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 2023-04

Sommer Richards v. Lvmpd ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        APR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOMMER RICHARDS,                                No.    22-15745
Plaintiff-Appellant,            D.C. No.
2:19-cv-02043-JAD-BNW
v.
LAS VEGAS METROPOLITAN POLICE                   MEMORANDUM*
DEPARTMENT; ONDRE WILLS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted April 12, 2023**
San Francisco, California
Before: S.R. THOMAS and H.A. THOMAS, Circuit Judges, and RAKOFF,***
District Judge.
Sommer Richards appeals the district court’s grant of summary judgment to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
former Las Vegas Metropolitan Police Department (LVMPD) officer Ondre Wills
in Richards’
    42 U.S.C. § 1983
     excessive force action. The district court held that
Wills was entitled to qualified immunity and granted his motion for summary
judgment. We have jurisdiction pursuant to 28 U.S.C § 1291. We review de novo
the district court’s qualified immunity determination and grant of summary
judgment, see Hughes v. Rodriguez,
    31 F.4th 1211
    , 1218 (9th Cir. 2022), and may
affirm on any ground finding support in the record, M & T Bank v. SFR Invs. Pool
1, LLC,
    963 F.3d 854
    , 857 (9th Cir. 2020). We affirm.1
The qualified immunity analysis here involves two determinations:
(i) whether Wills’ use of force violated Richards’ Fourth Amendment right to be
free of excessive force, and (ii) whether this right was clearly established at the
time of the underlying incident. See O’Doan v. Sanford,
    991 F.3d 1027
    , 1036 (9th
Cir. 2021). Although the two prongs of this analysis “need not be considered in
any particular order, . . . both prongs must be satisfied for a plaintiff to overcome a
qualified immunity defense.” Shafer v. Cnty. of Santa Barbara,
    868 F.3d 1110
    ,
1115 (9th Cir. 2017).
Richards has not carried her burden of showing that the “constitutional
question” of whether she was entitled to be free of the use of deadly force under
the facts presented here is “beyond debate.” Andrews v. City of Henderson, 35
1
Because the parties are familiar with the facts, we do not recount them here.
    2 F.4th 710
    , 718 (9th Cir. 2022); see also Shafer,
    868 F.3d at 1118
     (once qualified
immunity is raised, plaintiff bears the burden of demonstrating that alleged right
was clearly established). The only binding precedent she cites in support—
Blanford v. Sacramento County,
    406 F.3d 1110
     (9th Cir. 2005)—supports Wills’
position, rather than her own. See
    id.
     (officers entitled to qualified immunity when
they shot a suspect carrying a dangerous weapon in a residential neighborhood,
potentially posing significant danger to others, although he had not threatened
anyone). The out-of-circuit cases Richards relies upon also do not support her
position, and, in any event, are not binding upon us. See Int’l Chem. Workers
Union Council v. NLRB,
    467 F.3d 742
    , 748 n.3 (9th Cir. 2006) (“out-of-circuit
authority . . . [is] not binding on us.”); see also Entler v. Gregoire,
    872 F.3d 1031
    ,
1044 (9th Cir. 2017) (holding that “where . . . there is no binding Ninth Circuit
precedent” on an issue we may “look to whatever decisional law is available,
including relevant decisions of other circuits.”).
Because Richards has not established that the alleged right in this case was
clearly established at the time of her encounter with Wills, Wills is entitled to
summary judgment on the basis of qualified immunity.2
2
Wills and his co-defendant, LVMPD, argue that LVMPD “should not be a party
to this appeal” because Richards limits her appeal to the excessive force claim
against Wills and does not challenge the district court’s decisions on Richards’
claims against LVMPD. Because we affirm the district court’s grant of summary
judgment, we do not address this argument.
3
AFFIRMED.
4