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Date: 11-29-2018

Case Style:

Ernest Foster, Sr. v. City of Indio; Richard P. Twiss; and Jeremy Hellawell

Case Number: 17-55167

Judge: Sandra S. Ikuta

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California (Los Angeles County)

Plaintiff's Attorney: Justin Palmer, NaShaun Neal and Peter L. Carr IV

Defendant's Attorney: Konrad Muth Rasmussen and John P. McCormick

Description: Officer Jeremy Hellawell was dispatched to investigate a
911 call from a citizen who reported that a man matching
Ernest Foster’s description was walking toward a shopping
plaza armed with a concealed handgun. As the incident
unfolded, Hellawell approached Foster at the shopping plaza
to investigate the report, Foster fled, and Hellawell ultimately
shot Foster fatally three times in the back. Foster’s family
(the plaintiffs) claim that Hellawell violated Foster’s Fourth
Amendment rights and the plaintiffs’ Fourteenth Amendment
rights. The district court denied Hellawell’s motion for
summary judgment based on qualified immunity. Because
we lack jurisdiction to consider questions of evidentiary
sufficiency on interlocutory review, we dismiss Hellawell’s
appeal of the court’s order with respect to the claims that the
shooting violated Foster’s Fourth Amendment right and
plaintiffs’ Fourteenth Amendment rights. We reverse the
district court’s denial of qualified immunity on Foster’s other
Fourth Amendment claims, because Hellawell’s actions
during the investigative stop did not violate any clearly
established law.
Because this case arises from the denial of Officer
Hellawell’s motion for summary judgment, we view the facts
in the light most favorable to the nonmoving party, here,
Foster’s father and minor children (collectively, the
“plaintiffs”).1 On July 4, 2013, at around 1:30 p.m., the City
of Indio Police Department received an anonymous 911 call
reporting an individual carrying a gun. The caller stated that
a man “with a brown hat, aqua shirt, a blue aqua shirt, [and]
black blue jeans” was “walking down Highway 111 toward
subways and smoke shops with a handgun, with a . . . gun in
his right side pocket.” The caller also described the man as
a “55-year-old African-American gentleman weighing about
250 pounds with a hand gun in his right side pocket” and a
“baby brown or beige ball cap.” The caller further stated that
the man did not point the gun at him, but “walked out of the
liquor store” and “just opened the gun.” The caller further
stated that the man “was no stress to me, but . . . he wants to
let people know who he is.”
The information provided by the caller was immediately
dispatched over the police radio. Officer Hellawell received
information that “a Black male wearing a tan hat, a[n] aquacolored
shirt, and dark-colored pants with a handgun in his
pocket” was “last seen going towards Subway.” Hellawell,
who was wearing his police uniform, drove to the Indio
Shopping Plaza near Highway 111, where the Subway was
located. Because the Subway and Payday Advance Money
1 We note where the facts are in dispute.
Store had been robbed in the past, Hellawell’s first thoughts
were that the tip might indicate a robbery was about to occur.
Hellawell did not use his patrol car sirens on the way to the
plaza and did not believe he was in danger “at that moment.”
As Hellawell pulled into the parking lot near the Subway,
he saw “a Black male wearing a[n] aqua-green shirt, wearing
a tan hat and dark-colored pants” near the Subway. The man
matched the description of the 911 call and, according to
Hellawell, appeared nervous. The man, Ernest Foster, was
standing against the wall next to the smoke shop adjacent to
Subway. Hellawell exited his vehicle about ten feet from
Foster. Hellawell did not see a gun in Foster’s hands or on
his person. Hellawell identified himself as a police officer
and stated: “Let me see your hands. Keep your hands where
I can see them. I just need to talk to you for a minute.” At
that point, Foster started running away from Hellawell.
Hellawell gave chase. According to Hellawell, he might have
drawn his gun either when Foster made a movement or
started to run.2 Hellawell subsequently re-holstered the gun,
because he would not run with a gun in his hand.
Hellawell chased Foster through the shopping plaza then
down an alley between two stores. According to Hellawell,
throughout the pursuit, Hellawell told Foster to “stop,” and to
“show me your hands.” Hellawell yelled: “I believe you have
a gun. Stop or I am going to shoot.” Hellawell testified that
Foster’s left hand was visible, but his right hand appeared to
be holding something against his body. Hellawell did not see
Foster holding a gun. At one point, Hellawell shot Foster
2 Although one witness leaving Subway, Jose Flores, stated that he
saw something in Hellawell’s hands during the chase, no witness testified
that Hellawell drew his gun as he approached Foster.
with his taser; although one dart hit Foster, the taser did not
affect him because, according to Hellawell, the other dart was
dragging along the ground.
As the chase went on, Hellawell shot Foster with his
service firearm either just before or shortly after Foster
rounded the corner of a nearby store. According to Hellawell,
he shot Foster when he was turning toward him with a gun in
his hand. This account was corroborated by Officer Felipe
Escalante and a civilian witness, Daniel Kelley. Escalante
had driven to the shopping center in response to Hellawell’s
report of foot pursuit. He testified that he saw Foster turn
towards Hellawell and that Foster might have had
“something” in his hands, but Escalante could not tell for
sure. In a March 31, 2016 declaration, Kelley testified that he
was smoking a cigarette outside of the Jack-in-the-Box, and
saw Hellawell chase Foster behind the restaurant. He stated
that as Foster ran by him, he saw Foster holding something in
his hand. Kelley followed Hellawell, and saw Foster lying on
the ground with a gun next to him.
Other witnesses offered differing accounts. Jaime Perez,
who was waiting in his car in the parking lot, stated in his
initial declaration on April 1, 2016, that he “saw a male
running around the northeast corner of the AutoZone grasping
an object up against his chest.” He “watched the man go
down” and he “noticed an object fall from his hand and land
on the ground two feet in front of him.” He stated that the
object was a handgun. But in a second declaration on August
31, 2016, he stated that he had previously testified that he saw
a gun fall from Foster’s hands only because the police
officers who interviewed him said they had found a gun and
he was scared and nervous during his interview. In the
August 31st declaration, Perez stated, “I did not see a gun.
Mr Foster did not point a gun at anyone, nor did I see a gun
in his hand.” Rather, according to Perez, Hellawell shot
Foster in the back “for no reason,” and Perez “did not see []
Foster bend, shift, twist, or make any sudden movements
before [Hellawell] shot him.”
A third witness, John-David Vallesillo, witnessed the
chase from his car. In his interview with the police on the
day of the shooting, Vallesillo stated that he heard a volley of
shots, after which he turned his head and saw Foster “facing
away from [Hellawell], falling forward onto his face onto the
ground.” Vallesillo further explained that from his
perspective, “I didn’t see a gun in [Foster’s] hands at any
point and it looked like he was, he got shot in the back.” In
a later declaration, dated August 31, 2016, Vallesillo again
explained: “I heard a volley of shots coming from [the]
general direction [of the police chase]. I also saw Mr. Foster
fall face down onto the concrete.” Vallesillo added that he
“did not see Mr. Foster turn or bend towards the police
officer” before the gunshots, “did not see Mr. Foster with a
gun in his hand,” and “did not see a gun on the sidewalk after
the police officer shot him in the back.”
Finally, Jose Flores, who observed the chase from his
mother’s car, testified that Foster did not turn toward
Hellawell during the chase. Flores saw Foster “lying face
down on the concrete,” but “did not see a gun in [Foster’s]
hands or on the ground.”
Foster was treated on the scene and later died at the
hospital. The plaintiffs brought suit under 42 U.S.C. § 1983
against Hellawell, the City of Indio, the Indio Police
Department, and Chief of Police Richard Twiss. They
claimed violations of Foster’s right to be free from excessive
force under the Fourth Amendment; violations of the family’s
right to familial association under the Fourteenth
Amendment; and unconstitutional municipal customs,
practices, and policies, see Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978). The plaintiffs alleged that Hellawell
(1) conducted an unlawful investigatory stop without
reasonable suspicion; (2) used excessive force by drawing his
firearm in conjunction with the investigatory stop; (3) used
excessive force by shooting Foster with his taser during the
foot chase; and (4) used excessive force by shooting Foster
three times and killing him. The defendants moved for
summary judgment on all claims, arguing that qualified
immunity applied and no violation occurred.
The court denied Hellawell’s summary judgment motion
on the majority of plaintiffs’ Fourth and Fourteenth
Amendment claims. The court concluded that a genuine issue
of material fact existed as to (1) whether Hellawell violated
Foster’s Fourth Amendment rights in making the
investigative stop without reasonable suspicion; (2) whether
Hellawell violated Foster’s Fourth Amendment right to be
free from excessive force by drawing his firearm during the
investigatory stop; (3) whether Hellawell violated Foster’s
Fourth Amendment right to be free from excessive force by
fatally shooting him; and (4) whether Hellawell violated the
plaintiffs’ Fourteenth Amendment rights because a reasonable
jury could find that Hellawell shot Foster with a purpose to
harm him without regard to legitimate law enforcement
3 The district court granted summary judgment in favor of Hellawell
on plaintiffs’ claim that Hellawell’s use of a taser constituted excessive
force. The court also granted summary judgment in favor of the City of
Hellawell filed this interlocutory appeal from the denial
of summary judgment.
The Supreme Court has held that “pretrial orders denying
qualified immunity generally fall within the collateral order
doctrine,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014),
and therefore, in the qualified immunity context, “we have
jurisdiction over the denial of summary judgment, an
interlocutory decision not normally appealable,” George v.
Morris, 736 F.3d 829, 834 (9th Cir. 2013). “This is so
because such orders conclusively determine whether the
defendant is entitled to immunity from suit; this immunity
issue is both important and completely separate from the
merits of the action, and this question could not be effectively
reviewed on appeal from a final judgment because by that
time the immunity from standing trial will have been
irretrievably lost.” Plumhoff, 134 S. Ct. at 2019.
Despite this general rule, “the scope of our review over
the appeal [in this context] is circumscribed.” George,
736 F.3d at 834. A public official may not immediately
appeal “a fact-related dispute about the pretrial record,
namely, whether or not the evidence in the pretrial record was
sufficient to show a genuine issue of fact for trial.” Johnson
v. Jones, 515 U.S. 304, 307 (1995). In other words, where “a
portion of a district court’s summary judgment order” in a
qualified immunity case “determines only a question of
‘evidence sufficiency,’ i.e., which facts a party may, or may
not, be able to prove at trial,” it is not a final decision under
Indio on plaintiffs’ municipal liability claim, and in favor of Chief Twiss
on plaintiffs’ claim of supervisory liability.
the collateral order doctrine. Id. at 313. Accordingly, we
have jurisdiction only to the extent “the issue appealed
concerned, not which facts the parties might be able to prove,
but, rather, whether or not certain given facts showed a
violation of ‘clearly established law.’” Id. at 311 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).
To the extent the district court’s order denies summary
judgment on purely legal issues, however, we do have
jurisdiction. As Plumhoff explained, defendants’ contention
that their conduct “did not violate the Fourth Amendment
and, in any event, did not violate clearly established law,”
raises legal issues that are “quite different from any purely
factual issues that the trial court might confront if the case
were tried.” 134 S. Ct. at 2019. Deciding such legal issues
“is a core responsibility of appellate courts, and requiring
appellate courts to decide such issues is not an undue
burden.” Id. Therefore, we may address them on
interlocutory appeal.
In deciding such legal claims, we apply the Supreme
Court’s qualified immunity standard. “Qualified immunity
attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam)). “Because the focus
is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.” Id. (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Although
we do “not require a case directly on point for a right to be
clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.” Id.
(quoting Pauly, 137 S. Ct. at 551). We may not “define
clearly established law at a high level of generality.” Id. at
1152 (quoting City & Cty. of San Francisco v. Sheehan,
135 S. Ct. 1765, 1776 (2015)). Rather, the clearly established
law at issue “must be ‘particularized’ to the facts of the case.”
Pauly, 137 S. Ct. at 552 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)); see also Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (per curiam) (“The dispositive
question is ‘whether the violative nature of particular conduct
is clearly established.’”) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011)). An officer cannot “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.” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff,
134 S. Ct. at 2023). “In other words, immunity protects ‘all
but the plainly incompetent or those who knowingly violate
the law.’” Pauly, 137 S. Ct. at 551 (quoting Mullenix, 136 S.
Ct. at 308).
We turn first to Hellawell’s appeal of the district court’s
denial of summary judgment on plaintiffs’ claims that the
fatal shooting of Foster violated his Fourth Amendment rights
and plaintiffs’ Fourteenth Amendment rights. The district
court here concluded that genuine issues of material fact
precluded summary judgment on both the Fourth and
Fourteenth Amendment claims, because a reasonable jury
could find that Hellawell shot Foster in the back while Foster
was running away from him; that Foster was unarmed; and
that Foster did not turn, bend, or look back at Hellawell in a
manner that could make a reasonable officer fear being shot.
The legal standards for plaintiffs’ Fourth and Fourteenth
Amendment claims are not in dispute. It is clearly
established law that shooting a fleeing suspect in the back
violates the suspect’s Fourth Amendment rights. “Where the
suspect poses no immediate threat to the officer and no threat
to others, the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so. . . . A police
officer may not seize an unarmed, nondangerous suspect by
shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11
(1985); see also Gonzalez v. City of Anaheim, 747 F.3d 789,
793 (9th Cir. 2014) (en banc). By contrast, “[w]here 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.
“Thus, if the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a
crime involving the infliction or threatened infliction of
serious physical harm, deadly force may be used if necessary
to prevent escape, and if, where feasible, some warning has
been given.” Id. at 11–12.
In the Fourteenth Amendment context, it has been clearly
established since 1998 “that a police officer violates the
Fourteenth Amendment due process clause if he kills a
suspect when acting with the purpose to harm, unrelated to a
legitimate law enforcement objective.” A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 450 (9th Cir. 2013). Legitimate law
enforcement objectives include, among others, arrest, selfprotection,
and protection of the public. See id. at 454. A
police officer lacks such legitimate law enforcement
objectives when the officer “had any ulterior motives for
using force against” the suspect, see Gonzalez, 747 F.3d at
797, such as “to bully a suspect or ‘get even,’” Wilkinson v.
Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v.
Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)), or when an
officer uses force against a clearly harmless or subdued
suspect, Johnson v. Bay Area Rapid Transit Dist., 724 F.3d
1159, 1170 (9th Cir. 2013); see also Zion v. Cty. of Orange,
874 F.3d 1072, 1077 (9th Cir. 2017) (holding that an officer
may have violated the Fourteenth Amendment when, after
shooting the suspect multiple times at close range, the officer
took “a running start” and stomped on the suspect’s head
multiple times in succession), cert. denied, 138 S. Ct. 1548
Rather than claim that an officer in Hellawell’s position
could have reasonably thought it was lawful to shoot a
fleeing, unarmed suspect in the back, Hellawell argues that
the evidence was insufficient to create a genuine issue of
material fact regarding the plaintiffs’ Fourth and Fourteenth
Amendment claims. According to Hellawell, the district
court erred by considering the evidence supporting plaintiffs’
version of events. Hellawell argues that Vallesillo’s
testimony was immaterial because he was not in a position to
see whether or not there was a gun and his declaration
contradicted his initial statement to the police that he did not
see the shots fired.4 Likewise, Hellawell argues that Perez’s
4 Contrary to Hellawell’s argument, Vallesillo’s initial interview with
the police does not contradict his earlier declaration. In his July 4, 2013
interview, Vallesillo stated: “I caught the last [shot] fired, I caught the last
two shots and at that time [Foster] was facing away [from Hellawell] and
still in the same position I saw him coming, like running, running away
from [Hellawell], facing away from [Hellawell], falling forward onto his
face onto the ground.” In the August 31, 2016 declaration, he stated that
he “did not see Mr. Foster turn or bend towards the police officer before
I heard the gunshots.” While these two statements are not identical, they
are not inconsistent. Further, to the extent the two statements contradict
August 31, 2016 declaration is not entitled to weight because
it contradicted his April 1, 2016 declaration. Hellawell
contends that because the Perez and Vallesillo declarations
contradict their earlier statements, the latter declarations are
inadmissible as sham affidavits.
Instead of relying on these witnesses, Hellawell argues,
the court should have relied on Hellawell’s testimony.
Hellawell contends that his statement that he saw a gun in
Foster’s hand is effectively undisputed, because the
witnesses’ testimony that they did not see a gun in Foster’s
possession does not mean there was no gun. According to
Hellawell, he did not violate the Fourth Amendment, let alone
any clearly established law, where he reasonably believed
Foster posed a threat of serious physical harm. On the
Fourteenth Amendment claim, Hellawell argues that he was
engaged in a fast-moving situation and fired his gun when he
believed Foster was turning toward him to shoot him. Thus,
according to Hellawell, because his actions undisputedly
served a legitimate governmental objective of defending
himself and preventing an armed suspect’s escape, there was
no genuine issue of material fact regarding whether he had
violated plaintiffs’ Fourteenth Amendment rights.
We have previously rejected similar arguments. See
George, 736 F.3d at 834–35. George involved a § 1983
excessive force claim against three sheriff’s deputies who
fatally shot an armed homeowner. Id. at 832–33. The district
court denied the deputies’ motion for qualified immunity on
the ground that there “were genuine disputes of fact such that
a reasonable jury could ‘disbelieve the officers’ testimony’
each other, we must resolve all factual disputes and draw all reasonable
inferences in the plaintiffs’ favor. See George, 736 F.3d at 836.
and rely on record evidence to conclude that [the victim] had
not ignored commands to drop the gun, or taken other
threatening measures such as pointing the weapon at
deputies.” Id. at 835. On appeal, the deputies argued that the
district court erred, because the plaintiff could not prove at
trial that the homeowner did not turn and point his gun at
deputies. Id. at 834. Like Officer Hellawell, the defendants
in that case claimed “that a review of the district court’s
‘reasoning establishes that rather than delineating actual
material disputed facts, [the court] commingled a group of
insignificant discrepancies in statements’ in order to conclude
that a dispute existed about what had transpired during [the
victim’s] final minutes.” Id. We disagreed, stating that even
though the officers used “the language of materiality, their
argument actually goes to the sufficiency of [the plaintiff’s]
evidence,” because “[a]t bottom, their contention is that [the
plaintiff] could not ‘prove at trial’ that [the victim] did not
turn and point his gun at deputies.” Id. (quoting Johnson,
515 U.S. at 313). We concluded that we could “not decide at
this interlocutory stage if the district court properly
performed” its review of “whether there is enough evidence
in the record for a jury to conclude that certain facts are true.”
Id. at 835 (quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th
Cir. 2004) (en banc)).
We decline review of Hellawell’s arguments for the same
reason. As in George, Hellawell challenges the sufficiency
of the plaintiffs’ evidence; he argues that plaintiffs will not be
able to prove at trial that he shot an unarmed suspect in the
back without any provocation in violation of the Fourth and
Fourteenth Amendments. But this sort of “evidence
sufficiency” claim does not raise a legal question. Johnson,
515 U.S. at 314. We may not reweigh the evidence to
evaluate whether the district court properly determined there
was a genuine issue of material fact, and therefore may
“neither credit [Hellawell’s] testimony that [Foster] turned
and pointed his gun at [Hellawell], nor assume that [Foster]
took other actions that would have been objectively
threatening.” See George, 736 F.3d at 834, 838. And even if
we could consider Hellawell’s sham affidavit argument on
interlocutory review, we would reject it as meritless because
the sham affidavit rule applies only to declarations by the
parties, not to declarations by non-party witnesses like Perez
and Vallesillo. See Nelson v. City of Davis, 571 F.3d 924,
928 (9th Cir. 2009) (“The rationale underlying the sham
affidavit rule is that a party ought not be allowed to
manufacture a bogus dispute with himself to defeat summary
judgment. That concern does not necessarily apply when the
dispute comes from the sworn deposition testimony of
another witness.”).5
Therefore, under George, we lack jurisdiction to consider
Hellawell’s argument that we should reverse the district
court’s determination that there was a genuine issue of
material fact regarding plaintiffs’ Fourth and Fourteenth
Amendment claims relating to Hellawell’s fatal shooting of
Foster. See George, 736 F.3d at 835. We therefore dismiss
Hellawell’s appeal of these claims.
We now turn to the plaintiffs’ claims that Hellawell
violated Foster’s Fourth Amendment rights by making an
5 Hellawell also argues that the district court erred in considering the
plaintiffs’ expert’s report. Even if this was an error, it was harmless
because other evidence in the record creates a genuine issue of material
investigative stop of Foster and by approaching him with an
unholstered gun. Because the facts related to these claims are
undisputed, Hellawell’s appeal raises a purely legal issue:
whether, based on undisputed facts, Hellawell violated clearly
established law. See Plumhoff, 134 S. Ct. at 2019; Mitchell,
472 U.S. at 528. Thus, we have jurisdiction to consider
Hellawell’s appeal on interlocutory review.
A law enforcement officer may, consistent with the
Fourth Amendment, conduct a “brief investigatory stop” of
a suspect when the officer has “a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U.S. 411, 417–18
(1981); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968).
The “reasonable suspicion” necessary to justify such a Terry
stop depends “upon both the content of information possessed
by police and its degree of reliability.” Alabama v. White,
496 U.S. 325, 330 (1990). In applying this standard, we take
into account the “totality of the circumstances.” Id. (quoting
Cortez, 449 U.S. at 417).
For an anonymous tip to provide reasonable suspicion, the
tip must contain “sufficient indicia of reliability,” White,
496 U.S. at 327, that “criminal activity may be afoot,” Terry,
392 U.S. at 30 (internal quotations omitted). Thus, we must
consider, based on the undisputed facts, whether it was
clearly established at the time of the incident that the tip in
this case: (1) was not sufficiently reliable and (2) did not
provide information on potential illegal activity.
First, a reasonable officer in Hellawell’s position could
have concluded that the 911 call in this case demonstrated
“sufficient indicia of reliability to provide reasonable
suspicion to make [an] investigatory stop.” White, 496 U.S.
at 327. One factor supporting the reliability of a tip is that the
tipster claims eyewitness knowledge, coupled with sufficient
detail in his description. Illinois v. Gates, 462 U.S. 213, 234
(1983) (stating that the tipster’s “explicit and detailed
description of alleged wrongdoing, along with a statement
that the event was observed first-hand, entitles his tip to
greater weight than might otherwise be the case”). A second
factor supporting the reliability of the tip is that it predicts a
suspect’s future actions. Thus, White held that an anonymous
tip had sufficient indicia of reliability to support reasonable
suspicion in part because “the anonymous [tip] contained a
range of details relating not just to easily obtained facts and
conditions existing at the time of the tip, but to future actions
of third parties ordinarily not easily predicted.” 496 U.S. at
332 (alteration in original) (quoting Gates, 462 U.S. at 245).
White differentiated between a caller’s description of a car
parked in front of an apartment building, which anyone could
have “predicted” because it was existing at the time of the
call, and a caller’s ability to predict that the suspect would
drive along a particular route. Id. Because the tipster
correctly predicted the suspect’s movement, a police officer
could reasonably conclude that there was some degree of
reliability to the tipster’s claim that the suspect was engaged
in criminal activity. Id. at 331–32. Finally, a caller’s use of
a 911 number makes the tip more credible because a 911 call
can be recorded and callers can be traced. See Florida v. J.L.,
529 U.S. 266, 275–76 (2000) (Kennedy, J., concurring);
United States v. Terry-Crespo, 356 F.3d 1170, 1175–76 (9th
Cir. 2004). In addition, 911 calls are more credible “because
the police must take 911 emergency calls seriously and
respond with dispatch,” when compared to non-emergency
tips concerning “general criminality.” Terry-Crespo,
356 F.3d at 1176.
The tip in this case had several indicia of reliability. First,
the tipster made a recorded 911 call. See id. at 1175–76. The
tipster also claimed eyewitness knowledge of the concealed
handgun and provided explicit detail about his observations,
including that he personally observed the suspect taking out
his gun in a manner “let[ting] people know who he is.” See
Gates, 462 U.S. at 234. Finally, the tipster stated that the
suspect was walking down Highway 111 in the direction of
the Subway and the smoke shops. Whether this was a
prediction or merely an observation is unclear, but Hellawell
corroborated this statement when he encountered the suspect
at the specified location. See White, 496 U.S. at 331–32.
The plaintiffs argue that Florida v. J.L. clearly establishes
that a reasonable officer should not have relied on the 911
call in this case because it lacked the necessary indicia of
reliability. In J.L., the police received an anonymous tip that
“a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun.” 529 U.S. at 268.
An officer arrived at the bus stop, frisked J.L., and seized a
gun from his pocket. Id. The Court held that the tip lacked
“the moderate indicia of reliability” necessary to give rise to
reasonable suspicion. Id. at 271. In reaching this conclusion,
the Court noted that “[a]ll the police had to go on in this case
was the bare report of an unknown, unaccountable informant
who neither explained how he knew about the gun nor
supplied any basis for believing he had inside information
about J.L.” Id. at 271. Moreover, the tip itself consisted
merely of “[a]n accurate description of a subject’s readily
observable location and appearance” and did not “show that
the tipster has knowledge of concealed criminal activity.” Id.
at 272.
Given the body of Supreme Court case law in existence
at the time of the incident here, we cannot say that J.L. would
have made it clear to a reasonable officer in Hellawell’s
position that the 911 call regarding Foster lacked sufficient
indicia of reliability or placed this question “beyond debate.”
See Kisela, 138 S. Ct. at 1152 (quoting Pauly, 137 S. Ct. at
551). J.L. emphasized that the tipster in that case had not
indicated the basis for his tip and had reported mere
observations. 529 U.S. at 271. But here the tipster explained
the basis of his knowledge, predicted the suspect’s route, and
made the tip via a recorded 911 call. A reasonable officer
could rely on these facts when assessing the tip’s reliability.
See J.L., 529 U.S. at 274–76 (Kennedy, J., concurring);
Terry-Crespo, 356 F.3d at 1175–76. Further, in J.L. “the
record did not indicate how long the police waited before
responding to the tip,” United States v. Fernandez-Castillo,
324 F.3d 1114, 1117 n.3 (9th Cir. 2003) (discussing J.L.,
529 U.S. at 268); in contrast, here Hellawell responded within
Accordingly, although the facts in J.L. are similar to the
facts in this case, they are not identical, and other Supreme
Court decisions provide a basis for a reasonable officer to
conclude that the 911 call in this case had sufficient indicia of
reliability. This conclusion is confirmed by the Supreme
Court’s subsequent determination in Navarette v. California,
which distinguished J.L. on similar grounds to the ones at
issue here. 572 U.S. 393, 397–400 (2014). In Navarette, the
Court held that an anonymous tip has sufficient indicia of
reliability to provide reasonable suspicion when the tipster
accurately predicts a direction of travel, the tip is made
“contemporaneous[ly] with the observation of criminal
activity,” and the tip is made on the 911 system. Id. at 400.
Second, a reasonable officer in Hellawell’s position could
have concluded that the tip in this case provided information
on potential illegal activity. Where state law makes it
generally unlawful to carry a concealed weapon without a
permit, a tip that a person is carrying a concealed firearm
raises a reasonable suspicion of potential criminal activity,
even if the tip does not state that the person is carrying the
firearm illegally or is about to commit a crime. See United
States v. Woods, 747 F.3d 552, 556 (8th Cir. 2014)
(“Considering Missouri law, and based on the call that there
was an individual carrying a concealed weapon that had
exited the bus, the officers had reason to believe criminal
activity was afoot.”); United States v. Gatlin, 613 F.3d 374,
378 (3rd Cir. 2010) (“[W]e hold that reasonable suspicion
existed in this case based solely on the reliable tip from a
known informant because carrying a concealed handgun is
presumptively a crime in Delaware.”).6
6 Unpublished authority further bolsters our conclusion that a
reasonable officer could consider the 911 call in this case to have
sufficient indicia of reliability. See United States v. Bias, 352 F. App’x
162, 163 (9th Cir. 2009) (holding that the fact that a “Terry stop was
concluded in a county in which less than 1% of the population had a
permit to carry a concealed weapon” contributed to reasonable suspicion
that a person was carrying a concealed weapon and posed a threat of
criminal activity); United States v. Montague, 437 F. App’x 833, 835–36
(11th Cir. 2011) (per curiam) (rejecting the argument that “the officers
could not have reasonably suspected that [defendant] was engaging in
criminal activity because under Florida law it is not illegal to possess a
concealed weapon if the carrier has a permit”). We may look to such
decisions when determining whether a right is clearly established and
whether reasonable officials would know their actions violated such a
right. Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005).
Here, California law “generally prohibits carrying
concealed firearms in public, whether loaded or unloaded.”
Peruta v. Cty. of San Diego, 824 F.3d 919, 925 (9th Cir.
2016) (en banc); see also Cal. Penal Code § 25400 (crime of
carrying a concealed firearm), § 25850 (crime of carrying a
loaded firearm in public). Although “the prohibition of
§ 25400 does not apply to those who have been issued
licenses to carry concealed weapons,” Peruta, 824 F.3d at
926, California officials strictly limit the issuance of
concealed carry permits, Cal. Penal Code § 26150(a).7 As of
December 2015, California had issued concealed carry
permits to approximately .2% of its adult population of
29.9 million.8 John R. Lott, Jr., Concealed Carry Permit
Holders Across the United States: 2016, 17, 21, Crime
Prevention Research Center (July 26, 2016),
m/abstract=2814691. Given the insignificant number of
concealed carry permits issued in California, a reasonable
officer could conclude that there is a high probability that a
person identified in a 911 call as carrying a concealed
handgun is violating California’s gun laws.
7 California law exempts certain small groups from the permit
requirement, including retired or honorary peace officers, members of the
Army, Navy, Air Force, Coast Guard, Marine Corps, or National Guard,
and licensed hunters or fishermen. Cal. Penal Code §§ 25450, 25620,
8 In Riverside County in 2016, less than .1% of adults had a concealed
carry permit. See Brett Kelman, Want to Carry a Gun in Riverside
County? You Have to Wait 2 Years Just to Be Considered, Desert Sun
(Jan. 4, 2018),
991704001/; QuickFacts: Riverside County, California, U.S.
Census Bureau,
untycalifornia/PST045217 (last visited Oct. 5, 2018).
Moreover, the Supreme Court has long held that even
factors consistent with innocent conduct may give rise to
reasonable suspicion. See United States v. Arvizu, 534 U.S.
266, 274 (2002); United States v. Sokolow, 490 U.S. 1, 9
(1989). For instance, although there is a small possibility that
a person transporting cocaine has lawfully obtained it from
the National Institute on Drug Abuse for research purposes,
a reasonable officer can nevertheless have a reasonable
suspicion of illegal activity when told that a person has been
spotted transporting cocaine. Likewise, other circuits have
rejected the argument that the possibility a person is lawfully
carrying a firearm precludes reasonable suspicion. See
Woods, 747 F.3d at 556; Gatlin, 613 F.3d at 378–79.
Accordingly, although a person exiting a liquor store with
a concealed handgun in his right-hand pocket, walking in the
direction of stores that had previously been robbed, may have
had a concealed carry permit and been engaged in innocent
activities, it would not violate clearly established law for a
reasonable officer in Hellawell’s position to conclude that the
tip, corroborated by his own observations, gave rise to a
reasonable suspicion that the man was engaged in criminal
conduct.9 Therefore, we determine that Hellawell did not
9 We further note that “the existence of a statute or ordinance
authorizing particular conduct” favors “the conclusion that a reasonable
official would find that conduct constitutional.” Grossman v. City of
Portland, 33 F.3d 1200, 1209 (9th Cir. 1994); see also Acosta v. City of
Costa Mesa, 718 F.3d 800, 824–26 (9th Cir. 2013). Here, § 25850(b) of
the California Penal Code authorizes police officers “to examine any
firearm carried by anyone on the person or in a vehicle while in any public
place or on any public street in an incorporated city or prohibited area of
an unincorporated territory.” Therefore, an officer in Hellawell’s situation
could reasonably believe he had authority to examine any firearm Foster
violate clearly established law when he concluded, based on
the 911 call, that he had reasonable suspicion to stop and
investigate Foster. See Kisela, 138 S. Ct. at 1152. We
reverse the district court’s conclusion that Hellawell was not
entitled to qualified immunity with respect to the stop.
We next turn to the plaintiffs’ claim that Hellawell
violated Foster’s Fourth Amendment rights in approaching
him with a drawn gun.
In his deposition, Hellawell testified as follows:
I don’t recall drawing my gun, but I do
remember fumbling with my holster as I ran
behind Jack in the Box or on the side of Jack
in the Box. I honestly can’t sit there and tell
you when I drew it. . . . Whether I drew it
when he started to run or when he made some
type of a movement as he began to run, I
might have. I don’t remember. But I do
remember – as we ran along the west side of
Jack in the Box, I remember fumbling with
my holster because I will not run with my gun
in my hand. So that’s all I can recall on that
Similarly, in his initial interview with the police
investigator, Hellawell stated that “I initially had my gun out
when he first started running because I believed he had a gun
might be carrying and could reasonably rely on § 25850(b) in stopping
– and because I don’t like to run with my gun in my hand, I
ended up holstering my gun.” There is no other evidence in
the record on this issue. Although the plaintiffs argue in their
brief on appeal that Hellawell approached Foster “with his
police firearm drawn,” and pointed his firearm at Foster, no
evidence in the record supports this claim. In addition to
Hellawell’s statements, the plaintiffs cite Flores’s declaration,
which states only that he saw Hellawell with something in his
hand during the chase. Flores did not see Hellawell draw his
firearm as he approached Foster.
Based on this record, the district court erred in finding a
genuine dispute as to whether Hellawell approached Foster
with his gun drawn.10 The bare allegation alone, without any
evidence in the record, is insufficient to conclude that
Hellawell did anything more than unholster his gun during
the initial encounter with Foster. The parties have not cited
any case holding that merely unholstering a gun without
pointing it at the suspect constitutes excessive force. We
have held only that “pointing a loaded gun at a suspect,
employing the threat of deadly force” may constitute
excessive force. Espinosa v. City & Cty. of San Francisco,
598 F.3d 528, 537 (9th Cir. 2010) (emphasis added); see also
Tekle v. United States, 511 F.3d 839, 845 (9th Cir. 2007)
(“We have held that the pointing of a gun at someone may
constitute excessive force, even if it does not cause physical
injury.”); Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th
10 Although we do not ordinarily have jurisdiction on an interlocutory
appeal to review a denial of qualified immunity based on the existence of
a disputed fact, “[w]hen there is an allegation about the conduct part of
the equation, but insufficient evidence of that conduct to create a genuine
issue of material fact, our cases permit review.” See Jeffers v. Gomez,
267 F.3d 895, 907 (9th Cir. 2001).
Cir. 2002) (en banc) (recognizing “as a general principle that
pointing a gun to the head of an apparently unarmed suspect
during an investigation can be a violation of the Fourth
Amendment, especially where the individual poses no
particular danger”). Neither we nor the Supreme Court have
held that merely unholstering a firearm, without more,
constitutes excessive force. The plaintiffs’ reliance on
Espinosa, Robinson, and similar decisions is unpersuasive
because each of those cases focuses on whether a gun was
pointed at the suspect. See, e.g., Espinosa, 598 F.3d at 537;
Tekle, 511 F.3d at 845; Hopkins v. Bonvicino, 573 F.3d 752,
761, 776–77 (9th Cir. 2009); Robinson, 278 F.3d at 1013.
Because a reasonable officer in Hellawell’s position could
reasonably conclude that unholstering a gun during the stop
did not constitute a violation of Foster’s right to be free from
excessive force, we reverse the district court’s conclusion that
Hellawell was not entitled to qualified immunity on this
Because we lack jurisdiction to review Hellawell’s claim
that the district court erred in denying him qualified immunity
for the fatal shooting of Foster, we dismiss Hellawell’s appeal
of this portion of the district court’s ruling. We conclude that
Hellawell is entitled to qualified immunity for his initial stop
of Foster, and therefore reverse the district court’s denial of
summary judgment on these Fourth Amendment claims.11
11 The parties shall bear their own costs on appeal.
IKUTA, Circuit Judge, dissenting:
I disagree with the majority’s conclusion that we lack
jurisdiction to consider Hellawell’s appeal of the district
court’s denial of qualified immunity for the plaintiffs’
Fourteenth Amendment claim. Here, viewing the evidence in
the light most favorable to the plaintiffs, no reasonable jury
could find that Hellawell acted with a “‘purpose to harm’
[Foster] for reasons unrelated to legitimate law enforcement
objectives.” Gonzalez v. City of Anaheim, 747 F.3d 789, 797
(9th Cir. 2014) (en banc) (quoting Porter v. Osborn, 546 F.3d
1131, 1137 (9th Cir. 2008)).
Because Foster matched the description of an individual
reportedly carrying a firearm in the area, there is no genuine
issue of triable fact as to whether Hellawell believed Foster
to be armed. The evidence in the record is consistent with
Hellawell’s testimony that he used deadly force because he
believed Foster was a fleeing and dangerous suspect in a
crowded area on the Fourth of July.
Moreover, the plaintiffs have produced no evidence that
Hellawell had “any ulterior motives for using force against”
Foster, Gonzalez, 747 F.3d at 798, that Hellawell “did not
believe he was responding to an emergency,” Bingue v.
Prunchak, 512 F.3d 1169, 1177 (9th Cir. 2008), or that
Hellawell intended to “get even” with Foster, Wilkinson v.
Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v.
Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008)). Any
“speculation” regarding “improper motive does not rise to the
level of evidence sufficient to survive summary judgment.”
See Gonzalez, 747 F.3d at 798 (quoting Karam v. City of
Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003)).
Because, taken in the light most favorable to the
plaintiffs, the undisputed facts show that Hellawell did not
violate the Fourteenth Amendment, Hellawell is entitled to
qualified immunity. I would hold that we have jurisdiction to
consider his appeal of this claim and would remand to the
district court to dismiss plaintiffs’ Fourteenth Amendment

Outcome: Because we lack jurisdiction to review Hellawell’s claim
that the district court erred in denying him qualified immunity
for the fatal shooting of Foster, we dismiss Hellawell’s appeal
of this portion of the district court’s ruling. We conclude that
Hellawell is entitled to qualified immunity for his initial stop
of Foster, and therefore reverse the district court’s denial of
summary judgment on these Fourth Amendment claims.11

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