Monica Ortiz, individually v. Cesar Vizcarra, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONICA ORTIZ, individually and as co-
successor-in-interest to Decedent Christian
Pena; NORMA PENA, individually,
Plaintiffs-Appellees,
v.
CESAR VIZCARRA, individually, and in
his official capacity as an officer for the City
of Rialto Police Department; JORGE
BRAMBILA, individually, and in his
official capacity as an officer for the City of
Rialto Police Department,
Defendants-Appellants,
and
CITY OF RIALTO, Police Department;
DOES, 1-10, inclusive, individually, and in
their capacities as law enforcement agents
and/ or personnel for the City of Rialto
Police Department,
Defendants.
No. 18-55107
D.C. No.
5:16-cv-01384-JGB-KS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Argued and Submitted June 11, 2019
Pasadena, California
Before: FERNANDEZ, WARDLAW, and BYBEE, Circuit Judges.
City of Rialto police officers Cesar Vizcarra and Jorge Brambila appeal the
district court’s partial denial of their motion for summary judgment on the basis of
qualified immunity. We dismiss for lack of appellate jurisdiction.
1. “We have jurisdiction to determine our jurisdiction.” United States v.
Decinces, 808 F.3d 785, 788 (9th Cir. 2015). Here, the district court denied the
officers’ motion on the excessive force and unlawful seizure claims because it
found genuine disputes of material fact as to whether the officers were entitled to
qualified immunity. In the qualified immunity context, “[a]ny decision by the
district court ‘that the parties’ evidence presents genuine issues of material fact is
categorically unreviewable on interlocutory appeal.’” George v. Morris, 736 F.3d
829, 834 (9th Cir. 2013); see also Johnson v. Jones, 515 U.S. 304, 313 (1995).
“Where there are disputed issues of material fact, our review is limited to whether
the defendant would be entitled to qualified immunity as a matter of law, assuming
all factual disputes are resolved, and all reasonable inferences are drawn, in
plaintiff’s favor.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th
Cir. 2012); see also Kisela v. Hughes, 138 S. Ct. 1148, 1150–51 (2018) (per
curiam).

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3
On appeal, the officers rely on their version of the facts to argue that the
district court erred because Monica Ortiz1 could not prove at trial that the officers
unreasonably used deadly force in violation of the Fourth Amendment. The
officers’ argument thus fails to present the facts in the light most favorable to
Ortiz, instead merely raising a “question of ‘evidence sufficiency,’ i.e., which facts
a party may, or may not, be able to prove at trial.” Foster v. City of Indio, 908 F.3d
1204, 1210 (9th Cir. 2018) (per curiam). “But this sort of ‘evidence sufficiency’
claim does not raise a legal question” we can review. Id. at 1213. Accordingly,
we dismiss the officers’ appeal for lack of jurisdiction, without deciding at this
interlocutory stage whether the officers are entitled to qualified immunity.
2. Because the district court denied summary judgment on plaintiff’s
parallel state law claims based on the same disputes of material fact as the
excessive force and unlawful seizure claims, we likewise lack jurisdiction to
review the officers’ appeal as to those claims.2
DISMISSED.
1 Plaintiff Norma Peña did not appeal the district court’s grant of
summary judgment in favor of the officers on her sole claim and therefore no
longer remains a party to this case.
2 The dissent recites the inferences its author draws from video
recordings of the incident, but unlike in Scott v. Harris, 550 U.S. 372, 380–81
(2007), Ortiz’s version of the facts is neither “blatantly contradicted” nor “utterly
discredited” by video evidence.

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Ortiz v. Vizcarra, No. 18-55107
FERNANDEZ, Circuit Judge, dissenting:
I agree with the legal principles set forth by the majority. However, the
video recording of the incident shows beyond peradventure1 that in a period no
longer than forty seconds an officer tried to subdue a belligerent man in close
quarters while backing away from him and tasing him three times. Still, the man
managed to arm himself with a knife and come even closer to the officer,
whereupon the officer shot him twice in rapid succession. Given the undeniable
and indisputable facts, even if there was a Fourth Amendment violation, I do not
believe that this could reasonably be seen as “an obvious case in which any
competent officer would have known that shooting [the man] . . . would violate the
Fourth Amendment.” Kisela v. Hughes, __ U.S. __, __, 138 S. Ct. 1148, 1153,
200 L. Ed. 2d 449 (2018) (per curiam); see also City of Escondido v. Emmons, __
U.S. __, __, 139 S. Ct. 500, 504, 202 L. Ed. 2d 455 (2019) (per curiam). Thus,
because the officers must be entitled to qualified immunity, I respectfully dissent.
FILED
JUL 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1Scott v. Harris, 550 U.S. 372, 378–81, 127 S. Ct. 1769, 1775–76, 167 L.
Ed. 2d 686 (2007).

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