Mayleisha Barnes; v. City of Pasadena;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAYLEISHA BARNES; et al.,
Plaintiffs - Appellants,
v.
CITY OF PASADENA; et al.,
Defendants - Appellees.
No. 11-56109
D.C. No. 2:10-cv-00470-JHN-PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Submitted February 7, 2013**
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
This case involves the fatal shooting of Leroy Barnes by two City of
Pasadena police officers. Plaintiffs, Barnes’s two daughters and his estate, appeal
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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the district court’s grant of summary judgment in favor of Defendants, the two
officers and the City of Pasadena. Reviewing de novo, we affirm.
We agree with the district court that Plaintiffs lacked standing to assert an
excessive force claim under the Fourth Amendment. See Moreland v. Las Vegas
Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Plaintiffs have not argued
to the contrary. They failed to demonstrate that one of them was Barnes’s personal
representative or Barnes’s successor in interest under California law. See Tatum v.
City & Cnty. of S.F., 441 F.3d 1090, 1093 n.2 (9th Cir. 2006); Cal. Civ. Proc. Code
§§ 377.30, 377.32.
We therefore construe Plaintiffs’ Fourth Amendment claim as a Fourteenth
Amendment substantive due process claim based on Defendants’ alleged
deprivation of Plaintiffs’ liberty interest in the companionship of their father.
See Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987), overruled on
other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir.
1999) (en banc). To prevail on that claim, Plaintiffs were required to show that
Defendants’ conduct shocked the conscience. Wilkinson v. Torres, 610 F.3d 546,
554 (9th Cir. 2010).
Actual deliberation by the officers was not practical because the incident
rapidly escalated into a physical struggle and a fatal shooting, and it lasted only

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about twenty-five seconds. See id. Therefore, the officers’ conduct shocked the
conscience only if they acted “with a purpose to harm unrelated to legitimate law
enforcement objectives.” Id.
We recognize that, this being a case involving deadly force, we must ensure
that the officers are “not taking advantage of the fact that the witness most likely to
contradict [their] story – the person shot dead – is unable to testify.” Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994). We nonetheless conclude that Plaintiffs
failed to demonstrate the existence of a genuine issue of material fact concerning
whether the officers had a purpose to harm Barnes unrelated to legitimate law
enforcement objectives. See Wilkinson, 610 F.3d at 554.
First, even if an issue of fact existed about the presence of a gun, the
determinative issue was whether the officers reasonably believed Barnes had a gun
and posed an immediate threat to safety. The record indicated that they did. The
enhanced still photos from the patrol car video undisputedly show something in
Barnes’s hand, and Plaintiffs pointed to no evidence suggesting that the officers
did not believe, or should not have believed, it to be a gun. In light of that belief,
the officers used deadly force to ensure their safety. No evidence suggested any
other purpose.

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Second, Plaintiffs’ contention that Barnes did not have a gun was not
supported by sufficient evidence to create a genuine issue of material fact anyway,
even drawing all justifiable inferences in Plaintiffs’ favor. The evidence that
arguably supported Plaintiffs’ position – Edwards’s testimony and the lack of
forensic evidence on the gun found at the scene, for example – did not discredit the
officers’ testimony. In addition, other evidence supported the officers’ version of
the facts, including the gun found at the scene, the patrol car video, and the still
photos from the patrol car video. The lack of forensic evidence linking the gun to
Barnes was not enough to support Plaintiffs’ allegation that Defendants planted the
gun. See Scott, 39 F.3d at 915 (“The judge must carefully examine all the evidence
in the record, such as medical reports, contemporaneous statements by the officer
and the available physical evidence, as well as any expert testimony proffered by
the plaintiff, to determine whether the officer’s story is internally consistent and
consistent with other known facts.”). The district court therefore properly granted
summary judgment on this claim.
Having concluded that no constitutional violation occurred, we do not reach
the issue of qualified immunity, and we conclude that Plaintiffs’ Monell claim
fails. See Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).

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Summary judgment was also appropriate on Plaintiffs’ California
Government Code § 815.2(a) claim. The City could not be held liable under
section 815.2 because the officers’ use of deadly force was “justifiable” under
California Penal Code § 196. Given the tense and rapidly escalating situation,
Barnes’s instruction to Edwards to flee the scene, the officers’ physical struggle
with Barnes, and the presence of a gun, the circumstances “reasonably created a
fear of death or serious bodily harm.” Brown v. Ransweiler, 89 Cal. Rptr. 3d 801,
816 (Ct. App. 2009) (alteration omitted) (quoting Martinez v. Cnty. of L.A., 54 Cal.
Rptr. 2d 772, 780 (Ct. App. 1996)).
AFFIRMED.

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