Eyre v. The City of Fairbanks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KYLE EYRE, personal representative
of Cody Eyre,
Plaintiff,
v.
THE CITY OF FAIRBANKS, et al.,
Defendants.
Case No. 4:19-cv-00038-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 78 is defendants State of Alaska and Alaska
State Troopers (“AST”) Elondre Johnson, Nathaniel Johnson, James Thomas III,
and Christine Joslin’s Motion for Summary Judgment (collectively, the “State”), as
well as a memorandum in support of the motion at Docket 79. Defendants City of
Fairbanks police officers Richard Sweet and Tyler Larimer joined the State’s
motion at Docket 80 and defendant City of Fairbanks (“City”) joined as well at
Docket 82. 	Plaintiff Kyle Eyre, the personal representative of the Estate of Cody
Eyre, responded in opposition at Docket 83 and the State replied at Docket 85.
Defendants Sweet and Larimer at Docket 86 and the City at Docket 87 all joined
the State’s reply. Oral argument was held on July 22, 2022.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 1 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 2 of 61
BACKGROUND
This is a tragic case about the death of Cody Eyre, who was shot to death
by officers of the City of Fairbanks Police Department and troopers with the State
of Alaska Department of Public Safety (collectively, “responding officers”).
On December 24, 2017, Eyre went on Facebook and started a live stream.
He was drinking and he had a gun; according to his friend Shawn Steele, the gun
looked like a .22 Magnum revolver. Eyre said that the gun had one bullet in it and
that he was going to use it to kill himself. Then he ended the live stream. Steele
was concerned for Eyre’s safety and tried contacting him.1 Unable to reach Eyre,
Steele contacted Eyre’s parents. Approximately 5 to 10 minutes after Eyre ended
the live stream, Steele called the police.2 Steele asked the police to respond to a
possible suicide in progress.3 Trooper Elondre Johnson, the officer in charge that
evening, decided not to respond to the call because Eyre “was in his residence,
alone . . . with a gun,” “there was no other person in jeopardy,” and Elondre
Johnson “didn’t think there was any reason for AST to respond.”4
Later that same evening, Magdalena Eyre,5 Cody Eyre’s mother, called the
1 Docket 79-1 at 18–19.
2 Docket 79-1 at 20.
3 Docket 79-1 at 17.
4 Docket 79-7 at 2–3.
5 The Complaint refers to Cody Eyre’s mother as “Magdalena Eyre.” 	Docket 1 at 5, ¶ 24.
However, in the audio transcript from the 911 call, she is identified as “Jean Eyre.” 	See, e.g.,
Docket 79-1 at 9. This is an unexplained discrepancy. The Court will identify her as “Magdalena
Eyre” in accordance with the Complaint.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 2 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 3 of 61
police. 	Magdalena Eyre and her daughter were in their car following Cody Eyre,
who was walking down Farmers Loop road.6 She told the dispatcher her son had
“just broke[n] up with his girlfriend” and that he was “walking down the sidewalk
and he ha[d] a gun.”7 	While they were on the phone with the dispatcher, her
daughter got out of the car to try to talk with Cody Eyre, but he told her “get the f***
away from me right now.”8 	Magdalena Eyre reported that the gun was in Eyre’s
holster on his hip and she did not know whether the gun was loaded.9 	When the
dispatcher asked whether it was unusual for Eyre to be carrying his gun, she said
she was only aware that he carried it with him when he went hunting; “otherwise, I
don’t think he carries a gun.”10 	When the dispatcher asked whether he had ever
done anything violent, she responded, “[n]o, he’s not a violent person.” 	She
requested police assistance to “pick him up” because she was “worried about him
falling in the traffic.”11 	It was approximately minus 8 degrees Fahrenheit that
evening.12
Magdalena Eyre spoke with the same dispatcher who had spoken with
6 Docket 79-1 at 3.
7 Docket 79-1 at 3.
8 Docket 79-1 at 9.
9 Docket 79-1 at 4, 8.
10 Docket 79-1 at 9.
11 Docket 79-1 at 3, 13.
12 Docket 79-5 at 17.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 3 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 4 of 61
Steele earlier that evening.13 	The dispatcher told Magdalena Eyre and her
daughter to keep their distance from Cody Eyre “because [the dispatcher] d[id]n’t
want anyone to make contact with him,” warning “who knows what he will do.” 14
The dispatcher could hear Cody Eyre yelling in the background of the call.15 	The
dispatcher continued, “[l]et’s not put any pressure on him or provoke him in any
way. 	If he doesn’t want anyone going near him, then let’s go ahead and respect
that.”16 The dispatcher got in contact with Elondre Johnson and informed him that
a “welfare check call” came in from Magdalena Eyre. 	Elondre Johnson started
mobilizing a response. 17
Cody Eyre got onto the Steese highway, crossed the highway, and started
heading south towards Fairbanks in the northbound lane of traffic.18 	As more
officers arrived on the scene, they all reported that Eyre was making noises that
sounded like “distraught growling” and that he was “[c]learly agitated; screaming
and yelling” things like “[f]*** you.”19 Elondre Johnson told the responding officers
“to try and at least get him in our sights,” to try to establish contact with the public
13 Docket 79-1 at 13.
14 Docket 79-1 at 7, 10.
15 Docket 79-1 at 9.
16 Docket 79-1 at 10.
17 Docket 79-2 at 1.
18 Docket 79-1 at 11–12; Docket 79-2 at 2–3.
19 Docket 79-2 at 4–5; Docket 79-3 at 1.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 4 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 5 of 61
address system, and to “stop any traffic going northbound.”20 	Troopers James
Thomas, Nathaniel Johnson, and Elondre Johnson all got out of their cars and
ordered Eyre to drop his gun.21 	Eyre threatened to shoot himself, saying “I will
f***ing blow my head off.”22 	Nathaniel Johnson said “[w]e can get you help” and
tried to connect with Eyre because they had both been in the military.23 	Eyre
repeatedly told the responding officers that he was “not going to shoot [them]” and
that he “d[id]n’t want to hurt any of [them.]” 24 	Nonetheless, Eyre would not heed
the responding officers’ orders to drop his gun, saying “I literally am not going to
f***ing drop this gun.”25 	Eyre continued walking toward the Johansen-Steese
intersection, which was a “busy intersection” that was “full of people” with “all sorts
of people . . . doing Christmas Eve stuff.”26
At this point, it is not clear from the record what Eyre was doing with his gun.
Several responding officers saw Eyre point his gun at his head as he walked along
the 	Steese 	Highway, 	although 	Elondre 	Johnson 	and 	Nathaniel 	Johnson
acknowledged it was hard for them to see.27 Nathaniel Johnson said that “[a]t that
20 Docket 79-2 at 3.
21 Docket 79-3 at 1–4.
22 Docket 79-3 at 1.
23 Docket 79-3 at 4.
24 Docket 79-3 at 1–3, 7.
25 Docket 79-4 at 2.
26 Docket 79-2 at 7; 79-9 at 5.
27 Docket 79-2 at 6; Docket 79-5 at 11.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 5 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 6 of 61
point, I don’t think that he ever pointed it at anything else but his head.”28 Thomas’s
account is similar; he said that he could “see the weapon very well” and that Eyre
did not point the gun at the police or at any other driver at this point.29
Elondre Johnson also said, however, that Eyre had “gestured the gun
towards me at least twice” and that he “w[ould]n’t put the gun down” and “continued
to scream.” 30 	Then Elondre Johnson saw Eyre “lift[] up his firearm towards me,”
but Elondre Johnson “never had an opportunity for a clear shot because [they]
were still in proximity to this intersection and it was active,” so “it would have been
reckless on [Elondre Johnson’s] part” to shoot.31 Similarly, City of Fairbanks Police
Officer Richard Sweet heard someone say over the radio that Eyre had pointed his
weapon at police officers.32 And Trooper Christine Joslin heard over the radio that
Eyre “had already brandished the gun at Troopers,” but that they “were trying to
negotiate with him and . . . find a peaceful resolution.”33 	Shortly thereafter, Joslin
said that the situation started to “escalate[]” and she heard Thomas over the radio
say something like “if he points the gun at me,” then “I’m going to shoot him.”34
Although the responding officers appear to have been concerned about Eyre
28 Docket 79-5 at 12.
29 Docket 79-6 at 13.
30 Docket 79-2 at 7; Docket 79-7 at 21.
31 Docket 79-7 at 7.
32 Docket 79-10 at 4.
33 Docket 79-8 at 3.
34 Docket 79-8 at 5.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 6 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 7 of 61
pointing his gun at them, and Thomas even expressed an intent to shoot if Eyre
did so, there does not appear to be any evidence that the officers warned Eyre that
they would use lethal force if he pointed his gun at them.
Eyre turned away from the Steese intersection and ended up walking down
a road leading toward two churches.35 Sweet told Eyre that he “[could not] go into
that residential area” and told Eyre to drop the gun so that they could “get [him] to
somebody to talk to.”36 Elondre Johnson and Lieutenant Wassmann, who is not a
party to this suit, had a quick conversation about what type of force might need to
be used.37 	Wassmann advised that “you’re just going to have to follow and if he
starts to try and go into a house or anything you might have to use force on him.”38
Although 	the 	responding 	officers 	expressed 	concerns 	about 	Eyre
endangering nearby residents, at this point in the evening, Eyre had walked away
from a busy intersection and was walking down a deserted road. The road ended
in a cul-de-sac surrounded by a berm of snow.39 The closest residential area was
approximately 200 yards away, and to access the residential area, Eyre would
have had to walk over the snow berm and then traverse a field of snow. 40
35 Docket 79-6 at 29; Docket 79-27 at 11–12; Docket 79-29 at 13–14.
36 Docket 79-3 at 6.
37 Docket 79-7 at 10–11.
38 Docket 79-2 at 8.
39 Docket 45-12 at 9:35–13:54; Docket 79-29 at 14.
40 Docket 79-3 at 7; Docket 79-29 at 14; Docket 79-30 at 19.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 7 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 8 of 61
As Eyre walked down the deserted road, six of the responding officers lined
up across the road and pointed their weapons at him. 	When Eyre walked, they
followed, and whenever he stopped, they stopped. 41 	The responding officers
remained 	approximately 	30 	to 	40 	yards 	from 	Eyre.42 	Elondre 	Johnson
acknowledged that they had “six people who don’t train together” and “at some
point our proximity, I think it got you know . . . uncomfortably close.”43
As the officers followed Eyre in lockstep down the deserted road, Elondre
Johnson acknowledged that “it was hard to see [Eyre]” because “it was dark” and
Eyre’s movements were “erratic and not consistent.”44 There were no streetlights
in the area, so they had to use the headlights from police vehicles.45 	Eyre asked
that the responding officers “[t]urn [their] light off right now,” saying “I’m serious[,]
I cannot see,” and the officers refused to do so.46 However, as Eyre walked further
down the road, they “start[ed] to lose the effectiveness of the lights from [the patrol]
car.”47
Nathaniel Johnson said that when Eyre started walking down the deserted
road towards the church, “that’s when he started getting a little bit crazier,” that
41 Docket 45-12 at 9:35–13:54; Docket 79-6 at 13.
42 Docket 79-5 at 14.
43 Docket 79-7 at 9.
44 Docket 79-7 at 10.
45 Docket 79-8 at 11; Docket 79-10 at 10, 15.
46 Docket 79-5 at 27.
47 Docket 79-10 at 22.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 8 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 9 of 61
“[h]e’d start waving the gun around a little bit,” although he mostly pointed the gun
at himself or at the ground, but “[a]t one point, he did point the gun our direction.”48
Nathaniel Johnson said he would have fired at that point, but his hands were too
cold and numb to move fast enough.49 	At one point, Eyre dropped to his knees
and put his gun under his chin, saying “I just want to die.”50 	Nathaniel Johnson
said that “I thought he was just going to commit suicide right there.”51 	Thomas
“confirmed that medics were staged by,” saying “at that point I thought he was
going to shoot himself.” 52
Instead of shooting himself, Eyre stood up and continued walking down the
road, but according to Thomas, “once he realize[d]” that the road ended in a “kind
of a cul-de-sac,” then “he turn[ed] around again, [he] yell[ed] at [the officers], he
[took] maybe one or two steps to the left” and then “he pointed [his gun]” at the
officers.53 Eyre yelled “[y]ou guys can f***ing die right now and I don’t give a f***.” 54
Larimer and Sweet both fired their rifles.55 Joslin and Thomas fired multiple rounds
48 Docket 79-5 at 15–16.
49 Docket 79-5 at 15.
50 Docket 79-6 at 14.
51 Docket 79-5 at 19.
52 Docket 79-6 at 15.
53 Docket 79-6 at 15. Several of the responding officers also reported that they saw Eyre point
the gun at them. Docket 79-5 at 16–17; Docket 79-6 at 16–17; Docket 79-7 at 12; Docket 79-8
at 14-15; Docket 79-9 at 9; Docket 79-10 at 23. Whether Eyre pointed his gun at the responding
officers before he was shot is discussed in more detail in Section IB.
54 Docket 79-3 at 8.
55 Docket 79-1 at 22, 26.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 9 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 10 of 61
from their AR-15s.56 	Elondre Johnson fired several rounds from his shotgun.57
Nathaniel Johnson tried to fire, but his fingers were too numb.58
After the first rounds were fired, several responding officers reported that it
looked like Eyre was still moving.59 	Thomas said “he didn’t go down . . . he was
still moving . . . he might have turned a little bit to his right,” so Thomas “fired again.”
Thomas said “I could see the glint of the weapon, but I didn’t know for sure whether
it was still pointed at us or not. With the temperature inversion and everything . . .
it was difficult to see after those first initial two rounds with all the moisture and the
gasses in the air and what not.”60 	Joslin fired another round as well because she
saw Eyre “roll[] over and the gun was pointed at us again.”61 While they waited for
the smoke to clear, Sweet gave the order to “[s]eize [sic] fire” and to shoot “[o]nly
if you can see him moving.”62 Multiple bullets struck Eyre, including shots that hit
him in the head and the leg.63
Kyle Eyre, Cody Eyre’s father and the personal representative of the Estate
56 Docket 79-5 at 4, 6.
57 Docket 79-5 at 8.
58 Docket 79-5 at 17.
59 Docket 79-7 at 17.
60 Docket 79-6 at 18.
61 Docket 79-8 at 16.
62 Docket 79-10 at 24.
63 Docket 79-2 at 9.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 10 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 11 of 61
of Cody Eyre (hereinafter “the Estate”), initiated this action on December 2, 2019. 64
The defendants are the City of Fairbanks, Fairbanks Police Department Officers
Richard Sweet and Tyler Larimer, the State of Alaska, and Alaska State Troopers
Elondre Johnson, Nathaniel Johnson, James Thomas III, and Christine Joslin
(collectively, “defendants”).65 The Complaint alleges nine causes of action against
the defendants (individually or collectively) including: common law negligence,66
negligent failure to train and supervise,67 excessive force in violation of the Fourth
Amendment,68 failure to accommodate and failure to train in violation of the
Americans with Disabilities Act (ADA), 69 violation of the Rehabilitation Act (RA),70
individual liability for wrongful death,71 vicarious liability for wrongful death,72 and
assault and battery.73
The City of Fairbanks filed a Motion to Dismiss for Lack of Standing at
Docket 25, which the Court denied at Docket 37. The State of Alaska filed a Motion
64 Docket 1 at 2, ¶ 4; Docket 29 at 3, ¶ 6.
65 Docket 1 at 3–4, ¶¶ 5–13. The Complaint also named Ron Dupree as a defendant, but he has
not been served a summons and has not appeared in this action. Docket 1 at 3, ¶ 9.
66 Docket 1 at 9–10, ¶¶ 41–44.
67 Docket 1 at 10–11, ¶¶ 45–50.
68 Docket 1 at 11, ¶ 53.
69 Docket 1 at 11–12, ¶¶ 54–61; Docket 1 at 13, ¶¶ 62–64.
70 Docket 1 at 13–14, ¶¶ 65–69.
71 Docket 1 at 14–15, ¶¶ 70–77.
72 Docket 1 at 15–16, ¶¶ 78–81.
73 Docket 1 at 16, ¶ 82.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 11 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 12 of 61
to Dismiss at Docket 18 on the basis of its Eleventh Amendment immunity, and the
Court granted that motion as to the state law and 42 U.S.C. § 1983 claims and
denied it with respect to the ADA and RA claims at Docket 40. 	The defendants
filed two motions for summary judgment at Dockets 44 and 48, which the Court
denied without prejudice to permit additional discovery at Docket 65. On April 27,
2022, the State of Alaska and the named Alaska State Troopers filed the Motion
for Summary Judgment that is now before the Court at Docket 78. The remaining
defendants have since joined that motion at Dockets 80 and 82.
JURISDICTION
The Court has jurisdiction over Eyre’s federal claims pursuant to 28 U.S.C.
§ 1331. 	The Court also exercises its supplemental jurisdiction over Eyre’s state
law claims pursuant to 28 U.S.C. § 1367.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” “The party moving
for summary judgment bears the initial burden of demonstrating the absence of a
genuine issue of fact for trial.” 74 	However, “[w]hen the nonmoving party has the
burden of proof at trial, the moving party need only point out ‘that there is an
74 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 12 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 13 of 61
absence of evidence to support the nonmoving party’s case.’”75
If the movant meets its burden, the nonmoving party must demonstrate
“specific facts showing that there is a genuine issue for trial.”76 	The nonmoving
party may not rely on “mere allegations or denials”; rather, to reach the level of a
genuine dispute, the evidence must be such “that a reasonable jury could return a
verdict for the nonmoving party.” 77 In deciding a motion for summary judgment, a
court views the facts in the light most favorable to the nonmoving party and draws
“all justifiable inferences” in the nonmoving party’s favor. 78
DISCUSSION
I. 	Fourth Amendment Claim
A. Legal Principles
Defendants contend that they are all entitled to qualified immunity as to the
federal excessive force claim brought pursuant to 42 U.S.C. § 1983.79 The doctrine
of qualified immunity shields government actors from civil liability under § 1983 if
“their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”80 Government officials are not
75 Id. at 1076 (quoting Celotex Corp., 477 U.S. at 325).
76 Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
77 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
78 Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
79 Docket 79 at 8–24; Docket 80; Docket 82.
80 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 13 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 14 of 61
entitled to qualified immunity on summary judgment if (1) the facts taken in the light
most 	favorable 	to 	the 	plaintiff 	show 	that 	the 	officials’ 	conduct 	violated 	a
constitutional right, and (2) that right was clearly established at the time of the
alleged violation.81 	Qualified immunity applies unless both prongs of the inquiry
are satisfied.82 A court may “exercise [its] sound discretion in deciding which of the
two 	prongs 	of 	the 	qualified 	immunity 	analysis 	should 	be 	addressed 	first.” 83
However, it “is often beneficial” to analyze the first prong first and then the second
prong 	because 	this 	process 	“promotes 	the 	development 	of 	constitutional
precedent 	and 	is 	especially 	valuable 	with 	respect 	to 	questions 	that 	do 	not
frequently arise in cases in which a qualified immunity defense is unavailable.”84
When evaluating a Fourth Amendment claim of excessive force, courts
consider “whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.”85 This “requires a careful balancing of
‘the nature and quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at stake.”86 	Courts
81 See Castro v. County of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)).
82 See Pearson, 555 U.S. at 232.
83 Id. at 236.
84 Id.
85 Graham v. Connor, 490 U.S. 386, 397 (1989).
86 Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 14 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 15 of 61
consider “whatever specific factors may be appropriate in a particular case.” 87
These factors include “the relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security problem
at issue; [and] the threat reasonably perceived by the officer.”88 Additional relevant
factors may “include the availability of less intrusive alternatives to the force
employed, whether proper warnings were given and whether it should have been
apparent to officers that the person they used force against was emotionally
disturbed.”89
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.”90 	“Only information known to the officer at the time the conduct
occurred is relevant.”91 	And while the availability of alternative measures to
respond to a situation may be a relevant consideration in some cases, officers
“need not avail themselves of the least intrusive means of responding to an exigent
situation; 	they 	need 	only 	act 	within 	that 	range 	of 	conduct 	we 	identify 	as
87 Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994).
88 Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241 (2021) (quoting Kingsley v. Hendrickson,
576 U.S. 389, 397 (2015)).
89 Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011).
90 Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).
91 Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 15 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 16 of 61
reasonable.” 92
B. Analysis of the Relevant Factors
To assess whether a reasonable jury could conclude that the responding
officers violated Eyre’s constitutional right to be free from the use of excessive
force, the Court analyzes all of the relevant factors that the Supreme Court and
Ninth Circuit have identified.
First, with respect to the quantum of force used against Eyre, the parties do
not dispute that the force used was lethal.93 It is well established that “[t]he use of
deadly force implicates the highest level of Fourth Amendment interests.”94 	The
Court must determine whether the government’s countervailing interests at stake
were sufficient to justify the use of deadly force.95
The Court next considers the fact that the responding officers were not
responding to an alleged crime; instead, they were responding to an alleged
mental health crisis. When responding to a mental health crisis, “the use of officers
and others trained in the art of counseling is ordinarily advisable.”96 	“This is
because when dealing with a disturbed individual, ‘increasing the use of force may
92 Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
93 Docket 79 at 13.
94 A.K.H. ex rel Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016).
95 Graham, 490 U.S. at 396.
96 Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 16 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 17 of 61
. . . exacerbate the situation,’ unlike when dealing with a criminal, where increased
force is more likely to ‘bring[] a dangerous situation to a swift end.’”97 And “[e]ven
when an emotionally disturbed individual is ‘acting out’ and inviting officers to use
deadly force to subdue him, the governmental interest in using such force is
diminished by the fact that the officers are confronted, not with a person who has
committed a serious crime against others, but with a mentally ill individual.” 98 This
is not to say, however, that there is “a per se rule establishing two different
classifications of suspects: mentally disabled persons and serious criminals.”99
Instead, “where it is or should be apparent to the officers that the individual involved
is emotionally disturbed, that is a factor that must be considered in determining . .
. the reasonableness of the force employed.”100
The responding officers in this case were aware that Eyre was drunk,
suicidal, and distraught.101 	The Ninth Circuit has held that “[v]iewing the facts in
the light most favorable to the plaintiff, the ‘crime at issue’” when police responded
to a call to help a suicidal individual “was not ‘severe’ by any measure” because
the decedent’s “family did not call the police to report a crime at all, but rather to
97 Glenn, 673 F.3d at 877 (alterations in original) (quoting Deorle, 272 F.3d at 1283).
98 Deorle, 272 F.3d at 1283.
99 Id.
100 Id.
101 Docket 79-1 at 3, 17; Docket 79-6 at 27; Docket 79-7 at 21; Docket 79-8 at 3.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 17 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 18 of 61
seek help for their emotionally disturbed son.” 102 The Circuit emphasized that “we
are aware of no published cases holding it reasonable to use a significant amount
of force to try to stop someone from attempting suicide.”103 	The Circuit also
acknowledged that although “[w]e do not rule out that in some circumstances some
force might be warranted to prevent suicide,” it would “be odd to permit officers to
use force capable of causing serious injury or death in an effort to prevent the
possibility that an individual might attempt to harm only himself.” 104
Defendants maintain that Eyre committed several crimes that evening
because he waved a loaded firearm around while drunk and screamed and
growled at the officers, including “the criminal offense of misconduct involving a
weapon” and “assault in the third degree by placing others around him in fear of
imminent serious physical injury.” 105 	Indeed, the Ninth Circuit has held that a
decedent who was experiencing a mental health crisis and refused to comply with
numerous orders to stop and drop his sword, instead raising the sword and
growling at officers, had committed “a crime” that “gave the deputies cause to
believe 	that 	[the 	decedent] 	posed 	a 	threat 	of 	harm 	to 	whomever 	he
102 Glenn, 673 F.3d at 874 (alteration omitted) (first quoting Graham, 490 U.S. at 396; and then
citing Deorle, 272 F.3d at 1280–81 (noting that officers were called “not to arrest him, but to
investigate his peculiar behavior [as] Deorle was clearly a deeply troubled, emotionally disturbed
individual”)).
103 Id. at 872 (emphasis in original).
104 Id.
105 Docket 79 at 15.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 18 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 19 of 61
encountered.”106 	The Court finds that, although officers were initially responding
to a suicide threat—a type of call that would not ordinarily warrant the use of lethal
force—Eyre’s 	conduct 	escalated 	during 	the 	evening 	with 	respect 	to 	his
engagement with the firearm. This factor accordingly is neutral with respect to the
reasonableness of the deployment of the lethal force.
The Court next considers whether Eyre was actively resisting arrest or
attempting to evade arrest by flight.107 The Court finds that the responding officers
did not attempt to arrest Eyre; however, he walked away from them and ignored
numerous commands to drop his gun. This factor is neutral.
Another factor that the Court considers is how quickly the responding
officers resorted to using force after encountering Eyre. 	Indeed, in one case, the
Ninth Circuit held this was the “most important” factor in the Circuit’s decision that
excessive force may have been used because, viewing the facts in the light most
favorable to the plaintiff, a police officer “escalated to deadly force very quickly”
and shot at decedent “less than a minute” after the officer first came upon the
decedent.108 	In this case, the responding officers did not immediately resort to
lethal force; instead they spent some time trying to talk to Eyre and deescalate the
106 Blanford v. Sacramento County, 406 F.3d 1110, 1116 (9th Cir. 2005).
107 See Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9); Lombardo, 141 S. Ct. at 2241
(holding that courts should consider “whether the plaintiff was actively resisting” (quoting Kingsley,
576 U.S. at 397)).
108 A.K.H., 837 F.3d at 1012.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 19 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 20 of 61
situation.109 	Sweet said “we can talk about it,” “we can help you,” and reassured
Eyre that he was “all right.”110 Thomas said “[w]e don’t want to hurt you” and “[y]es,
you 	[will] 	live 	today.”111 	Listening 	to 	the 	body 	camera 	audio 	footage, 	the
responding officers yelled many commands at Eyre, like “drop the gun,” but they
also spoke with him in a more calm manner when they tried to convince him to put
his gun down and talk with them.112 Eyre responded by swearing at the responding
officers and growling in distress.113 	This factor supports a finding that the
responding officers’ use of force was reasonable.
The Court also considers “whether there were less intrusive means of force
that might have been used before officers resorted to” lethal force.114 	A police
officer is not required to use “the least intrusive means of responding to an exigent
situation”; instead, the officer “need only act within that range of conduct we identify
as 	reasonable.”115 	And 	yet 	in 	determining 	whether 	the 	use 	of 	force 	was
109 It is not clear from the record how much time the responding officers spent trying to talk to Eyre
before he was shot. Relying on Larimer’s body camera footage, approximately seven minutes
passed between the moment when Larimer arrived at the Johansen-Steese intersection and the
moment when Eyre was shot. Docket 45-14 at 0:00–7:40. Before Larimer arrived, other officers
were already on the scene and interacting with Eyre.
110 Docket 79-3 at 6.
111 Docket 79-3 at 3.
112 See, e.g., Docket 45-14 at 0:00–7:40.
113 Docket 79-2 at 4–5; Docket 79-3 at 1–7.
114 Glenn, 673 F.3d at 876. See also Lombardo, 141 S. Ct. at 2241 (holding that courts should
consider “any effort made by the officer to temper or to limit the amount of force” (quoting Kingsley,
576 U.S. at 397)).
115 Henrich, 39 F.3d at 915.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 20 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 21 of 61
reasonable, a court may consider the availability of less intrusive alternatives to
the force employed.116 	This is because police officers are “required to consider
‘what other tactics if any were available.’”117 “[I]f there were ‘clear, reasonable and
less intrusive alternatives’ to the force employed, that ‘militate[s] against finding
[the] use of force reasonable.’”118
The evidence in the record suggests that the responding officers did not
consider using less lethal alternatives. 	At one point, the dispatcher asked if the
responding officers “ha[d] less lethal,” but the response is “indiscernible.”119
Similarly, when Thomas was asked four days after the incident if “anyone talk[ed]
about coming up with a . . . less lethal plan of any sort,” Thomas said that “[n]obody
spoke about that, and none of us had access to any of that,” although he
acknowledged that they had “OC and Tasers.” 120 	Larimer stated there was
“[a]bsolutely . . . no” opportunity to “deploy[] . . . less lethal alternatives” because
Eyre “was too far away.”121 	Joslin said they “were way too far for a Taser to be
116 See Glenn, 673 F.3d at 876.
117 Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000) (alterations
omitted) (quoting Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994)), vacated on other grounds,
534 U.S. 801 (2001).
118 Glenn, 673 F.3d at 876 (quoting Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010)).
119 Docket 79-2 at 7; Docket 79-8 at 13 (Joslin said “[s]omebody did ask if we had less lethal,” but
she did not “know what the response was.”).
120 Docket 79-6 at 22.
121 Docket 79-9 at 22.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 21 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 22 of 61
effective.”122 	And Elondre Johnson pointed out that he would not “put a trooper
[with a Taser] at twenty-one feet with a guy with a gun, and not even some type of
cover.”123 He also said that “[p]epper spray is ineffective,” presumably for the same
reason. 124 Joslin had a canine in the back of a patrol car, but said that the canine
would not have been effective against a gun.125 	James Thomas explained that
“[Eyre] had the means of lethal force against us, so . . . our means of defense is
lethal force.” 126
The Estate does not assert that any of these alternative means of less lethal
force 	could 	have 	been 	employed. 	Instead, 	the 	Estate 	maintains 	that 	the
responding officers “separated [Eyre] from [his family,] the very people who could
have . . . [told] him he was loved, important and there was much to live for.” 127 In
a similar situation, however, another district court found that a mother’s “evidence
that she was not permitted to communicate with her son, despite her numerous
requests to do so and her presence throughout the standoff” did “not produce[]
evidence that the officers’ decision not to adopt her proposed strategy, in itself,
rendered their decision to use force unreasonable.” 128 	The same is true here.
122 Docket 79-8 at 13.
123 Docket 79-7 at 15.
124 Docket 79-7 at 15.
125 Docket 79-8 at 13.
126 Docket 79-6 at 22.
127 Docket 83 at 17.
128 Alford v. Humboldt County, 785 F. Supp. 2d 867, 878 (N.D. Cal. 2011).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 22 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 23 of 61
Before calling the dispatcher, Magdalena Eyre and her daughter tried to talk to
Eyre, but he told them to “get the f*** away from me right now.” 129
The Estate 	also alleges that “[t]here were no efforts to reach out to
community resources for help,” such as mental health professionals. 	The Estate
further contends that an armored vehicle was on its way and the responding
officers should have “back[ed] off” and brought “in professionals within their own
department with training,” like “Crisis Intervention Training.”130 	Indeed, the Ninth
Circuit has provided that when responding to a mental health crisis, “the use of
officers and others trained in the art of counseling is ordinarily advisable.”131 	The
Court does not suggest that the responding officers were required to attempt these
less intrusive alternatives, but the availability of lesser alternatives that were not
employed suggests that a reasonable jury could find that the deployment of lethal
force in this case did not fall within the constitutionally permissible range of
conduct.132 In sum, although the Estate identified a few lesser alternatives to lethal
force, the alternatives were limited, so this factor is neutral.
129 Docket 79-1 at 9.
130 Docket 83 at 16–17. Thomas confirmed at a deposition that an armored vehicle was on its
way to the scene and that the officers intended “to wait behind that vehicle . . . as long as [Eyre]
stayed there [and that they] were planning on waiting him out,” but Eyre “didn’t give [them] a
chance to enact that plan because he pointed the gun at [them].” Docket 79-27 at 7–8.
131 Deorle, 272 F.3d at 1283.
132 See Glenn, 673 F.3d at 876.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 23 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 24 of 61
Next, the Court considers whether the responding officers recklessly created
the danger that necessitated lethal force. 133 The Ninth Circuit has held that when
officers themselves “unnecessarily create their own sense of urgency,” then
“[r]easonable triers of fact can, taking the totality of the circumstances into account,
conclude that an officer’s poor judgment or lack of preparedness caused him or
her to act unreasonably, ‘with undue haste.’”134 	This is because officers are “not
simply responding to a preexisting situation” when the “officer[s] create[] the very
emergency [they] then resort[] to deadly force to resolve.”135
In Nehad v. Browder, for example, the Ninth Circuit considered whether an
officer played a role in creating the danger to which the officer responded with
lethal force.136 	In that case, Officer Browder was responding to a call that Nehad
had threatened someone with a knife.137 	When Browder arrived at the scene, he
133 See Cunningham v. Gates, 312 F.3d 1148, 1154 (9th Cir. 2002) (first citing Alexander v. City of
San Francisco, 29 F.3d 1355 (9th Cir. 1994); then citing Billington v. Smith, 292 F.3d 1177, 1188–
89 (9th Cir. 2002); and then citing Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997))
(recognizing a “danger creation theory”). See also Espinosa v. City & County of San Francisco,
598 F.3d 528, 537 (9th Cir. 2010) (“The parties [sic] ‘relative culpability’ i.e., which party created
the dangerous situation and which party is more innocent, may also be considered.”).
134 Nehad, 929 F.3d at 1135 (alterations omitted) (quoting Torres v. City of Madera, 648 F.3d 1119,
1126 (9th Cir. 2011)). 	See also Lam v. City of San Jose, 869 F.3d 1077, 1087 (9th Cir. 2017)
(“Proper application of the reasonableness test requires careful attention to the facts and
circumstances of each particular case,” and “[t]he events leading up to the shooting, such as the
officer’s tactics, are encompassed in those facts and circumstances.”) (citations and alterations
omitted).
135 Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008). Although Porter involved a Fourteenth
Amendment claim, the Ninth Circuit has applied this holding from Porter in the Fourth Amendment
context. Nehad, 929 F.3d at 1135 n.7.
136 Nehad, 929 F.3d at 1134–35.
137 Id. at 1130.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 24 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 25 of 61
saw Nehad in a back alley walking in Browder’s direction. Browder pulled into the
alley, and then “drove his car several car lengths into the alley, opened his door,
then drove further toward Nehad before exiting his vehicle.” 	Browder did not
identify himself as a police officer nor did he warn Nehad that he would use lethal
force.138 As Nehad continued to walk toward Browder at a steady pace, the officer
“stepped out sideways from the protection of his vehicle door, closed the door,
and, less than two seconds later, fired.” An expert opined that Browder had “a lot
of time” to decide how to respond to the situation, but “squandered all the
opportunities tactically.” The Ninth Circuit held that “a reasonable factfinder could
conclude that any sense of urgency was of [the officer’s] own making.”139
The Estate contends that the responding officers here “precipitated the use
of deadly force by their insistence to stay within 50 yards of Cody Eyre, with guns
pointed in his direction” because “a reasonable jury could find those actions were
reckless and precipitated the need to use deadly force.”140 	Indeed, Elondre
Johnson acknowledged that the responding officers did not give Eyre enough
space, saying that they had “six people who don’t train together” and “there’s this
urgency,” so “at some point our proximity, I think it got you know . . . uncomfortably
close, less than fifty yards.”141 	And like the officer in Nehad, as the officers
138 Id. at 1135.
139 Id.
140 Docket 83 at 18.
141 Docket 79-7 at 9.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 25 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 26 of 61
advanced here, they did not warn Eyre that they would use lethal force against him
if he pointed his weapon at them or threatened to shoot them.142
Thomas observed that “once [Eyre] realize[d] . . . that this [wa]s kind of a
cul-de-sac . . . , then he turn[ed] around again, [he yelled] at us, he t[ook] maybe
one or two steps to the left . . . and then he brought the weapon down and he
pointed it at at [sic] me, at us.”143 A reasonable jury could interpret this statement
as suggesting that the situation escalated when Eyre realized that he was trapped
in a cul-de-sac with six officers with their weapons drawn standing no more than
50 yards away. Thomas also acknowledged that they “were waiting on an armored
vehicle or a BearCat to respond,” because they hoped to “wait behind that vehicle
and, as long as he stayed there, then [they] were planning on waiting him out.”
Thomas said “[w]e had EMS on the way to stage for that particular thing.”144 	It is
unclear why the officers remained within 50 yards of Eyre in a deserted cul-de-sac
when they knew that an armored vehicle was on its way to provide them with
protection.
The Estate also maintains that when the officers pursued Eyre in the
deserted cul-de-sac, “[t]he only person at risk of being harmed by Cody was Cody
himself until the officers decided to get within and stay within lethal range”145 of his
142 Nehad, 929 F.3d at 1135.
143 Docket 79-6 at 15.
144 Docket 79-27 at 7–8.
145 Docket 83 at 10.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 26 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 27 of 61
.22 Magnum revolver.146 Indeed, the body camera footage appears to indicate that
Eyre was in a deserted street when the officers shot him.147 The closest residential
area was also approximately 200 yards away.148 And to get to the residential area,
Eyre would have had to traverse a three- to four-foot-tall berm of snow and then
cross a “big field” of snow.149 	The Estate maintains that a patrol car had been
dispatched to the residential area in the event that Eyre attempted to cross that
field of snow.150 	And at a deposition that was taken six years after Eyre’s death,
in response to a question asking if Elondre Johnson “sen[t] anybody down to [the
residential area] to sort of be on the other side in case [Eyre] kept walking and
crossed the field after the cul-de-sac,” Elondre Johnson said “I think somebody
either headed over there or was supposed to go over there. I can’t recall.” 151
Viewing the facts in the light most favorable to the Estate, the Court finds
that a reasonable factfinder could conclude that the responding officers acted
recklessly by walking within 50 yards of an emotionally disturbed man with a
loaded weapon who was not within shooting range of any nearby residents,
thereby unnecessarily creating the sense of urgency and danger to the responding
146 Docket 79-1 at 19.
147 Docket 45-12; Docket 45-14.
148 Docket 79-3 at 7.
149 Docket 79-29 at 14; Docket 79-30 at 19.
150 Docket 83 at 10.
151 Docket 79-28 at 11.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 27 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 28 of 61
officers’ lives to which they responded with the use of lethal force in violation of the
Fourth Amendment.
In considering this factor, the Court is not applying the “provocation rule,”
which the Supreme Court abrogated in County of Los Angeles v. Mendez.152 The
provocation rule imposed liability in excessive force cases “if (1) the officer
intentionally or recklessly provoked a violent response, and (2) that provocation is
an independent constitutional violation.”153 	However, the Supreme Court in
Mendez expressly declined to decide whether a jury may consider “unreasonable
police conduct prior to the use of force that foreseeably created the need to use
it.” 154 The Supreme Court explained that “[a]ll we hold today is that once a use of
force is deemed reasonable under Graham, it may not be found unreasonable by
reference to some separate constitutional violation.” 155 	Indeed, subsequent to
Mendez, both the Ninth and Tenth Circuits have held that a jury may consider
unreasonable police conduct that creates the need to use lethal force.156 	And in
152 County of Los Angeles v. Mendez, 581 U.S. 420, 426-31 (2017) (abrogating Billington v. Smith,
292 F.3d 1177 (9th Cir. 2002)); see also Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 951
n.6 (9th Cir. 2017) (“The Supreme Court recently held that the Fourth Amendment provides no
basis for [the provocation theory of liability].”).
153 Mendez, 581 U.S. at 426.
154 Mendez, 581 U.S. at 429 n.*.
155 Id. (emphasis in original).
156 See Winkler v. City of Phoenix, 849 F. App’x 664, 667 (9th Cir. 2021) (“[T]he Mendez Court
expressly declined to decide the argument raised . . .: namely, whether the jury may consider
‘unreasonable police conduct prior to the use of force that foreseeably created the need to use it.’
Given this court’s longstanding endorsement of that factor, the district court’s instruction
precluding the jury from considering it was in error.”) (first quoting Mendez, 581 U.S. at 429 n.*;
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 28 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 29 of 61
2021, the Supreme Court once again declined to decide this question, explaining
“[w]e need not, and do not, decide . . . whether recklessly creating a situation that
requires deadly force can itself violate the Fourth Amendment.” 157
The next factor that the Court considers is whether Eyre posed an immediate
threat to the safety of the police officers or to others during the incident. 158 	The
Ninth Circuit has repeatedly emphasized that this factor is the most important.159
Defendants contend that Eyre posed an immediate threat because he pointed his
gun at the responding officers.160 	Indeed, Nathaniel Johnson, Elondre Johnson,
Thomas, Joslin, Larimer, and Sweet each said at their depositions that Eyre had
pointed his gun at them right before he was shot.161 That being said, “in the deadly
then citing Espinosa, 598 F.3d at 537); Est. of Ceballos v. Husk, 919 F.3d 1204, 1214 n.2 (10th
Cir. 2019) (“We recently reaffirmed this longstanding Tenth Circuit law, notwithstanding [the
holding in Mendez].”) (citing Pauly v. White, 874 F.3d 1197, 1219 n.7 (10th Cir. 2017)).
157 City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021).
158 See Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9); Lombardo, 141 S. Ct. at 2241
(holding that courts should consider “the severity of the security problem at issue” and the “threat
reasonably perceived by the officer” (quoting Kingsley, 576 U.S. at 397)).
159 See, e.g., S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017) (“Of all of these
factors, the ‘most important’ one is ‘whether the suspect posed an immediate threat to the safety
of the officers or others.’” (quoting George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013)).
160 Docket 79 at 19–20.
161 Nathaniel Johnson said “[s]o then when the actual shooting occurred, basically he pointed [the
weapon] at our direction.” Docket 79-5 at 16–17. James Thomas said “that’s when he, he pointed
the gun at us . . . . So uh, at that point um, I responded with a standard response, two rounds to
the center mass of the target presented.” Docket 79-6 at 16–17. Elondre Johnson said “I thought
I saw . . . him pointing a gun at me . . . . [A]nd at that point that’s when . . . I fired a round at him.”
Docket 79-7 at 12. Christine Joslin said “[s]o I saw the gun come at us,” and then “we opened
fire.” Docket 79-8 at 14-15. Tyler Larimer said “he pointed it directly at us” and “at that time um,
I decided to . . . fire my weapon . . . .” Docket 79-9 at 9. Richard Sweet said “[the pistol] was
pointing right at . . . the Troopers” and so he “decided to shoot in defense of these guys.” Docket
79-10 at 23.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 29 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 30 of 61
force context, we cannot ‘simply accept what may be a self-serving account by the
police officer.’”162 	This is “[b]ecause the person most likely to rebut the officers’
version of events—the one killed—can’t testify.”163 	The Court “must carefully
examine all the evidence in the record . . . to determine whether the officer’s story
is internally consistent and consistent with other known facts.”164
The Court has reviewed the footage from the body cameras that Sweet and
Larimer were wearing on the night of Eyre’s death.165 	The Supreme Court has
held that when a “videotape quite clearly contradicts the version of the story told
by” one of the parties, a reviewing court should “view[] the facts in the light depicted
by the videotape.”166 	Here, the videotapes from the night of Eyre’s death do not
shed any light on this Court’s understanding of the facts of this case. It is too dark
and the video quality is too poor for the Court to determine whether Eyre pointed
his gun at anyone.167
The Court has also considered the transcripts from the audio recordings that
night. 	Indeed, in Long v. City and County of Honolulu, the Ninth Circuit relied on
162 Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) (quoting Henrich, 39 F.3d at 915);
see also Long v. City and County of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007) (“We are mindful
that we must be wary of self-serving accounts by police officers when the only non-police
eyewitness is dead.”).
163 Cruz, 765 F.3d at 1079.
164 Henrich, 39 F.3d at 915.
165 Docket 45-12; Docket 45-14.
166 Scott v. Harris, 550 U.S. 372, 378, 381 (2007).
167 Docket 45-12 at 13:38–13:54; Docket 45-14 at 7:22–7:40.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 30 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 31 of 61
“a CAD report that fairly accurately recorded the SWAT team’s activities on the
night of [the decedent’s] death” to analyze the credibility of an officer’s testimony
that a decedent pointed a gun at law enforcement before the officer used lethal
force.168 	In that case, the CAD report recorded one of the officers saying “[s]hots
fired. He just shoot [sic] at us” right before an officer shot and killed the decedent.169
The Circuit explained that “whether [the decedent] actually fired his rifle at these
officers [was] . . . immaterial.” 	This was because the officer “had probable cause
to believe that [the decedent] posed an immediate danger to these officers” when
the officer “heard the radio transmission and observed [the decedent] point the rifle
in the officers’ direction.”170 	The Ninth Circuit accordingly affirmed the district
court’s grant of summary judgment, holding that the officer “acted in an objectively
reasonable 	manner 	under 	the 	circumstances” 	and 	was 	entitled 	to 	qualified
immunity.171
Similarly in this case, the transcripts from the audio recordings seem to
confirm that Eyre aimed his gun at the responding officers. 	Thomas is recorded
as saying “[t]hat’s at us” right before shots were fired.172 	These facts strongly
suggest that Eyre did point his weapon in the direction of the officers. 	Moreover,
168 Long, 511 F.3d at 906.
169 Id. at 905.
170 Id. at 906.
171 Id. at 904.
172 Docket 79-4 at 6; Docket 79-5 at 42.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 31 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 32 of 61
all six of the officers standing in front of Eyre saw him point his gun in their direction
and all six of them either shot at or attempted to shoot at Eyre.173 Accordingly, the
officers’ stories are “internally consistent and consistent with other known facts.”174
In the absence of any evidence to the contrary, the Court concludes that no
reasonable jury could find that Eyre did not point his gun in the officers’ direction
immediately prior to the officers shooting their firearms. 	At the very least, no
reasonable jury could find that the responding officers did not reasonably believe
that Eyre was pointing his gun in their direction.
In addition, Eyre carried a .22 Magnum revolver 175 throughout the entire
evening; first in a holster on his hip, then in his hand, and at various points
throughout the evening he waved the gun around and pointed it at his head. 	Of
course, “the fact that the ‘suspect was armed with a deadly weapon’ does not
render the officers’ response per se reasonable under the Fourth Amendment.”176
But “[t]his is not to say that the Fourth Amendment always requires officers to delay
their fire until a suspect turns his weapon on them.”177 	Instead, if the person is
armed, “a furtive movement, harrowing gesture, or serious verbal threat might
173 See supra note 162.
174 Henrich, 39 F.3d at 915 (citing Hopkins v. Andaya, 958 F.2d 881, 885–88 (9th Cir. 1992)).
175 Docket 79-1 at 19.
176 George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (emphasis in original) (quoting Glenn, 673
F.3d at 872–73).
177 Id.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 32 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 33 of 61
create an immediate threat.”178
For example, in Blanford v. Sacramento County, the Ninth Circuit affirmed
the grant of summary judgment in favor of the defendants where the decedent,
Blanford, made a harrowing gesture right before he was shot and killed.179 	In the
moments before he was shot, Blanford was “attempt[ing] to enter a private
residence and backyard with a lethal weapon” and refused to drop the 2½ foot
sword in his hand, instead “rais[ing] his sword and growl[ing]” at the officers.180
The Ninth Circuit held that a deputy’s decision to shoot the decedent in three
separate volleys was a reasonable use of deadly force under the circumstances
because Blanford “was armed with a dangerous weapon, was told to stop and drop
it, was warned that he would be shot if he didn’t comply, appeared to flaunt the
deputies’ commands by raising the sword and grunting, refused to let go of the
sword, and was intent upon trying to get inside a private residence or its backyard
with the sword in hand.”181 	The Circuit explained that the “deputies had cause to
believe that Blanford posed a serious danger to themselves and to anyone in the
house or yard that he was intent on accessing, because he failed to heed warnings
178 Id. (affirming the denial of qualified immunity on summary judgment because officers shot a
man on his balcony holding his walker in one hand and a gun with the barrel pointed down in the
other, explaining that merely holding a weapon is insufficient, but that “a furtive movement,
harrowing gesture, or serious verbal threat might create an immediate threat”).
179 406 F.3d 1110, 1112 (9th Cir. 2005).
180 Id. at 1116.
181 Id. at 1119.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 33 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 34 of 61
or commands and was armed with an edged weapon that he refused to put
down.”182
Similar to Blanford, Eyre made a harrowing gesture because he refused to
drop his gun and growled at the officers despite numerous commands to drop the
weapon and despite the responding officers’ attempts to connect with Eyre and
offer him help. 	And right before he was shot, Eyre yelled “[y]ou guys can f***ing
die right now and I don’t give a f***.” 183 	This is not a direct threat to shoot, but no
reasonable jury could conclude that it was not a “serious verbal threat [that] might
create an immediate threat,”184 particularly because Eyre’s previous verbal threats
were all self-directed, saying things like “I will f***ing blow my head off.” 185 	When
Eyre directed the threat to the responding officers, it was a “new action by [Eyre]”
that “precipitated the use of” lethal force.186
An important difference, however, is that in Blanford, the immediate threat
was not solely to the officers but potentially to others, as Blanford was “attempt[ing]
182 Id. at 1116.
183 Docket 79-3 at 8.
184 George, 736 F.3d at 838. See, e.g., Gonzales v. City of Antioch, 697 F. App’x 900, 901–02
(9th Cir. 2017) (citing George for the proposition that officers’ use of force was reasonable as a
matter of law where “responding officers were confronted with a suspect who had repeatedly
threatened to kill a police officer and raised his gun in the direction of the officers”).
185 Docket 79-3 at 1.
186 Cf. Glenn, 673 F.3d at 874 (“No new action by [the decedent] precipitated the use of less-lethal
force.”).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 34 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 35 of 61
to enter a private residence and backyard with a lethal weapon.” 187 	The Ninth
Circuit concluded that “[w]hile it is true that the deputies did not know if anyone
were at home or in the yard . . . it was objectively reasonable for them to be
concerned for the safety of whoever was there, and for themselves.”188 In this case
by contrast, Eyre was walking down a deserted road when he was shot and
killed.189 The closest residences were 200 yards away and separated by a field of
snow.190 	Viewing the facts in the light most favorable to the Estate, a reasonable
jury could conclude that Eyre did not pose an immediate threat to the residents of
the nearby apartment complex.
Another key difference between this case and Blanford is that the officers
warned Blanford that they would use lethal force if he did not put down his sword.191
In this case, by contrast, there is no indication that the responding officers provided
such a warning. 	The Ninth Circuit recently emphasized the importance of this
factor in Smith v. Agdeppa, observing that “[w]e have also repeatedly stated that
an officer must give warning before using deadly force ‘whenever practicable.’”192
187 406 F.3d at 1116.
188 Id. at 1116–17.
189 Docket 45-12 at 9:35–13:54.
190 Docket 79-3 at 7; Docket 79-29 at 14; Docket 79-30 at 19.
191 406 F.3d at 1112–13.
192 56 F.4th 1193, 1201 (9th Cir. 2022) (quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 794
(9th Cir. 2014) (en banc)). This case was decided on December 30, 2022, after oral argument on
the State’s motion for summary judgment, which was held on July 22, 2022.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 35 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 36 of 61
In Agdeppa, two officers were responding to a call from a Hollywood gym that a
man named Albert Dorsey was “a little bit irate” and that he had “hurt[] a few
members” and “assaulted security.”193 	When officers Rodriguez and Agdeppa
arrived, they ordered Dorsey to leave the gym; but in response, he “ignored the
officers, walked back and forth across the room to look at himself in the mirror,
slowly dried his body with a towel, and danced to the music on his phone, raising
his middle finger toward” one of the officers.194 The officers “attempted to handcuff
[the] still-naked [decedent], who resisted the officers’ attempts” to handcuff him.195
What happened next is largely disputed, but according to the officers, Dorsey
attacked them and their attempts to taser him made him more aggressive.
According to Agdeppa, he “gave Dorsey a verbal warning, stating words to the
effect that Dorsey needed to stop,” but Dorsey “continued to pummel” Rodriguez
on the ground, so Agdeppa shot and killed Dorsey.196 	However, as the Ninth
Circuit pointed out, Agdeppa’s alleged warning cannot be heard on the audio from
the body camera footage.197 	In reversing summary judgment for the defendants,
the Ninth Circuit acknowledged, “[i]t is uncontested that Dorsey posed some
danger to the officers’ safety by actively resisting arrest, but our case law required
193 Id. at 1196.
194 Id.
195 Id.
196 Id. at 1197.
197 Id.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 36 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 37 of 61
Agdeppa to give a deadly force warning if doing so was practicable.”198 The Ninth
Circuit pointed out that “Agdeppa never claimed that it was not practicable to give
a deadly force warning,” and to the contrary, “had time to yell ‘stop.’”199 The Ninth
Circuit held that “no warning, not even the ‘stop’ that Agdeppa alleges he yelled,
can be heard on the officers’ body-cam audio clips,” so “[o]n that basis alone, a
reasonable jury could find Agdeppa’s use of deadly force was unreasonable and
violated clearly established law.”200
In this case, the responding officers repeatedly directed Eyre to “[p]ut the
gun down” and “[s]top right there,” and warned him that he “[could not] go into that
residential area.” 201 	As the Ninth Circuit pointed out, the fact that the responding
officers had time to yell “stop” suggests that it may have been practicable for the
responding officers to give a deadly force warning.202 	But at no point did the
officers warn Eyre that they would use deadly force against him if he pointed his
weapon at them or threatened to shoot them.203 	Indeed, the officers asserted he
had pointed his gun at them earlier in the incident, but he apparently received no
198 Id. at 1203 (first citing Gonzalez, 747 F.3d at 794; then citing Harris v. Roderick, 126 F.3d 1189,
1201, 1204 (9th Cir. 1997); and then citing Est. of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998,
1011 (9th Cir. 2017)).
199 Id. at 1204.
200 Id.
201 Docket 79-3 at 5–6.
202 See Agdeppa, 56 F.4th at 1204.
203 See, e.g., Docket 79-3.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 37 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 38 of 61
warning then.204 	As in Agdeppa, a reasonable jury could conclude that “[t]here
was ample time to give that order . . . and no reason whatsoever not to do so.”205
Moreover, courts in this Circuit have concluded that “[m]ere commands,
absent a statement that force will be used if the command is ignored, have not
been found to constitute adequate warning.”206 	For example, in Lehman v.
Robinson, taking the facts in the light most favorable to the plaintiff, the officers
shot and killed a suicidal man armed with a knife “as he sat in his car, with all the
tires shot out, surrounded by at least ten armed police officers and numerous
police vehicles.”207 When the decedent was “told to drop his knife and get back in
his pickup truck, [he] partially obeyed, by reentering the vehicle, but not dropping
the knife.”208 Although the officers ordered the decedent to drop his knife and these
orders went unheeded, the Ninth Circuit affirmed the denial of qualified immunity
because the use of lethal force occurred “without any ‘warning of the imminent use
204 Docket 79-2 at 7; Docket 79-7 at 7, 21; Docket 79-8 at 3; Docket 79-10 at 4.
205 Deorle, 272 F.3d at 1284.
206 Hulstedt v. City of Scottsdale, 88 F. Supp. 2d 972, 992 (D. Ariz. 2012); see also Est. of Carreno
v. County of Santa Barbara, Case No. 2:18-cv-3694-SK, 2020 WL 1172721, at *3 (C.D. Cal. Jan.
25, 2020) (“In addition, while Defendants ordered [the decedent] to drop the knife, they issued no
explicit warnings that they would fire on him, which they did within three seconds of him stepping
outside.”); but see Craig v. County of Santa Clara, Case No. 17-CV-02115-LHK, 2018 WL
3777363, at *18 (N.D. Cal. Aug. 9, 2018) (“However, the Court finds that the officers’ command to
‘drop the gun’ was sufficient warning in these circumstances.”); Krause v. County of Mohave, 846
F. App’x 569, 570 (9th Cir 2021) (“We reject as unpersuasive Plaintiff’s contention that [the
defendant’s] repeated orders to drop the gun provided insufficient warning to [the decedent] or
that a more fulsome warning was practicable during the short duration of this event.”).
207 228 F. App’x 697, 699 (9th Cir. 2007).
208 Id.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 38 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 39 of 61
of such a significant degree of force,’ and was directed at a mentally disturbed
individual who had ‘committed no serious offense . . . .’” 209
Similarly, in Daniels v. County of Ventura, the decedent was “a disturbed
young man who had not threatened or harmed anyone,” but he was outside of a
swim school and, as the dissent pointed out, he “was armed with a weapon capable
of causing serious injury and death.”210 The dissent also stated that the decedent
“had disobeyed every reasonable instruction shouted to him by the officers,
including instructions to drop his weapon.”211 	The majority nonetheless affirmed
the denial of qualified immunity, emphasizing that the officer “did not warn [the
decedent] that he would shoot—only that he could not let [the decedent] ‘go up’
toward the swim school, a command that [the decedent] obeyed.”212 The majority
distinguished this case from Blanford because in Blanford, the “police shot a
sword-wielding man who was attempting to enter a private residence, after warning
him that they would shoot if he did not stop and drop the sword.”213 	These cases
suggest that, although the responding officers repeatedly ordered Eyre to put down
his gun, these orders were insufficient to warn him that they would use lethal force
209 Id. at 700 (quoting Deorle, 272 F.3d at 1285–86).
210 228 F. App’x 669, 670–71 (9th Cir. 2007).
211 Id. at 671.
212 Id. at 670.
213 Id. (citing Blanford, 406 F.3d at 1112–13). 	See discussion supra pp. 33–35 for additional
discussion of Blanford.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 39 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 40 of 61
if he again turned the firearm in their direction.
Of course, “[t]he absence of a warning does not necessarily mean that [an
officer’s] use of deadly force was unreasonable.”214 However, the Ninth Circuit has
reversed summary judgment for police officers where a “rational jury may find . . .
a warning was practicable and the failure to give one might weigh against
reasonableness.”215 	In this case, the officers repeatedly ordered Eyre to drop his
weapon, but they did not warn Eyre that they would use lethal force if he threatened
to shoot them or pointed the firearm in their direction.216 	The Court accordingly
concludes 	that 	a 	reasonable 	jury 	could 	find 	that 	it 	was 	practicable 	for 	the
responding officers to give Eyre that warning and that they nonetheless failed to
do so. This factor weighs against a finding of reasonableness.
C. Objective Reasonableness
Having considered all of the factors that are relevant to this case, the Court
assesses whether a reasonable jury could determine that the force used against
Eyre was objectively unreasonable by balancing “the gravity of the intrusion on the
individual against the government’s need for that intrusion.”217 	Viewing the facts
in the light most favorable to Eyre, the Court concludes that “the evidence in the
214 Gonzalez, 747 F.3d at 797 (citing Harris, 550 U.S. at 383).
215 Id. (citing Deorle, 272 F.3d at 1283–94).
216 Docket 45-14 at 0:00–7:40.
217 Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 40 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 41 of 61
pretrial record [i]s sufficient to show a genuine issue of fact for trial.” 218 The Court
concludes that a reasonable jury could find that the use of lethal force in this case
violated Eyre’s constitutional rights if that jury were to find that the responding
officers (1) failed to provide the appropriate warnings and (2) recklessly created a
situation that required the use of deadly force by remaining less than 50 yards from
Eyre in the cup-de-sac if the jury determines that he was not then an immediate
threat to anyone apart from those officers.
D. Integral-Participant Doctrine
The Court must also consider whether Nathaniel Johnson may be held liable
for the alleged use of excessive force. Although Nathaniel Johnson did attempt to
fire his weapon at the same moment that the other responding officers shot and
killed Eyre, his hands were too numb and he did not shoot.219 	The defendants
contend that because Nathaniel Johnson did not personally use deadly force
against Eyre, he cannot be held liable to the Estate.220
“[A]n official whose ‘individual actions’ do ‘not themselves rise to the level of
a constitutional violation’ may be held liable under section 1983 only if the official
218 Peck v. Montoya, 51 F.4th 877, 885 (9th Cir. 2022) (holding that the Ninth Circuit may not
review any “portion of a district court’s summary judgment order that, though entered 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” (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995))).
219 Docket 79-5 at 16–17.
220 Docket 79 at 24–27.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 41 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 42 of 61
is an ‘integral participant’ in the unlawful act.”221 	“Being a mere bystander [is]
insufficient.” 222 	Accordingly, in Hopkins v. Bonvicino, the Ninth Circuit “held that
an officer who stood in the front yard of a house interviewing witnesses while other
officers carried out an unlawful search was not an integral participant in that
search.”223 	By contrast, “an officer who does not enter an apartment, but stands
at the door, armed with his gun, while other officers conduct the search, can
nevertheless be a ‘full, active participant’ in the search.”224
Nathaniel Johnson was more than a “mere bystander.” He was involved in
the initial response to the 911 call, attempting to convince Eyre to get help and
ordering Eyre to put down his weapon. Nathaniel Johnson was also one of the six
officers who collectively formed a line across the road, pointed their weapons at
Eyre, and advanced with Eyre while keeping a distance of no more than 50 yards
from him. Importantly, Nathaniel Johnson had the intent to shoot Eyre at the same
moment that the other five officers fired, but his “hands were extremely numb” and
“[b]y the time [he] got [his] selector to fire . . . [Eyre ha]d taken enough rounds that
221 Peck, 51 F.4th at 889 (quoting Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir.
2020)). Peck was decided on October 18, 2022, after the Court held oral argument in this case
on the State’s motion for summary judgment on July 22, 2022.
222 Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996) (citing Melear v. Spears, 862 F.2d 1177,
1186 (5th Cir. 1989)).
223 Peck, 51 F.4th at 889 (citing Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009)).
224 Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (citing Melear, 862 F.2d at 1186).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 42 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 43 of 61
there was no reason, in [his] mind, to shoot more.”225
The Ninth Circuit recently held that the minimum level of involvement for
liability under the integral-participant doctrine occurs in two situations:
those in which (1) the defendant knows about and acquiesces in the
constitutionally defective conduct as part of a common plan with those
whose conduct constitutes the violation or (2) the defendant ‘set[s] in
motion a series of acts by others which [the defendant] knows or
reasonably should know would cause others to inflict the constitutional
injury.’226
With respect to the first category of liability, a “plan” is defined as “something
that a person intends to do.”227 	The key word is “intent.” 	The Ninth Circuit has
explained that “for an official to be liable for another actor’s depriving a third party
of his constitutional rights, that official must have at least the same level of intent
as would be required if the official were directly to deprive the third party of his
constitutional rights.”228 In this case, Nathaniel Johnson had the exact same intent
as the other five officers who shot and killed Eyre. 	He also acted pursuant to a
common plan with the shooting officers when he lined up alongside them with all
six guns pointed at Eyre.
225 Docket 79-5 at 17.
226 Peck, 51 F.4th at 889 (alterations in original) (quoting Johnson v. Duffy, 588 F.2d 740, 743–44
(9th Cir. 1978)).
227 T HE BRITANNICA DICTIONARY , britannica.com/dictionary/plan (last visited Jan. 24, 2023).
228 Peck, 51 F.4th at 890 (alterations omitted) (quoting Lacey v. Maricopa County, 693 F.3d 896,
916 (9th Cir. 2012)).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 43 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 44 of 61
It is Nathaniel Johnson’s intent to shoot Eyre that distinguishes this case
from Peck v. Montoya.229 	In that case, five deputies responded to a 911 call
reporting that a man was threatening someone with a firearm. When the deputies
arrived on the scene, they established a perimeter around the house. 	Although
the parties disputed what happened next, according to the deputies, the decedent
grabbed his gun and raised it toward the deputies, at which point he was shot and
killed by two of the deputies. 	The other three deputies on the scene did not fire
their weapons. 	There were no facts suggesting that the three deputies had any
intent to shoot the decedent.230 	With respect to these three deputies, the Ninth
Circuit reversed the denial of summary judgment on the excessive force claim.
The Circuit explained that the three deputies did not “have any reason to know that
their actions—providing armed backup—would enable the later use of excessive
force.”231 	By 	contrast, 	Nathaniel 	Johnson 	had 	the 	intent 	to 	shoot 	Eyre.
Accordingly, defendants’ motion for summary judgment as to Nathaniel Johnson
based on the claim that he was not an integral participant is denied.
II. 	Clearly Established Law
The Court next addresses whether the law was clearly established at the
time of the alleged constitutional violation such that a reasonable officer then would
229 51 F.4th 877.
230 Id. at 882–84.
231 Id. at 891 (emphasis in original).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 44 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 45 of 61
have known that the use of lethal force against Eyre in these circumstances could
violate Eyre’s constitutional right to be free from the use of excessive force. 	The
Supreme Court has held that “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right.”232 While there need not be “a case directly on point, . . . existing precedent
must have placed the statutory or constitutional question beyond debate.” 233
To determine whether the law is clearly established for purposes of qualified
immunity, a court looks to judicial decisions issued prior to the date of the alleged
violation.234 	A court in this Circuit looks first to binding precedent issued by the
Supreme Court and the Ninth Circuit.235 	“‘In the absence of binding precedent, a
court should look to whatever decisional law is available to ascertain whether the
law is clearly established’ for qualified immunity purposes, ‘including decisions of
state courts, other circuits, and district courts.’”236 	The Court therefore looks to
judicial decisions issued prior to December 24, 2017, the date of this incident.
First, it was then well-established that the failure to give a warning when
232 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
233 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citing Creighton, 483 U.S. at 640).
234 See Ballentine v. Tucker, 28 F.4th 54, 64 (9th Cir. 2022).
235 Boyd, 374 F.3d at 781 (“In the Ninth Circuit, we begin our inquiry by looking to binding
precedent. If the right is clearly established by decisional authority of the Supreme Court or this
Circuit, our inquiry should come to an end.” (citations omitted)).
236 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003)
(alterations omitted) (quoting Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995)).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 45 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 46 of 61
practicable might weigh against reasonableness.237 	For example, in 2014, the
Ninth Circuit sitting en banc in Gonzalez v. City of Anaheim reversed summary
judgment for the defendants, explaining that “[i]n general, we have recognized that
an officer must give a warning before using deadly force ‘whenever practicable.’”238
In that case, Gonzalez was shot and killed by a police officer during a traffic stop.
According to the responding officers, Gonzalez refused their commands to turn off
his vehicle and open his hands, which he held clenched in his lap. 	The officers
believed Gonzalez had something in his hands, so one of them began striking
Gonzalez with a flashlight and the other entered the vehicle through the passenger
side and punched Gonzalez in the head. During the struggle, Gonzalez managed
to shift the vehicle into drive and it began moving forward. According to the officer
in the vehicle, Gonzalez stomped on the accelerator and, after trying to get control
of the car, the officer shot Gonzalez in the head and killed him.239 The Ninth Circuit
reversed summary judgment for two primary reasons. 	The first was that the
officers’ testimony was internally inconsistent, so there was a genuine issue of
237 Gonzalez, 747 F.3d at 797 (decided in 2014); see also Roderick, 126 F.3d at 1204 (“Whenever
practicable, a warning must be given so that the suspect may end his resistance . . . .”) (decided
in 1997); Est. of Lopez, 871 F.3d at 1011 (holding that an officer’s use of deadly force was
unreasonable because the officer “indisputably had time to issue a warning, but never notified
[the decedent] that he would be fired upon if he either turned or failed to drop the gun”) (decided
on September 22, 2017).
238 Gonzalez, 747 F.3d at 794 (quoting Roderick, 126 F.3d at 1201 (9th Cir. 1997)).
239 Id. at 792–93.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 46 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 47 of 61
material fact as to the speed of the vehicle when Gonzalez was shot. 240 	This
precluded summary judgment because the speed of the vehicle would determine
whether Gonzalez presented an immediate threat to safety that would justify the
use of deadly force.241 The Ninth Circuit also concluded that a jury could “find that
[the officer] failed to give a warning before he shot Gonzalez in the head” and that
“if the car was moving at an average speed of 3 to 7 miles per hour, a warning was
practicable and the failure to give one might weigh against reasonableness.”242
The Ninth Circuit recently cited to the Gonzalez decision from 2014 for the
proposition that “[w]e have . . . repeatedly stated that an officer must give warning
before using deadly force ‘whenever practicable.’”243 	The Gonzalez decision put
the responding officers in this case on notice that their failure to warn Eyre that
they would use lethal force against him would weigh against reasonableness if a
jury found that such a warning was practicable.
In addition to Gonzalez, a case decided in 2016 by the United States District
Court for the Northern District of California involving facts that were quite similar to
the case at hand, addressed the need for a warning on the use of lethal force when
240 Id. at 794.
241 Id. at 795–96.
242 Id. at 797.
243 Agdeppa, 56 F.4th at 1201 (quoting Gonzalez, 747 F.3d at 794).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 47 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 48 of 61
practicable.244 	In Pimental v. City of Hayward, the district court denied in part the
defendants’ motion for summary judgment because, among other reasons, there
was a question of fact as to whether the responding officer adequately warned the
decedent that he would use lethal force against her if she did not drop her gun.245
In that case, similar to this one, the officer was performing a welfare check; the
decedent suffered from severe depression and had been calling the police agency
repeatedly.246 	According to the responding officers’ declarations, the decedent
exited her apartment with a gun in her hand and they issued several commands to
“drop the gun,” warning her that they would shoot if she did not drop her weapon.
The officers’ declarations stated the decedent disregarded their commands and
walked down the stairs towards them with the gun. When she was about ten yards
away from the officers, both officers in their declarations stated that she lifted her
gun and aimed it at the officers, whereupon one of the officers fired four rounds at
her, killing her. 247 	An investigation after the incident revealed that the decedent
had written a suicide note and that the gun in her hand was only a “direct replica
of a real gun that was capable of shooting pellets.”248 	There were four witnesses
who saw the events unfold; of these, one witness said that she did not see a
244 District court decisions are clearly established law for purposes of the qualified immunity
analysis. See Drummond, 343 F.3d at 1060 (9th Cir. 2003).
245 Case No. 14-cv-04706-JCS, 2016 WL 5930577, at *10 (N.D. Cal. Oct. 12, 2016).
246 Id. at *1.
247 Id. at *2–4.
248 Id. at *5.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 48 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 49 of 61
weapon in the decedent’s hands when she was shot.249 	The district court
accordingly found that there was a question of fact as to whether the decedent had
the gun in her hand when she was shot and, if so, whether she pointed her weapon
at the officers before they shot her, or “simply wav[ed] it around wildly.”250
With respect to the failure to warn, the district court quoted the Supreme
Court’s 1985 opinion in Tennessee v. Garner for the proposition that “where
feasible, some warning has [to be] given” before an officer may use deadly force
against someone who “threatens the officer with a weapon.”251 	The district court
also observed that some of the witnesses testified that they did not hear the officers
issue any commands or warnings. 252 	Because it was clearly established in 2016
that an officer must, when feasible, provide a warning before using lethal force and
because “there [we]re fact questions as to whether [the decedent] was warned and
regarding the adequacy of those warnings,” the district court concluded that
“summary judgment on the question of qualified immunity [was] not warranted.” 253
In addition to Gonzalez, the decision in Pimental put the responding officers in this
case on notice that an officer’s use of lethal force when performing a welfare check
on a suicidal individual carrying a gun could be unconstitutional if the officer failed
249 Id. at *7.
250 Id. at *10.
251 Id. at *9 (quoting Garner, 471 U.S. at 11).
252 Id. at *4, *7.
253 Id. at *10–11.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 49 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 50 of 61
to provide adequate warnings before using lethal force.
The law was also clearly established at the time of this incident that an
officers’ actions may violate the Fourth Amendment if the officer played a role in
creating the dangerous situation that required lethal force.254 	For example, on
September 5, 2017, in Lam v. City of San Jose, the Ninth Circuit addressed
whether a jury could consider an officer’s “bad tactics” leading up to the use of
lethal force against a suicidal man holding a knife.255 Police were called because
the decedent, who had just been released from an involuntary psychiatric hold at
a hospital, was behaving erratically, believing someone was in his house, and
threatening to cut himself with a knife. 	According to one witness, when the
responding officer arrived, the decedent was in the middle of his lawn and the
officer walked up to the decedent until she was approximately 10 to 15 feet away
from him with her gun pointed at the decedent. Then the decedent turned his back
on the officer and “started making motions with the knife toward his stomach, as if
he were stabbing himself” and the officer “immediately” shot him in the back. But
according to the officer, as she approached the decedent, he walked towards her
with his knife and she shot at him when he was approximately 10 feet away, but
she missed. According to the officer, the decedent then turned around and started
254 See, e.g., Espinosa, 598 F.3d at 537 (decided in 2010); Torres, 648 F.3d at 1126–27 (decided
in 2011).
255 869 F.3d 1077 (9th Cir. 2017).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 50 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 51 of 61
walking backwards toward her, at which point the officer fired again and hit him in
the back.256
A jury unanimously found that the officer had used unreasonable force and
that the officer was 65% at fault for the fatal shooting. On appeal, the Ninth Circuit
affirmed the denial of the defense motion for a new trial.257 	The Circuit rejected
the defendants’ argument that “the district court erred by failing to [instruct] . . . the
jury that Fourth Amendment liability cannot be premised solely on an officer’s ‘bad
tactics.’”258 The Circuit explained that the Fourth Amendment reasonableness test
requires consideration of the “facts and circumstances of each particular case,”
and that “[t]he events leading up to the shooting, such as the officer’s tactics, are
encompassed in those facts and circumstances.”259 	The Ninth Circuit’s decision
in Lam accordingly put the responding officers in this case on notice that a police
officer may violate the Constitution when responding to a call about someone who
is armed and experiencing a mental health crisis if the officer uses “bad tactics”
that play a role in creating the danger to which the officer responds with lethal
force.
In sum, a review of the decisional law before December 24, 2017, indicates
256 Id. at 1081–83.
257 Id. at 1084.
258 Id. at 1087.
259 Id.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 51 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 52 of 61
that the law was clearly established such that a reasonable officer would have
known that the use of lethal force in the cul-de-sac could violate Eyre’s Fourth
Amendment rights.
III. 	Failure to Intervene
The defendants contend that “each of the officers is entitled to summary
judgment on the Estate’s 42 U.S.C. § 1983 claim based on a theory of failure-to-
intervene.”260 To the extent that the Complaint may have alleged such a theory of
liability, the Estate’s opposition to the motion for summary judgment failed to
respond to the defendants’ arguments.261 By failing to respond, the Estate has not
even attempted to demonstrate “specific facts showing that there is a genuine
issue for trial” on this claim.262 	Moreover, it is well-established that “officers can
be held liable for failing to intercede only if they had an opportunity to intercede.”263
For example, the Ninth Circuit has held that “non-shooting officers who were
present at [a] shootout[] had no ‘realistic opportunity’ to intercede.”264 In this case,
the body cameras show that the responding officers shot Eyre instantly after Eyre
260 Docket 79 at 30.
261 The Complaint did not bring any claim premised on the defendants’ failure to intervene; instead,
the Complaint briefly mentions a failure to intervene in passing. Docket 1 at 8, ¶ 36, 14–15 at ¶¶
73, 76. The Estate’s opposition did not mention this theory of liability. Docket 83.
262 Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
263 Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000).
264 Id. at 1290.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 52 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 53 of 61
yelled “[y]ou guys can f***ing die right now and I don’t give a f***.” 265 	“[V]iew[ing]
the facts in the light depicted by the videotape,” the Court concludes that there was
no opportunity for intervention in the moment before the officers shot Eyre. 266
Accordingly, there can be no liability for a constitutional violation based on a failure-
to-intervene theory.267
IV. 	Disability Discrimination under the Americans with Disabilities
Act and the Rehabilitation Act
The Estate alleges that the defendants violated Title II of the Americans with
Disabilities Act (“ADA”)268 by “failing to make reasonable accommodations to
address [Eyre’s] mental illness” and “by failing to train its employees to make
reasonable accommodations to serve persons with mental health disabilities.”269
The 	Complaint 	brings 	similar 	allegations 	pursuant 	to 	Section 	504 	of 	the
Rehabilitation Act (“RA”).270 	The ADA and the RA both prohibit discrimination on
the 	basis 	of 	disability 	in 	the 	programs, 	services, 	or 	activities 	of 	a 	public
265 Docket 45-12 at 13:38–13:54; Docket 45-14 at 7:22–7:40.
266 Harris, 550 U.S. at 381.
267 To the extent that the Estate may have alleged that the City of Fairbanks is liable under § 1983
for the officers’ excessive force based on a failure to train, see Docket 1 at 8–9, ¶ 39, the Court
does not reach this claim because neither party sufficiently briefed the issue and the record is
insufficiently developed. Cf. Armster v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 792 F.2d 1423,
1427 (9th Cir. 1986) (declining to reach statutory questions where “the legal issues involved ha[d]
not been adequately briefed or argued by either party, and the record lack[ed] certain facts that
might be necessary to a proper resolution of those questions” (footnotes omitted)).
268 42 U.S.C. § 12101, et seq.
269 Docket 1 at 12–13 ¶¶ 59, 62.
270 Docket 1 at 13–14 ¶¶ 65–69. Section 504 of the Rehabilitation Act of 1973, as amended, is
codified at 29 U.S.C. § 794(a).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 53 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 54 of 61
entity. 	There is “no significant difference” between the ADA and the RA; nor do
they require separate analyses.271 The Court will accordingly analyze Eyre’s ADA
and RA claims together.
As a preliminary matter, the Court must decide whether the ADA applies to
police officers’ performance of a welfare check. 	The Ninth Circuit has joined the
majority of circuits in holding that the ADA applies when the police effectuate an
arrest.272 This is because “[t]he ADA applies broadly to police ‘services, programs,
or activities,’” and the Ninth Circuit has “interpreted these terms to encompass
‘anything a public entity does,’” including effectuating an arrest.273 This same logic
extends to a welfare check because it is an “activity” that “a public entity does.”
Moreover, although the Ninth Circuit in Sheehan ultimately held that “Title II applies
to arrests,” the police were originally called in that case to perform a welfare
check.274
But while the Estate properly brings its excessive force claim against the
individual defendants, there is no liability for individual defendants under the ADA
271 Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002).
272 Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1231–33 (9th Cir. 2014), rev’d
on other grounds, 575 U.S. 600 (2015).
273 Id. at 1232 (first quoting 42 U.S.C. § 12132; and then quoting Barden v. City of Sacramento,
292 F.3d 1073, 1076 (9th Cir. 2002)).
274 Id. at 1217, 1232. See also Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018)
(“In Sheehan I, officers responded to a call at a group home to perform a welfare check on a
mentally ill woman . . . .”).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 54 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 55 of 61
or the RA.275 	Instead, the proper defendant in a disability discrimination action is
the public entity responsible for the alleged discrimination—in this case, the State
of Alaska and the City of Fairbanks.276 	To the extent the Estate brings ADA and
RA claims against the individual defendants, these claims fail as a matter of law.277
To state a claim under Title II of the ADA, a plaintiff must allege:
(1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of a public entity's services,
programs, or activities; (3) he was either excluded from participation
in or denied the benefits of the public entity's services, programs, or
activities, or was otherwise discriminated against by the public entity;
and (4) such exclusion, denial of benefits, or discrimination was by
reason of his disability.278
As to the first factor, the Estate has not satisfied its burden at the summary
judgment stage to present specific facts showing that there is a genuine issue for
trial as to whether Eyre had a disability as defined by the ADA. The ADA defines
“disability” in relevant part as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual.”279 The ADA and RA claims
275 Vinson, 288 F.3d at 1156 (“We therefore join the Fifth, Eighth, and Eleventh Circuits and hold
that a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her
individual capacity to vindicate rights created by Title II of the ADA or section 504 of the
Rehabilitation Act.”).
276 United States v. Georgia, 546 U.S. 151 (2006) (holding that Title II of the ADA validly abrogates
State sovereign immunity insofar as it creates a private cause of action for damages against the
States for conduct that actually violates the Fourteenth Amendment).
277 Docket 1 at 12–13, ¶¶ 60, 69.
278 Vos, 892 F.3d at 1036 (alterations omitted) (quoting Sheehan, 743 F.3d at 1232).
279 42 U.S.C. § 12102(1)(A).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 55 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 56 of 61
in the Complaint make only a vague reference to Eyre’s “mental illness.”280 	The
opposition to the motion for summary judgment is more specific, as it asserts that
Eyre suffered from depression and suicidal ideation.281 	The Ninth Circuit has
recognized that depression may be a disability under the ADA.282 For example, in
Snead v. Metropolitan Property & Casualty Insurance Co., the Ninth Circuit held
that a plaintiff had submitted sufficient evidence to raise an issue of fact as to
whether she had a recognized impairment for purposes of the ADA and Oregon
law where the plaintiff’s “physician wrote that her stress and depression rendered
her ‘medically’ disabled” and “an independent medical examiner . . . found that
[she] suffered from ‘ . . . Depression.’”283 	The Circuit added that the plaintiff had
demonstrated a genuine issue of material fact as to whether her mental impairment
substantially limited her major life activities by submitting evidence that “[h]er
doctor wrote that she needed leave because she was ‘medically disabled by stress
and depression’” and that she “did not work at all for nearly two years.”284
In this case, by contrast, the Estate does not point to any evidence in the
record to show that Eyre suffered from depression or that his depression limited
his major life activities. 	Instead, the Estate asserts “[t]here can be little question
280 Docket 1 at 11–14, ¶¶ 54–69.
281 Docket 83 at 20.
282 Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1088 (9th Cir. 2001).
283 Id.
284 Id. at 1089.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 56 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 57 of 61
that Cody Eyre’s depression (and suicidal ideation) was so severe that it was
substantially limiting in his ability to perform the function of daily living.” 285 	Such
conclusory 	statements 	are 	insufficient 	to 	survive 	a 	motion 	for 	summary
judgment.286 	And the Estate contends for the first time in its opposition to the
motion for summary judgment that Eyre “called earlier in the month to the suicide
hotline” and was “discharged from the military because of disabling ADHD,” but
again the Estate points to no evidence in the record to support these statements.287
And although it is clear from the events that transpired on December 24,
2017, that Eyre was suicidal on the night of his death, the Estate has not pointed
to any case law suggesting that one occasion of suicidality is sufficient to establish
disability for purposes of the ADA. 	By contrast, the defendants have identified
numerous district court orders to support its assertion that “[t]he vast majority of
suicide-based 	ADA 	cases 	involve 	undisputed 	and 	independently-established
disabilities, or otherwise tend to indicate that suicidal tendencies do not generate
285 Docket 83 at 20.
286 See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)
(“[C]onclusory allegations unsupported by factual data are insufficient to defeat . . . [a] summary
judgment motion.”).
287 Docket 83 at 21. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: citing to particular parts of materials in the
record, 	including 	depositions, 	documents, 	electronically 	stored 	information, 	affidavits 	or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.”).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 57 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 58 of 61
ADA-qualifying disabilities.”288
Turning to the remaining factors, even if Eyre’s suicidality on the night of his
death were sufficient to establish disability for purposes of the ADA, the Estate has
not produced sufficient evidence to show that he was denied services or faced
discrimination based on his disability. The Complaint alleges that the defendants
violated the ADA by denying Eyre “emergency services and other appropriate
assistance from EMTs and police officers.”289 The Ninth Circuit has emphasized,
however, 	that 	“[t]he 	ADA 	prohibits 	discrimination 	because 	of 	disability, 	not
inadequate treatment for disability,” such that the Estate’s contentions that the
defendants should have provided emergency assistance are not cognizable under
the ADA.290 	Moreover, the opposition did not meaningfully address whether Eyre
was denied services or faced discrimination based on his disability; instead the
opposition addressed whether Eyre had a disability for purposes of the ADA and
288 Garza v. City of Donna, Case No. 7:16-CV-00558, 2017 WL 2861456, at *8 n.108 (S.D. Tex.
July 5, 2017) (collecting cases). See also Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354
(9th Cir. 1996) (holding that a “temporary psychological impairment, from December 19, 1992 to
April 5, 1993, with no residual effects after April 5, 1993, was not of sufficient duration to fall within
the protections of the ADA as a disability”) (collecting cases finding that temporary injury, including
temporary mental depression, do not support a claim under the ADA); but see Munoz v. Cal. Dep’t
of Corr. & Rehab., Case No. 1:16-cv-01103 JLT BAK (BAM), 2022 WL 183494, at *7 (E.D. Cal.
Jan. 20, 2022) (explaining that Sanders was decided prior to the ADA’s amendment in 2008, which
“broadened the definition of ‘disability’”).
289 Docket 1 at 12, ¶ 57. See also Docket 1 at 12–13, ¶¶ 60, 63 (alleging that defendants failed
“to make reasonable accommodations to provide appropriate medical assistance rather than
resort to deadly violence”).
290 Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds
by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 58 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 59 of 61
whether the State of Alaska receives RA monies.291 	For the foregoing reasons,
the Court grants summary judgment to the defendants on the ADA and RA claims.
V. 	State Law Claims
The Estate’s Complaint also alleges the following violations of state law:
common law negligence, negligent failure to train and supervise, wrongful death,
and assault and battery.292 	The defendants contend that the assault and battery
claims and the negligence claims all “fail as a matter of law for the same reasons
its 	excessive 	force 	claims 	fail—each 	officer’s 	actions 	w[as] 	reasonable 	and
conformed to the standards required of them under the circumstances.” 293 	The
Court will not grant summary judgment on this basis with respect to the state law
claims because, as discussed above, the Court concludes that a jury could find
that the defendants acted unreasonably in a manner that violated Eyre’s Fourth
Amendment right to be free from excessive force and that the law was clearly
established in this regard.
That being said, the Estate’s opposition to summary judgment does not cite
to any law to support its state law claims, arguing generally that “a reasonable jury
could conclude that the officers’ actions were not objectively reasonable.” 294 	The
291 See Docket 83 at 20–22.
292 Docket 1 at 9–11, ¶¶ 41–50; 14–16, ¶¶ 70–82.
293 Docket 79 at 43–47.
294 Docket 83 at 22–23.
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 59 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 60 of 61
Court finds the state law claims are inadequately briefed to warrant summary
judgment.295 	In particular, neither party has addressed whether the defendants
are entitled to immunity under state law for the alleged violations of common law
rights pursuant to the test laid out by the Alaska Supreme Court in Aspen
Exploration Corp. v. Sheffield and its progeny.296
CONCLUSION
In light of the foregoing, IT IS ORDERED that defendants State and ASTs
Elondre Johnson, Nathaniel Johnson, James Thomas III, and Christine Joslin’s
Motion for Summary Judgment at Docket 78, joined by the remaining defendants
at Dockets 80 and 82, is DENIED in part and GRANTED in part as follows:
 	Summary judgment is GRANTED to all defendants with respect to the claims
brought pursuant to the ADA and the RA;
 	Summary judgment is GRANTED to all defendants with respect to the failure
to intervene claim brought pursuant to 42 U.S.C. § 1983;
 	Summary judgment is DENIED in all other respects.
295 Cf. Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062 (Alaska 2005) (“We do not consider
arguments that are inadequately briefed.” (citing Lewis v. State, 469 P.2d 689, 692 n.2 (Alaska
1970))).
296 739 P.2d 150 (Alaska 1987); see also Maness v. Daily, 307 P.3d 894, 903–06 (Alaska 2013).
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 60 of 61

Case No. 4:19-cv-00038-SLG, Eyre v. The City of Fairbanks, et al.
Order re Motion for Summary Judgment
Page 61 of 61
DATED this 23 rd day of February, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 4:19-cv-00038-SLG Document 95 Filed 02/23/23 Page 61 of 61