United States v. 2020-10-22 | 19-16626 | MARIA VENTURA V. JENNIFER RUTLEDGE | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARIA VENTURA, individually and
on behalf of the Estate of Omar
Ventura and the Heirs of Omar
Ventura; O.
V., Maria Ventura, as
guardian ad litem; J. V., Maria
Ventura, as guardian ad litem,
Plaintiffs-Appellants,

v.

JENNIFER RUTLEDGE, Officer; CITY
OF
PORTERVILLE,
Defendants-Appellees.
No. 19-16626

D.C. No.
1:17-cv-00237-
DAD-SKO

OPINION

Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding

Submitted September 2, 2020
*

Pasadena, California

Filed October 22, 2020

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

2 VENTURA V. RUTLEDGE

Before: Sandra S. Ikuta and Mark J. Bennett, Circuit
Judges, and Douglas P. Woodlock,
**
District Judge.

Opinion by Judge Bennett

SUMMARY
***

Civil Rights

The panel affirmed the district court’s grant of summary
judgment to a police officer, on the basis of qualified
immunity, in an action brought pursuant to 42 U.S.C. § 1983
alleging that the officer used excessive deadly force when
she shot plaintiff’s son, Omar Ventura.

The district court found that no controlling precedent had
clearly established that Omar’s right under the Fourth
Amendment to be free from the excessive use of deadly force
by police would be violated when he was shot and killed as
he advanced toward an individual he had earlier that day
assaulted, while carrying a drawn knife and while defying
specific police orders to stop.

The panel held that the Supreme Court’s decision in
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) showed that,
as of 2010, there was no clearly established law
demonstrating that Officer Rutledge’s use of deadly force

**
The Honorable Douglas P. Woodlock, United States District
Judge for the District of Massachusetts, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

VENTURA V. RUTLEDGE 3

was unconstitutional. The panel further held that the cases
cited by appellant subsequent to Kisela did not “squarely
govern” the facts here. Omar was advancing with a knife
toward a woman whom he had reportedly just assaulted. He
ignored Officer Rutledge’s repeated commands to stop and
a warning that she would shoot. None of the cases plaintiff
cited involved an officer acting under similar circumstances
as Officer Rutledge, and therefore, plaintiff failed to show
that it was clearly established that Officer Rutledge’s actions
amounted to constitutionally excessive force.

COUNSEL

Kevin G. Little, Law Office of Kevin G. Little, Fresno,
California, for Plaintiffs-Appellants.

Bruce D. Praet (argued), Ferguson Praet & Sherman, Santa
Ana, California, for Defendants-Appellees.

OPINION
BENNETT, Circuit Judge:
Maria Ventura, individually and on behalf of the Estate
of Omar Ventura and the Heirs of Omar Ventura, appeals the
district court’s grant of summary judgment to Officer
Jennifer Rutledge and the City of Porterville based on
qualified immunity. The only issue before us is whether the
district court properly determined that Officer Rutledge is
entitled to qualified immunity from Ventura’s Fourth
Amendment claim stemming from the shooting of her son,
Omar Ventura (“Omar”). We have jurisdiction under
28 U.S.C. § 1291 and affirm.

4 VENTURA V. RUTLEDGE

I.
The following facts are undisputed. On December 24,
2015, Martha Andrade, the mother of Omar’s children,
called 911 and reported that Omar had hit Andrade and his
mother, Plaintiff Ventura, and had smashed Andrade’s
vehicle’s window. Officer Rutledge responded to the 911
call, which was classified as a violent domestic disturbance.
When Officer Rutledge arrived at the home, Omar was not
present. While Officer Rutledge interviewed Andrade, Omar
started walking up the street toward the home. Andrade
identified Omar to Officer Rutledge, pointing to him and
exclaiming “that’s him.” Andrade moved behind trash cans
in the driveway as Omar continued to approach. Officer
Rutledge issued several orders for Omar to “stop.” Despite
these orders, Omar continued to advance toward Andrade
and took out a knife from his pocket. Continuing to approach
Andrade with knife in hand, Omar asked, “Is this what you
wanted?” Officer Rutledge then shouted a warning to Omar
to “[s]top or I’ll shoot.” When Omar did not stop, Officer
Rutledge fired two shots at him. The shots killed Omar. At
oral argument before the district court, the parties agreed that
Omar got within 10–15 feet of Andrade before Officer
Rutledge fired.
The district court found that no controlling precedent had
“clearly establish[ed] that Omar’s right under the Fourth
Amendment to be free from the excessive use of deadly force
by police would be violated when he was shot and killed as
he advanced toward an individual he had earlier that day
assaulted, while carrying a drawn knife and while defying
specific police orders to stop.” We agree.

VENTURA V. RUTLEDGE 5

II.
“We review de novo both the grant of summary
judgment and the conclusion that a[n officer] is entitled to
qualified immunity.” C.F. ex rel. Farnan v. Capistrano
Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). We
view the evidence and draw all inferences in the light most
favorable to the non-moving party to determine whether any
issues of material fact remain and whether the district court
correctly applied the law. See id.
“Qualified immunity attaches when an [officer’s]
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)
(per curiam)). Clearly established law exists when “‘[t]he
contours of [a] right [are] sufficiently clear’ that every
‘reasonable [officer] would have understood that what [she]
is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (first three alterations in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
precedent establishing this right must place the question
“beyond debate.” Id. In the Fourth Amendment excessive
force context, “specificity is especially important,” Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015), and “thus police officers
are entitled to qualified immunity unless existing precedent
squarely governs the specific facts at issue,” Kisela, 138 S.
Ct. at 1153 (internal quotation marks and citation omitted).
We consider two questions in determining whether an
officer is entitled to qualified immunity: (1) whether the
facts “taken in the light most favorable to the party asserting
the injury show that the officers’ conduct violated a
constitutional right” and (2) whether “the right was clearly
established at the time of the alleged violation.” Thompson

6 VENTURA V. RUTLEDGE

v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal
quotation marks and brackets omitted) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). We may consider the two
questions in any order. Id. We consider only the second
question here.
The undisputed facts establish that (1) Officer Rutledge
was responding to a violent domestic disturbance where
Andrade had called 911 to report that Omar had hit her and
Omar’s mother and had smashed the window of Andrade’s
car; (2) Omar was approaching Andrade with a knife drawn;
(3) Omar continued his advance while ignoring multiple
commands from Officer Rutledge to stop and a warning that
Officer Rutledge would shoot; and (4) Omar had advanced
to within 10–15 feet of Andrade when Officer Rutledge
fired.
The Supreme Court in Kisela considered a similar
situation. It concluded that, as of 2010, it was not clearly
established in the Ninth Circuit that the use of deadly force
was unconstitutional where the decedent “was armed with a
large knife,” had advanced “within striking distance” of
another individual, and was ignoring the officer’s orders to
drop the knife. Kisela, 138 S. Ct. at 1154. The Supreme
Court also found that even though the decedent appeared
calm and the other woman present did not feel endangered,
the shooting officer did not violate clearly established law
and was therefore entitled to qualified immunity. Id. at 1151,
1154.
Omar posed at least as much of a threat as the decedent
in Kisela. Officer Rutledge was responding to a violent
domestic dispute rather than the simple “check welfare” call
in Kisela. Id. at 1155 (Sotomayor, J., dissenting). Omar had
reportedly just assaulted Andrade and his own mother and
had smashed the window of Andrade’s car. He ignored

VENTURA V. RUTLEDGE 7

Officer Rutledge’s repeated orders to stop and continued to
advance toward Andrade with a knife. Kisela shows that, as
of 2010, there was no clearly established law demonstrating
that Officer Rutledge’s use of deadly force was
unconstitutional.
We also find that no intervening case gave Officer
Rutledge notice that her actions would violate clearly
established law—the cases Ventura cites are distinguishable
in material ways. In Glenn v. Washington County, 673 F.3d
864 (9th Cir. 2011), the decedent had not previously
attempted to hurt anyone and had not moved toward anyone
else until after he was shot with a beanbag gun. Id. at 874,
878–79. In George v. Morris, 736 F.3d 829 (9th Cir. 2013),
while the officers were responding to a domestic disturbance
call, decedent’s wife had not been previously assaulted, was
not near the decedent, and there was a question of material
fact as to whether the decedent, who was using a walker, had
raised his gun toward the responding officers. Id. at 832–33,
839. Finally, the opinion in Estate of Lopez v. Gelhaus,
871 F.3d 998 (9th Cir. 2017), not only postdates the incident
here by two years, it also does not squarely govern the facts
before us. In Gelhaus, an officer shot a teenager who was
walking with a toy gun that looked like an AK-47. Id.
at 1002–03. The teenager was suspected of no crime and was
shot when he turned in response to a single order to drop his
gun that came from behind. Id. at 1020–21.
The degrees of apparent danger in these cases do not
“squarely govern” the facts here. Omar was advancing with
a knife toward a woman whom he had reportedly just
assaulted. He ignored Officer Rutledge’s repeated
commands to stop and a warning that she would shoot. None
of the cases Ventura cites involved an officer acting under
similar circumstances as Officer Rutledge, and therefore,

8 VENTURA V. RUTLEDGE

Ventura fails to show that it was clearly established that
Officer Rutledge’s actions amounted to constitutionally
excessive force. See Shafer v. Cnty. of Santa Barbara, 868
F.3d 1110, 1118 (9th Cir. 2017) (holding officer was entitled
to qualified immunity because plaintiff “fail[ed] to identify
sufficiently specific constitutional precedents to alert [the
officer] that his particular conduct was unlawful”).
Officer Rutledge is entitled to qualified immunity.
1

AFFIRMED.

1
Ventura argues that there is a question of material fact as to
whether Omar was “walking normally,” whether he appeared to be
brandishing his knife, and whether Andrade felt threatened. Resolution
of these facts does not change our finding that Officer Rutledge did not
violate clearly established law. It was not clearly established, in 2015,
that fatally shooting a person, who was armed with a knife and advancing
toward someone whom he had reportedly just assaulted, and who ignored
multiple commands to stop and a warning that the officer would fire,
constituted constitutionally excessive force, even if the decedent was
“walking normally,” did not appear to be “brandishing” his knife, and
the intended victim did not feel threatened.