Anderson Thurston v. Richard Celli , 444 F. App'x 138 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDERSON P. THURSTON, No. 10-15588
Plaintiff - Appellant, D.C. No. 3:08-cv-01115-CRB
v.
MEMORANDUM *
RICHARD CELLI, Sgt.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Anderson P. Thurston appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging that defendants, Santa Rosa
police officers, violated the Fourth and Fourteenth Amendments when they shot
and killed his son, Haki Thurston. We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s grant of summary judgment, and we may
affirm on any ground supported by the record. Moreland v. Las Vegas Metro.
Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). We affirm.
It is uncontested on this record that defendants had probable cause to believe
that Haki Thurston had, on the night of the shooting, shot and killed his cousin. In
addition, it is uncontested that defendants had probable cause to believe that Haki
Thurston was involved in a residential burglary prior to the evening in question
that included the theft of firearms. Finally, it is uncontested that at the time of the
shooting, defendants had probable cause to believe that Haki Thurston was armed
and dangerous and was fleeing the police to evade arrest. Defendants’ actions
were therefore reasonable, and they are entitled to qualified immunity. See Long v.
City & Cnty. of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007) (in determining
objective reasonableness of use of deadly force, courts should consider “the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight” (citation and internal quotation marks
omitted)); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853-54 (1998)
(when unforeseen circumstances demand an instant judgment on the part of an
officer who feels the pulls of competing obligations, only a purpose to cause harm
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unrelated to the legitimate object of arrest will satisfy the shocks-the-conscience
test and give rise to a claim under the Fourteenth Amendment).
The district court did not abuse its discretion in denying Thurston’s motion
for Rule 11 sanctions. See Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815,
819 (9th Cir. 2009) (setting forth standard of review).
Thurston’s remaining contentions are unpersuasive.
Thurston’s motion for appointment of counsel is denied.
AFFIRMED.
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