Leonorilda Ochoa v. City of Mesa ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONORILDA OCHOA, individually; No. 20-16069
RACHEL GARCIA, on behalf of S.G.
on behalf of G.G.; KERRY LYNN D.C. No.
CONIGLIO, on behalf of C.J.C; 2:18-cv-00905-
DEANNA MENDOZA; ERIKA GARCIA, JJT
on behalf of minor statutory
beneficiaries J.G. and J.G,
Plaintiffs-Appellants, OPINION
v.
CITY OF MESA, a public entity;
TOWN OF GILBERT, a public entity;
MANUEL R. CELAYA, JR.; ROBERT E.
GAMBEE, JR.; JESS C. NICHOLSON;
KARI R. SAVAGE; BRIAN K. HERMES;
STEVE GILBERT; JACOB MADUENOS;
JASON G. STOUT,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted November 18, 2021
Phoenix, Arizona
Filed February 28, 2022
2 OCHOA V. CITY OF MESA
Before: Ronald Lee Gilman, * Consuelo M. Callahan, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Callahan
SUMMARY **
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of police officers in an action brought
pursuant to 42 U.S.C. § 1983 alleging defendants violated
plaintiffs’ Fourteenth Amendment rights to companionship
and familial association when they shot and killed Sergio
Ochoa.
The panel noted that plaintiffs’ Fourteenth Amendment
claim requires that the officers’ conduct “shocks the
conscience”—a standard that is more demanding of the
plaintiffs than the Fourth Amendment standard typically
applicable in police shooting cases. Because the officers here
did not have time to deliberate before firing, the district court
correctly applied the purpose-to-harm test to determine if the
officers’ conduct shocked the conscience.
The panel noted that at the time of the shooting, the
officers knew that in the past few hours Ochoa had: engaged
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
OCHOA V. CITY OF MESA 3
in a domestic dispute that allegedly involved a gun while
possibly under the influence of heroin or meth; allegedly
entered a stranger’s home stating that he was armed with
knives; failed to yield when a marked police car tried to pull
him over; and had driven erratically, including on the wrong
side of the road directly at police officers. When the officers
arrived at the home where Ochoa was later shot, the situation
escalated. They encountered a frantic man who said that
Ochoa did not belong at the house and who was evacuating
children from a locked bedroom out of the house through a
second-story window. Ochoa ignored repeated commands
to come outside and drop any knives he was carrying. As the
officers entered the front door, Ochoa ran into the backyard,
where he refused to drop two kitchen knives despite multiple
commands from the police to do so. He then took a large
step. Knowing what Ochoa had done earlier in the evening,
the officers had to make a snap decision about Ochoa’s
intentions and the threat he posed to them, the people in the
home, and the public at large.
The district court correctly concluded that under the
purpose-to-harm test, the conduct did not violate the
plaintiffs’ Fourteenth Amendment rights. The officers’
actions instead reflected their attempts to satisfy legitimate
law enforcement objectives: apprehension of an armed,
dangerous suspect and protection of the safety of the
officers, the home’s inhabitants, and the public.
4 OCHOA V. CITY OF MESA
COUNSEL
Jody Lynn Broaddus (argued) and Marc J. Victor, Attorneys
for Freedom Law Firm, Chandler, Arizona; David J.
Catanese, Zachar Law Firm P.C., Phoenix, Arizona;
Benjamin Taylor, Taylor & Gomez LLP, Phoenix, Arizona;
for Plaintiffs-Appellants.
Duncan J. Stoutner (argued), Mesa City Attorney’s Office,
Mesa, Arizona; for Defendants-Appellees City of Mesa,
Manuel R. Celaya Jr., Robert E. Gambee Jr., Jess C.
Nicholson, Kari R. Savage, Brian K. Hermes, and Jason G.
Stout.
Robert Grasso Jr. (argued) and N. Patrick Hall, Grasso Law
Firm P.C., Chandler, Arizona; for Defendants-Appellees
Town of Gilbert, Steve Gilbert, and Jacob Maduenos.
OPINION
CALLAHAN, Circuit Judge:
In 2016, police officers in Arizona shot and killed Sergio
Ochoa. Ochoa’s family sued the officers and the
municipalities they worked for, alleging that they violated
the Fourteenth Amendment under 42 U.S.C. § 1983 by
wrongfully depriving the plaintiffs of Ochoa’s
companionship and familial association, and that they
violated Arizona law by wrongfully killing Ochoa. The
plaintiffs did not assert any claims on behalf of Ochoa’s
estate. The district court granted the defendants summary
judgment on the Fourteenth Amendment claim. The
plaintiffs appealed.
OCHOA V. CITY OF MESA 5
We review the district court’s decision de novo. The
plaintiffs’ Fourteenth Amendment claim requires them to
show that the officers’ conduct “shocks the conscience”—a
standard that requires more of the plaintiffs than the Fourth
Amendment excessive-force standard often applied in police
shooting cases. Viewing the record in the light most
favorable to the plaintiffs, the district court selected the
correct legal test to assess whether the conduct here shocks
the conscience, and it correctly concluded that it does not.
Thus, the defendants did not violate the plaintiffs’
Fourteenth Amendment rights. We therefore affirm the
judgment of the district court.
Background
On the night of March 3, 2016, a Mesa police dispatcher
radioed officers. A 911 caller had told the dispatcher that she
and her ex-boyfriend—Ochoa—had a fight and that a
handgun was involved. The caller said that Ochoa used
heroin and meth, was under the influence of drugs, and had
left by car. Dispatch said that Ochoa had outstanding arrest
warrants.
About eight minutes after the first 911 call, dispatch
radioed the officers about another 911 call nearby. The
second caller told dispatch that a man entered the caller’s
home without permission and said that he had two knives
and that his girlfriend had stabbed him. The intruder left in a
car matching the description of the car from the first 911 call.
A police helicopter found and followed the car.
The police realized that Ochoa had prompted both 911
calls. A marked police car tried to pull Ochoa’s car over, but
it did not stop. The helicopter followed Ochoa’s car and
worked with police on the ground to track its movements.
Officers saw Ochoa driving erratically (including on the
6 OCHOA V. CITY OF MESA
wrong side of the street towards police cars) and
inexplicably stopping at green traffic lights. The officers
then lost sight of the car. The helicopter pilot reported that
Ochoa had abandoned the car in a residential neighborhood
near the border between Mesa and the adjoining town of
Gilbert. A police officer on the ground spotted the car, and
the helicopter pilot told the officer that Ochoa had fled to a
nearby home.
When the officer went to the home, a frantic man on the
second story shouted “Hey, he’s in here, he’s in here!”
Another officer arrived and asked the man if Ochoa was
supposed to be there. The man answered, “Fuck no!” and
told the officers that he had children with him in a locked
bedroom. As more police converged on the location, the man
brought several children onto the roof to evacuate them with
the help of two officers.
Meanwhile, the home’s front door was closed, but
through a window officers could see people yelling in a back
room. Ochoa momentarily appeared at a window in the front
door and then at the front window, looking upset and
possibly holding a knife. He ignored commands to come
outside. One officer, who was a drug-recognition expert,
thought that Ochoa was under the influence of meth.
Fearful that a hostage situation was developing, the
officers decided to enter the house. The lead officer kicked
open the front door and led a line of seven police officers
into the home. Another officer went around the side of the
house to prevent Ochoa from fleeing to neighboring homes.
The police entering the home saw Ochoa go into the
backyard through a sliding glass door and followed him.
Standing between Ochoa and the home, the officers formed
an L-shape around Ochoa. Ochoa had two knives in one
hand and refused to obey the officers’ commands to “Drop
OCHOA V. CITY OF MESA 7
the knife, drop the knife!” According to the officers, Ochoa
looked angry and ready to fight.
Police bodycam video captured what happened next.
One officer fired a beanbag round at Ochoa. Seemingly
simultaneously, another officer released a police dog.
Perhaps reacting to the beanbag round or to the dog, Ochoa
took a large step sideways (and, accepting the plaintiffs’
characterization, away from the officers). The officers then
fired about 30 shots at Ochoa. He fell to the ground on his
stomach, with at least one of his hands tucked near his
waistline. Ochoa did not respond to commands to pull his
hands out. While some officers went inside to clear the
home, the remaining officers say that they commanded the
dog to drag Ochoa so that his hands were visible.
Ochoa died at the scene. A postmortem toxicology report
showed that he had meth in his system. Two knives were
recovered from the backyard. Bodycam video shows that
about 16 seconds elapsed between the officers’ first entry
into the home and the shooting.
Following the shooting, Ochoa’s children, through their
mothers, and Ochoa’s mother filed this lawsuit on their own
behalf. The parties and claims have changed over the course
of the case. The remaining defendants are the Town of
Gilbert and two Gilbert police officers, as well as the City of
Mesa and seven Mesa police officers. In the two remaining
claims, the plaintiffs allege that the defendants (1) violated
the Fourteenth Amendment under 42 U.S.C. § 1983 by
wrongfully depriving the plaintiffs of Ochoa’s
companionship and familial association and (2) violated
Arizona law, A.R.S. § 12-611, by wrongfully killing Ochoa.
At oral argument, the plaintiffs confirmed that Ochoa’s
estate has not separately asserted any claims related to this
shooting, including any Fourth Amendment claims.
8 OCHOA V. CITY OF MESA
After removing the case from state court to federal court,
the defendants moved for summary judgment. Among other
things, the defendants asserted that they were protected by
qualified immunity—a legal doctrine that shields
government officials from liability for alleged constitutional
violations—because there was no violation of a clearly
established Fourteenth Amendment right.
The district court ruled in the defendants’ favor on the
Fourteenth Amendment claim. It remanded the state-law
wrongful-death claim back to state court and declined to rule
on other issues raised by the defendants. The court entered a
final judgment, and the plaintiffs timely appealed to this
court.
Legal Standards
We have jurisdiction to review the district court’s grant
of summary judgment and entry of judgment because they
are the district court’s final decisions. See 28 U.S.C. § 1291.
We review an order granting summary judgment de novo.
Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir.
2002). Applying the same standards as the district court, we
affirm a grant of summary judgment if “there is no genuine
dispute as to any material fact” when viewing the record in
the light most favorable to the nonmoving party, such that
the moving party “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). A factual issue is genuine “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A material fact is one that is
needed to prove (or defend against) a claim, as determined
by the applicable substantive law. Id. at 255.
OCHOA V. CITY OF MESA 9
Here, the plaintiffs’ claim—and thus the applicable
substantive law—is rooted in the Fourteenth Amendment.
The Amendment states in relevant part that “[n]o State shall
. . . deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. “[A]
parent has a constitutionally protected liberty interest under
the Fourteenth Amendment in the companionship and
society of his or her child and . . . a ‘child’s interest in her
relationship with a parent is sufficiently weighty by itself to
constitute a cognizable liberty interest.’” Curnow ex rel.
Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.
1991) (citations omitted) (quoting Smith v. City of Fontana,
818 F.2d 1411, 1419 (9th Cir. 1987)).
A claim asserting that police officers violated these
Fourteenth Amendment rights during a police shooting must
show that the officers’ conduct “shocks the conscience.”
Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).
There are two tests used to decide whether officers’ conduct
“shocks the conscience.” Which test applies turns on
whether the officers had time to deliberate their conduct.
On one hand, the deliberate-indifference test applies if
the situation at issue “evolve[d] in a time frame that permits
the officer to deliberate before acting.” Porter, 546 F.3d
at 1137. Deliberation is not possible if the officers
“encounter[ed] fast paced circumstances presenting
competing public safety obligations.” Id. at 1139.
Deliberation in this context “should not be interpreted in the
narrow, technical sense.” Wilkinson v. Torres, 610 F.3d 546,
554 (9th Cir. 2010).
On the other hand, the purpose-to-harm test applies if the
situation at issue “escalate[d] so quickly that the officer [had
to] make a snap judgment.” Porter, 546 F.3d at 1137. This
test requires “a more demanding showing that [the officers]
10 OCHOA V. CITY OF MESA
acted with a purpose to harm [the decedent] for reasons
unrelated to legitimate law enforcement objectives.” Id.Legitimate objectives can include “arrest, self-protection,
and protection of the public.” Foster v. City of Indio,
908 F.3d 1204, 1211 (9th Cir. 2018). Illegitimate objectives
include “when the officer ‘had any ulterior motives for using
force against’ the suspect, such as ‘to bully a suspect or “get
even,”’ or when an officer uses force against a clearly
harmless or subdued suspect.” Id. (citations omitted)
(quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 798
(9th Cir. 2014); Wilkinson, 610 F.3d at 554).
Whether evaluated under the deliberate-indifference test
or the purpose-to-harm test, the Fourteenth Amendment
“shocks the conscience” standard is not the standard that
typically comes to mind in police shooting cases. Another
standard—the standard applicable to Fourth Amendment
excessive-force claims—is more familiar in this context.
That standard asks whether the officers’ conduct was
“objectively unreasonable.” Graham v. Connor, 490 U.S.
386, 397 (1989).
We have previously recognized that applying the Fourth
Amendment excessive-force standard to a Fourteenth
Amendment claim for loss of companionship and familial
association following a fatal police shooting might have
“surface appeal.” Byrd v. Guess, 137 F.3d 1126, 1133–34
(9th Cir. 1998), superseded by statute on other grounds as
recognized in Little v. City of Manhattan Beach, 21 F. App’x
651, 652 (9th Cir. 2001). The gist of the two claims is the
same: an officer is accused of improperly using police power
to kill someone.
But the Fourteenth Amendment standard applicable to a
claim by a relative demands more of such a plaintiff than a
Fourth Amendment claim by the victim of an officer’s
OCHOA V. CITY OF MESA 11
actions. Moreland v. Las Vegas Metro. Police Dep’t,
159 F.3d 365, 371 n.4 (9th Cir. 1998), as amended (Nov. 24,
1998). The Supreme Court has held that “Fourth
Amendment rights are personal rights which . . . may not be
vicariously asserted.” Plumhoff v. Rickard, 572 U.S. 765,
778 (2014) (omission in original) (quoting Alderman v.
United States, 394 U.S. 165, 174 (1969)). The plaintiffs here
cannot sidestep this prohibition and assert Ochoa’s Fourth
Amendment rights through a Fourteenth Amendment claim.
See Byrd, 137 F.3d at 1134. Instead, they must show more:
not just that the officers’ actions were objectively
unreasonable and thus violated Ochoa’s Fourth Amendment
rights, but that the officers’ actions “shock[ed] the
conscience” and thus violated the plaintiffs’ Fourteenth
Amendment rights. See Porter, 546 F.3d at 1137.
This difference in standards can be dispositive where
relatives assert Fourteenth Amendment claims but there is
no Fourth Amendment claim. Indeed, “it may be possible for
an officer’s conduct to be objectively unreasonable [under
the Fourth Amendment] yet still not infringe the more
demanding standard that governs substantive due process
claims [under the Fourteenth Amendment].” Moreland,
159 F.3d at 371 n.4.
Analysis
The district court in this case correctly applied the
Fourteenth Amendment standard. Viewed in the light most
favorable to the plaintiffs, the record supports the district
court’s decision to apply the purpose-to-harm test and its
conclusion that the officers’ conduct did not shock the
conscience. Therefore, the officers did not violate the
plaintiffs’ Fourteenth Amendment rights.
12 OCHOA V. CITY OF MESA
The officers did not have time to deliberate before
shooting Ochoa. At the time of the shooting, the officers
knew that in the past few hours Ochoa had: engaged in a
domestic dispute that allegedly involved a gun while
possibly under the influence of heroin or meth; allegedly
entered a stranger’s home stating that he was armed with
knives; failed to yield when a marked police car tried to pull
him over; and driven erratically, including on the wrong side
of the road directly at police officers.
When the officers arrived at the home where Ochoa was
later shot, the situation escalated. They encountered a frantic
man who said that Ochoa did not belong at the house and
who was evacuating children from a locked bedroom out of
the house through a second-story window. Meanwhile,
downstairs Ochoa appeared angry and agitated around other
people while armed with at least one knife. He ignored
repeated commands to come outside and drop any knives he
was carrying. As the officers entered the front door, Ochoa
ran into the backyard, where he refused to drop two kitchen
knives despite multiple commands from the police to do so.
He then took a large step. Knowing what Ochoa had done
earlier in the evening, the officers had to make a snap
decision about Ochoa’s intentions and the threat he posed to
them, the people in the home, and the public at large. The
urgency of that moment—caused by Ochoa’s failure to
follow police commands—forced the officers to react
instantly, without deliberation. Given the undisputed facts,
the district court correctly chose to apply the purpose-to-
harm test.
Under this test, the officers’ conduct was consistent with
legitimate law enforcement objectives and did not violate the
Fourteenth Amendment. As the district court noted, when
officers confronted Ochoa, “at least four law enforcement
OCHOA V. CITY OF MESA 13
objectives [were] apparent: officer safety, protection of the
occupants still inside the home, apprehension of an
apparently dangerous suspect, and protection of the public at
large in the event [Ochoa] escaped from the backyard.”
There is nothing in the record suggesting that the officers
had an improper purpose to harm. There is no allegation that
the officers sought to bully Ochoa or get even with him.
There is no indication that the officers had prior dealings
with Ochoa. At most, there are assertions that the officers
continued to shoot Ochoa when he was on the ground and
that when the officers directed the police dog to drag Ochoa
so they could see his hands, the officers laughed and cheered.
But as the plaintiffs confirmed at oral argument, there is no
direct evidence anywhere in the record supporting either of
these allegations. 1 Such assertions, without evidentiary
support, do not create a genuine issue of material fact. Galen
v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).
Further, even if we accepted the truth of these two
unsubstantiated assertions, they do not show that the officers
acted with an improper purpose to harm. As to the assertion
about the continued firing, several officers testified that they
were concerned that Ochoa still had access to the knives
(which were later recovered from the area where Ochoa was
shot) because they could not see at least one of his hands
near his waistband. See Foster, 908 F.3d at 1211 (“A police
officer lacks such legitimate law enforcement objectives . . .
when an officer uses force against a clearly harmless or
1
As confirmed by the plaintiffs at oral argument, the only support
in the record for these assertions is a statement by the plaintiffs’ retained
expert. That is insufficient, particularly in the face of sworn denials from
the officers. See Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th
Cir. 2019) (“Expert testimony cannot create a genuine issue of material
fact if it rests on assumptions that are not supported by evidence.”).
14 OCHOA V. CITY OF MESA
subdued suspect.”). This reflects a legitimate law
enforcement objective: the safety of the officers and others.
As to the contested (though unsupported) assertion about the
cheering and laughing, it has minimal relevance because it
relates to events that took place after the officers fired at
Ochoa.
Other assertions made by the plaintiffs also carry little
weight. For example, the plaintiffs note that Ochoa had
always been welcome in the home where he was shot and
that the women there (later identified as Ochoa’s ex-wife and
her mother) were not afraid of Ochoa. But the officers did
not know this at the time. As the plaintiffs conceded at oral
argument, the analysis focuses on what the officers knew in
the moment, not what became known hours, days, or weeks
later.
Finally, the plaintiffs’ suggestion that the officers created
the emergency that led to the shooting is not well taken
considering Ochoa’s alleged violence, flight, and failure to
follow police commands earlier that evening. This incident
was not instigated by police.
In sum, the record does not show that the officers acted
with a purpose to harm unrelated to a legitimate law
enforcement objective. Rather, it reflects that the officers
took steps to ensure that a fleeing, armed, and noncompliant
suspect would not further endanger the officers, the home’s
inhabitants, and the public. On this record, the officers’
conduct does not shock the conscience and the officers did
OCHOA V. CITY OF MESA 15
not violate the plaintiffs’ rights under the Fourteenth
Amendment. 2
Conclusion
The plaintiffs’ Fourteenth Amendment claim requires
that the officers’ conduct “shocks the conscience”—a
standard that is more demanding of the plaintiffs than the
Fourth Amendment standard typically applicable in police
shooting cases. Because the officers here did not have time
to deliberate before firing, the district court correctly applied
the purpose-to-harm test to determine if the officers’ conduct
shocks the conscience. The court correctly concluded that
under that test, the conduct did not violate the plaintiffs’
Fourteenth Amendment rights. The officers’ actions instead
reflect their attempts to satisfy legitimate law enforcement
objectives: apprehension of an armed, dangerous suspect and
protection of the safety of the officers, the home’s
inhabitants, and the public. The district court’s grant of
summary judgment is AFFIRMED.
2
Because we agree that there was no Fourteenth Amendment
violation and affirm summary judgment on that basis, we do not address
the second prong of the qualified-immunity test described by the
Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), which asks if
the right at issue was clearly established at the time the officer acted,
such that the officer would have (or should have) known to not act in a
way that violated it. This is consistent with the suggested approach for
qualified-immunity issues. County of Sacramento v. Lewis, 523 U.S.
833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which
the defense of qualified immunity is raised is to determine first whether
the plaintiff has alleged a deprivation of a constitutional right at all.”);
Monzon v. City of Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020) (“Only
if we conclude that the officers did violate a constitutional right would
we then need to proceed to the second step of the inquiry . . . .”).