Armando Villanueva , individually v. State of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO VILLANUEVA , individually
and as Successor In Interest to Pedro
Villanueva, deceased; HORTENCIA
SAINZ , individually and as Successor
In Interest to Pedro Villanueva,
deceased; FRANCISCO O ROZCO,
individually,
Plaintiffs-Appellees,
v.
STATE OF CALIFORNIA ,
Defendant,
and
J OHN CLEVELAND; RICHARD
HENDERSON ,
Defendants-Appellants.
No. 19-55225
D.C. No.
8:17-cv-01302-
JLS-KES
OPINION
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted May 14, 2020*
Pasadena, California
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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2 VILLANUEVA V. CLEVELAND
Filed January 28, 2021
Before: David M. Ebel,** Kim McLane Wardlaw, and
John B. Owens, Circuit Judges.
Opinion by Judge Wardlaw
SUMMARY***
Civil Rights
The panel affirmed the district court’s order denying
qualified immunity to police officers in an action brought
pursuant to 42 U.S.C. § 1983 alleging the officers used
excessive force in violation of the Fourth Amendment when
they shot and killed Pedro Villanueva and wounded
Francisco Orozco, a passenger in Villanueva’s vehicle.
The panel first addressed whether Orozco—a passenger
who was not intentionally targeted by the Officers—had a
cognizable Fourth Amendment interest. The panel
concluded that under Brower v. Cnty. of Inyo, 489 U.S. 593,
597 (1989), Brendlin v. California, 551 U.S. 249, 251
(2007), and Nelson v. City of Davis, 685 F.3d 867, 876 (9th
Cir. 2012), because Orozco’s freedom of movement was
terminated when the Officers intentionally shot at the vehicle
in which he was a passenger to stop its movement, Orozco
** The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth 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.

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VILLANUEVA V. CLEVELAND 3
was seized within the meaning of the Fourth Amendment. It
mattered not whether the Officers intended to shoot Orozco
or whether they even knew he was present as a passenger.
Under clearly established precedent at the time, Orozco was
seized.
The panel held that taking the facts in the light most
favorable to the plaintiffs, after Villanueva stopped his truck
following a vehicular pursuit, he cautiously performed a
three-point-turn, his truck—which was 15 to 20 feet away
from the Officers—was not aimed directly at Sergeant
Cleveland and was moving very slowly and was not
accelerating when the Officers began shooting. In these
circumstances, a reasonable jury could conclude that the
Officers used excessive force, because they lacked an
objectively reasonable basis to fear for their own safety, as
they could simply have stepped back or to the side to avoid
being injured.
The panel held that because it found at the summary
judgment stage that the car was slow-moving and the
Officers could have simply moved away to avoid injury,
their use of deadly force was clearly established as
unreasonable as of 1996 by Acosta v. City & Cnty. of S. F.,
83 F.3d 1143, 1146 (9th Cir. 1996). Accordingly, the
officers were not entitled to qualified immunity.
COUNSEL
Donna M. Dean, Deputy Attorney General; Catherine
Woodbridge and Joel A. Davis, Supervising Deputy
Attorneys General; Danielle F. O’Bannon, Senior Assistant
Attorney General; Xavier Becerra, Attorney General of

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4 VILLANUEVA V. CLEVELAND
California; Office of the California Attorney General, Los
Angeles, California; for Defendants-Appellants.
Paul R. Kiesel and Bryan Garcia, Kiesel Law, LLP, Beverly
Hills, California, for Plaintiffs-Appellees Armando
Villanueva and Hortencia Sainz.
Dale K. Galipo and Renee V. Masongsong, Law Offices of
Dale K. Galipo, Woodland Hills, California, for Plaintiff-
Appellee Francisco Orozco.
OPINION
WARDLAW, Circuit Judge:
Two police officers appeal the denial of qualified
immunity in this § 1983 action alleging excessive force in
violation of the Fourth Amendment. We must decide
whether these officers’ use of deadly force against a slow-
moving vehicle following a high-speed chase violated the
victims’ clearly established constitutional rights at the time
of the incident. Because we agree with the district court that
the law precluding deadly force under the circumstances the
officers confronted was clearly established, we affirm.
I.
Many of the facts underlying this case are disputed. We
recount them in the light most favorable to Orozco and
Villanueva, as the non-moving parties in the district court.
Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir. 2019)
(per curiam).

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VILLANUEVA V. CLEVELAND 5
A.
On July 3, 2016, at 10:35pm, Sergeant Cleveland and
Officer Henderson (“the Officers”) were on patrol near
Fullerton, California looking for illegal street racing and
“sideshows,” events where streets are blocked off for drivers
to perform unlawful maneuvers like burnouts and donuts.1
The Officers wore plain clothes and drove an unmarked
black sedan, but they also wore dark tactical vests with
police insignia. The unmarked car was equipped with both
a red and blue flashing light and a blue and amber light.
During their patrol, the Officers found an approximately
twenty-car sideshow taking place in the Santa Fe Springs
Swap Meet parking lot. One of the participating cars was a
red Chevrolet Silverado pickup truck occupied by Pedro
Villanueva, the driver, and Francisco Orozco, his passenger.
After witnessing the Silverado perform or attempt to perform
an illegal maneuver,2 the Officers entered the parking lot,
intending to make a traffic stop.
As the Officers drove into the parking lot, Villanueva
drove toward the outlet that the Officers had just entered.
The Officers then started following the Silverado.
According to Orozco, the Officers did not use the regular
blue and white light or a typical siren, but only an amber
1 “Donuts” involve quickly rotating the rear of a car around the front
wheel in the hope of creating circular skid marks, while “burnouts”
involve spinning the wheels on a stationary car to cause the tires to heat
up and make smoke.
2 The exact details of the maneuver are in dispute. Cleveland
testified that the Officers saw the Silverado perform multiple “donuts,”
while Orozco testified that Villanueva “attempted” a “burnout,” “but he
just more or less screeched the tires.”

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6 VILLANUEVA V. CLEVELAND
light and an atypical screeching noise that was not
identifiable as a police siren. According to Orozco,
Villanueva drove out of the lot at a speed that “didn’t feel
fast,” and without incident.
After leaving the lot, Villanueva drove away. The
Officers turned off the sirens and lights and followed.
Orozco and Villanueva were “scared,” and “in fear for [their]
lives,” because they thought it was “very odd” that a dark car
was following them, as they had received warnings on social
media and from an acquaintance to be wary of muggers in
suspicious black sedans at the truck clubs or truck award
shows. Villanueva continued driving away, going between
50 and 70 miles per hour on surface streets and running at
least three red lights. The Officers followed at a (disputed)
distance, intermittently using their sirens when moving
through intersections. After several minutes of driving,
Villanueva turned north onto North Pritchard avenue, which
dead-ends, and then right onto MacArthur Avenue, which
also dead-ends. The Officers continued their pursuit, turning
onto North Pritchard and then approaching the intersection
with MacArthur, where they saw the Silverado stopped on
MacArthur.
All parties agree on the barebones of what happened
next. The Officers immediately exited their vehicle and
drew their firearms. Cleveland stood near the open driver’s
side door of the police car and Henderson stood near the
open passenger’s door. At the same time, Villanueva
attempted to reverse out of MacArthur in a three-point turn
that resulted in the rear of his vehicle pointing toward the
Pritchard dead-end and the front generally facing the
Officers, who were approximately 15 to 20 feet away. The
Officers then opened fire on the vehicle and shouted a
warning of some kind at the same time or within a second of

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VILLANUEVA V. CLEVELAND 7
firing. The shots killed Villanueva and injured Orozco. The
Silverado then slowly rolled forward, ultimately colliding
with the Officers’ car at a very low speed.
A photo of the intersection, taken after the shooting, is
reproduced below. The street that runs horizontally in the
photo is Pritchard, and the street that runs vertically is
MacArthur.
Viewed in the light most favorable to the plaintiffs,
Villanueva performed the three-point turn in a controlled
manner, and when the Officers opened fire, the Silverado
was moving very slowly and was not pointed directly at
either officer or accelerating. After the shooting, Orozco
was detained in the truck until a supervisor arrived, at which
point he was handcuffed and taken to the hospital.
B.
Orozco and Villanueva’s parents, on behalf of their son,
filed this suit, alleging both constitutional and state law

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8 VILLANUEVA V. CLEVELAND
claims, including excessive force in violation of the Fourth
Amendment and unreasonable detention and false arrest.3
The Officers moved for summary judgment, arguing that
they were entitled to qualified immunity on some claims,
including the excessive force claims, and that others failed
as a matter of law. The district court denied the Officers’
motion for summary judgment based on qualified immunity
for the excessive force claims. First, it found that Orozco
had Fourth Amendment standing as a passenger to bring
claims against the Officers, relying on Brendlin v.
California, 551 U.S. 249, 251 (2007). Second, it held that
“there are simply too many disputes of material fact to rule
on summary judgment that [the Officers]’s use of deadly
force was objectively reasonable,” and that, construing the
facts in the light most favorable to the plaintiffs, a reasonable
jury could find that the Officers used excessive force in
violation of clearly established law. The district court also
denied the Officers’ motion for summary judgment as to
Orozco’s unreasonable detention and false arrest claims on
the merits. It declined to address qualified immunity as to
those claims, because it found the Officers had not properly
asserted the defense. The Officers timely appealed.4
3 Villanueva’s parents withdrew their unreasonable detention and
false arrest claims prior to the district court’s denial of summary
judgment.
4 The Officers waived a defense of qualified immunity as to
Orozco’s unreasonable detention and false arrest claims by failing to
assert it in the district court. We have “a ‘general rule’ against
entertaining arguments on appeal that were not presented or developed
before the district court.” In re Mercury Interactive Corp. Secs. Litig.,
618 F.3d 988, 992 (9th Cir. 2010) (citation omitted). “Although no
bright line rule exists to determine whether a matter [h]as been properly
raised below, an issue will generally be deemed waived on appeal if the

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VILLANUEVA V. CLEVELAND 9
II.
“[W]e normally have no jurisdiction to hear
interlocutory appeals from the denial of summary
judgment.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d
938, 944 (9th Cir. 2017). However, under the collateral
order doctrine we have jurisdiction over the interlocutory
appeal of a denial of qualified immunity, “to the extent that
it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). Thus, although “[a]ny decision by the
district court ‘that the parties’ evidence presents genuine
issues of material fact is categorically unreviewable on
interlocutory appeal,’” George v. Morris, 736 F.3d 829, 834
(9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067
(9th Cir. 2009)), we may exercise jurisdiction by “construing
the facts and drawing all inferences in favor of Plaintiffs, to
decide whether the evidence demonstrates a violation by [the
Officers], and whether such violation was in contravention
argument was not raised sufficiently for the trial court to rule on it.” Id.
(internal quotation marks and citation omitted). Failure to argue a point
in a motion for summary judgment qualifies as failing to raise that issue
below. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam) (not reaching an issue not argued in a “memorandum of points
and authorities supporting [the] motion for summary judgment before
the district court”).
“Such waiver is a discretionary, not jurisdictional, determination.”
Mercury Interactive Corp., 618 F.3d at 992. “We may consider issues
not presented to the district court,” but “we are not required to do so.”
Id. As the Officers do not offer any arguments as to why we should
disregard their waiver, and we do not believe this is one of the
“‘exceptional’ case[s] in which review is necessary to prevent a
miscarriage of justice or to preserve the integrity of the judicial process,”
id. (quoting Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985)), we
decline to reach the Officers’ waived qualified immunity argument.

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10 VILLANUEVA V. CLEVELAND
of federal law that was clearly established at the time,”
Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016). “We
review the district court’s conclusions regarding qualified
immunity de novo.” Isayeva, 872 F.3d at 946.
III.
“[O]fficers are entitled to qualified immunity under
§ 1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation
omitted). A law is clearly established if “at the time of the
officer’s conduct, the law was sufficiently clear that every
reasonable official would understand that what he is doing is
unlawful.” Id. (internal quotation marks and citation
omitted). “[C]ourts must not ‘define clearly established law
at a high level of generality, since doing so avoids the crucial
question whether the official acted reasonably in the
particular circumstances that he or she faced.’” Id. at 590
(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).
“While there does not have to be ‘a case directly on point,’
existing precedent must place the lawfulness of the [conduct]
‘beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)).
A.
Before addressing whether the Officers used excessive
force when they shot at Villanueva and the Silverado, we
must determine whether Orozco—a passenger who was not
intentionally targeted by the Officers—has a cognizable
Fourth Amendment interest. The Officers argue that they
are entitled to qualified immunity as to Orozco’s Fourth
Amendment excessive force claim because it is not clearly
established “that a passenger struck by a bullet intended to

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VILLANUEVA V. CLEVELAND 11
stop the driver of a vehicle can assert a Fourth Amendment
claim.” We reject this argument. At the time of the incident,
it was clearly established that when the Officers shot at the
Silverado, both Villanueva, the driver, and Orozco, the
passenger, were seized within the meaning of the Fourth
Amendment.5
A person is seized under the Fourth Amendment “when
there is a governmental termination of freedom of [his]
movement through means intentionally applied.” Brower v.
Cnty. of Inyo, 489 U.S. 593, 597 (1989) (emphasis omitted).
Freedom of movement is terminated when, “in view of all of
the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(principal opinion). Recognizing that “[t]he law is settled
that in Fourth Amendment terms a traffic stop entails a
seizure of the driver,” in 2007 the Supreme Court held in
5 The district court framed this inquiry as one about whether Orozco
had “standing under the Fourth Amendment to challenge the force
exercised against him,” and concluded that he did have “standing.” It
then performed the distinct excessive force analysis without first
assessing whether Orozco’s “standing” was clearly established.
However, it should have addressed the second step of the qualified
immunity inquiry. The term Fourth Amendment standing is “a useful
shorthand for capturing the idea that a person must have a cognizable
Fourth Amendment interest” to bring a Fourth Amendment claim, “but
it should not be confused with Article III standing, which is
jurisdictional.” Byrd v. United States, 138 S. Ct. 1518, 1530 (2018).
Fourth Amendment standing is “not distinct from the merits” of a Fourth
Amendment claim and “is subsumed under substantive Fourth
Amendment doctrine.” Id. (internal quotation marks and citation
omitted). Thus, even if an individual does have a cognizable Fourth
Amendment right, that right must have been “‘clearly established’ at the
time of defendant’s alleged misconduct” to overcome qualified
immunity. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation
omitted).

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Brendlin that when a traffic stop occurs the passenger is also
seized, because “during a traffic stop an officer seizes
everyone in the vehicle, not just the driver.” 551 U.S. at 255;
see also Tennessee v. Garner, 471 U.S. 1, 7 (1985)
(“[A]pprehension by the use of deadly force is a seizure
subject to the reasonableness requirement of the Fourth
Amendment.”).
The Officers do not dispute that they made a traffic stop
when they shot at Villanueva and the Silverado. Instead,
they argue that Orozco was not seized during the stop
because seizure requires an intentional act on the part of the
officer, see Brower, 489 U.S. at 597, and they subjectively
intended to shoot only Villanueva. But the Supreme Court
“ha[s] repeatedly rejected attempts to introduce this kind of
subjectivity into Fourth Amendment analysis.” Brendlin,
551 U.S. at 260 (collecting cases).6 As the Brendlin Court
reasoned, the Mendenhall test for what constitutes a seizure
is an objective one. It does not ask whether the officers
intended a seizure; it instead asks “what a reasonable
passenger would understand.” Id. “The intent that counts
under the Fourth Amendment” is the intent conveyed, not
the officers’ subjective intent. Id. at 260–61. So long as the
detention is made “through means intentionally applied,” it
is a Fourth Amendment seizure of the person detained. Id.
at 254.
The Brendlin Court cited Brower and County of
Sacramento v. Lewis, 523 U.S. 833 (1998), to illustrate that
6 The only contrary authority the Officers rely upon are two
unpublished memoranda dispositions, Nakagawa v. Cnty. of Maui, 686
F. App’x 388, 389 (9th Cir. 2017), and Arruda ex rel. Arruda v. Cnty. of
L.A., 373 F. App’x 798, 799 (9th Cir. 2010), and dicta in a pre-Brendlin
opinion, United States v. Lockett, 919 F.2d 585, 590 n.4 (9th Cir. 1990),
none of which is binding here.

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VILLANUEVA V. CLEVELAND 13
a passenger can be seized in violation of the Fourth
Amendment even if he is not the motivating target, where
there is an intentional act employed. In Brower, the Court
concluded that officers seized a driver when they
purposefully set up a roadblock that the driver then slammed
into, because roadblocks are “designed to produce a stop by
physical impact if voluntary compliance does not occur.”
489 U.S. at 598. The Court acknowledged that the officers
may have “preferred, and indeed earnestly hoped” that the
driver would choose to stop before running into the
roadblock, but “d[id] not think it practicable to conduct such
an inquiry into subjective intent.” Id. The Brendlin Court
explained that the “officers detained [the Brower driver]
‘through means intentionally applied’; if the car had had
another occupant, it would have made sense to hold that he
too had been seized when the car collided with the
roadblock.” 551 U.S. at 261.
By contrast, in Lewis, “an officer accidentally ran over a
passenger who had fallen off a motorcycle during a high-
speed chase.” Id. (citing Lewis, 523 U.S. at 844) (emphasis
added). “[I]n holding that no seizure took place,” the Court
“stressed that the officer stopped Lewis’s movement by
accidentally crashing into him, not ‘through means
intentionally applied.’” Id. (quoting Lewis, 523 U.S. at
844). Conversely, if the officer had intentionally collided
with the motorcycle to stop it, the injured passenger would
also have been seized; as the Brendlin Court noted, “[w]e did
not even consider, let alone emphasize, the possibility that
the officer had meant to detain the driver only and not the
passenger” in Lewis. Id.
Here, the Officers shot at Villanueva and the Silverado
with the intent of stopping the Silverado from moving,
effecting a traffic stop by force and seizing Orozco in the

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process, just as the Brower roadblock would have
constituted a seizure of the driver, as well as of any
passengers in the car. See id. Thus, Orozco was seized under
clearly established law as soon as the Officers intentionally
fired at the Silverado to effect the stop.
The Officers also dispute that they knew Orozco was in
the Silverado. But under Brendlin’s logic, it is irrelevant
whether they knew any passengers were in the car, because
they stopped the car and all its possible occupants when they
shot at it. Here, Orozco was subject to the Officers’
“intentional action to stop the car”—and with it the
“objectively manifested” restraint on his movement—
whether the Officers knew he was a passenger when they
fired or not. Id. at 260. The Third Circuit agrees that
Brendlin “ma[kes] clear that an officer’s knowledge of a
passenger’s presence in the vehicle is not dispositive” to the
question of seizure “so long as the detention is willful and
not merely the consequence of an unknowing act.”
Davenport v. Borough of Homestead, 870 F.3d 273, 279 (3d
Cir. 2017) (internal quotation marks and citation omitted).
Indeed, all of the other circuits that have addressed
whether a passenger struck by a stray bullet aimed at the
vehicle or driver has a cognizable Fourth Amendment claim
agree with our conclusion that such a passenger does have a
Fourth Amendment claim in these circumstances. The
Third, Sixth, and Eleventh Circuits have all concluded that
by intentionally stopping a vehicle, an officer subjects the
vehicle’s passenger to a Fourth Amendment seizure. See
Davenport, 870 F.3d at 279 (“[A] passenger shot by an
officer during the course of a vehicular pursuit may seek
relief under the Fourth Amendment.”); Vaughan v. Cox, 343
F.3d 1323, 1328 (11th Cir. 2003) (“[B]ecause he did not
intend to shoot [the passenger], [the officer] contends that

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VILLANUEVA V. CLEVELAND 15
[the passenger] did not suffer a Fourth Amendment seizure.
We disagree.”); Fisher v. City of Memphis, 234 F.3d 312,
318–19 (6th Cir. 2000) (“By shooting at the driver of the
moving car, [the officer] intended to stop the car, effectively
seizing everyone inside, including the Plaintiff.”); see also
Lytle v. Bexar Ctny., Tex., 560 F.3d 404, 410 (5th Cir. 2009)
(no dispute that the passenger was “‘seized’ within the
meaning of the Fourth Amendment”). No other Circuit has
addressed the question.
The Officers cite cases from the First, Second, and Tenth
Circuits, arguing for a contrary result, but those cases were
all pre-Brendlin, and address the very different situation
where the passenger was also a hostage and the officers were
trying to rescue the passenger, not arrest him. See Childress
v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000)
(“The police officers in the instant case did not ‘seize’
plaintiffs within the meaning of the Fourth Amendment but
rather made every effort to deliver them from unlawful
abduction.”); Medeiros v. O’Connell, 150 F.3d 164, 168 (2d
Cir. 1998) (“[F]ar from seeking to restrain [the injured
hostage’s] freedom, the troopers’ every effort was bent on
delivering all the hostages from deadly peril.”); Landol-
Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990) (“A
police officer’s deliberate decision to shoot at a car
containing a robber and a hostage for the purpose of stopping
the robber’s flight does not result in the sort of willful
detention of the hostage that the Fourth Amendment was
designed to govern.”).7
7 The officers mistakenly assert that a recent Tenth Circuit case,
Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203 (10th Cir.
2017), “suggest[s] that the Fourth Amendment does not apply to a
passenger’s claim.” In Carabajal, however, the Tenth Circuit explicitly

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16 VILLANUEVA V. CLEVELAND
Moreover, as of the time of the events here, we had
already applied Brendlin and Brower to hold that a Fourth
Amendment seizure occurred where the officers
intentionally used force that injured an individual in a crowd.
Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012).
There, we concluded that Nelson was “unquestionably
seized under the Fourth Amendment,” id. at 876, by officers
who intentionally shot pepperballs into a large college party
they wished to disperse, even though the officers did not
specifically intend to target Nelson, who was hit in the eye
with one of the projectiles, id. at 876–78.
As here, we rejected the officers’ argument that because
Nelson was not individually the target of their use of force,
his injury was unintentional and thus not in violation of the
Fourth Amendment. Id. at 876. Applying Brower and
Brendlin, we explained that “[t]his argument misapprehends
the distinction between intentional and unintentional
conduct that the Supreme Court has repeatedly held as
determinative of the Fourth Amendment analysis.” Id. As
we elaborated:
[a]lthough the officers may have intended
that the projectiles explode over the students’
heads or against a wall, the officers’ conduct
resulted in Nelson being hit by a projectile
declined to reach the question of whether a seizure of the passenger
occurred when the officers shot directly into the vehicle. Id. at 1212–13.
The Tenth Circuit thought that the First Circuit’s discussion in Landol-
Rivera showed a circuit split on seizures of passengers but failed to note
that Landol involved a hostage situation and was decided prior to
Brendlin, so there was in fact no split. Id. at 1212. However, because it
believed there was such division, it simply reasoned that the law was not
clearly established and ruled for the officers on the basis of qualified
immunity. Id. at 1213.

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VILLANUEVA V. CLEVELAND 17
that they intentionally fired towards a group
of which he was a member. Their conduct
was intentional, it was aimed towards Nelson
and his group, and it resulted in the
application of physical force to Nelson’s
person as well as the termination of his
movement. Nelson was therefore
intentionally seized under the Fourth
Amendment.
Id. at 877. We further held that as of the time of Nelson’s
shooting, it was clearly established “that the intentional
application of force which terminates an individual’s
freedom of movement results in a seizure.” Id. at 884 (citing
California v. Hodari D., 499 U.S. 621 (1991); Brower, 489
U.S. 593).
We therefore conclude that under Brower, Brendlin, and
Nelson, because Orozco’s freedom of movement was
terminated when the Officers intentionally shot at the
Silverado in which he was a passenger to stop its movement,
Orozco was seized within the meaning of the Fourth
Amendment. It matters not whether the Officers intended to
shoot Orozco or whether they even knew he was present as
a passenger. Under clearly established precedent at the time,
Orozco was seized.
B.
It is clear that Orozco was seized along with Villanueva.
We now turn to whether the two were unreasonably seized;
that is, whether they have a claim of excessive force under
clearly established law such that the Officers are not entitled
to qualified immunity.

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18 VILLANUEVA V. CLEVELAND
1.
Allegations of excessive force during an investigatory
stop or arrest of a free citizen are examined under the Fourth
Amendment’s prohibition against unreasonable seizures.
Graham v. Connor, 490 U.S. 386, 394 (1989); see also
Garner, 471 U.S. at 7. This is an objective inquiry that asks
whether an officer’s actions were reasonable in light of the
circumstances he confronted. Graham, 490 U.S. at 397.
Determining whether a particular use of force was
reasonable “requires a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing
governmental interests at stake.” Id. at 396 (internal
quotation marks and citation omitted). To assess the
government interests, we evaluate a “range of factors” that
include “(1) the severity of the crime at issue, (2) whether
the suspect posed an immediate threat to the safety of the
officers or others (3) whether he was actively resisting arrest
or attempting to evade arrest by flight, and any other exigent
circumstances that existed at the time of the arrest.” Deorle
v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001) (cleaned
up and citation omitted); see also Graham, 490 U.S. at 396.
In cases involving use of deadly force against a fleeing
suspect, “the Supreme Court has crafted a more definitive
rule,” allowing an officer to use deadly force “only if ‘the
officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to
others.’” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th
Cir. 2020) (quoting Garner, 471 U.S. at 11). A suspect may
pose a threat of serious physical harm “if ‘there is probable
cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm,’
or if the suspect threatens the officer or others with a weapon

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VILLANUEVA V. CLEVELAND 19
capable of inflicting such harm.” Id. (quoting Garner, 471
U.S. at 11).
The Officers argue that their use of deadly force did not
violate the Fourth Amendment as a matter of law because
Villanueva threatened them with a deadly weapon—his
truck—and any reasonable officer in their positions would
have believed that Villanueva posed an immediate threat of
serious harm or death to Sergeant Cleveland.8 But in this
case, the key facts demarcating the line between reasonable
and unreasonable force are in dispute. Because we must
construe these facts and the reasonable inferences that arise
from them in favor of the plaintiffs, Thomas v. Dillard, 818
F.3d 864, 874 (9th Cir. 2016), we cannot agree that the
Officers’ actions were reasonable as a matter of law.
“A moving vehicle can of course pose a threat of serious
physical harm, but only if someone is at risk of being struck
by it.” Orn, 949 F.3d at 1174. Use of deadly force to stop a
recklessly speeding vehicle during a car chase is therefore
ordinarily reasonable under the Fourth Amendment. See,
e.g., Mullenix v. Luna, 577 U.S. 7, 15 (2015) (“The Court
has thus never found the use of deadly force in connection
with a dangerous car chase to violate the Fourth
Amendment.”); Scott v. Harris, 550 U.S. 372, 386 (2007)
8 The Officers’ argument rests entirely on the reasonableness of their
fear that Villanueva’s truck was about to hit Sergeant Cleveland. They
do not argue that they had probable cause to believe that Villanueva
committed a crime involving the infliction or threatened infliction of
serious physical harm, and acknowledge that the only crimes they
observed him commit were mere traffic violations. Nor do they argue
that they were concerned for the safety of others. They had no reason to
believe anyone in the Silverado was in possession of a firearm, and no
evidence indicates that any persons other than the Officers were directly
in or near the path of the car when they fired.

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20 VILLANUEVA V. CLEVELAND
(“A police officer’s attempt to terminate a dangerous high-
speed car chase that threatens the lives of innocent
bystanders does not violate the Fourth Amendment.”).
But this case does not involve a shooting during a high-
speed chase. It is undisputed that Villanueva slowed to
below the speed limit on Pritchard and came to a stop on
MacArthur before performing the three-point turn. Even
under the Officers’ view of the facts, “the truck was moving
forward at a speed of up to five miles an hour” when they
shot at it.
We have consistently found use of deadly force to stop a
slow-moving vehicle unreasonable when the officers could
have easily stepped out of the vehicle’s path to avoid danger.
See Orn, 949 F.3d at 1175 (“Orn’s vehicle was moving at
just five miles per hour. [The officer] could therefore have
avoided any risk of being struck by simply taking a step
back.”); Acosta v. City & Cnty. of S. F., 83 F.3d 1143, 1146
(9th Cir. 1996), as amended (June 18, 1996), abrogated on
other grounds by Saucier v. Katz, 533 U.S. 194 (2001)
(finding that a reasonable officer “would have recognized
that he could avoid being injured when the car moved
slowly, by simply stepping to the side”). In contrast, we
have found use of deadly force against a stopped or slow-
moving vehicle reasonable only when the driver was trying
to evade arrest in an aggressive manner involving attempted
or actual acceleration of the vehicle. See Monzon v. City of
Murrieta, 978 F.3d 1150, 1161 (9th Cir. 2020) (finding use
of deadly force reasonable when “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 [the officer]’s cruiser”); Wilkinson v. Torres, 610

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VILLANUEVA V. CLEVELAND 21
F.3d 546, 551–53 (9th Cir. 2010) (finding deadly force
reasonable where the officer “was standing in a slippery yard
with a minivan accelerating around him”); see also
Plumhoff, 572 U.S. at 776 (finding deadly force reasonable
where “the front bumper of [the driver’s] car was flush with
that of one of the police cruisers, [the driver] was obviously
pushing down on the accelerator because the car’s wheels
were spinning, and then [the driver] threw the car into
reverse ‘in an attempt to escape.’”).
The key question, then, is whether Villanueva
accelerated or attempted to accelerate toward the Officers
before the Officers shot at the Silverado and its occupants.
See Monzon, 978 F.3d at 1163; Wilkinson, 610 F.3d at 551–
53. The Officers claim Villanueva was driving “recklessly”
during the three-point turn, to the point that he hit a car
behind him, and that he faced their direction and hit the gas
before shots were fired. But witness testimony suggests that
Villanueva’s three-point turn was controlled, that he did not
crash into another car, and that he never accelerated toward
the police vehicle or the Officers. Orozco attested that
Villanueva was driving below the speed limit while making
the turn, and that Orozco did not feel the Silverado collide
with another vehicle behind it. He also attested that the
Silverado was not moving directly toward the police vehicle
at the time of the shooting, and that he did not see either
officer “in the path of the truck” at any point before or during
the shooting. Witness Lino Mendez testified that he did not
hear the Silverado collide with another vehicle, the engine
rev, or the tires screech, and that he was very confident that
the Silverado did not accelerate toward the police vehicle.
Witness Abel Orozco (no relation) testified that the turn
“wasn’t fast” and that he “didn’t hear no revving or no
burning tires or anything like that.” Witness Thomas Hinkle,
Jr., testified that the Silverado tried to make a U-turn at a

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22 VILLANUEVA V. CLEVELAND
“very slow” speed and was not rushing. He never heard the
engine rev and did not see the Silverado accelerate forward
toward the police sedan.
Taking the facts in the light most favorable to the
plaintiffs, then, the three-point-turn was performed
cautiously, the truck—which was 15 to 20 feet away from
the Officers—was not aimed directly at Sergeant Cleveland
and was moving very slowly and not accelerating when the
Officers began shooting. In these circumstances, a
reasonable jury could conclude that the Officers used
excessive force, because they “lacked an objectively
reasonable basis to fear for [their] own safety, as [they] could
simply have stepped back [or to the side] to avoid being
injured.” Orn, 949 F.3d at 1179; see also Acosta, 83 F.3d at
1146.
2.
Because excessive use of force is a highly fact-specific
inquiry, even when we determine excessive force was used,
“police officers are entitled to qualified immunity unless
existing precedent ‘squarely governs’ the specific facts at
issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
(citation omitted). Leading cases, such as Graham and
Garner, “are cast at a high level of generality” and provide
clearly established law only for the most “obvious” cases.
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam).
However, “[p]recedent involving similar facts can help
move a case beyond the otherwise ‘hazy border between
excessive and acceptable force’ and thereby provide an
officer notice that a specific use of force is unlawful.”
Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 577 U.S. at 18).
Because at the summary judgment stage we find that the car
was slow-moving and the Officers could have simply moved
away to avoid injury, their use of deadly force was clearly

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VILLANUEVA V. CLEVELAND 23
established as unreasonable as of 1996 by Acosta, 83 F.3d at
1145–47.
In Acosta, an off-duty, plainclothes police officer chased
on foot two men he believed had stolen a purse. Id. at 1144.
The men got into a waiting, stopped car driven by Michael
Acosta. Id. The officer, still in pursuit, positioned himself
near the front of the car, standing closer to the side than dead-
center. Id. at 1146. The vehicle then began “moving or
rolling very slowly from a standstill” toward the officer. Id.
at 1147. The officer fired two shots into the car, killing
Acosta. Id. at 1144. We held that the officer violated the
Fourth Amendment and was not entitled to qualified
immunity because “a reasonable officer could not have
reasonably believed that shooting at the driver of the slowly
moving car was lawful,” id. at 1148, as he “would have
recognized that he could avoid being injured when the car
moved slowly[] by simply stepping to the side,” id. at 1146.
Acosta thus clearly established that an officer who shoots
at a slow-moving car when he can easily step out of the way
violates the Fourth Amendment, as we recently reaffirmed
in Orn. 949 F.3d 1167. In Orn, after refusing to stop for a
police car with lights activated, a driver led officers on a
slow-speed pursuit for 15 minutes. Id. at 1171–72. The
officers eventually cornered the driver inside a parking lot.
Id. at 1172. After a brief stop, the driver drove slowly—
around five miles per hour—through a narrow gap between
a police car and another parked car. Id. at 1173. While
maneuvering between the vehicles, the driver clipped one of
the police SUVs. Id. At that point, an officer ran toward the
driver’s vehicle on the passenger side and began firing. Id.
We held that the officer was not entitled to qualified
immunity because the facts of Orn, when taken in the light
most favorable to the plaintiff, were “not fairly

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24 VILLANUEVA V. CLEVELAND
distinguishable from those in Acosta.” Id. at 1179. “If [the
driver] was traveling at only five miles per hour as he
maneuvered past [the officer’s] SUV, and if he did not
accelerate until after being shot, a reasonable jury could
conclude that [the officer] lacked an objectively reasonable
basis to fear for his own safety, as he could simply have
stepped back to avoid being injured.” Id.
The facts here, when taken in the light most favorable to
the plaintiffs, are similarly “not fairly distinguishable from
those in Acosta.” Id. As in Acosta, Villanueva’s vehicle was
at a stop shortly before the shooting. In both cases, no officer
was standing directly in front of the vehicle. Villanueva, like
the driver in Acosta, did not accelerate toward the police car
or the Officers before the Officers opened fire.9 In light of
Acosta, all reasonable officers would know it is
impermissible to shoot at a slow-moving car when he could
“simply step[] to the side” to avoid danger. Acosta, 83 F.3d
at 1146.
The Officers cite Wilkinson for the proposition that we
have granted qualified immunity when an officer on foot
shot at the driver of a slow-moving vehicle. 610 F.3d at 552.
However, as the district court astutely observed, Wilkinson
involved distinct facts and does not undermine the clarity of
Acosta’s holding or its application to this case. In Wilkinson,
a fleeing minivan temporarily came to a stop in a muddy yard
after crashing into a telephone pole. Id. at 549. Although
the minivan was surrounded by police vehicles as well as
9 The Officers attempt to distinguish Acosta by suggesting
“Villanueva ‘hit the gas’ and the truck was moving forward at a speed of
up to five miles per hour” before they shot. But, as already discussed,
the factual claim that Villanueva hit the gas or otherwise accelerated is
disputed and cannot be used to support qualified immunity at this stage.

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VILLANUEVA V. CLEVELAND 25
two officers on foot, the driver continued to attempt to
accelerate, as evidenced by the minivan’s wheels “spinning
and throwing up mud.” Id. One officer approached the
vehicle and then fell on the slippery ground. Id. A second
officer, believing the first officer had been run over, then
fired at the driver. Id. We held that the officer’s use of
deadly force was reasonable. Id. at 553. We emphasized
that the minivan was only moving at a slow speed because it
was stuck in mud; the driver was “revving” the engine and
the van “could have gained traction at any time, resulting in
a sudden acceleration in speed.” Id. at 552. Furthermore,
the muddy yard was slippery, and the officer who shot the
driver had good reason to believe that another officer was
either still on the ground or “standing but disoriented”—that
is to say, not able to easily move out of the way of an
oncoming car no matter its speed. Id. at 551. The chaotic
situation in Wilkinson has little relevance to the facts of
either Acosta or this case, which involve non-accelerating
vehicles and officers who were standing on normal, paved
roads.
As in Orn, what the Officers here “most forcefully
contest[] is whether [their] alternative account of the
shooting should be accepted as true.” 949 F.3d at 1181. But
we review only “whether, after construing disputed facts and
reasonable inferences in favor of [the plaintiff], [the
defendant] is entitled to qualified immunity as a matter of
law.” Thomas, 818 F.3d at 874. Orn holds that Acosta
clearly established that an officer violates a person’s
constitutional rights by shooting at a slow-moving vehicle
that the officer could reasonably have side-stepped to
remove himself from danger.

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26 VILLANUEVA V. CLEVELAND
IV.
Viewing the facts in the light most favorable to the
plaintiffs, we conclude that the Officers are not entitled to
qualified immunity on Villanueva and Orozco’s excessive
force claims. We therefore AFFIRM the district court’s
denial of summary judgment as to the excessive force claim,
DISMISS the appeals as to the false detention and arrest
claims, and REMAND this case for further proceedings.

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