United States v. 2020-11-24 | 20-15120 | DARCY HARPER V. CITY OF MERCED | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARCY HARPER,

Plaintiff-Appellant,

v.

CITY OF MERCED; NATHANIEL
MCKINNON, Merced Police Officer,

Defendants-Appellees,

and

COUNTY OF MERCED,

Defendant.

No. 20-15120

D.C. No.
1:18-cv-00562-LJO-SKO

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Submitted November 19, 2020
**

San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

NOV 24 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Darcy Harper appeals the district court’s grant of summary judgment to
Officer Nathaniel McKinnon on Harper’s claim of excessive force under 42 U.S.C.
§ 1983.
1
We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see
Monzon v. City of Murrieta, 966 F.3d 946, 950 (9th Cir. 2020), we affirm.
An officer who violates the plaintiff’s constitutional rights will incur liability
under § 1983 only if “the right in question was clearly established at the time of the
officer’s actions, such that any reasonably well-trained officer would have known
that his conduct was unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th
Cir. 2020). “Use of excessive force is an area of the law ‘in which the result
depends very much on the facts of each case,’ and thus police officers are entitled
to qualified immunity unless existing precedent ‘squarely governs’ the specific
facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)
(quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)).
Harper acknowledges that “there was no precedential case with the precise
facts of [his] case” at the time of his arrest. “Precedent involving similar facts
can . . . provide an officer notice that a specific use of force is unlawful,” id., but it

1
The district court also granted summary judgment to defendants on
Harper’s claim under the Americans with Disabilities Act, 42 U.S.C. § 12132, and
dismissed Harper’s municipal liability claim against the City of Merced. Harper
forfeited any challenge to these rulings by not addressing them in his brief. See
Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).

3
“must have placed the statutory or constitutional question beyond debate,” id. at
1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). Thus, we
must define clearly established law with reference to the particular facts of a given
case rather than “at a high level of generality.” White, 137 S. Ct. at 552 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
None of the cases on which Harper relies are sufficiently similar to the facts
here to place the constitutionality of McKinnon’s use of force beyond debate. In
Deorle v. Rutherford, the plaintiff was surrounded and observed by 13 officers for
30–40 minutes, “was unarmed, had not attacked or even touched anyone, had
generally obeyed the instructions given him by various police officers, and had not
committed any serious offense.” 272 F.3d 1272, 1275, 1276 (9th Cir. 2001).
Similarly, in Bryan v. MacPherson, the plaintiff complied with the officer’s
commands to step out of his vehicle, made no moves toward the officer, and was
standing 20–25 feet from the officer, facing away, when the officer tased him
without warning. 630 F.3d 805, 822 (9th Cir. 2010).
The undisputed facts here show that Harper was not surrounded by officers
or in a controlled setting, was fleeing in the dark across treacherous terrain, was
pursued by a single police officer (with a second officer in the vicinity), ignored all
of the officer’s commands, and had been “swinging a stick” at staff at the hospital
from which he escaped. These “tense, uncertain, and rapidly evolving”

4
circumstances “forced [McKinnon] to make split-second judgments,” which we
must consider when assessing reasonableness. Graham v. Connor, 490 U.S. 386,
396–97 (1989). In the absence of a factually similar case finding a constitutional
violation, we cannot say that McKinnon’s use of force was clearly unreasonable at
the time.
2

AFFIRMED.

2
Because we conclude that the rights in question were not clearly
established, we exercise our discretion not to determine whether McKinnon
violated Harper’s Fourth Amendment rights. See Orn, 949 F.3d at 1174.