Cleo Daily, her personal capacity v. City of Phoenix; Clinton Brookins

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLEO DAILY, her personal capacity and as
Personal Representative of the Estate of
Zachariah Pithan; TRACY PITHAN,
Plaintiffs-Appellants,
v.
CITY OF PHOENIX; CLINTON
BROOKINS,
Defendants-Appellees.
No. 17-16793
D.C. No. 2:14-cv-00825-SPL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted March 8, 2019
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
Zachariah Pithan’s parents (“Plaintiffs”) brought a lawsuit under 42 U.S.C.
§ 1983 against Phoenix police officer Clinton Brookins and the City of Phoenix
(collectively, “Defendants”) alleging that Brookins used excessive force in
violation of the Fourth Amendment and deprived Plaintiffs of their Fourteenth
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Amendment right to familial association when Brookins shot and killed Pithan
during a struggle at Pithan’s apartment. The district court granted summary
judgment for Defendants on all claims, holding that Brookins’s use of force was
objectively reasonable under the Fourth Amendment and that he had not violated
the Fourteenth Amendment because he had not acted with a purpose to harm
Pithan that was unrelated to legitimate law enforcement objectives. The court
dismissed the associated municipal liability claims because there was no
underlying constitutional violation. We affirm in part and reverse in part.
1. The district court erred in granting summary judgment on Plaintiffs’
Fourth Amendment excessive force claim against Brookins. The “most important”
factor in determining whether deadly force was justified is whether the suspect
poses an immediate threat to the safety of the officer or others. Estate of Lopez ex
rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017). Here, there is a genuine
dispute whether a threat existed. Brookins alleges that Pithan picked up a wooden
stick during the struggle and attempted to swing it at another officer’s face, causing
Brookins to fear for the officer’s safety and justifying his decision to shoot Pithan
twice in the chest. But none of the other three officers in the room saw Pithan
holding a stick, even though they were right next to Pithan and even though
Brookins alleges that Pithan swung the stick at one of their faces. Because a
reasonable jury could find that at least one other officer would have seen Pithan

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holding a stick if Brookins’s account were true, we cannot conclude that
Brookins’s version of the events is “uncontradicted.”1 Scott v. Henrich, 39 F.3d
912, 915 (9th Cir. 1994). Rather, because there is a genuine factual dispute about
whether Pithan picked up a stick, the district court erred in granting summary
judgment on Plaintiffs’ Fourth Amendment excessive force claim. See Lopez, 871
F.3d at 1006; Cruz v. City of Anaheim, 765 F.3d. 1076, 1079-80 (9th Cir. 2014);
Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc); Santos
v. Gates, 287 F.3d 846, 851 (9th Cir. 2002); Ting v. United States, 927 F.2d 1504,
1511 (9th Cir. 1991).
2. Summary judgment on Plaintiffs’ Fourteenth Amendment familial
association claim was appropriate. See Lemire v. Cal. Dep’t of Corr. & Rehab.,
726 F.3d 1062, 1075 (9th Cir. 2013). To prove that public officials violated the
due process clause of the Fourteenth Amendment by depriving a plaintiff of her
1 The dissent repeats the district court’s conclusion that Cruz v. City of Anaheim,
765 F.3d 1076, 1080 (9th Cir. 2014), suggests that it would be more suspicious if
the other officers’ stories matched Brookins’s version of events. But this is a
misreading of our holding in Cruz. Cruz held that the fact that all four of the
officers claimed to have seen the suspect reach for his waistband at the exact
moment—despite the fact that they were in different locations surrounding the
victim and most or all of them had a car door blocking their view of the suspect’s
waistband—was suspicious, and that a reasonable jury could find it was likely that
the officers had lied. Id. Our focus was on “whether the officers’ accounts [we]re
‘consistent with other known facts,’” which they appeared not to be. Id. at 1079
n.3. Nothing in Cruz suggests that an officer’s story is more credible if it does not
match his fellow officers’ accounts.

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right to familial association, the plaintiff must show that the officials’ conduct
“shocks the conscience”—meaning that they acted with a “purpose to harm” the
decedent that was “unrelated to legitimate law enforcement objectives.” Porter v.
Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The only evidence that Plaintiffs
offer of such a purpose is a handful of Brookins’s Facebook posts from two to
three years prior to the incident in which Brookins discussed wanting to shoot a
firearm and expressed disdain for a vaguely defined group of criminals. The posts
do not indicate that Brookins acted with a purpose to harm Pithan specifically,
because they are not directed toward Pithan and were made several years earlier.
Absent any other evidence about Brookins’s motive at the time of the incident
here, a jury could not reasonably conclude that Brookins acted without a legitimate
law enforcement objective in mind, even if he used excessive force in his actions.
See Gonzalez, 747 F.3d at 797-98 (affirming summary judgment on a familial
association claim even where there is a genuine dispute of material fact that
warrants reversal on the excessive force claim). We therefore affirm summary
judgment on Plaintiffs’ familial association claim.
3. The district court granted summary judgment to the City of Phoenix on
Plaintiffs’ claims under Monell v. Department of Social Services, 436 U.S. 658
(1978). Plaintiffs waived any challenge to this aspect of the district court’s ruling
by failing to make any arguments about municipal liability in their opening brief.

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See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (“[Appellant’s]
opening brief does not discuss his Monell policy or custom claims against [the
defendants], nor does it cite any authority related to these claims. We therefore
decline to address [Appellant’s] argument, raised for the first time in his reply
brief, that the district court erred in dismissing his policy-based claims.”).
AFFIRMED in part, REVERSED in part and REMANDED.

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Daily v. Phoenix, No. 17-16793
IKUTA, Circuit Judge, dissenting:
The central question before us is whether, as Brookins testified, Pithan
grabbed a 16-inch wooden spindle during his melee with the four police officers.
The parties do not dispute that an officer’s use of deadly force in such a
circumstance is not excessive, and therefore does not violate the Fourth
Amendment.
The plaintiffs assert that there is a genuine issue of material fact as to
whether Officer Brookins was credible, but point to no evidence in the record to
support this claim. The three other officers attempting to subdue Pithan testified
they did not see him grab the wooden spindle during the approximately 30 seconds
in which the struggle took place. But they also testified that they were not in a
position to know whether or not Pithan had a weapon in his hands. Two of the
officers stated that they were focusing solely on Pithan’s legs, and the third officer
stated that he “could not see [Pithan’s] left hand and/or his right hand and the
actions that [he] was doing with those.”
There is no evidence in the record (expert testimony or otherwise) that given
the officers’ position, the size of the room, and the duration of the confrontation,
one or more of the officers would necessarily have seen the spindle in Pithan’s
hand if there had been one. Nor does the officers’ failure to see the spindle,
FILED
APR 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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without more, give rise to a suspicion that Brookins is not telling the truth. Rather,
our precedent indicates that it would be more suspicious if all the officers gave a
consistent account of the struggle. See Cruz v. City of Anaheim, 765 F.3d 1076,
1080 (9th Cir. 2014).
In short, the majority’s conclusion that “a reasonable jury could find that at
least one other officer would have seen Pithan holding a stick if Brookins’s
account was true,” is based on nothing in the record.
Because there is no genuine issue of material fact on the excessive force
claim, I would affirm the district court’s grant of summary judgment in favor of
Brookins. Accordingly, I dissent.

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