per curiam) (quoting Brosseau v. Haugen, 543 U.S. 194, 

199 (2004) (per curiam)). This is one of those obvious cases.

Deadly force is not justified “[w]here the suspect poses 

no immediate threat to the officer and no threat to others.” 

Garner, 471 U.S. at 11. Assuming that Najera posed no 

immediate threat to Ponder or others at the time of his death, 

this “general constitutional rule” applies “with obvious 

clarity” here and renders Ponder’s decision to shoot Najera 

objectively unreasonable. Hope v. Pelzer, 536 U.S. 730, 741 

1 Ponder cites several cases in an effort to counter Najera’s 

constitutional claims. See e.g., Bouggess v. Mattingly, 482 F.3d 886, 896 

(6th Cir. 2007); Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 

2003). However, those cases simply restate the uncontroversial 

proposition that using force against an immediately threatening suspect 

is generally reasonable, and Ponder sidesteps the baseline principle that 

at this stage of the proceedings, the facts must be construed in favor of 

Najera.
10 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

(2002) (quoting United States v. Lanier, 520 U.S. 259, 270–

71 (1997)).

Although no “body of relevant case law” is necessary in 

an “obvious case” like this one, our precedents also put 

Ponder “on notice that his specific conduct was unlawful.” 

Rivas-Villegas, 142 S. Ct. at 8. We emphasize that only 

cases that predate the incident are relevant to the “clearly 

established” inquiry. City of Tahlequah v. Bond, 142 S. Ct. 

9, 12 (2021) (per curiam) (citation omitted). Two cases 

published about three years before the April 2016 incident, 

Hayes v. County of San Diego and George v. Morris, made 

“clear to a reasonable officer” that a police officer may not 

use deadly force against a non-threatening individual, even 

if the individual is armed, and even if the situation is volatile. 

City of Tahlequah, 142 S. Ct. at 11.

In Hayes, we held that police used excessive force when 

they fatally shot Hayes after encountering him inside his 

girlfriend’s home holding a large knife pointed tip-down and 

standing six to eight feet away. Hayes v. Cnty. of San Diego, 

736 F.3d 1223, 1227–28 (9th Cir. 2013). We reasoned that 

the officers’ use of deadly force was unreasonable because 

the evidence did not “clearly establish that Hayes was 

threatening the deputies with the knife,” and because Hayes 

was not attempting to evade arrest. Id. at 1233, 1234. It was 

also “significant” that, like Ponder, the officers failed to 

warn Hayes before deploying deadly force. Id. at 1234–35. 

In Hayes, as here, officers, without warning, shot and killed 

an individual holding a weapon in a non-threatening manner. 

Indeed, the officers in Hayes were much closer to the 

individual than Ponder was to Najera when the shooting 

occurred. Id. Hayes stands as clearly established law that 

Ponder’s actions were unconstitutional.
ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE 11

Similarly, in Morris, we held that it was unreasonable for 

officers responding to a domestic disturbance call to fatally 

shoot a suspect who emerged from his home onto his porch 

with his pistol pointed down. See George v. Morris, 

736 F.3d 829, 832–33, 839 (9th Cir. 2013). While we were 

“clear-eyed about the potentially volatile and dangerous 

situation these deputies confronted,” we could not conclude 

as a matter of law that the officers behaved reasonably by 

shooting the decedent “without objective provocation” and 

while “his gun [was] trained on the ground.” Id. at 838–39. 

Like the officers in Morris, Ponder entered a “potentially 

volatile” situation when he responded to the calls about 

Najera. And we too acknowledge the difficult landscape 

facing Ponder and other offices responding to tense and 

often explosive situations. Nevertheless, Morris established 

that, even in such situations, officers must not use deadly 

force against non-threatening suspects, even if those 

suspects are armed.

Ponder’s response to these clearly established principles 

is to repeat his mantra that Najera posed an immediate threat 

to the officer or bystanders at the time of his death. But 

Ponder can neither rewrite the facts to his own liking nor 

ignore the disputed evidence. See Adams, 473 F.3d at 991 

(“The exception to the normal rule prohibiting an appeal 

before a trial works only if the appellant concedes the facts 

and seeks judgment on the law.”). The posture of this 

interlocutory appeal coupled with clearly established law 

supports the district court’s denial of qualified immunity.

IV. Conclusion

Critical disputes of fact render summary judgment 

premature. We cannot assume the jury’s role to resolve the 

disputed question whether Najera presented an immediate 

threat. Accepting Najera’s version of the facts—as we must 
12 ESTATE OF NAJERA AGUIRRE V. CNTY. OF RIVERSIDE

at this stage—the bedrock standards set forth in Graham and 

Garner and the factual similarity of Hayes and Morris put 

the officer’s constitutional violation “beyond debate.” 

Rivas-Villegas, 595 U.S. at ___, slip op. at 4. We affirm the 

district court’s denial of qualified immunity to Ponder.

AFFIRMED.