the Estate of Valeria Tachiquin Alvarado, by its personal representative, Gilbert… v. Stephanie Shavatt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ESTATE OF VALERIA
TACHIQUIN ALVARADO, by its personal
representative, Gilbert Alvarado; et al.,
Plaintiffs-Appellees,
v.
STEPHANIE SHAVATT,
Defendant-Appellant,
and
JUSTIN CRAIG TACKETT; et al.,
Defendants.
No. 15-55699
D.C. No.
3:13-cv-01202-W-JMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted January 12, 2017
Pasadena, California
Before: TASHIMA, TALLMAN, and FRIEDLAND, Circuit Judges.
After Border Patrol Agent Justin Tackett shot and killed Valeria Tachiquin
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Alvarado on September 28, 2012, Tachiquin’s estate, husband, children, and
parents sued, among others, Stephanie Shavatt, the appellant here. Plaintiffs
alleged that Shavatt acted with deliberate indifference in clearing Tackett for hiring
as a Border Patrol Agent. Shavatt moved to dismiss the claim against her. The
district court denied Shavatt’s motion and held that she was not entitled to
qualified immunity. Shavatt timely appealed. We have jurisdiction under 28
U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511 (1985), and we reverse.
Government officials are entitled to qualified immunity from suits for damages
unless (1) a plaintiff alleges facts that make out a constitutional violation, and (2)
the right at issue was clearly established at the time of the alleged violation. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Because Plaintiffs have not
sufficiently alleged that a constitutional violation occurred, Shavatt is entitled to
qualified immunity.
In Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397
(1997), the Supreme Court established the standard of liability for hiring decisions:
“Only where adequate scrutiny of an applicant’s background would lead a
reasonable policymaker to conclude that the plainly obvious consequence of the
decision to hire the applicant would be the deprivation of a third party’s federally
protected right can the official’s failure to adequately scrutinize the applicant’s
background constitute ‘deliberate indifference.’” Id. at 411. The Supreme Court

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explained that for liability to exist, there must be “a finding that this officer was
highly likely to inflict the particular injury suffered by the plaintiff.” Id. at 412
(emphasis in original). “The connection between the background of the particular
applicant and the specific constitutional violation alleged must be strong.” Id.
Applying that standard to the allegations in this case, we conclude that Plaintiffs
have failed to state a claim for deliberate indifference in hiring.1 Although
Tackett’s previous law enforcement record included several incidents in which
Tackett had committed unlawful searches and seizures, it did not include any
incident or other conduct that made it “plainly obvious” that it was “highly likely”
that, if hired, he would “inflict the particular injury” that Tachiquin suffered—
seizure accomplished through firing a gun, causing her death.
To the extent that Plaintiffs frame their claim as a challenge to the pre-shooting
seizure of Tachiquin, that argument fails because they have not adequately alleged
that a pre-shooting seizure occurred. See Brendlin v. California, 551 U.S. 249, 254
(2007) (“A person is seized by the police . . . when the officer, ‘by means of
physical force or show of authority,’ terminates or restrains his freedom of
movement . . . .” (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991))); United
States v. McClendon, 713 F.3d 1211, 1215-16 (9th Cir. 2013) (adhering to a
1 Because we reverse on this ground, we do not address Shavatt’s arguments about
whether the right at issue was clearly established.

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previous decision that “decline[d] to adopt a rule whereby momentary hesitation
and direct eye contact prior to flight constitute submission to a show of authority,”
as required for a seizure (quoting United States v. Smith, 633 F.3d 889, 893 (9th
Cir. 2011)) (alteration in original)).
We thus REVERSE and REMAND for entry of judgment of dismissal as to
claims against defendant Shavatt on grounds of qualified immunity.

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