Neftali Monzon v. City of Murrieta

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEFTALI MONZON, individually, as No. 19-55164
Personal Representative of the Estate
of Junef Ragadio Monzon; D.C. No.
MARYLOU MONZON, individually, as 2:17-cv-01371-
Personal Representative of the Estate RGK-SK
of Junef Ragadio Monzon,
Plaintiffs-Appellants,
OPINION
and
JERICO REYES,
Plaintiff,
v.
CITY OF MURRIETA, a governmental
entity; SCOTT MONTEZ; CHRIS
ZELTNER; KYLE MIKOWSKI; ZACK
BRADLEY; BLAKE WILLIAMS; DOES,
1–10,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 31, 2020
Pasadena, California
2 MONZON V. CITY OF MURRIETA
Filed July 22, 2020
Before: Consuelo M. Callahan, Kenneth K. Lee,
and Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
SUMMARY *
Civil Rights/Deadly Force
The panel affirmed the district court’s summary
judgment for defendants in an action alleging that police
officers used unreasonable deadly force when they shot and
killed Junef Monzon following a high-speed chase.
The panel held that that the officers’ use of deadly force
was objectively reasonable given the dynamic and urgent
situation, where officers were faced with the immediate
threat of significant physical harm. The panel noted that
first, the severity of Monzon’s crime weighed in favor of the
use of force. Monzon led officers on a dangerous high-speed
chase at night, and he refused to stop his van at the behest of
officers even after coming to the end of a street. Second,
Monzon posed an immediate threat to the safety of the
officers when he ignored commands to stop the van and
drove near, toward, and amongst the officers on foot. Third,
Monzon’s driving endangered the officers and left them with
only seconds to consider less severe alternatives. Finally, a
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MONZON V. CITY OF MURRIETA 3
reasonable officer in the position of the individual defendant
officers would have probable cause to believe that Monzon
posed an immediate threat to the safety of one or more of the
other officers or himself.
The panel held that even if the officers’ use of deadly
force was not reasonable on the uncontested facts of this case
(which it was), the second prong of the qualified immunity
analysis would still compel affirming the district court
because the officers did not violate a clearly established
right. The panel further rejected plaintiffs’ claims that the
City failed to train the officers, and plaintiffs’ claims brought
under state law.
COUNSEL
Marcel F. Sincich (argued) and Dale K. Galipo, Law Offices
of Dale K. Galipo, Woodland Hills, California; Cameron
Sehat, The Sehat Law Firm PLC, Irvine, California; for
Plaintiffs-Appellants.
Daniel P. Barer (argued) and Anna L. Birenbaum, Pollak
Vida & Barer, Los Angeles, California; Peter J. Ferguson
and Allen Christiansen, Ferguson Praet & Sherman, Santa
Ana, California; for Defendants-Appellees.
4 MONZON V. CITY OF MURRIETA
OPINION
VANDYKE, Circuit Judge:
After leading police officers on a high-speed chase,
Junef Monzon turned down a dead-end street. He stopped at
the end of the road, and the police officers parked and exited
their cruisers behind him. Monzon turned the van around,
pointing it generally toward the officers. As the van
accelerated in an arc toward and eventually between the
officers, they commanded Monzon to stop and fired on him
when the van moved in their direction and in the direction of
their fellow officers. Monzon crashed into a police cruiser,
pushing that cruiser into one of the officers, and the officers
continued to fire. Monzon sustained multiple gunshot
wounds and was pronounced dead at the scene.
In granting summary judgment for the City of Murrieta
(“the City”), the five police officers, and Does 1 through 10
(collectively “defendants”), the district court found that the
officers’ use of deadly force was reasonable. Monzon’s
parents, Neftali and Marylou Monzon (hereinafter
“plaintiffs” or “Monzon’s parents”), appeal the ruling. We
hold that the officers’ use of deadly force was objectively
reasonable in this dynamic and urgent situation, where
officers were faced with the immediate threat of significant
physical harm.
BACKGROUND
On October 22, 2016, at about 1:45 a.m., Officer Chris
Zeltner ran the license plate of a Kia van and discovered the
van was reported stolen. Monzon was driving the van, and,
unknown to Zeltner, Jerrico Reyes sat in the back of the van.
Zeltner informed dispatch that he planned to make a felony
stop, and dispatch sent additional officers to assist him.
MONZON V. CITY OF MURRIETA 5
Zeltner attempted to pull Monzon over, but Monzon kept
driving, leading Zeltner on a car chase. Officers Scott
Montez, Kyle Mikowski, Zack Bradley, and Blake Williams
joined Zeltner in the pursuit. Williams and Montez shared a
cruiser, while Bradley and Mikowski drove separately. The
officers testified that Monzon swerved back and forth on the
freeway, drove at varied speeds up to 100 miles per hour
(“mph”), exited and reentered the freeway, and ran stop
signs and stoplights.
At about 1:57 a.m., Monzon turned onto a dead-end
street with no lights. The five officers in four vehicles turned
in behind him. They were alerted over the radio that the
street came to a dead-end and to use precautions. The
following chain of events occurred over an approximately
two-minute period after the officers pulled onto the dead-end
street behind Monzon.
Monzon stopped the van at the end of the street, and
Zeltner stopped his cruiser behind Monzon near the van’s
rear bumper. Bradley staggered his vehicle behind Zeltner
on the right side of the road. Mikowski stopped on the left
side of the street behind Bradley. Williams and Montez
staggered their vehicle behind and to the right of Mikowski’s
vehicle. Zeltner and Mikowski had activated the red and
blue lights on their vehicles in addition to their headlights.
Shortly after the officers parked, Monzon engaged in a
multi-point turn so that his vehicle was pointing back up the
street he had just driven down, and generally in the direction
of the five officers and their four parked vehicles. He ran
into a fence post while turning, but it didn’t stop him. While
Monzon was turning, Zeltner exited his vehicle, presented
his firearm, and shouted for Monzon to stop and put his
hands in the air. Reyes, the passenger in the van, testified
that Monzon put his hands in the air at this point, but Reyes
6 MONZON V. CITY OF MURRIETA
agreed that the van continued to turn and move forward.
When the van was about 10 to 15 feet away from Zeltner,
arcing near and around him in a counterclockwise motion,
Zeltner fired his first shot at Monzon. As the van continued
to move past Zeltner and toward the officers behind him,
Zeltner fired five more shots at Monzon, aiming through the
driver’s side window. The van passed to the left of Zeltner
and his cruiser, headed in the general direction of the other
officers and their vehicles.
Bradley had also exited his vehicle and moved toward
the rear of Zeltner’s cruiser as Monzon was turning his van
around. About a second after Zeltner stopped shooting and
the van accelerated past Zeltner and Bradley, the van
continued turning toward Mikowski and Williams, who
were now on foot on the driver’s side of the third cruiser.
Bradley fired multiple shots at Monzon when he saw the van
driving toward Mikowski and Williams. The van turned so
that, at least at one point, it was headed directly toward
Mikowski and Williams, and then was headed for the gap
between the second (Bradley’s) and third (Mikowski’s)
cruisers. Missing the gap, the van struck Mikowski’s
cruiser, pushing it into Williams, who was standing near the
rear driver’s side window of the cruiser. The crash occurred
with such force that Williams’s arm went through the
cruiser’s window, injuring him. Williams fired 10 shots at
Monzon. Mikowski also fired seven shots at Monzon aiming
through the passenger side window and front windshield.
Stopped, the van’s engine revved and its tires spun.
Believing the van could drive over Mikowski or Williams,
Bradley fired one more shot. Montez also fired.
The entire time from when Monzon started moving
toward the officers to when the van crashed into the cruiser
was 4.5 seconds. During that brief period, the van
MONZON V. CITY OF MURRIETA 7
accelerated repeatedly, with the accelerator pedal pushed
from 84 to 99 percent, and reached a maximum speed of
17.4 mph. Although no officer gave a deadly force warning,
it is undisputed that at least Officer Zeltner yelled “Stop!”
before firing.
Once the van’s engine stopped revving, it slowly rolled
backwards until Zeltner stopped it by jamming a skateboard
under its tire. The officers again commanded Monzon to
show his hands. When Monzon did not respond, Mikowski
deployed a canine. The dog jumped into the van and bit
Monzon on the head and right arm before being disengaged
by Mikowski. About 20 seconds elapsed between the time
that the canine was deployed and disengaged. The officers
then discovered Reyes in the back of the van. They called
for medical assistance and performed chest compressions on
Monzon until the paramedics arrived. Monzon, who had
been shot eight times, was pronounced dead at the scene. 1
PROCEDURAL HISTORY
Monzon’s parents and Reyes filed suit under 42 U.S.C.
§ 1983, contending that the officers and Does 1 through 5
violated Monzon’s and Reyes’ respective Fourth
Amendment rights by using excessive force resulting in an
unreasonable seizure and by denying Monzon medical care. 2
They also sought to hold Does 6 through 10 and the City
1
Five shots went through Monzon’s upper right arm, and most of
those bullets appeared to enter his body traveling from back to front. A
sixth bullet went through Monzon’s right arm and into his chest. The
seventh gunshot went into his left chest. The eighth bullet went through
his right thigh into his left leg.
2
Plaintiffs refer to Does 1 through 5 as other unidentified City police
officers.
8 MONZON V. CITY OF MURRIETA
liable for failing to train their employees and for ratifying an
unconstitutional custom, practice, or policy. 3 Defendants
filed a motion for summary judgment on each of these
claims, as well as pendent state-law claims of battery,
negligence, and a violation of the Tom Bane Civil Rights Act
(“Bane Act”), California Civil Code Section 52.1.
The district court granted the motion for summary
judgment on all claims, finding that the use of deadly force
was objectively reasonable under the circumstances.
Monzon’s parents appealed the district court’s order. Reyes
did not appeal. As a result, our attention centers on the
officers’ conduct toward Monzon.
STANDARD OF REVIEW
This Court reviews de novo a district court’s grant of
summary judgment. United States v. Phattey, 943 F.3d
1277, 1280 (9th Cir. 2019). In reviewing a grant of summary
judgment, we view genuinely disputed facts “in the light
most favorable to the nonmoving party.” Scott v. Harris,
550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)). We
also determine “whether the district court correctly applied
the relevant substantive law.” Phattey, 943 F.3d at 1280
(quoting Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.
2001) (en banc)). To avoid summary judgment, the
plaintiffs “must establish that there is a genuine issue of
material fact” disputed by the parties. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585
(1986).
3
Plaintiffs refer to Does 6 through 10 as unidentified managerial,
supervisorial, and policymaking employees of the City police
department.
MONZON V. CITY OF MURRIETA 9
DISCUSSION
Because the officers have raised the affirmative defense
of qualified immunity, plaintiffs cannot prevail on their
federal claims unless the officers violated a clearly
established constitutional right. Pearson v. Callahan,
555 U.S. 223, 231 (2009) (“[Q]ualified immunity protects
government officials from liability for civil damages insofar
as their conduct does not violate clearly established . . .
constitutional rights.”) (internal quotation marks omitted). If
they did not violate a constitutional right that was clearly
established at the time of the events at issue in this case, then
the “doctrine of qualified immunity protects” them “from
liability for civil damages.” Id. (quoting in part Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
“An officer cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes
would have understood that he was violating it.” City of
Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (quoting
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)). While a
case does not need to be squarely “on point for a right to be
clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.” Kisela,
138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548,
551 (2017) (internal quotation marks omitted)).
But before considering whether the constitutional
violation alleged by plaintiffs is “clearly established,” we
begin by determining whether the officers actually violated
a constitutional right based on the record and plaintiffs’
alleged facts. Pearson, 555 U.S. at 232. If we conclude that
no constitutional right was violated, then no further analysis
is required. Only if we conclude that the officers did violate
a constitutional right would we then need to proceed to the
10 MONZON V. CITY OF MURRIETA
second step of the inquiry to decide if the constitutional right
“was clearly established at the time of [the officers’] alleged
misconduct.” Id. (internal quotation marks omitted). 4
I
Because apprehending a suspect through the use of
deadly force is considered a Fourth Amendment seizure of
the person, we must determine if the officers acted in an
objectively reasonable manner when they “seized” Monzon
using deadly force or if they violated his right to be free from
unreasonable seizures. See Scott v. Harris, 550 U.S. 372,
381 (2007); Graham v. Connor, 490 U.S. 386, 395–97
(1989). 5 In determining reasonableness, the Supreme Court
has instructed us to examine the “facts and circumstances
confronting [the officers], without regard to their underlying
intent or motivation.” Graham, 490 U.S. at 397 (citing Scott
v. United States, 436 U.S. 128, 137–39 (1978) and Terry v.
Ohio, 392 U.S. 1, 21 (1968)). We must also view the specific
use of force “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Id.
at 396. When “the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally unreasonable
to prevent escape by using deadly force.” Tennessee v.
Garner, 471 U.S. 1, 11 (1985). To assess reasonableness,
4
This sequence of analysis can be flipped if it is easier to jump
immediately to the question of whether an alleged constitutional right is
“clearly established,” without deciding whether a constitutional violation
has actually occurred. Pearson, 555 U.S. at 236.
5
“[T]he Fourth Amendment is enforceable against the States
through the Fourteenth Amendment.” Camara v. Mun. Ct. of S.F.,
387 U.S. 523, 528 (1967) (citing Ker v. California, 374 U.S. 23, 30
(1963)).
MONZON V. CITY OF MURRIETA 11
we 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.” Wilkinson v. Torres,
610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham,
490 U.S. at 396).
We are mindful that we must view the disputed evidence
in favor of plaintiffs, and we do so. We accept that Monzon
raised his hands in the air when ordered to do so by Zeltner
(even though the van was indisputably moving and turning
at that time). Likewise, we assume that Zeltner was up to
15 feet away from the van and was not in its direct path at
the time he opened fire. And we accept that none of the
officers gave a deadly force warning. On the other hand, we
are also required to view the facts as an officer would have
encountered them on the night in question, not as an ex post
facto critic dissecting every potential variance under a
magnifying glass. See Graham, 490 U.S. at 396. We thus
cannot ignore that Monzon rebuffed Zeltner’s initial attempt
to perform a traffic stop and drove away at speeds of up to
100 mph, endangering the pursuing officers and the general
public. We must also consider how Monzon recklessly
exited and reentered the freeway, drove through stop signs
and red lights, and steered the van near and toward officers
(who were on foot) on the dark, dead-end street. Monzon
drove near Zeltner, headed toward Mikowski and Williams,
and then turned to where the van struck Mikowski’s cruiser,
pushing the cruiser into Williams. The officers fired at
various times between when the van neared Zeltner up until
and shortly after the van struck Mikowski’s car.
We conclude that the officers’ use of deadly force was
reasonable under Garner and Graham. First, the severity of
the crime weighs in favor of the use of force. Monzon led
12 MONZON V. CITY OF MURRIETA
officers on a dangerous high-speed chase at night, and he
refused to stop the van at the behest of officers even after
coming to the end of a street. Second, Monzon posed an
immediate threat to the safety of the officers when he
ignored commands to stop the van and drove near, toward,
and amongst the officers on foot. These actions also
demonstrate that Monzon was actively resisting arrest and
attempting to evade arrest by flight.
Third, Monzon’s driving endangered the officers and left
them with only seconds to consider less severe alternatives.
Judges and lawyers viewing an event like this in hindsight
from the comfort of their armchairs are often tempted to
dissect, evaluate, and second-guess the officers’ actions
piecemeal. That would be a serious mistake. 6 Cherry-
picking specific facts in hindsight is not at all reflective of
how this event transpired in real life. It all happened in less
time than it took to type this sentence, before daylight, in a
very dynamic and chaotic environment, where officers were
forced to make split-second decisions about a driver who
deliberately turned his car around and drove it toward and
between them. The officers were faced with a reckless
driver who had already endangered their lives and the lives
of the public with a high-speed chase, had broken traffic
laws, ignored commands to stop his vehicle, and steered and
accelerated his van toward them in close quarters on an unlit
street. Although we must read the record in the light most
favorable to the plaintiffs, we do not—indeed, we cannot—
6
See Graham, 490 U.S. at 396 (commanding courts to evaluate the
reasonableness of deadly force “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight”);
Ryburn v. Huff, 565 U.S. 469, 477 (2012) (“[J]udges should be cautious
about second-guessing a police officer’s assessment, made on the scene,
of the danger presented by a particular situation.”).
MONZON V. CITY OF MURRIETA 13
dissect the record in a way that ignores the totality of the
dynamic and quickly changing circumstances Monzon
created by deliberately turning his car around and driving it
toward and between five officers. Finally, we take note
that the officers did not provide a deadly force warning. But
this fact is not determinative. The urgency of this chaotic
situation made a deadly force warning impractical because
the van went from a standstill to crashing into a cruiser at
over 17 mph in 4.5 seconds. And assuming that Monzon put
his hands up in the air, we cannot look at that fact in isolation
and ignore the quickly changing situation. The uncontested
fact that Monzon was still driving and turning his car toward
the officers while allegedly raising his hands in surrender
(after having just hit a fence post and finishing a high-speed
chase) must also be taken into account. In that circumstance,
it was objectively reasonable for the officers to believe that
whatever else Monzon was doing, he was not surrendering.
A reasonable officer in the position of Zeltner, Mikowski,
Williams, Montez, or Bradley would have probable cause to
believe that Monzon posed an immediate threat to the safety
of one or more of the other officers or himself as Monzon
drove his car toward and among the five officers.
The same is true with respect to the officers firing
immediately after Monzon crashed the van into the cruiser.
It is undisputed that the van crashed with enough force to
push the cruiser into one of the officers, driving his arm
though the cruiser’s window. Even though it was no longer
moving, just as in Wilkinson these officers “could hear the
engine revving” and they were now situated on all sides of a
van containing “a driver desperate to escape,” 610 F.3d
at 552—so desperate, from their perspective, that he crashed
his van, first into a fencepost, and then into one of their cars.
It was not unreasonable for the officers in that situation to
believe that Monzon, who had just seconds before crashed
14 MONZON V. CITY OF MURRIETA
the van into a fence post yet continued on, had to be stopped
after this second impact before he drove the van into one of
them. When “the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally unreasonable
to prevent escape by using deadly force.” Garner, 471 U.S.
at 11. The officers did not violate a constitutional right when
they fired on Monzon.
Plaintiffs argue that “[t]he dispositive disputed fact . . .
is whether any officer was in the van’s path when [the
officers] fired.” Even if this is a disputed fact, this fact is not
material and therefore not “dispositive.” We have never held
that an officer must be in the direct path of a moving vehicle
before his use of force is deemed reasonable. Nor could we,
given the Supreme Court’s opinion in Plumhoff v. Rickard,
572 U.S. 765 (2014). Rickard led officers on a high-speed
chase reaching more than 100 mph and created “a grave
public safety risk.” Id. at 776. “And while . . . Rickard’s car
eventually collided with a police car and came temporarily
to a near standstill, that did not end the chase.” Id. “Less
than three seconds” after impact, “Rickard resumed
maneuvering his car.” Id. “Just before the shots were fired
. . . Rickard was obviously pushing down on the accelerator
. . . ‘in an attempt to escape.’” Id. When “the shots were
fired, all that a reasonable police officer could have
concluded was that Rickard was intent on resuming his flight
. . . [and] he would once again pose a deadly threat for others
on the road.” Id. at 777. Under these circumstances, “it is
beyond serious dispute that Rickard’s flight posed a grave
public safety risk, and . . . the police acted reasonably in
using deadly force to end that risk.” Id. Even when officers
were not in the direct path of the car, they were “justified in
firing at a suspect in order to end a severe threat to public
MONZON V. CITY OF MURRIETA 15
safety.” Id. 7 Thus, an officer need not be in the direct path
of a vehicle to use deadly force.
Like Rickard, Monzon created a grave public safety risk
by fleeing from the police at speeds up to 100 mph and
driving erratically. But in addition to endangering the public
safety, it is irrefutable that Monzon drove the van toward
Mikowski and Williams just seconds before it turned and
collided with Mikowski’s cruiser. 8 It is also undeniable that
Monzon drove the van between and amongst the officers and
their cruisers, so that when he eventually crashed into
Mikowski’s cruiser, the van was surrounded by officers on
all sides. Officers are permitted to use deadly force to
protect the lives of other officers. Here, where it is
undeniable that Monzon drove his van amongst the officers
and directly toward some of them, it does not matter whether
Monzon drove the van toward all of the officers when the
shooting began. In this chaotic situation spanning a mere
7
In contrast to plaintiffs’ argument that officers must justify every
shot, the Supreme Court in Plumhoff observed that “‘if lethal force is
justified officers are taught to keep shooting until the threat is over,’”
and “officers need not stop shooting until the threat has ended.” Id.
at 777.
8
As a matter of simple physics, Monzon’s van was moving directly
toward Mikowski and Williams at some point in the 4.5 seconds from
when Monzon started moving to when he crashed into Mikowski’s
cruiser. Plaintiffs acknowledge that Monzon’s van was turning as it
passed Zeltner. At the beginning of the turn, the van was headed toward
the dirt shoulder to the left of Mikowski and Williams. When the van hit
Mikowski’s cruiser, it was headed to the right of the officers. It is
impossible for the van to have changed its trajectory from the left of the
officers to the right of the officers without moving directly toward the
officers at some point. At the end of this turn, the van hit Mikowski’s
vehicle with enough force to push Williams’s arm through the rear
driver’s side window of the cruiser upon impact.
16 MONZON V. CITY OF MURRIETA
4.5 seconds, the officers that Monzon did not drive directly
toward were justified in using deadly force to protect the
lives of their fellow officers that Monzon was driving
toward. See Wilkinson v. Torres, 610 F.3d 546, 552–53 (9th
Cir. 2010) (“[W]e conclude as a matter of law that deadly
force was authorized to protect a fellow officer from
harm.”).
Viewing the facts in the light most favorable to Monzon
does not undermine the claim that an officer in Zeltner’s
position had an objectively reasonable basis to feel
threatened as the van turned and drove toward him and the
other officers behind him. Monzon raising his hands off the
steering wheel while turning and moving his vehicle toward
and between the officers, as plaintiffs contend he did, would,
if anything, seem to be extra cause for alarm and concern.
An officer might reasonably question the ability of any
driver in this situation—much less one who has just driven
erratically in a high-speed chase and run into a fence post
while turning his car around—to safely navigate his
accelerating vehicle between five police officers and four
closely parked cars. See United States v. Aceves-Rosales,
832 F.2d 1155, 1157 (9th Cir. 1987) (per curiam) (“It is
indisputable that an automobile can inflict deadly force on a
person and that it can be used as a deadly weapon.”).
The uncontested facts show that Monzon drove between
and among five officers and hit the front and passenger side
of Mikowski’s car as he attempted to turn and exit the street.
In these circumstances, a reasonable officer would have
perceived a serious threat as a demonstrably erratic driver
now veered toward him and his colleagues—with less than
total control of his vehicle. At this moment in time,
Mikowski and Williams had an objectively reasonable basis
to believe that their lives were threatened, and Bradley and
MONZON V. CITY OF MURRIETA 17
Montez had an objectively reasonable basis to believe that
their fellow officers were at risk of being struck by the van
turning in their direction. Plaintiffs’ argument that Monzon
was neither an immediate threat to anyone, nor was he
resisting arrest when the shooting began, flounders on the
undeniable objective facts in this case.
The case most akin to this one from our circuit is
Wilkinson, wherein this Court found the officer’s use of
deadly force to be reasonable. 610 F.3d at 553. In
Wilkinson, Officer Key confirmed that a minivan was stolen
and pursued the suspect, who drove up to 10 mph over the
speed limit. Id. at 548–49. Officer Torres quickly joined the
chase and forced the minivan into a yard where it eventually
struck a telephone pole and came to a stop. Id. at 549.
Officers Key and Torres exited their patrol cars and walked
up to the van, shouting at the driver to show his hands. Id.
As Officer Key attempted to open the driver’s side door, the
driver reversed the van, and Officer Key hit the ground. Id.
Believing that the van ran over Officer Key, Officer Torres
shouted at the driver to stop and started shooting when the
driver continued accelerating around him in the slippery
yard. Id. The driver, Wilkinson, died from the gunshot
wounds. Id. This Court found that Officer Torres acted
reasonably because a “reasonable police officer confronting
this scene could reasonably believe that the minivan posed a
deadly threat to Key and himself.” Id. at 553. Wilkinson did
not yield to police sirens, ignored commands to stop the car,
and placed officers at risk by turning in close proximity to
the officers.
Like in Wilkinson, Monzon turned his car in close
proximity to multiple officers on foot, some of whom were,
at times, directly in the path of the car. While the level of
acceleration and the maximum speeds reached by Monzon’s
18 MONZON V. CITY OF MURRIETA
van are disputed by the parties, plaintiffs acknowledge that
the van’s black box “speaks volumes about what actually
occurred.” That evidence shows that Monzon accelerated
from a full stop to 15 mph in one second (4.5 to 3.5 seconds
before the crash), never braked, and was moving at least
25 feet every second when he ran the van into the police
cruiser. 9 Moreover, like in Wilkinson, the officers were
aware that the van headed in their direction could accelerate
dangerously and without notice at any moment. Given the
hazardous predicament Monzon had put them in, the
officers’ actions were reasonable.
Plaintiffs repeatedly emphasize the “slow” speed of the
van, but this fact, taken as true, does not distinguish this case
from Wilkinson because the minivan in Wilkinson was also
not moving fast when the officers fired. Id. at 552
(“Although the vehicle was moving at a slow rate of speed
because of the slippage, it could have gained traction at any
time, resulting in a sudden acceleration in speed.”). Here, it
is undisputed that the van’s event data recorder, or “black
box,” shows that the van’s acceleration pedal was repeatedly
pressed down between 80 and 99 percent during the very
short 4.5 seconds from start to impact, and the van reached a
speed of over 17 mph before hitting Mikowski’s cruiser.
Just like Rickard accelerated after a temporary stop in
Plumhoff, Monzon was obviously accelerating. See
Plumhoff, 572 U.S. at 776. And even a van traveling at only
10 mph moves approximately 15 feet every second, which is
9
Plaintiffs acknowledge that Monzon’s van accelerated to at least
16 mph one second before crashing into Mikowski’s cruiser. And the
black box data that plaintiffs rely on tells us that the van was traveling at
17.4 mph at the time of impact.
MONZON V. CITY OF MURRIETA 19
significant when a van that has been driven erratically is
moving in close proximity to officers.
The use of deadly force here, although tragic, was not
unreasonable. See Plumhoff, 572 U.S. at 776–77; Graham,
490 U.S. at 397–99; Garner, 471 U.S. at 11. Monzon
endangered the general public by fleeing from officers at
speeds up to 100 mph and breaking several traffic laws along
the way. Then he drove to the end of a road and threatened
the lives of officers on foot by accelerating the van among
them, like in Wilkinson. The officers acted reasonably in
using deadly force to end the grave risk that Monzon posed
to the officers near the van. While Plumhoff instructs us that
Monzon’s reckless, high-speed driving posed a severe threat
to public safety that may itself have justified the use of
deadly force, we need not reach that issue because here the
use of deadly force was reasonable to protect the officers
whose lives were threatened by the accelerating van.
II
Likewise, the officers did not use excessive force when
they deployed a canine to physically apprehend Monzon
after the shooting. After being cornered at the end of a dead-
end street, Monzon had just turned his vehicle around, driven
it toward and between five police officers, and ran his
vehicle into a police cruiser. Under those circumstances, it
was reasonable for the officers to be concerned that, even
though the van was now stopped, Monzon might resist arrest
or attempt to drive the van away again. If an officer had
personally reached through the van door to apprehend
Monzon—instead of using a canine—and Monzon reacted
by trying to drive away, the officer would be in danger of
getting caught in the doorway of the van just as in Wilkinson.
610 F.3d at 549 (describing the suspect reversing the vehicle
as the officer attempted to open the driver’s side door). The
20 MONZON V. CITY OF MURRIETA
officers stopped the dog from subduing Monzon within a
reasonably short period of time (about 20 seconds after the
dog was released) once it was clear Monzon was not
resisting. See, e.g., Lowry v. City of San Diego, 858 F.3d
1248, 1256–57 (9th Cir. 2017) (en banc) (determining that
the use of force was not excessive when a dog’s encounter
with the suspect was brief and closely followed by an
officer).
III
Because none of the officers violated a constitutional
right, “we need not reach the question of whether that right
was clearly established.” Wilkinson, 610 F.3d at 554. But
even if the officers’ use of deadly force was not reasonable
on the uncontested facts of this case (it is), the second prong
of the qualified immunity analysis would still compel
affirmance because the officers did not violate a clearly
established right. To surmount the “clearly established”
threshold, “a right must be sufficiently clear that every
reasonable official would have understood that what he is
doing violates that right.” Reichle v. Howards, 566 U.S. 658,
664 (2012) (internal quotation marks and brackets omitted).
In determining “whether the violative nature of particular
conduct is clearly established,” we examine the “specific
context of the case.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (internal quotation marks omitted). “We do not
require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate” before we can recognize that a right is clearly
established. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
It is not enough to claim that officers had “fair warning
[based on] the general tests set out in Graham and Garner.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004). Those cases,
“following the lead of the Fourth Amendment’s text, are cast
MONZON V. CITY OF MURRIETA 21
at [too high a] level of generality.” Id. Instead, the law must
be clearly established in a “particularized” sense, id., and the
conduct must fall outside the “hazy border between
excessive and acceptable force.” Id. at 201 (internal
quotation marks omitted).
Monzon ignored an officer’s attempt to make a traffic
stop just before 2:00 a.m., led officers on a high-speed chase,
ignored officers’ commands to stop his vehicle, turned his
van toward at least two officers on foot after he reached the
dead-end of an unlit street, accelerated his car up to 17 mph
in just a few seconds, and crashed his car into an officer’s
cruiser. The officers employed deadly force as the van
accelerated near and among them on the street. The parties
present no cases, and we have found none, holding that
police officers have violated a clearly established right by
using deadly force in a similar context. In contrast, this
Court’s opinion in Wilkinson v. Torres cuts against any
argument that a constitutional violation was clearly
established at the time of the incident. In Wilkinson, the use
of deadly force did not violate a constitutional right because
the officers “had probable cause to believe that the threat to
safety justified the use of deadly force.” Wilkinson, 610 F.3d
at 551. The same is true here. There is no existing precedent
that would clearly put a reasonable officer on notice that
using deadly force against Monzon under the circumstances
of this case would violate Monzon’s rights. Therefore, the
plaintiffs could not overcome qualified immunity even if the
officers acted unreasonably.
Plaintiffs ask us to rely on other cases where an officer’s
actions were not deemed reasonable. Those cases, however,
are not similar to this one, and none go beyond reinforcing
the general tests set forth in Graham and Garner.
22 MONZON V. CITY OF MURRIETA
In Adams v. Speers, for example, Alan Adams refused to
pull over for a traffic stop but drove “largely within the speed
limit, stopp[ed] at some stop signs[,] and roll[ed] slowly
through others” while being followed by the police.
473 F.3d 989, 991 (9th Cir. 2007). Nevertheless, Officer
Speers rammed Adams’ car and forced it down a steep sandy
embankment where officers quickly boxed it in. Id. at 991–
92. After another officer broke Adams’ driver side window
to pepper spray him, Officer Speers got out of his car, stood
in front of Adams’ car, and shot Adams while his car slowly
rolled away from the officers. Id. at 992. Here, Monzon led
the officers on a classic high-speed chase, reaching speeds
of up to 100 mph, and while in close quarters steered the van
in the direction of and among officers on foot, crashing the
van into a police car. Adams is a very different case.
Plaintiffs raise Gonzalez v. City of Anaheim, 747 F.3d
789, 792 (9th Cir. 2014) (en banc), which involved the use
of deadly force by an officer who was inside the car with the
suspect after a traffic stop, and the suspect began to drive
away. It is not even superficially similar to this case. None
of the officers here were inside the car with Monzon; rather,
Monzon was driving his car toward the officers. Likewise,
A.D. v. California Highway Patrol, 712 F.3d 446, 458 (9th
Cir. 2013), is not similar. There, an officer began firing on
the suspect even though no officers were in the path of the
suspect’s car and no other officers felt threatened by the car.
And in Acosta v. City and County of San Francisco, an off-
duty officer pursued two suspects until he saw them get into
a waiting car, at which point he shot and killed the driver.
83 F.3d 1143, 1144 (9th Cir. 1996), abrogated by Saucier v.
Katz, 533 U.S. 194 (2001). Unlike the brief encounter that
led to Acosta’s death, the officers in this case attempted a
traffic stop, witnessed the dangerous and illegal driving of
Monzon from the freeway to the dead-end street, and only
MONZON V. CITY OF MURRIETA 23
fired when Monzon turned the van in their direction,
accelerated toward them, and threatened their safety.
Plaintiffs also point to a Second Circuit opinion, Cowan
ex rel. Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir.
2003), that they claim contains “the dispositive fact” of the
suspect’s vehicle “traveling slowly and that the officer was
not in the vehicle’s path, but off to the side.” But Cowan
does not assist our analysis. The officer in Cowan pulled
over a vehicle with two occupants, discovered a potentially
illegal substance, attempted to arrest the driver, and chased
the driver into the woods after he ran away on foot. Id.
at 758. Upon the officer’s return to the highway (without the
suspect in custody), the officer saw the second occupant
driving the vehicle, and the officer fired twice—the second
shot was fatal. Id. The plaintiff presented evidence that the
officer fired when he was not in the car’s path, the vehicle
was moving slowly, the vehicle did not make any “sudden
turns,” and the officer (or anyone else) may not have been in
danger when he fired. Id. at 763. So the evidence in Cowan
suggested that the officer was not in danger when he
employed deadly force, and it does not appear that anyone
else was in danger. Here, the van was traveling toward some
of the officers at up to 17 mph—25 feet every second. This
imminently violent encounter with officers came after a
high-speed chase wherein Monzon violated traffic laws and
endangered the pursuing officers as well as the public safety.
Cowan did not involve the grave risk to officers or the public
safety that existed here.
Wilkinson remains the closest on-point case. And it
weighs in favor of qualified immunity. While a case need
not be “directly on point” to strip the officers of qualified
immunity, “existing precedent must have placed the
statutory or constitutional question beyond debate.”
24 MONZON V. CITY OF MURRIETA
Mullenix, 136 S. Ct. at 308 (internal quotation marks
omitted). Here, the officers acted reasonably under the
circumstances. But even if they had not, existing precedent
does not show that the officers were “plainly incompetent or
. . . knowingly violate[d] the law” when they employed
deadly force. Id. (internal quotation marks omitted).
IV
The district court granted summary judgment in favor of
defendants with respect to each of the plaintiffs’ six
claims—three 42 U.S.C. § 1983 claims and three state law
claims. Because the officers’ use of deadly force was
objectively reasonable, the district court properly granted
summary judgment.
Seeing that the plaintiffs did not “specifically and
distinctly” brief their § 1983 denial of medical care claim
against the officers or their Monell claim against the City,
they have waived both claims. Greenwood v. F.A.A.,
28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in a party’s
opening brief.”); see also Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 738 (9th Cir. 1986) (stating that “matters on
appeal that are not specifically and distinctly argued in
appellant’s opening brief” will not usually be considered).
Even if plaintiffs had not waived their claim that the
officers denied Monzon medical care under § 1983 when
they did not provide him with rescue breaths, the claim
would still fail. Officers are not compelled to administer
“what hindsight reveals to be the most effective medical care
for an arrested suspect.” Tatum v. City & County of San
Francisco, 441 F.3d 1090, 1098 (9th Cir. 2006). The
officers promptly called for medical assistance once they
secured Monzon and Reyes, and the ambulance arrived
MONZON V. CITY OF MURRIETA 25
within five minutes of the van finally coming to rest. See id.
at 1099 (“[W]e hold that a police officer who promptly
summons the necessary medical assistance has acted
reasonably for purposes of the Fourth Amendment, even if
the officer did not administer CPR.”). The officers did not
unconstitutionally deny medical care.
Even if plaintiffs had not waived their § 1983 claim
against the City, it would still fail. The City cannot be held
liable when no constitutional right was infringed. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)
(confirming that a City may be sued when an
unconstitutional action “implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers”). Because
the officers’ reasonable use of deadly force did not violate a
constitutional right, plaintiffs cannot demonstrate that a
constitutional violation resulted from the policies or
ordinances implemented, executed, or ratified by the City.
Plaintiffs’ allegation that the City failed to train the
officers in violation of § 1983 must similarly fail in the
absence of unreasonable force. See Lee v. City of Los
Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (explaining that
a failure to train claim requires the plaintiff to show a
constitutional injury that could have been avoided through
proper training).
Plaintiffs also raise state law claims of battery,
negligence, and a violation of the Bane Act under California
Civil Code Section 52.1. None of these claims survive.
The battery claim fails because plaintiffs cannot show
that the officers used unreasonable force. See Edson v. City
of Anaheim, 74 Cal Rptr. 2d 614, 616 (Cal. Ct. App. 1998)
(“By definition then, a prima facie battery is not established
26 MONZON V. CITY OF MURRIETA
unless and until plaintiff proves unreasonable force was
used.”). The negligence claim fails because California law
requires us to assess the reasonableness of the officers’
actions looking at “the totality of [the] circumstances,” and
the officers here acted reasonably under the circumstances.
See Hayes v. County of San Diego, 305 P.3d 252, 257 (Cal.
2013) (confirming that “California negligence law [assesses]
the reasonableness of a peace officer’s conduct . . . in light
of the totality of circumstances”). Lastly, plaintiffs’ Bane
Act claim fails because the officers did not interfere or
attempt to interfere with any constitutional rights using
threats, intimidation, or coercion. See Venegas v. County of
Los Angeles, 87 P.3d 1, 13–14 (Cal. 2004) (describing
liability arising under California Civil Code Section 52.1);
see also Shoyoye v. County of Los Angeles, 137 Cal. Rptr. 3d
839, 846 (Cal. Ct. App. 2012) (“A defendant is liable if he
. . . interfered with or attempted to interfere with the
plaintiff’s constitutional rights by the requisite threats,
intimidation, or coercion.”).
Because the officers acted in an objectively reasonable
manner, summary judgment was properly granted to
defendants with respect to the § 1983 claims and the state
law claims.
CONCLUSION
We AFFIRM the district court’s grant of summary
judgment in favor of defendants. Defendants’ pending
motion to strike is DENIED as moot.