9th Circ COA Longorial Opening Brief PDF

Case: 16-15606, 08/19/2016, ID: 10094119, DktEntry: 17, Page 1 of 60
No. 16-15606
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Christian Longoria, a single man, on behalf of himself as son of

decedent Manuel O. Longoria, on behalf of all statutory beneficiaries
of decedent Manuel O. Longoria; Joshua R. Wallace, as the personal
representative of the Estate of Manuel O. Longoria; Manuel O.
Longoria, Jr., a single man; Lynnette Longoria, a single woman;
P.C.L., a minor; T.A.L., a minor; K.R.L., a minor; Sanisya Lott, a
single woman; T.L., a minor; A.L., a minor
Plaintiffs-Appellants,
vs.
Pinal County, a political subdivision of the State of Arizona; Paul R.

Babeu, in his official capacity as Sheriff of Pinal County, Arizona;
Heath Rankin, in his individual capacity as a Deputy Sheriff of Pinal
County, Arizona,
Defendants-Appellees.
(On Appeal from U.S. District Court, District of Arizona

No. 2:15-cv-00043-PHX-SRB)
APPELLANTS’ OPENING BRIEF
ROBBINS & CURTIN, PLLC

Joel B. Robbins (AZ Bar No. 011065)
301 East Bethany Home Road, #B-100
Phoenix, AZ 85012
Telephone (602) 285-0100
Fax: (602) 265-0267
Email: joel@robbinsandcurtin.com
Attorney for Plaintiffs-Appellants
Christian Longoria, et al
COLE & LEAL

Joseph M. Leal III, Attorney
420 W. Casa Grande Lakes Blvd. N.
Casa Grande, AZ 85122
Telephone (520) 836-8002
Fax: (520) 836-3212
Email: joe@coleandleal.com
Attorneys for Plaintiffs-Appellants
Lynnette Longoria, et al
McCAIN & BURSH, PLC

Darius Bursh, Esq.
7420 E. Pinnacle Peak Rd., #124
Scottsdale, AZ 85255
Telephone (602) 604-2138
Fax: 888-899-5738
Email: dbursh@mblawaz.com
Attorneys for Plaintiffs-Appellants
Sanisya Lott, et al
TABLE OF CONTENTS
Introduction ................................................................................................................ 1
Statement of Jurisdiction............................................................................................ 1
Statement of Issues .................................................................................................... 2
Statement of the Case ................................................................................................ 3
Statement of Facts ..................................................................................................... 6
1. Eloy Police Officers Pursue a Distraught Individual ................................. 6
2. Deputy Rankin Is Ordered to Stand Down ................................................ 9
3. Eloy Officers Successfully End the Pursuit ............................................. 10
4. Rankin Inexplicably Decides to Rejoin the Encounter ............................ 14
ARGUMENT .......................................................................................................... 18
I. Summary of Argument ....................................................................................... 18
II. Standard of Review ........................................................................................... 19
III. Discussion ........................................................................................................ 20
A. Because none of the other officers felt that lethal force was
necessary, and the officer in charge ordered “less lethal,” plaintiffs should have
been granted the opportunity to depose the other officer witnesses prior to
responding to defendants’ motion for summary judgment ..................................... 20
B. Under Clearly Established Standards, Deputy Rankin Violated

The Fourth Amendment By Shooting An Unarmed Man In the Act of Surrender 25
1. Introduction ......................................................................................... 25
2. Deputy Rankin Violated Manuel Longoria’s Clearly Established

Fourth Amendment Rights ...................................................................................... 26
i
3. The Inconclusive Video, Shot From An iPhone From

A Distance of 200 Feet Away, Does Not Support Summary Judgment
For Defendants in This Matter ................................................................................ 34
4. Deputy Rankin Unreasonably Interfered With The

Non-Lethal Efforts To Subdue Mr. Longoria ......................................................... 35
C. Genuine Issues Of Material Fact Exist With Respect To

Plaintiffs’ State Law Wrongful Death Claims ........................................................ 36
(1) Justification ........................................................................ 36
D. The District Court Erred As A Matter of Law In Dismissing

Plaintiffs’ Claims Under The Fourth Amendment ................................................. 38
E. Plaintiffs’ Claims Against Pinal County and Sheriff Babeu

Must Also Be Reversed ........................................................................................... 43
CONCLUSION ........................................................................................................ 43
ii
TABLE OF AUTHORITIES
Cases:
Acosta v. City & County of San Francisco, 83 F.3d 1143 (9th Cir.1996) .............. 28
Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994) ......................................... 39
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) ...................................... 39
Berry v. City of Muskogee, Okl., 900 F.2d 1489 (10th Cir. 1990) ........................... 41
Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) ................................ 25
Bodney v. Pima County Sheriff's Dept.,

2009 WL 2513786 (D. Ariz. Aug. 7, 2009) ............................................................ 35
Brazier v. Cherry, 293 F.2d 401 (5th Cir.),

cert. denied, 368 U.S. 921, 82 S.Ct. 243 (1961) ..................................................... 42
Burlington Northern Santa Fe R. Co. v. Assiniboine

and Sioux Tribes of Fort Peck Reservation,
323 F.3d 767 (9th Cir.2003) ................................................................................... 21
Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) ............................................ 25
Collar v. Austin, 2015 WL 505667 (S.D. Ala. Feb. 5, 2015) ........................... 23-24
Collender v. City of Brea, 605 Fed. Appx. 624 (9th Cir. 2015) ............................. 31
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018 (9th Cir.2006) ................ 18
County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708 (1998) ................. 39
Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014) ........................................ 22
Duenez v. City of Manteca, 2013 WL 6816375

(E.D. Cal. Dec. 23, 2013) .................................................................................. 32-33
iii
Espinosa v. City & County of San Francisco,

598 F.3d 528 (9th Cir. 2010), cert. denied sub nom,
Alvis v. Espinosa, -- U.S. --, 132 S. Ct 1089 (2012) ............................................... 26
Floyd v. City of Detroit, 518 F.3d 398 (6th Cir. 2008) ...............................27, 29, 34
Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011) .................................. 36
Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989) ..................................... 26
Hayes v. County of San Diego, 736 F.3d 1223 (9th Cir. 2013) .............................. 38
Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508 (2002) ............................................ 26
Jefferson v. Lewis, 594 F.3d 454 (6th Cir. 2010) .............................................. 33-34
Johnson v. Buckley, 356 F.3d 1067 (9th Cir. 2004) ................................................. 19
Kiles v. City of North Las Vegas, 276 Fed. Appx. 620 (9th Cir. 2008) .................. 27
Kosakoff v. City of San Diego, 08-CV-1819UEGNLS,

2010 WL 1759455 (S.D. Cal. Apr. 29, 2010), aff'd in relevant part,
460 Fed. Appx. 652 (9th Cir. 2011) ........................................................................ 28
Mahach-Watkins v. Depee, 2008 WL 512707 (N.D.Cal. 2008) ............................. 24
Mills v. City of Harrisburg, 589 F.Supp.2d 544 (M.D.Pa.2008) ...................... 34-35
Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) .................................. 24
Myers v. Baltimore County, 981 F.Supp 2d 422 (D.Md. 2013) ....................... 37-38
Nyland v. Rooke, LLC, 2016 WL 649072 (D. Ariz. Feb. 18, 2016) ....................... 18
Otioti v. Arizona, 2008 WL 7069009 (D. Ariz. Aug. 19, 2008) ....................... 42-43
Porter v. Osborn, 546 F.3d 1131 (9th Cir. 2008) ................................................... 38
Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991) .......................................... 41
iv
Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978) ............................................. 40
Rigmaiden v. F.B.I., 2014 WL 1911425 (D. Ariz. May 13, 2014) ......................... 18
Ross v. Burlington N. & Santa Fe Ry. Co.,

528 Fed. Appx. 960 (10th Cir. 2013) ...................................................................... 35
Saucier v. Katz, 533 US 194, 121 S.Ct. 2151 (2001) ............................................. 37
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007) ................................26, 34, 35
Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) ............................. 23
Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc) ..................1, 19, 44
Stephens v. City of Akron, 729 F. Supp. 2d 945 (N.D. Ohio 2010) ........................ 34
Stop the Beach Renourishment, Inc. v. Florida Dep’t of

Environmental Prot., 560 U.S. 702, 130 S. Ct. 2592 (2010) .................................. 39
Tatum v. City & County of San Francisco, 441 F.3d 1090 (9th Cir. 2006) ........... 19
Ting v. United States, 927 F.2d 1504 (9th Cir. 1991) ............................................. 28
Tolan v. Cotton, -- U.S. --, 134 S. Ct. 1861 (2014) ..............................7, 8, 9, 25, 26
Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011),

cert. denied sub nom Noriega v. Torres, -- U.S. --, 132 S. Ct. 1032 (2012) .......... 29
Volk v. D.A. Davidson & Co., 816 F.2d 1406 (9th Cir. 1987) ................................. 19
Wall v. County of Orange, 364 F.3d 1107 (9th Cir.2004) ................................ 25-26
Constitutional Provisions:
Fourth Amendment to the

United States Constitution ............................................. 2, 21, 25, 26, 27, 37, 38, 39
v
Federal Statutes:
28 U.S.C. § 1291 ....................................................................................................... 2
28 U.S.C. § 1331 ....................................................................................................... 1
28 U.S.C. § 1343 ................................................................................................... 1-2
28 U.S.C. § 1367(c) .................................................................................................. 2
42 U.S.C. § 1983 ........................................................................... 1, 3, 37, 40-41, 43
State Statutes:
A.R.S. § 13-409 ................................................................................................. 36-37
A.R.S. § 13-410 ................................................................................................. 36-37
A.R.S. § 13-411 ................................................................................................. 36-37
Rules:
Federal Rule of Civil Procedure 26 ........................................................................ 20
Federal Rule of Civil Procedure 56(d) .......................................................... 4, 21-22
Federal Rule of Civil Procedure 30(b)(6) ...................................................... 4, 5, 19
Secondary Sources:
Cong.Globe, 42d Cong., 1st Session (1871) ..................................................... 41-42
Schwartz, Steinglass, Emery, and Maazel,

19 TOURO L. REV. 707, 739-40 (2003) ................................................................... 40
https://wikipedia.org ............................................................................................... 13
vi
Introduction
Following the successful end of a police pursuit in the City of Eloy, Arizona,
the driver exited his car. The officers used non-lethal force to gain the driver’s
compliance. After the unarmed driver raised his arms in surrender and turned his
back to the police, Pinal County Sheriff’s Deputy Heath Rankin shot and killed
him.
Because there were genuine issues of material fact regarding the
reasonableness of Rankin’s shooting of the unarmed man, the district court erred as
a matter of law in granting Defendants-Appellees’ motion for summary judgment.
Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir.) (en banc), cert. denied, 545
U.S. 1128, 125 S. Ct. 2938 (2005). Plaintiffs respectfully request that this Court
reverse the summary judgment accordingly.
Statement of Jurisdiction
This matter arises under 42 U.S.C. § 1983. The district court had original
jurisdiction over these federal civil rights claims under 28 U.S.C. §§ 1331 and
1
1343, and supplemental jurisdiction over Mr. Longoria’s state law claims under 28
U.S.C. § 1367(c).
The district court entered a final judgment on March 17, 2016, IR 110, ER
12, and Plaintiff appealed on April 1, 2016, IR 115, ER 13-15. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
Statement of Issues
1. Whether the court erred in granting Deputy Rankin’s motion for
summary judgment in light of the numerous facts contrary to the District Court’s
conclusion that the officer’s use of force was reasonable under the Fourth
Amendment to the United States Constitution.
2. Whether the court erred in granting Deputy Rankin’s claim of
qualified immunity and rejecting plaintiff’s motion to deny Rankin qualified
immunity.
3. Whether Mr. Longoria’s family is entitled to recover for their losses
sustained because of Deputy Rankin’s wrongful shooting of Longoria.
4. Whether the district court abused its discretion in precluding Plaintiffs
from taking any depositions other than that of the shooter, Deputy Rankin, where
the most critical depositions were those of the other officers at the scene, including
the Eloy Police officer who had specifically ordered all officers to use “non-lethal”
force.
2
Statement of the Case
On January 14, 2014, Pinal County Sheriff’s Deputy Heath Rankin shot and
killed Manuel Longoria, an unarmed man. On January 9, 2015, Manuel’s statutory
beneficiaries1 and his Estate filed a wrongful death civil rights action in the United
States District Court for the District of Arizona, identifying Pinal County, Pinal
County Sheriff Paul Babeu, and Deputy Heath Rankin as Defendants. IR 1.
Defendants moved to dismiss any claim by Mr. Longoria’s statutory
beneficiaries under the Fourth Amendment. IR 15. The district court granted this
motion, holding that “Plaintiffs cannot bring a § 1983 claim in which Mr.
Longoria’s family members seek personal recovery for violations of Mr.
Longoria’s Fourth Amendment rights.” IR 23, at 4, ER 21.
The parties submitted their Rule 16 Joint Case Management Plan on April
27, 2015. IR 24, ER 25-45. In the report, Plaintiffs identified the specific
depositions they intended to take during the case and specifically requested leave
to conduct more than ten depositions. Id., ER 38-39. The parties agreed that they
“do not recommend any changes to the discovery rules, other than as identified by
Plaintiff above.” Id. at 16, ER 40. Defendants nowhere indicated in the plan that
they intended to seek any stay of discovery. Id., ER 25-45.
1
Mr. Longoria’s statutory beneficiaries include his seven children, and
Lynnette Longoria, mother of three of the children. See IR 1, at 1-2.
3
The district court conducted its Rule 16 scheduling conference on May 4,
2015, and entered the scheduling order that same day. IR 31, 33. Thereafter, on
June 20, 2015, Plaintiffs noticed a deposition of the Pinal County Sheriff’s Office
under Federal Rule of Civil Procedure 30(b)(6), setting the deposition for August
18, 2015. IR 44. In addition, Plaintiffs contacted the Eloy Police Department to
schedule the depositions of two of its responding police officers. See IR 57, at 7,
ER 62. Plaintiffs’ counsel also sought dates for the depositions of Defendant
Heath Rankin and his partner, Deputy J. Rice. Id.
Prior to the Rule 30(b)(6) deposition, and before agreeing to dates for the
other depositions sought by Plaintiffs, Defendants filed a motion for summary
judgment. Defendants asserted, among other things, that Deputy Rankin was
entitled to qualified immunity. IR 53. Defendants also moved to stay all
discovery in the matter pending resolution of the summary judgment motion. IR
50, ER 46-50.
Plaintiffs resisted Defendants’ unexpected motion to stay discovery, and
affirmatively moved to permit discovery under Federal Rule of Civil Procedure
56(d), specifically requesting the depositions of:
● Eloy Police Sergeant Tarango, the supervising Eloy Police

officer who participated in the pursuit from the outset and, as
Longoria exited the vehicle, ordered, “Less lethal! Less lethal!”,
a command that Rankin ignored;
4
● Pinal County Deputy J. Rice, Rankin’s partner and the officer

standing nearest Rankin at the time of the shooting;
● Eloy Police Officer Jimenez, who fired the beanbag rounds at

Mr. Longoria;
● Eloy Police Officer Quintana, who was present for the duration
of the incident and witnessed Longoria’s reactions;
● The Rule 30(b)(6) deponent previously noticed; and
● Deputy Heath Rankin.
See IR 57, at 11, ER 66; see also IR 56, ER 51-55.
The district court granted Defendants’ motion, permitting Plaintiffs to
depose only the shooter, Heath Rankin – the only officer from whom numerous
earlier statements had been taken. See IR 70, ER 100-102. The Court denied
Plaintiffs the opportunity to depose any of the other officers at the scene, including
the Sergeant who had ordered that “non-lethal” force be used. Id.
Plaintiffs responded to Defendants’ motion for summary judgment and
cross-moved with respect to Rankin’s claim of qualified immunity. IR 85.
Following briefing, but without oral argument, the district court granted
Defendants’ motion in an order dated March 17, 2016. IR 109, ER 1-11. The
clerk entered judgment for Defendants that same day. IR 110, ER 12.
Plaintiffs filed a timely notice of appeal. IR 115, ER 13-15.
5
Statement of Facts
1. Eloy Police Officers Pursue a Distraught Individual
On January 14, 2014, Manuel Longoria was distraught over his
relationship with Lynnette Longoria, the mother of three of his children. See IR
86, ¶ 40; ER 809; IR 85-1, Exh. 1, at 7-8; ER 112-13. Shortly after noon, Eloy
Police officers spotted him driving a car that his brother-in-law had reported
stolen. Id. The officers initiated a traffic stop. Id.
Longoria fled. Id. Eloy Police pursued Longoria for over seventy minutes,
following a meandering route in Eloy centered primarily around a house located
at 1112 Main Street, where Longoria believed Lynnette was staying with her
family. Id.; see also IR 86, at ¶ 2, ER 785-87.
Eloy officers requested the assistance of the Pinal County Sheriff’s Office
(“PCSO”) as “standby” should the pursuit leave Eloy into Pinal County’s
jurisdiction. IR 86, ¶ 5; ER 789; see also IR 92, Exh. 27(f).2 Deputy Rankin
and his partner J. Rice responded almost immediately and, upon arrival in Eloy,
participated in the chase for approximately 40 minutes. See IR 86, at Exh. 2, p.
4, ER 159 (Rankin radio dispatch indicating involvement in pursuit no later than
1:06 pm).
2
The link is to a YouTube video which is the exact video submitted to the
district court. Plaintiffs will also move to submit the DVD video to this Court
pursuant to Circuit Rule 27-14.
6
En route and upon arrival, Deputy Rankin monitored the Eloy police’s
radio traffic in the pursuit, as he advised PCSO dispatch:
IR 86, Exh. 2, at 2; ER 157.
During the pursuit, it became obvious that Longoria did not have a
weapon. Id. At least twice, Longoria stopped his vehicle and spoke with
officers. See IR 92, Exh. 27(a) (DVD with video clips) (first stop); Exh. 27(b)
(second stop). While Longoria repeatedly expressed his own desire to die that
day, no one except Defendant Rankin claimed to have heard Longoria utter any
threats towards the officers. IR 86 (entire record; no other report of direct threat
to officers).3
During one stop in front of the home on Main, Longoria got out of his
vehicle. IR 86, Exh. 1, ER 118. Rankin was among the officers witnessing the
3
The district court accepted as an undisputed fact Defendant Rankin’s claim
that he heard Longoria threaten to kill him– even though no other officer heard any
such threat, and Plaintiffs were not permitted to depose the officers, such as
Deputy Rice, who could have confirmed or disputed Rankin’s claims. See Order,
IR 109, at 7, ER 7. In Tolan v. Cotton, -- U.S. --, 134 S. Ct. 1861 (2014), the
Supreme Court expressly cautioned against drawing inferences in favor of the
moving party in civil rights cases. Id. at 1866 (“Our qualified-immunity cases
7
exchange. IR 86, at ¶ 6; ER 790; see also IR 85-1, at 15; ER 72 (rosary incident
occurring later in pursuit). The other officers could see that Longoria was
holding a rosary in his left hand. Id. According to Eloy Detective Garrison:
During our contact with Manuel, he removed one of his hands from
behind his waist and I observed as it was holding an object which I
recognized as being (dark colored) rosary beads. Manuel kissed the
rosary beads repeatedly during his requests to be shot.
IR 85-1, at 13, ER 118.
Longoria stopped his car again a few minutes later. During this encounter
with the officers, Longoria held something in his right hand, behind his back. IR
86, Exh. 1, at 24; Exh. 6, at 989-90; ER 129, 497-98. Eloy Officer Jim Salazar
saw Longoria’s right hand and realized that it was not a gun, but a wallet, that
Longoria was holding. Id. Officer Salazar broadcasted over the very police radio
frequency that Rankin was monitoring that Longoria was holding a wallet. IR
86, Exh. 6, at 1001, ER 509.
illustrate the importance of drawing inferences in favor of the nonmovant, even

when, as here, a court decides only the clearly-established prong of the standard”).
8
IR 86, Exh. 7, at 97; ER 531; see also IR 92, Exh. 27(f) (audio of “wallet” radio
transmission).4 Rankin denies hearing this radio traffic. See IR 96, at 2.
PCSO Detective Carnes also recognized that Longoria was holding a
wallet rather than a gun. See IR 86, Exh. 5, at 526, ER 399. PCSO Detective
Carnes stated in his report:
On about two occasions, Longoria stopped and exited his vehicle. He

held what appeared to be a thin black object in his hand that appeared
to be a wallet. He kept the object held behind his back. He claimed
that the object was a gun. He told me and the other officers that we
had to shoot him.
Id.
2. Deputy Rankin Is Ordered To Stand Down
Eventually, at 1:30 pm, Rankin’s superior, PCSO Lieutenant Villegas,
instructed Rankin and other deputies to stand down from the pursuit: “[D]ispatch
– the only charges we have on him is occupied 10-40? … Have all our units 10-
22 and tell Eloy PD that’s – that’s they’re area. If they chose to continue, that’s
fine but we’re gonna go ahead and back out at this point.” IR 85-1, Exh. 2, at
19, ER 174.
4
The district court stated that “Both the Eloy PD and the PCSO reported that
Mr. Longoria had a gun.” IR 109, at 5, ER 5. The district court did not address
the fact that the Eloy officers then reported – over the very radio frequency that
Rankin was monitoring – that Longoria was holding a wallet, or that not a single
officer ever actually saw a gun. Again, the district court wrongful construed all
facts and their inferences in favor of Defendants. See Tolan, supra.
9
Rankin’s Sergeant instructed him to form a perimeter at Main and
Battaglia Streets in Eloy. IR 85-1, Exh. 3, at 110-11, ER 292-93.
3. Eloy Officers Successfully End the Pursuit
At approximately 1:33 p.m., Eloy police officers terminated the chase at
the corner of 11th Street and Main by hitting Longoria’s car with a police vehicle.
IR 85-1, Exh. 2, at 20-21, ER 175-76. Another police vehicle boxed in
Longoria’s vehicle as shown in the photo below.
IR 85-6, Exh. 21; ER 690.
Many police officers, mostly with the Eloy Police Department,
immediately surrounded the vehicle, only feet away, with their guns drawn.
10
IR 86, at 30, ER 813 (still from iPhone bystander video, found at IR 92, Exh.
27(l)).
Sergeant Tarango of the Eloy Police Department, the ranking officer on
scene, took charge. “[A]s I’m running up I'm yelling, you know, less lethal. I - I
yelled it at least two times as loud as I could, ‘Less lethal, less lethal’….” IR
85-5, Exh. 11, at 3, 6; ER 567, 570. In response, Eloy Detective Jimenez fired
multiple, non-lethal, lead-filled beanbags at Longoria. IR 85-1, Exh. 1, at 32,
ER 137. These rounds struck Longoria. Id. Officers at the scene later described
Longoria’s reactions to the beanbag rounds as “defensive.” IR 85-6, Exh. 14, at
9; ER 610. “I know his hands were flying basically all over the pl- place. I mean
he was getting hit with the beanbag rounds…. [H]e was kind of gettin' hit with
'em and kinda reacting to gettin' hit with 'em.” Id. at 5, ER 606.
As he reacted to the beanbag rounds, other officers saw that he had no gun
or other weapon (just as he had not throughout the pursuit). In the dash cam
11
video, the officer closest to Longoria recognized that Longoria was unarmed and
lowered his gun.
12
See IR 92, Exh. 27(m) (frame-by-frame stills from dash-cam video, frames
15h48m56s24 -15h50m11s34).
One of the only PCSO deputies at the scene, Deputy Choate, could also see
that Rankin was unarmed. He later stated: “And that's when I seen his hand
come free, no weapon. So I slung my, ah, rifle, and went for the Taser, shot him
with the Taser.” IR 85-6, Exh. 12, at 1, ER 574.
Longoria then dropped the only item in his hands (the same item he had
been seen holding earlier), a set of rosary beads. See IR 92, Exh. 27(m) (frame-
by-frame of dash cam video), at frames 16h18m36s34 – 16h18m44s36. He
turned his back to the police and raised his arms in surrender:
IR 86, at 30, ER 813 (still from iPhone bystander video, found at IR 92, Exh.
27(l)).
The incident should then have been over, with the distraught Longoria
surrendering.
13
4. Rankin Inexplicably Decides To Rejoin The Encounter
Rankin and his partner Deputy Rice parked their police vehicle at the
corner of Battaglia and Main, around the corner from where the Eloy officers had
stopped Longoria’s car. IR 85-1, Exh. 3, at 110-11, 117; ER 292-93, 299. They
heard the sounds of a collision about a half block away. IR 85-1, Exh. 3, at 120;
ER 302. Rankin grabbed his assault rifle and ran toward the scene. Id.
The photograph below shows Rankin’s approximate route running toward
the direction of Longoria’s disabled vehicle. Id. at ¶ 13.
IR 86, at ¶ 13; ER 797; see also IR 92, Exh 27(n) (annotated video of iPhone
video, highlighting Rankin).
As he rounded the corner, Rankin observed Longoria out of the vehicle,
and more than eight officers nearby, all holding guns on Longoria. IR 86, at ¶
14
57; ER 30 (still taken from iPhone video, IR 92, Exh. 27(l). Rankin is the
officer highlighted in the photo below:
Id.
Rankin’s actions belie his claim that he thought Longoria was armed.
Rankin ran through the line of fire of the officers – putting himself directly at risk
if the officers would have needed to shoot at Longoria. See id.; see also IR 85-1,
Exh. 3, at 121; ER 303. His path behind Longoria would be insanity if a
gunfight erupted.
After running the half block, Rankin turned to face Longoria, standing
about 30 feet away from him. IR 85-1, Exh. 3, at 129-30; ER 311-12. The
police diagram prepared during the investigation shows Rankin’s position 29 feet
11 inches away from Longoria:
15
LONGORIA
RANKIN
IR 86, ¶ 13, ER 797; IR 85-4, Exh. 10, ER 537-546.
Rankin testified that he had 20/20 vision. IR 85-1, Exh. 3, at 8, ER 190.
“20/20” vision means that, in using the Snellen eye test chart, a person should be
able to read line 8 at a distance of 20 feet. IR 86 ¶ 33; ER 807-08; see also IR
85-6, Exh. 17; ER 627-31. The letters in line 8 are to be only 8.86 millimeters
tall. See id. (https://en.wikipedia.org/wiki/Snellen_chart). These letters, as
printed on 8½ by 11 inch paper, are approximately 8.86 millimeters tall:
DEFPOTEC
Id. With 20/20 vision, Deputy Rankin could read these letters at 20 feet. He was
only a ten feet further from Longoria, but claims to have been unable to see that
Longoria was holding a rosary in his hands.
16
Rankin saw the beanbag rounds strike Longoria. IR 85-1, Exh. 3, at 122;
ER 304. As Longoria is raising his arms in surrender – and with his side turned
toward Rankin—Rankin fired two rounds at Longoria. IR 48, at ¶ 22. Both of
Rankin’s shots struck Longoria in the back. IR 86, at ¶ 22; ER 805; IR 85-6,
Exh. 15; ER 618.
Id.
Of the approximately 10 officers at the scene, Rankin was the only officer
to use deadly force. Rankin shot an unarmed man, claiming now that he
mistakenly believed that Longoria had a gun. Whether Rankin’s testimony is
true is a question of fact for the jury. Whether his actions were objectively
reasonable is also subject to debate. Plaintiffs respectfully request that this Court
reverse the trial court’s grant of summary judgment.
17
Argument
I. Summary of Argument
Deputy Rankin shot an unarmed man in the act of surrender. Deputy
Rankin claims that he believed that Longoria had a gun and was pointing it at
Rankin. Numerous facts, however, suggest that Rankin either did not have this
belief or, if he did, such a belief was unreasonable, including:
● Rankin was only 30 feet away from Longoria, a distance close

enough to easily distinguish between a gun and rosary beads;
● Longoria was in the act of raising his hands – surrendering –

when Rankin shot Longoria;
● The officer in charge, Sergeant Tarango, shouted, “less lethal,

less lethal!”;
● Longoria flailed about from being shot by the beanbag rounds,

but did not raise his hands in a “shooter’s stance” as Rankin
claims;
● Rankin had no reason to believe from the pursuit itself that

Longoria was armed. Eloy Officer Salazar announced that
Longoria was holding a wallet, not a gun. No officer ever
observed Longoria with a gun, and he did not once display or
use one, even where Longoria probably would have displayed it
had he actually had one.
The foregoing facts are based on the limited record available to the
Plaintiffs. Plaintiffs should have been entitled to depose other officers at the scene,
such as Sergeant Tarango, the officer giving the order of “less lethal,” and Deputy
Rice, Rankin’s partner, who could have provided valuable information regarding
18
Rankin’s actual knowledge. The testimony of these and other officers at the scene
(as well as the Rule 30(b)(6) deponent) would have provide valuable testimony to
demonstrate the unreasonableness of Deputy Rankin’s conduct. The district court
abused its discretion in denying Plaintiffs the opportunity to conduct such
discovery prior to responding to Defendants’ summary judgment motion.
II. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo.
Johnson v. Buckley, 356 F.3d 1067, 1071 (9th Cir. 2004). “Because the excessive
force inquiry nearly always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, we have held on many occasions
that summary judgment or judgment as a matter of law in excessive force cases
should be granted sparingly.” Smith, 394 F.3d at 704 (quotation omitted; citing
cases).
This Court reviews a district court's order denying additional discovery
under Federal Rule of Civil Procedure 56(d) for an abuse of discretion. Tatum v.
City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Similarly,
this Court also reviews a district court’s order staying discovery for an abuse of
discretion. See Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-17 (9th Cir.
1987).
19
III. Discussion
A. Because none of the other officers felt that lethal force was
necessary, and the officer in charge ordered “less lethal,”
plaintiffs should have been granted the opportunity to
depose the other officer witnesses prior to responding to
defendants’ motion for summary judgment.
The parties submitted their Rule 16 Joint Case Management Plan on April
27, 2015. IR 24, ER 25-45. In this Case Management Plan, Plaintiffs identified,
by name, the individuals they sought to depose. Id. at 14-15, ER 38-39. In light of
Plaintiffs’ list, Plaintiffs requested leave to depose more than ten individuals. Id. at
15-16, ER 3940. Defendants, in turn, did not object to the discovery plan, other
than to object to Plaintiffs’ request to depose more than ten individuals. Id.
The day following submission of the Rule 16 Case Management Plan,
Plaintiffs propounded written discovery on Defendants, promptly on the date
permitted for circulating discovery under Federal Rule of Civil Procedure 26. See
IR 26, 27.
Following receipt of Defendants’ responses to written discovery, Plaintiffs
promptly began setting depositions in this matter. They:
(1) Requested dates from defense counsel for the depositions of

Heath Rankin and his partner, Deputy J. Rice, see IR 57, Exh.
6, ER 91;
(2) Requested dates from Eloy Police Officers Tarango and

Jimenez for their depositions, IR 57, Exh. 5, ER 88-89; and
20
(3) Noticed a deposition under Rule 30(b)(6) from the Pinal County
Sheriff’s Office, IR 44.
Defendants produced no witnesses for their depositions. Rather, despite
their complete silence during the Rule 16 planning phase, the Defendants moved to
stay discovery while simultaneously moving for summary judgment. See IR 50,
53.
Plaintiffs opposed Defendants’ motion for stay, see IR 56, and filed their
own separate motion to conduct discovery, IR 57, ER 56-99. Plaintiffs
specifically sought leave to depose Eloy Police Officers Tarango, Jimenez, and
Quintana, Pinal County Sheriff’s Deputy J. Rice, Defendant Heath Rankin, and the
Rule 30(b)(6) designee or designees. IR 57, at 11, ER 66. Other than permitting
the deposition of Heath Rankin, the district court denied Plaintiffs’ motion. IR 70,
ER 100-102.
Federal Rule of Civil Procedure 56(d) provides that:
If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take

discovery; or
(3) issue any other appropriate order.
21
Fed.R.Civ.P. 56(d).5 This Court has noted that district courts should grant Rule
56(d) motions “fairly freely” when a party has not “had any realistic opportunity to
pursue discovery relating to its theory of the case.” Burlington Northern Santa Fe
R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation, 323 F.3d 767,
773 (9th Cir. 2003). Moreover, Plaintiffs diligently pursued discovery in this
matter, setting forth their detailed discovery plan in the Rule 16 Joint Case
Management Plan, propounding written discovery the very next day, and promptly
attempting to set depositions.
In Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014), this Court noted
that “[n]obody likes a game of ‘he said, she said,’ but far worse is the game of ‘we
said, he’s dead.’ Sadly, this is too often what we face in police shooting cases like
this one.” Id. at 1077. This case has transmogrified into a case of “he said,” with
Defendants insisting that the Court take Rankin’s claims at face value, such as
Rankin’s assertion that he heard Longoria directly threaten him, and that Rankin
did not hear the radio broadcast that Longoria was holding a wallet and not a gun.
Had Plaintiffs been permitted to depose the other witnesses, including Deputy J.
Rice, Deputy Rankin’s partner, it may not have been necessary to simply take
Rankin’s uncorroborated statements as true. IR 57, at 8-11, ER 63-66.
5
Rule 56 was amended in 2010; the provisions of former Rule 56(f) are now
codified at Rule 56(d). See Rule 56, Advisory Committee Notes, 2010
Amendments.
22
Likewise, Sergeant Tarango ordered that non-lethal force be used. His
testimony would have assisted in determining whether Rankin could have, and
should have, heard, Tarango’s order. The same is true for the other on-scene
officers.
Moreover, the fact that a video of the shooting exists – taken from iPhone at
a distance of at least 200 feet – does not preclude Plaintiffs’ taking of discovery. A
case squarely on point is Collar v. Austin, 2015 WL 505667 (S.D. Ala. Feb. 5,
2015). In Collar, a University of South Alabama police officer shot and killed an
unarmed, but disoriented and inebriated, student. After answering the plaintiff’s
complaint, the defendants promptly moved for summary judgment and, like the
Defendants herein, asserted that a videotape of the shooting conclusively
established the defendants’ qualified immunity. Thus, the defendants sought a
prompt ruling on their summary judgment motion, without providing the plaintiff
with the opportunity for discovery.
The district court held that the plaintiffs were entitled to discovery. As a
threshold matter, the district court held that the defendants’ reliance on the video
was misplaced:
To qualify under [the Scott v. Harris] rule, the video must “so utterly
discredit [the plaintiff's version] that no reasonable jury could believe
it.” The video—which runs approximately thirty seconds from the
moment the defendant opens the police building door to the moment
Collar is shot—does not live up to this exacting standard.
23
Id., slip op. at 5 (quoting Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir.
2013)). Thus, the Court held that the plaintiffs were entitled to discovery:
The critical issue on the defendant's motion for summary judgment as

to the federal claim is what actually occurred in the moments before
Collar was shot, and on this issue the defendant relies on his
interrogatory responses from the previous state action and on the
video discussed above. Because Collar is deceased, the plaintiffs
cannot rely on his version of events. The defendant's discovery
responses are untested and, as discussed above, the video is limited in
scope and largely inconclusive, though it can be viewed as supportive
of the plaintiffs' claim. All proposed depositions are of persons
believed to have information concerning what occurred in the
moments before Collar was shot, and the premises inspection would
reveal distances and perhaps other information needed for assessing
and countering the defendant's version of events. The plaintiffs
pointed out all of this in their motion.
Id., slip op. at 6 (footnote and citations to record omitted). “As set forth above,
the video does not so utterly discredit the plaintiff's version that no jury could
accept it; on the contrary, in multiple particulars it draws the defendant's version
of events into question.” Id., slip op. at 8.
Here, as in Collar, Plaintiffs were entitled to discovery. The issues in this
police shooting wrongful death case are simply too important to be resolved
without a full and fair airing of the relevant facts. See, e.g., Mahach-Watkins v.
Depee, 2008 WL 512707, slip op. at 2 (N.D.Cal. 2008) (“[B]y its very nature, a
wrongful death case involves significant legal issues, serves a public purpose,
and affirms important rights, regardless of the amount of damages recovered”),
24
aff’d, 593 F.3d 1054, 1057 (9th Cir. 2010). The district court abused its
discretion in denying Plaintiffs the opportunity to depose any of the eyewitnesses
prior to ruling on the summary judgment motion. Plaintiffs request that this
Court reverse the grant of summary judgment and permit discovery before any
dispositive motions may be resubmitted.
B. Under Clearly Established Standards, Deputy Rankin

Violated The Fourth Amendment By Shooting An Unarmed
Man In the Act of Surrender.
1. Introduction
Deputy Rankin claimed he was protected from liability for his shooting of
Longoria under the doctrine of qualified immunity. Resolving a claim of qualified
immunity generally involves a two-step process. First, the Court must determine
whether the officer violated the plaintiff’s constitutional rights. Clement v. Gomez,
298 F.3d 898, 903 (9th Cir. 2002). If so, the Court must then determine “whether
the right was clearly established.” Id. “Courts have discretion to decide the order
in which to engage these two prongs.” Tolan v. Cotton, -- U.S. --, 134 S. Ct. 1861,
1866 (2014).
The “requirement that the plaintiff's asserted right be clearly established
‘does not mean that the very action at issue must have been held unlawful before
qualified immunity is shed.’” Blankenhorn v. City of Orange, 485 F.3d 463, 480
(9th Cir. 2007) (quoting Wall v. County of Orange, 364 F.3d 1107, 1111 (9th
25
Cir.2004)). Police officers “can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
730, 741, 122 S.Ct. 2508, 2516 (2002).
Moreover, the rule that all inferences are to be drawn in favor of the non-
moving party applies without limitation in qualified immunity cases. Tolan, 134
S.Ct. at 1866. “Our qualified-immunity cases illustrate the importance of
drawing inferences in favor of the nonmovant, even when, as here, a court
decides only the clearly-established prong of the standard.” Id. “[C]ourts must
take care not to define a case's ‘context’ in a manner that imports genuinely
disputed factual propositions.” Id.
2. Deputy Rankin Violated Manuel Longoria’s

Clearly Established Fourth Amendment Rights.
The Fourth Amendment to the United States Constitution prohibits an
officer from using unreasonable force. Graham v. Connor, 490 U.S. 386, 395, 109
S.Ct. 1865, 1871 (1989). Fourth Amendment claims of excessive or deadly force
are analyzed under an objective reasonableness standard. Scott v. Harris, 550 U.S.
372, 381, 127 S.Ct. 1769, 1776 (2007). To determine if a Fourth Amendment
violation has occurred, this Court must balance the extent of the intrusion on the
individual’s Fourth Amendment rights against the government’s interests to
determine whether the officer’s conduct was objectively reasonable based on the
totality of the circumstances. Graham, 490 U.S. at 395-96, 109 S.Ct. at 1871.
26
This analysis involves three steps: first, the Court must assess the severity of the
intrusion on the individual’s Fourth Amendment rights by evaluating “the type and
amount of force inflicted.” Espinosa v. City & County of San Francisco, 598 F.3d
528, 537 (9th Cir. 2010), cert. denied sub nom, Alvis v. Espinosa, -- U.S. --, 132 S.
Ct 1089 (2012). Then, the Court must evaluate the government’s interest in the use
of force by considering “(1) the severity of the crime; (2) whether the suspect
posed an immediate threat to the officers’ or public’s safety; and (3) whether the
suspect was resisting arrest or attempting to escape.” Id. Finally, the Court must
balance the two interests, the gravity of the intrusion as against the government’s
need for that intrusion. Id.
Manuel Longoria had no weapon. He held black and white rosary beads in
his hands. Rankin’s own police agency had ordered that he and his fellow
deputies sit on the sidelines unless that Longoria ever chose to leave the city’s
jurisdiction, but that Longoria’s crime involved did not need their involvement.
The Fourth Amendment right is clearly established. “It is well-established
in the case law that an officer may not use deadly force against an unarmed and
non-dangerous individual.” Kiles v. City of North Las Vegas, 276 Fed. Appx.
620, 622 (9th Cir. 2008); see also Floyd v. City of Detroit, 518 F.3d 398, 407 (6th
Cir. 2008) (“an unarmed and nondangerous suspect has a constitutional right not
to be shot by police officers”). “As early as 1996, the Ninth Circuit noted that
27
‘the law governing when an officer may use deadly force against an unarmed
fleeing suspect was clearly established.’” Kosakoff v. City of San Diego, 2010
WL 1759455, slip op. at 8 (S.D. Cal. Apr. 29, 2010), aff'd in relevant part, 460
Fed. Appx. 652 (9th Cir. 2011) (quoting Acosta v. City & County of San
Francisco, 83 F.3d 1143, 1147 (9th Cir.1996)). In Acosta, the Ninth Circuit held
that an officer “shooting at the driver of a slow-moving car” was not entitled to
qualified immunity where “a reasonable officer ... would have recognized that he
could avoid being injured ... by simply stepping to the side.” Acosta, 83 F.3d at
1146–47; see also Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991).
Here, Longoria was not “armed” with even a car; he had nothing in his hands but
rosary beads.
The test for Rankin is an objective one. Rankin’s subjective beliefs are
irrelevant. An objective officer, at a distance of 30 feet, can tell a gun from a set
of rosary beads. An objectively reasonable officer does not shoot someone with
rosary beads in their hands who is reacting to beanbags being shot at him. This is
even more so when the officer has participated in the police chase for 50 minutes
and has observed personally and listened to radio broadcasts that the suspect is
unarmed. It is an error to characterize Rankin’s misconduct as a “mistake of
fact.” For fifty minutes, there were no shots. The “crime” was so insignificant
that the Pinal County Sheriff’s Office called off their officers’ participation.
28
Longoria had evaded police capture during daylight hours by, at times, driving
very slowly around a procession of police cars, including Rankin’s, and yet no
one had ever seen a gun. Then, while Longoria was in the throes of being shot
with bean bags, Rankin at a distance of 30 feet claims to have seen a gun,
supported by one split-second frame from a video taken at a distance of 200 feet.
If the jury believes that Rankin did see that Longoria was unarmed,
shooting him would not be protected by qualified immunity. Even if the jury
believes Rankin’s claim that he thought Longoria had a gun, there is a jury
question as to whether that claim is objectively reasonable. The seminal case is
Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011), cert. denied sub nom
Noriega v. Torres, -- U.S. --, 132 S. Ct. 1032 (2012). There, the officer,
intending to use her Taser, shot and killed an unarmed individual in the rear seat
of a police car. Reversing the trial court’s grant of qualified immunity to the
officer, this Court held:
Not all errors in perception or judgment, however, are reasonable.…

Where an officer's particular use of force is based on a mistake of
fact, we ask whether a reasonable officer would have or should
have accurately perceived that fact.
Id. at 1124 (emphasis added). “Plainly, not all mistakes—even honest ones—are
objectively reasonable. [T]he Fourth Amendment's allowance for officers' honest
mistakes is limited to mistakes that are objectively reasonable.” Floyd, 518 F.3d
at 408 (citation and quotation omitted).
29
A reasonable officer in Defendant Rankin’s position (1) knew, or should
have known, that Longoria was not armed when Rankin shot; and (2) further
knew, or should have known, that he was not in a proper position to assess the
facts sufficiently to use deadly force. First, Rankin knew, or should have known,
that Longoria had no weapon based on incidents occurring prior to the shooting
incident itself:
(1) The pursuit itself should have alerted Rankin that Longoria had
no gun. This pursuit lasted slightly over seventy minutes. Not
once during this lengthy pursuit did any officer see Longoria
using a gun or even holding a gun, and the officers had multiple
opportunities to see Longoria during this pursuit.
(2) There are several times where Longoria would have displayed
or used a weapon, if he had one in his possession.
(3) During another stop in front of the residence on Main Street in
Eloy, Longoria held an object in his right hand but kept it
behind his back, as if he might potentially bring forth a weapon.
Eloy Detective Salazar could observe the right hand, and saw
that the object in Longoria’s hand was his wallet.
(4) Detective Salazar shouted this out to the other officers on the
scene. Moments later, information that Longoria had no gun,
but a wallet, was dispatched on Eloy Police radio – a frequency
that Rankin was monitoring!
30
(5) In addition, during his engagement with the officers at various

times during the pursuit, Longoria never made any threats to
officers. Only, Deputy Rankin claims that Longoria threatened
him.
IR 86 ¶ 77, ER 818-23. Deputy Rankin should have perceived that
Longoria was not armed during the shooting itself:
(1) Rankin positioned himself thirty feet from Longoria, a
relatively close distance. At this distance, it is easy to discern
hand-sized objects, such as rosary beads or a gun, particularly
for a person with 20/20 vision such as Rankin. Rankin was
close enough to determine that, like the other officers, Longoria
was not armed.
(2) Rankin did not establish a “shooter’s stance,” as Rankin now
claims. Rather, the videos establish only that Longoria, for a
split second, raises his hands above his waist towards his chest.6
(3) As the other officers at the scene indicated, Longoria’s
movements were in response to being struck by multiple
beanbag rounds.
(4) During this flailing, the other officers at the scene could see that
Longoria was not holding a weapon.
(5) After being struck by the beanbag rounds, Longoria attempted
to surrender:
6
See Collender v. City of Brea, 605 Fed. Appx. 624, 629 (9th Cir. 2015)
(“The parties also dispute whether or not Julian's left hand went into his pocket.
The video does not clearly show Julian's hand movement just prior to the
shooting…. [T]his disputed fact must be construed in the light most favorable to
the [plaintiffs]”).
31
(6) Rankin was the only officer, among the many at the scene, to
use deadly force on Longoria.
Id.
Further, Rankin knew, or should have known, that he was not in a position
to be using deadly force:
(1) Deputy Rankin’s superiors had ordered Rankin to stand down
from the pursuit and to assist in forming a perimeter. At the
moment that Longoria’s vehicle was successfully brought to a
stop, Rankin was no longer part of the pursuit and was out of
line of sight from what was happening.
(2) After hearing the collision, he grabbed his rifle and ran toward
the scene. When Rankin turned the corner, he saw Longoria
standing by his vehicle, with at least eight (8), if not more,
officers, with their guns and weapons trained on Longoria.
(3) The officer in charge at the scene, Eloy Police Sergeant
Tarango, reported that he announced several times to use “less
lethal!”
Id. A jury would be well within their rights to conclude that Rankin’s decision to
shoot at Longoria was objectively unreasonable.7
Duenez v. City of Manteca, 2013 WL 6816375 (E.D. Cal. Dec. 23, 2013),
resembles the present matter. In Duenez, Manteca police officers responded to a
housing complex regarding suspicious activity, learning that one of the persons
7
The district court focused extensively on the pursuit itself in evaluating
Rankin’s used of deadly force. See IR 109, at 5-8, ER 5-8. However, by the time
Rankin shot Longoria, the pursuit itself was long over.
32
involved was a parolee, Ernesto Duenez, whose parole had been revoked, and had
carried a gun between his butt cheeks. A Manteca police officer, John Moody,
went to a nearby house where he believed that Duenez might go. Duenez did
arrive at the house, a passenger in the back seat of a pickup truck.
Moody ordered Duenez to get out of the pickup truck. As Duenez got out of
the pickup, he appeared to hold an object in his hand. Moody ordered Duenez to
“drop the knife,” and then shot and killed Duenez. Moody’s police vehicle’s dash
camera captured the incident.
In seeking qualified immunity, Moody argued that Duenez appeared to be
holding something in his hand and was waving it erratically. The district court
disagreed, finding that genuine issues of fact precluded summary judgment:
To the contrary, the video of the shooting shows that there may be
something briefly in decedent's hand, but it is not clear beyond
reasonable dispute that it is a knife, or a weapon of any kind. The
video certainly does not show the decedent waving a knife erratically.
To the contrary, the video shows conclusively that the decedent did
not wave any knife (or whatever it was that briefly appeared in his
hand), erratically or in a threatening manner. Accordingly, a
reasonable jury could find that Moody violated the decedent's clearly
established Fourth Amendment rights by seizing an unarmed, non-
dangerous civilian by shooting him dead.
Id., slip op. at 10.
In Jefferson v. Lewis, 594 F.3d 454 (6th Cir. 2010), the Sixth Circuit found
summary judgment inappropriate in another matter similar to the case at hand.
There, an officer shot an unarmed woman, asserting that he saw “something shiny”
33
in her hand, and then saw a light flash that he believed to be from a muzzle. The
plaintiff, however, noted that she was in fact unarmed, that her hand never left the
doorknob, and that there was no evidence of what could have produced the alleged
flash of light. These facts, the Sixth Circuit held, created a dispute of fact as to the
officer’s reasonableness in his use of force. Id. at 461-62; see also Floyd, 518 F.3d
at 403 (genuine issue of fact precluded summary judgment as to whether it was
reasonable for officers to believe unarmed individual was holding a gun); Stephens
v. City of Akron, 729 F. Supp. 2d 945, 959 (N.D. Ohio 2010) (issues of fact
regarding reasonableness of shooting unarmed individual).
3. The Inconclusive Video, Shot From An iPhone

From A Distance of 200 Feet Away, Does Not
Support Summary Judgment For Defendants in
This Matter.
In the district court, Defendants relied on Scott v. Harris, 550 U.S. 372, 127
S.Ct. 1769 (2007), for the proposition that the iPhone video of the shooting alone
compelled summary judgment. Defendants misconstrue Scott. The video in this
case shows that Longoria reacted to being shot, that he had no gun, and that he had
turned, raised his hands, and surrendered prior to being shot. The fact that one
split-second frame, filmed from a video taken from over 170 feet further than
Rankin, at an angle different than the defendant’s, shows Longoria’s arms in front
of him while being hit by the beanbags, does not absolve Defendant. See Mills v.
City of Harrisburg, 589 F.Supp.2d 544, 553 n. 5 (M.D.Pa.2008) (declining to
34
apply Scott v. Harris because the audio recording was “susceptible to multiple
reasonable interpretations” unlike the videotape in Scott), aff’d, 350 Fed.Appx.
770, 3rd Cir. 2009).
Video evidence permits summary judgment if, and only if, the video “utterly
discredits” the opposing party’s theory of the case. See, e.g., Ross v. Burlington N.
& Santa Fe Ry. Co., 528 Fed. Appx. 960, 965 (10th Cir. 2013) (“We think [plaintiff]
has shown that the video does not so utterly discredit her evidence that no
reasonable jury could believe her version of events”); Bodney v. Pima County
Sheriff's Dept., 2009 WL 2513786, slip op. at 7 (D. Ariz. Aug. 7, 2009) (“Unlike
the tape in Scott, the tape here certainly does not ‘so utterly discredit’ Plaintiff's
version of events that no reasonable jury would believe him”).
4. Deputy Rankin Unreasonably Interfered With

The Non-Lethal Efforts To Subdue Mr.
Longoria.
Longoria had no weapon when Rankin shot and killed him. The videos
demonstrate that Rankin’s purported belief that Longoria had a gun was
objectively unreasonable. The videos show Longoria being struck by beanbag
rounds from a shotgun. The videos show Longoria reacting to being so shot;
Rankin himself acknowledges that the pain from being struck by a beanbag round
would provoke an involuntary reaction. The video shows the rosary beads coming
out of his hand. The videos then show Longoria, after recovering from the
35
beanbag shots, raising his hands in surrender. The video shows that he is shot.
Autopsy photos show that the shots were in his back.
“Police are ‘required to consider what other tactics if any were available,”
and to use “clear, reasonable and less intrusive alternatives” to deadly force, if
reasonable. Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir. 2011). That
is precisely what the Eloy officers did, through both beanbag rounds, and even
PCSO’s Deputy Choate utilized his non-lethal Taser. Defendant Rankin should
not be permitted to use Longoria’s expected reaction to this non-lethal force –
involuntary, defensive flailing – to then justify his use of lethal force, particularly
where, as here, the non-lethal force succeeded, as Longoria turned his back to the
officers and raised his arms in surrender.
C. Genuine Issues Of Material Fact Exist With Respect To

Plaintiffs’ State Law Wrongful Death Claims.
(1) Justification
Defendant claims that he was “justified” as a matter of Arizona law in
shooting Longoria while non-lethal force was ongoing under A.R.S. §§ 13-409, 13-
410, and 13-411. Section 13-409 provides in relevant part that:
A person is justified in threatening or using physical force against

another if in making or assisting in making an arrest or detention or in
preventing or assisting in preventing the escape after arrest or
detention of that other person, such person uses or threatens to use
physical force and all of the following exist:
36
1. A reasonable person would believe that such force is

immediately necessary to effect the arrest or detention or
prevent the escape. . . .
A.R.S. § 13-409. Section 13-410, in turn, provides as follows:
A. The threatened use of deadly physical force by a person against

another is justified pursuant to § 13-409 only if a reasonable
person effecting the arrest or preventing the escape would
believe the suspect or escapee is:
1. Actually resisting the discharge of a legal duty

with deadly physical force or with the apparent
capacity to use deadly physical force; or
2. A felon who has escaped from lawful confinement;

or
3. A felon who is fleeing from justice or resisting

arrest with physical force.
A.R.S. §13-410(A). Finally, section 13-411 justifies the use of force where such
deadly physical force “is immediately necessary to prevent the other's commission
of . . . manslaughter, … second or first degree murder, … or aggravated assault.”
A.R.S. § 13-411(A).
The qualified immunity analysis of section 1983 is not the same as analysis
of justification under Arizona law. A finding of qualified immunity is not the same
as a finding that there was no Fourth Amendment violation. Saucier v. Katz, 533
US 194, 205, 121 S.Ct. 2151, 2158 (2001). Myers v. Baltimore County, 981 F.Supp
2d 422 (D.Md. 2013), is instructive in this regard. Myers was an excessive force
37
matter; brought under both state and federal law. Maryland’s constitutional
guarantees against unreasonable force mirror the Fourth Amendment guarantee. Id.
at 430. But, unlike federal law, Maryland does not recognize the affirmative
defense of qualified immunity. Id. Thus, that the officers were found to have
qualified immunity for the federal claims did not preclude recovery under state law.
Id. at 430-31. Thus, even in the unlikely event that this Court grants summary
judgment for Defendants on the ground that the constitutional issue was not clearly
established (qualified immunity), that finding would not necessarily pre-ordain that
Defendant Rankin’s use of force was justified under state law. Genuine issues of
material fact exist, precluding summary judgment.
D. The District Court Erred As A Matter of Law In Dismissing

Plaintiffs’ Claims Under The Fourth Amendment.
Early in this matter, the District Court dismissed the claims of Mr.
Longoria’s family under the Fourth Amendment. IR 23, ER 18-24. While this
Court has held that a family must rely on a separate constitutional provision,
substantive due process, to recover for damages (see, e.g., Hayes v. County of San
Diego, 736 F.3d 1223 (9th Cir. 2013), Porter v. Osborn, 546 F.3d 1131 (9th Cir.
2008)), Plaintiffs respectfully submit that (1) section 1983, by its express terms,
was intended to be a wrongful death statute, and (2) this rule is inconsistent with
repeated United States Supreme Court pronouncements that the Constitution
focuses on the nature of the wrongful act, not the plaintiff, in determining the
38
appropriate constitutional provision. See, e.g., County of Sacramento v. Lewis, 523
U.S. 833, 842, 118 S. Ct. 1708, 1714 (1998). “Where a particular Amendment
provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Id.
(quoting Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813 (1994)
(Rehnquist, J., for plurality)); see also Stop the Beach Renourishment, Inc. v.
Florida Dep’t of Environmental Prot., 560 U.S. 702, 721, 130 S. Ct. 2592, 2606
(2010) (same).8 Accordingly, the district court erred as a matter of law in
dismissing Plaintiffs’ Fourth Amendment claims.
This is a police shooting case. It is the quintessential Fourth Amendment use
of force case. This is the standard by which Deputy Rankin’s conduct should be
evaluated, no other.
It is true that “Fourth Amendment rights are personal rights” – as are all
constitutional rights.9 The reason the issue comes up so often in the Fourth
Amendment context is that it is the one amendment that other individuals may seek
8
This is simply an application of the longstanding maxim of ejusdem generis,
namely, the specific trumps the general.
9
The sole exception to this rule of which counsel is aware is those arising in
the context of jury selection, in which a litigant is permitted to advance the equal
protection rights of the juror when a juror is excluded on improper grounds. See,
e.g., Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). Even so, the
39
to borrow. See, e.g., Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978)
(passenger in automobile could not assert the Fourth Amendment privacy right of
the automobile’s owner to challenge search of the automobile).
This does not mean that family members or statutory beneficiaries cannot
recover under section 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress….
42 U.S.C. § 1983 (emphasis added). Section 1983 references three separate
persons:
(1) “Every person” who violates a federal right, i.e., the state actor
(2) “any citizen . . . or other person,” the target of wrongful conduct, and
(3) “the party injured.”
Notably, the “party injured” does not have to be the same as the “any citizen . . .
or other person,” the target of the unconstitutional conduct. See generally
Schwartz, Steinglass, Emery, and Maazel, 19 TOURO L. REV. 707, 739-40 (2003)
(“We can disconnect the language; the party injured and the person whose rights
are violated need not be the same party”).
Supreme Court has suggested that the right is that of the defendant, and not the
40
The legislative history supports this interpretation of section 1983. “The
general legislative history of the 1871 act makes clear that death was among the
civil rights violations that Congress intended to remedy.” Berry v. City of
Muskogee, Okl., 900 F.2d 1489, 1501 (10th Cir. 1990). The statements of both
President Grant and many of the legislators advancing the Civil Rights Act of 1871,
section 1983, support these conclusions. Representative Butler, one of section
1983’s sponsoring Congresspersons, stated: “This, then, is what is offered to the
people of the United States as remedy for wrongs, arsons, and murders done. This
is what we offer to a man whose house has been burned, as a remedy; to the
woman whose husband has been murdered, as a remedy; to the children
whose father has been killed, as a remedy.” Cong. Globe, 42d Cong., 1st Sess.
807 (1871) (emphasis added) (Attachment A). Representative Smith of New York
noted that “[m]en are murdered; their property is burned or otherwise destroyed;
they are scourged, and the local law is not administered so as to demonstrate its
power to reach these offenses or to defend the citizens who are subject to them.”
Cong.Globe, 42d Cong., 1st Sess. 392 (1871) (Attachment A). President Grant, in
his message to Congress in 1871, described conditions in the South that “render[ed]
life and property insecure” and urged legislation that would “effectually secure life,
liberty, and property, and the enforcement of law in all parts of the United States.”
juror. See Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991).
41
Cong.Globe, 42d Cong., 1st Sess. 236 (1871) (Attachment A). Representative
Lowe of Kansas, a Republican proponent of the Act, stated:
While murder is stalking abroad in disguise, while whippings and

lynchings and banishment have been visited upon unoffending
American citizens, the local administrations have been found
inadequate or unwilling to apply the proper corrective. Combinations,
darker than the night that hides them, conspiracies, wicked as the
worst of felons could devise, have gone unwhipped of justice.
Cong. Globe, 42d Cong., 1st Sess. 374 (1871) (Attachment A). Fifth Circuit
Judge Brown cogently summarized the history of section 1983 in this regard as
follows: “[I]t defies history to conclude that Congress purposely meant to assure
to the living freedom from such unconstitutional deprivations, but that, with like
precision, it meant to withdraw the protection of civil rights statutes against the
peril of death.” Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368
U.S. 921, 82 S.Ct. 243 (1961).
There is no valid policy reason for preventing family members and statutory
beneficiaries from recovering when a state actors’ unreasonable use of force is
lethal. Denying such recovery could have the perverse effect of rendering an
unconstitutional killing remediless. For example, in Otioti v. Arizona, 2008 WL
7069009 (D. Ariz. Aug. 19, 2008), an Arizona Department of Public Safety officer
shot a Sudanese Lost Boy refugee in the back of the head as the unarmed young
man attempted to flee the officer. The officer’s shot struck the refugee in the back
of the head, killing him instantly. The refugee’s estate had no pre-death pain or
42
suffering. As a refugee, the young man had virtually no economic losses. The
estate itself had no specific damages. Unless his family was entitled to recover,
this unreasonable killing may have been without a remedy.
Accordingly, Plaintiffs respectfully request that this Court construe the plain
language of section 1983 as permitting wrongful death recovery when
unconstitutional conduct results in a death, and reverse the district court’s dismissal
of the family’s Fourth Amendment claims under section 1983.
E. Plaintiffs’ Claims Against Pinal County and Sheriff Babeu

Must Also Be Reversed.
Having concluded that Deputy Rankin was entitled to qualified immunity
and was justified under state law, the district court dismissed Plaintiffs’ claims
against Pinal County and Sheriff Babeu, under section 1983 for claims of
inadequate training, and the vicarious claims under state law. See IR 109, at 10,
ER 10. Should this Court reverse the dismissal of Plaintiffs’ claims against Rankin
under the Fourth Amendment and state law, Plaintiffs request that this Court also
reinstate the claims against Pinal County and Sheriff Babeu.
Conclusion
Genuine issues of fact exist as to whether Deputy Rankin thought he was
shooting an unarmed man and if so whether that belief was objectively reasonable.
Were this Court to give Deputy Rankin every benefit of the doubt, he made an
43
unreasonable “mistake of fact” from 30 feet away in shooting an unarmed man who
was being shot by beanbags and surrendering.
“[E]xcessive force inquiry nearly always requires a jury to sift through
disputed factual contentions, and to draw inferences therefrom.” Smith v. City of
Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc). This case is no exception.
Accordingly, Mr. Longoria’s family and estate respectfully request that this Court
reverse the grant of summary judgment.
RESPECTFULLY SUBMITTED this 19th day of August, 2016.
ROBBINS & CURTIN, p.l.l.c.
/s/ Joel B. Robbins

Joel B. Robbins
Attorney for Appellant
44
STATEMENT OF RELATED CASES
Plaintiffs-Appellants, pursuant to Ninth Circuit Rule 28-2.6, state that they

are unaware of any cases related to this appeal.
DATED this 19th day of August, 2016.
ROBBINS & CURTIN, p.l.l.c.
/s/ Joel B. Robbins

Joel B. Robbins
Attorney for Appellant
45
Form 6. Certificate of Compliance With Type-Volume Limitation,

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by Fed. R. App. P. 32(a)(7)(B)(iii), or
this brief uses a monospaced typeface and contains lines of text,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
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and the type style requirements of Fed. R. App. P. 32(a)(6) because:
this brief has been prepared in a proportionally spaced typeface using (state name
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Signature /s Joel B. Robbins
Attorney for Plaintiff-Appellant Christian Longoria, et al
Date August 19, 2016

9th Circuit Case Number(s) No. 16-15606
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Case: 16-15606, 08/19/2016, ID: 10094119, DktEntry: 17, Page 1 of 60

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Christian Longoria, a single man, on behalf of himself as son of

Pinal County, a political subdivision of the State of Arizona; Paul R.

(On Appeal from U.S. District Court, District of Arizona

APPELLANTS’ OPENING BRIEF

ROBBINS & CURTIN, PLLC

COLE & LEAL

McCAIN & BURSH, PLC

Statement of Issues .................................................................................................... 2

Statement of the Case ................................................................................................ 3

Statement of Facts ..................................................................................................... 6

1. Eloy Police Officers Pursue a Distraught Individual ................................. 6

2. Deputy Rankin Is Ordered to Stand Down ................................................ 9

3. Eloy Officers Successfully End the Pursuit ............................................. 10

4. Rankin Inexplicably Decides to Rejoin the Encounter ............................ 14

I. Summary of Argument ....................................................................................... 18

II. Standard of Review ........................................................................................... 19

III. Discussion ........................................................................................................ 20

B. Under Clearly Established Standards, Deputy Rankin Violated

2. Deputy Rankin Violated Manuel Longoria’s Clearly Established

3. The Inconclusive Video, Shot From An iPhone From

4. Deputy Rankin Unreasonably Interfered With The

C. Genuine Issues Of Material Fact Exist With Respect To

(1) Justification ........................................................................ 36

D. The District Court Erred As A Matter of Law In Dismissing

E. Plaintiffs’ Claims Against Pinal County and Sheriff Babeu

Bodney v. Pima County Sheriff's Dept.,

Brazier v. Cherry, 293 F.2d 401 (5th Cir.),

Burlington Northern Santa Fe R. Co. v. Assiniboine

Duenez v. City of Manteca, 2013 WL 6816375

Espinosa v. City & County of San Francisco,

Johnson v. Buckley, 356 F.3d 1067 (9th Cir. 2004) ................................................. 19

Kosakoff v. City of San Diego, 08-CV-1819UEGNLS,

Mahach-Watkins v. Depee, 2008 WL 512707 (N.D.Cal. 2008) ............................. 24

Mills v. City of Harrisburg, 589 F.Supp.2d 544 (M.D.Pa.2008) ...................... 34-35

Porter v. Osborn, 546 F.3d 1131 (9th Cir. 2008) ................................................... 38

Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978) ............................................. 40

Ross v. Burlington N. & Santa Fe Ry. Co.,

Saucier v. Katz, 533 US 194, 121 S.Ct. 2151 (2001) ............................................. 37

Stop the Beach Renourishment, Inc. v. Florida Dep’t of

Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011),

Fourth Amendment to the

28 U.S.C. § 1291 ....................................................................................................... 2

28 U.S.C. § 1331 ....................................................................................................... 1

28 U.S.C. § 1343 ................................................................................................... 1-2

28 U.S.C. § 1367(c) .................................................................................................. 2

42 U.S.C. § 1983 ........................................................................... 1, 3, 37, 40-41, 43

A.R.S. § 13-409 ................................................................................................. 36-37

A.R.S. § 13-410 ................................................................................................. 36-37

A.R.S. § 13-411 ................................................................................................. 36-37

Federal Rule of Civil Procedure 26 ........................................................................ 20

Federal Rule of Civil Procedure 56(d) .......................................................... 4, 21-22

Federal Rule of Civil Procedure 30(b)(6) ...................................................... 4, 5, 19

Cong.Globe, 42d Cong., 1st Session (1871) ..................................................... 41-42

Schwartz, Steinglass, Emery, and Maazel,

Because there were genuine issues of material fact regarding the

a matter of law in granting Defendants-Appellees’ motion for summary judgment.

reverse the summary judgment accordingly.

jurisdiction pursuant to 28 U.S.C. § 1291.

1. Whether the court erred in granting Deputy Rankin’s motion for

Amendment to the United States Constitution.