J. A. L., a minor, by and through his Guardian Ad Litem, Laurie Valdez v. Mike Santos, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. A. L., a minor, by and through his
Guardian Ad Litem, Laurie Valdez,
Plaintiff-Appellant,
v.
MIKE SANTOS, individually and as a
Police Officer of SJSU and FRIT VAN
DER HOEK, individually and as a Police
Officer of SJSU,
Defendants-Appellees.
No. 16-15629
D.C. No. 5:15-cv-00355-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and SESSIONS,** District
Judge.
FILED
FEB 06 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.

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The district court granted summary judgment in favor of San Jose State
University Police Officers Michael Santos and Frits Van der Hoek on J.L.’s claims
that, when the officers fatally shot his father Antonio Lopez in 2014, they violated
Lopez’s Fourth Amendment rights and were also negligent under California law.
We affirm.
The officers did not violate Lopez’s Fourth Amendment rights. On a motion
for summary judgment, “facts must be viewed in the light most favorable to the
nonmoving party,” but where the record includes a video, a court “should
. . . view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550
U.S. 372, 380–81 (2007). Van der Hoek’s body camera captured the tragic
minute-long series of events that resulted in Lopez’s death. Santos repeatedly
ordered Lopez to get on the ground and to drop his weapon. Lopez initially
complied, but soon stood up with a large blade in his hand and moved toward
Santos and Van der Hoek, defying Santos’s commands. Van der Hoek moved
closer to Lopez without impeding his progress, and yelled, “Taser! Taser! Taser!”
Lopez did not respond to the warning, and when Van der Hoek fired his taser it did
not appear to have any effect. Lopez immediately began to run, quickly turned in
Van der Hoek’s direction, and headed directly toward him, still holding the blade.
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In response, Santos fired two shots from his position behind Lopez. Lopez’s
resulting injuries proved fatal.
Santos and Van der Hoek are public officials and are therefore “immune
from suit under 42 U.S.C. § 1983 unless they have violated a statutory or
constitutional right that was clearly established at the time of the challenged
conduct.” City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal
quotation marks omitted). An officer may use deadly force where “the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1,
3 (1985). Moreover, an officer’s “particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham v. Connor, 490 U.S. 386, 396–97 (1989); see also Smith v.
City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc) (“Thus, where a suspect
threatens an officer with a weapon such as a gun or a knife, the officer is justified
in using deadly force.”).
J.L. argues that Lopez was attempting to flee the scene, but this is
contradicted by the video. See Scott, 550 U.S. at 380. J.L.’s additional arguments
are equally unavailing. First, J.L. argues that the officers should have warned
Lopez prior to using lethal force, but such a warning is required only “whenever
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practicable.” Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) (citing
Garner, 471 U.S. at 11–12). Second, J.L. contends that Santos could have used
nonlethal force, but “officers are not required to use the least intrusive degree of
force possible.” Lowry v. City of San Diego, 858 F.3d 1248, 1259 (9th Cir. 2017)
(en banc) (internal quotation marks omitted). Finally, J.L. asserts that the officers
should have approached the situation differently because of Lopez’s alleged mental
health issues, but these concerns were not “knowable to the defendant officers” at
the time. See White v. Pauly, 137 S. Ct. 548, 550 (2017).
Nor was the officers’ conduct negligent under state law. California
“negligence law . . . is broader than federal Fourth Amendment law.” Hayes v.
Cty. of San Diego, 305 P.3d 252, 263 (Cal. 2013). “In other words, preshooting
circumstances might show that an otherwise reasonable use of deadly force was in
fact unreasonable.” Id. at 256.
Central to J.L.’s negligence argument is his belief that the officers were
aware that Lopez was experiencing some kind of emotional disturbance and that
their response disregarded relevant training. Likewise, the expert testimony about
the officers’ preshooting conduct is premised on unsupported claims that the
officers knew Lopez had mental health issues. The record shows a call to
university police about Lopez waving or stabbing a knife in the air as he walked
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down the street; Lopez was talking to himself during his encounter with Santos and
Van der Hoek; and Officer Van der Hoek noticed that Lopez was acting strange
and stated that “there was something just wrong with him.” Neither Santos nor
Van der Hoek had any additional information about Lopez’s mental health prior to
the one-minute encounter.
Even if the officers knew Lopez was likely impaired, they were faced with a
man carrying a large blade in a populated area who repeatedly refused to comply
with their commands. California law does not require officers to “choose the most
reasonable action or the conduct that is least likely to cause harm” and “[l]aw
enforcement personnel have a degree of discretion as to how they choose to
address a particular situation.” Id. at 258 (internal quotation marks omitted). In
lethal force cases, the California Supreme Court has specifically warned against
“divid[ing a] plaintiff’s cause of action artificially into a series of decisional
moments,” and instructs courts to consider the reasonableness of officers’
preshooting conduct “as part of the totality of the circumstances.” Id. at 261–62
(emphasis omitted).
Here, when the officers attempted to use non-lethal force, Lopez responded
by running toward Van der Hoek with a blade, immediately creating a life-
threatening situation. Considering “the totality of the circumstances,” and viewing
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the facts in the light most favorable to J.L., a reasonable juror could not find that
the officers were negligent. See id. at 258.
AFFIRMED.
6

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1
J.A.L. v. Santos, et al., 16-15629
FRIEDLAND, J., concurring in part and dissenting in part:
Under federal law, “even if an officer negligently provokes a violent
response, that negligent act will not transform an otherwise reasonable subsequent
use of force into a Fourth Amendment violation.” Billington v. Smith, 292 F.3d
1177, 1190 (9th Cir. 2002) (emphasis omitted), abrogated on other grounds by
Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). I agree that video evidence
makes clear that Antonio Lopez ran directly at Officer Frits Van der Hoek while
holding a saw-like blade. It is beyond dispute that, at that moment, Sergeant
Michael Santos had probable cause to believe Lopez posed “a significant threat of
death or serious physical injury to” Officer Van der Hoek, Tennessee v. Garner,
471 U.S. 1, 3 (1985). I therefore agree that the district court properly granted
summary judgment in favor of the officers on J.L.’s Fourth Amendment claim.
But California law is different, and in my view that difference should have
precluded summary judgment on J.L.’s negligence claim. Under California law,
unlike under federal law, what officers do before shooting can “show that an
otherwise reasonable use of deadly force was in fact unreasonable.” Hayes v. Cty.
of San Diego, 305 P.3d 252, 256 (Cal. 2013). This means that “tactical conduct
and decisions preceding the use of deadly force” may “give[] rise to negligence
liability” if they “show, as part of the totality of circumstances, that the use of
FILED
FEB 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
deadly force was unreasonable.” Id. at 263. Construing the record in the light
most favorable to J.L., a reasonable jury could find that the officers precipitated the
need for deadly force, and that the officers’ use of deadly force was unreasonable
under California law as a result. J.L.’s negligence claim should therefore have
made it to trial.
The officers had ample reason to suspect that Lopez was mentally impaired.
Police dispatch reported a man either “waving [a knife] in the air or stabbing it in
the air.” Sergeant Santos was first on scene and described Lopez as “looking at
me, but not really looking at me,” kind of like he was looking “[p]ast me.” When
Sergeant Santos ordered Lopez to get on the ground, Lopez began muttering under
his breath but still “did not appear to be acknowledging that [anyone] was there.”
Lopez eventually kneeled, but then stood up, pulled the saw-like blade out from his
sweatshirt pocket and, as Sergeant Santos testified, “just held it.” Because the
blade had no handle, Lopez clutched the serrated edge in his bare hand. When
asked in his deposition whether he was “concerned that [Lopez] was mentally
disturbed,” Sergeant Santos answered “Yes.”
Officer Van der Hoek arrived soon after Sergeant Santos and noted that
Lopez “was acting weird the whole way” as he approached Lopez from behind.
And when Officer Van der Hoek came around and saw Lopez’s face, it was as if
Lopez “was not looking at [the officers].” “He was staring off.” Put simply, as

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3
Officer Van der Hoek testified, “it was really obvious” that there was something
“just wrong” with Lopez.
As J.L.’s expert on law enforcement tactics explained, officers dealing with
someone who is mentally impaired—as both officers thought was true of Lopez—
are trained that “threats may create additional fright, stress, or potential
aggression.” They are also trained to, among other things, “take time to assess the
situation.” But here a reasonable jury could find that the officers escalated the
situation despite being trained to calm it down. The first thing Sergeant Santos did
upon arriving on scene was draw his gun, and the next thing he did was order
Lopez to get on the ground and show his hands. Officer Van der Hoek arrived
moments later, circled in front Lopez, and drew his taser. Lopez was walking
slowly forward, muttering under his breath, looking at the ground. Officer Van der
Hoek shouted “Taser! Taser! Taser!” and deployed his taser, prompting Lopez to
charge him.1 Lopez was shot dead moments later. Officer Van der Hoek had been
on scene for less than a minute, and Sergeant Santos not much longer than that.
None of this is to say that the officers lack strong arguments. My colleagues
offer several. But our task, as was the district court’s, is only “to determine
whether there is a genuine issue for trial,” Anderson v. Liberty Lobby, Inc., 477
1 My colleagues take “Taser! Taser! Taser!” as a warning to Lopez, but it
could just as easily have been a communication to Sergeant Santos. Because this
case comes to us on summary judgment, we must assume the latter.

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4
U.S. 242, 249 (1986). Juries, not courts, “weigh the evidence and determine the
truth.” Id. In this case, a jury should determine whether more restraint could have
avoided the need for deadly force—and whether California law required more
restraint under the circumstances.

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