Estate of Yanira Serrano v. Menh Trieu , 713 F. App'x 631 ( 2018 )

FILED
NOT FOR PUBLICATION
FEB 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF YANIRA SERRANO; No. 16-15744
CARMEN GARCIA; IGNACIO
SERRANO; LORENZO SERRANO, D.C. No. 3:14-cv-04081-MMC
Plaintiffs-Appellants,
MEMORANDUM*
v.
MENH TRIEU; COUNTY OF SAN
MATEO,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
Before: THOMAS, Chief Judge, and REINHARDT and FISHER, Circuit Judges.
The plaintiffs appeal the summary judgment entered in favor of the
defendants in their 42 U.S.C. § 1983 action alleging excessive force in the shooting
death of Yanira Serrano by San Mateo Sheriff’s Deputy Menh Trieu. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291, we review the grant of summary judgment de
novo, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en
banc), and we affirm.
1. The district court properly concluded the plaintiffs “failed to raise a
triable issue as to their claim that Deputy Trieu’s use of deadly force was
unreasonable.” Viewed in the light most favorable to the plaintiffs, the evidence
shows Ms. Serrano was wielding an 11-inch steak knife with a six-inch blade in an
aggressive manner, pursued Deputy Trieu as he retreated for approximately 160
feet, ignored Deputy Trieu’s commands to stop and was within 15 to 20 feet of
Deputy Trieu when he fired a single shot. Deputy Trieu was not required to
continue his retreat. See Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir.
2011) (“Officers ‘need not avail themselves of the least intrusive means of
responding to an exigent situation; they need only act within that range of conduct
we identify as reasonable.’” (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994))); Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc)
(“[W]here a suspect threatens an officer with a weapon such as a gun or a knife, the
officer is justified in using deadly force.”). At minimum, summary judgment was
proper because the plaintiffs have not pointed to any case that would have placed
Deputy Trieu on “fair notice” that the use of deadly force was unconstitutional
2
under the circumstances of this case. See City & County of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1777 (2015).
2. The plaintiffs’ contention that the district court misapplied the summary
judgment standard is without merit. Summary judgment was appropriate because
the evidence, viewed in the light most favorable to the plaintiffs, established
Deputy Trieu’s use of deadly force was reasonable. This conclusion did not
depend on Deputy Trieu’s credibility. The court, moreover, viewed each of the
factual disputes the plaintiffs identify – Deputy Trieu’s manner of approaching the
Serrano residence; the distance between Deputy Trieu and Ms. Serrano at the time
of the shooting; and Ms. Serrano’s ability to ambulate as she advanced on Trieu –
in the plaintiffs’ favor.
3. Deputy Trieu is not liable based on events antecedent to the shooting.
The Supreme Court rejected this court’s provocation doctrine in County of Los
Angeles v. Mendez, 137 S. Ct. 1539, 1544 (2017). Although a proximate cause
theory survives Mendez, the plaintiffs have not identified a constitutional violation
preceding the shooting. See id. at 1548-49. The plaintiffs “cannot ‘establish a
Fourth Amendment violation based merely on bad tactics that result in a deadly
confrontation that could have been avoided.’” Sheehan, 135 S. Ct. at 1777(quoting Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002)).
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AFFIRMED.
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