Cynthia Kendrick, individually v. County of San Diego

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA KENDRICK, individually and
as successor in interest to er now deceased
husband Gary Kendrick,
Plaintiff-Appellee,
v.
COUNTY OF SAN DIEGO; WILLIAM
GORE, Sheriff; DANIEL BARNES;
STEVEN BLOCK; AMY BROWN-LISK;
JEREMY COLLIS; TROY DUGAL;
DAVE HILLEN; DUSTIN LOPEZ;
MATTHEW MAYS; KEVIN NORIE;
JASON WORTHINGTON,
Defendants-Appellants.
No. 18-55480
D.C. No.
3:15-cv-02615-GPC-AGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted August 16, 2019
Pasadena, California
FILED
AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 4 --

Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District
Judge.
This is an interlocutory appeal of the denial of qualified immunity in a
§ 1983 action. A San Diego Sheriff Deputy fatally shot Gary Kendrick in front of
his wife, Cynthia Kendrick. Deputies immediately took Mrs. Kendrick into
custody as a material witness, holding her for almost seven hours. She has asserted
an excessive force claim on her husband’s behalf and an unreasonable seizure
claim on her own behalf. The district court denied defendants’ motion for
summary judgment on the merits and denied defendants’ attempt to invoke
qualified immunity. We affirm the denial of qualified immunity.
In March 2015, when this incident occurred, it was clearly established that
the use of lethal force against someone who is armed and mentally unstable, but
not suspected of any criminal wrongdoing, is reasonable only if that individual
made a “furtive movement,” “harrowing gesture,” or “serious verbal threat.”
George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013). Construing the facts in
plaintiff’s favor, Mr. Kendrick did no such thing. He was shot by Deputy Steven
Block while he was standing with his arms outstretched, parallel to the ground.
Our holding in George clearly established Mr. Kendrick’s Fourth Amendment
** The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
2

-- 2 of 4 --

right to be free from deadly force in this situation. Accordingly, the district court
correctly denied qualified immunity as to Deputy Block.
It was also clearly established that citizens cannot be detained for hours on
account of being witnesses to a crime. See Maxwell v. County of San Diego, 708
F.3d 1075, 1083–84 (9th Cir. 2013). In Maxwell, we held that a five-hour
detention and interrogation of a family that had witnessed a shooting presented an
“obvious” constitutional violation. Id. We explained that the state’s interest in
detaining witnesses for questioning is relatively low, and so to be constitutionally
reasonable such detentions must be “minimally intrusive.” Id. at 1083.
Here, after watching a deputy shoot her husband, Cynthia was taken from
her husband’s body, effectively locked in the back of a police car, transported to a
police station, placed in a guarded interrogation room for almost four hours, then
subjected to two and a half hours of questioning, and another hour of being
photographed. As plaintiff argues, there were several less intrusive ways in which
officers could have questioned Mrs. Kendrick about the shooting, so this
investigative detention was not “minimally intrusive.” Our decision in Maxwell
clearly established that Mrs. Kendrick’s seizure in this situation was unreasonable.
Defendants further contend that even if Mrs. Kendrick’s detention violated a
clearly established right, the seven individual defendants involved in the detention
3

-- 3 of 4 --

are entitled to qualified immunity because the conduct of each defendant in
isolation did not cross a clear constitutional boundary. Construing the record in
plaintiff’s favor, all seven defendants must have been on notice at the time of their
participation that the detention was not minimally intrusive and that their
involvement in it therefore violated principles that we clearly established in
Maxwell. We recently reached a similar conclusion. See Nicholson v. City of Los
Angeles, No. 17-56648, 2019 WL 3939352, at *4–*5 (9th Cir. Aug. 21, 2019)
(affirming denial of qualified immunity where officer was “just one participant in a
sequence of events that gives rise to a constitutional violation.”). It is for the jury
to discern whether each of the seven defendants’ participation in this unlawfully
prolonged detention was “integral.” See Blankenhorn v. City of Orange, 485 F.3d
463, 481 n.12 (9th Cir. 2007) (explaining liability may attach if the officer has
“some fundamental involvement in the conduct that allegedly caused the
violation.”). Accordingly, the district court properly denied qualified immunity as
to the seven defendants involved in Mrs. Kendrick’s detention.
AFFIRMED.
4

-- 4 of 4 --