In March 2024, the Ninth Circuit Court in Est. of Hernandez v. City of Los Angeles1 held that although a reasonable jury could have concluded an officer used excessive force, qualified immunity shielded her because no precedent squarely governed the facts presented here.


In April 2020, Los Angeles Police Department (“LAPD”) Officers Toni McBride and Shuhei Fuchigami came upon a multi-vehicle accident at the intersection of San Pedro Street and East 32nd Street in Los Angeles.  Video footage from the patrol car and from Officer McBride’s body camera recorded the subsequent events.  They observed multiple seriously damaged vehicles, some with people still inside, and at least two dozen people gathered at the sides of the road.  As the officers exited their patrol car, the car’s police radio stated that the “suspect’s vehicle” was “black” and that the suspect was a “male armed with a knife.”

A bystander immediately told the officers about someone trying to “hurt himself,” and several bystanders pointed to a black pickup truck with a heavily damaged front end that was facing in the wrong direction near two parked vehicles on the southbound side of San Pedro Street.  The officers instructed the crowd to get back, and McBride drew her weapon.  One nearby driver, who was sitting in her stopped sedan, told McBride through her open car window that “he has a knife” and “he’s the one who caused the accident.”  McBride instructed that bystander to exit her car and go to the sidewalk, which she did.  McBride then shouted to the bystanders in both English and Spanish that they needed to get away.  At the same time, the police radio announced that the suspect was “cutting himself” and was “inside his vehicle.”  McBride then asked her partner, “Do we have less lethal?”  Referencing the smashed pickup truck, McBride said, “Is there anybody in there?”  She then stated, “Hey, partner, he might be running.”

As McBride faced the passenger side of the truck, which was down the street, she then saw someone climb out of the driver’s side window.  McBride yelled out, “Hey man, let me see your hands.  Let me see your hands man.”  Daniel Hernandez then emerged shirtless from behind the smashed black pickup truck, holding a weapon in his right hand.  As he did so, Officer McBride held her left hand out towards Hernandez and shouted, “Stay right there!”  Hernandez nonetheless advanced towards McBride in the street, and he continued to do so as McBride yelled three times, “Drop the knife!”  While Hernandez was coming towards her, McBride backed up several steps, until she was standing in front of the patrol car.

Hernandez began yelling as he continued approaching McBride, and he raised his arms out by his sides to about a 45-degree angle.  McBride again shouted, “Drop it!”  As Hernandez continued yelling and advancing with his arms out at a 45-degree angle, Officer McBride fired an initial volley of two shots, causing Hernandez to fall to the ground on his right side, with the weapon still in his right hand.  At the point that McBride fired at Hernandez, he was between 41-44 feet away from her.

Still shouting, Hernandez rolled over and leaned his weight on his hands, which were pressed against the pavement.  He began pushing himself up, and he managed to get his knees off the pavement.  As Hernandez started shifting his weight to his feet to stand up, McBride again yelled “Drop it!” and fired a second volley of two shots, causing Hernandez to fall on his back with his legs bent in the air, pointing away from McBride.  Hernandez began to roll over onto his left side, and as he did this, McBride fired a fifth shot.  Hernandez then continued to roll over, so that he was again facing McBride.  His bent left knee was pressed against the ground, and he placed his left elbow on the street, as if to push himself upwards.  But Hernandez started to collapse to the ground, and just as he did so, McBride fired a sixth shot.

Hernandez then lay still, face-down on the street, as McBride and other officers approached him with their pistols drawn.  The weapon was still in Hernandez’s right hand until an officer approached and took it out of his hand.  The weapon turned out not to be a knife, but a box cutter with two short blades at the end.  Starting from the point at which Hernandez came out from behind the truck until he collapsed on the ground, the entire confrontation lasted at most 20 seconds.  All six shots were fired within eight seconds.  Hernandez died from his injuries.  A forensic pathologist retained by Plaintiffs opined that McBride’s sixth shot caused “[t]he immediately fatal wound in [Hernandez’s] death.”2

Hernandez’s parents (Manuel and Maria Hernandez) and his minor daughter (collectively, “Plaintiffs”) filed a consolidated complaint under 42 U.S.C. section 1983 against the City of Los Angeles (“the City”), the Los Angeles Police Department (“LAPD”), and McBride (collectively, “Defendants”).  The operative consolidated complaint alleged federal claims, including a Fourth Amendment excessive force claim brought against McBride by Plaintiffs, acting on behalf of Hernandez’s Estate.  The complaint also asserted pendent state law claims for, among other things, assault, wrongful death, and violation of the Bane Act (Cal. Civ. Code section 52.1).

The District Court granted summary judgment to Defendants on all claims.  One of its holdings was that, as a matter of law, McBride did not use excessive force in violation of the Fourth Amendment but that, even if she did, she was entitled to qualified immunity.  The District Court also held that, because all parties agreed that the remaining state law claims for assault, wrongful death, and violation of the Bane Act “r[o]se or f[e]ll based on the reasonableness of Officer McBride’s use of force,” summary judgment was warranted on these claims also.  Plaintiffs appealed.


The Ninth Circuit Court of Appeals initially observed that a police officer’s application of deadly force to restrain a subject’s movements “is a seizure subject to the reasonableness requirement of the Fourth Amendment.”  Tennessee v, Garner, 471 U.S. 1, 7 (1985); see Kisela v. Hughes, 584 U.S. 100, 103-07 (2018) (applying Fourth Amendment standards to a police shooting of a suspect confronting another person with a knife).  Accordingly, any such use of deadly force must be “objectively reasonable.”  Graham v. Connor, 490 U.S. 386, 397 (1989).

The Court noted that in evaluating whether a particular use of force against a person is objectively reasonable under the Fourth Amendment, “the trier of fact should consider all relevant circumstances,” including, as applicable, “the following illustrative but non-exhaustive factors:  ‘the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.’”  Demarest v. City of Vallejo, 44 F.4th 1209, 1225 (9th Cir. 2022) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).  “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Kisela, supra, 584 U.S. at 103 (citation omitted).  ”The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”  Id. (citation omitted).  The “most important” consideration in assessing the reasonableness of using deadly force is “whether the suspect posed an ‘immediate threat to the safety of the officers or others,’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citations omitted). 

The Ninth Circuit found that the undisputed facts here established that the threat reasonably perceived by Officer McBride was substantial and imminent.  At the time that McBride fired her first shot, Hernandez had ignored her instruction to “Stay right there!” and instead advanced towards her while holding a weapon that McBride had been told repeatedly was a knife.  He did so while extending his arms out and yelling in McBride’s direction, and, as he continued approaching her, he ignored four separate commands to drop the knife.  Under these circumstances, the Court concluded that the use of deadly force to eliminate the objectively apparent threat that Hernandez imminently posed was reasonable as a matter of law.  While Plaintiffs argued that Hernandez was still approximately 40 feet away from McBride when she fired, the Ninth Circuit, citing a sister Circuit court, noted that “[t]here is no rule that officers must wait until a [knife-wielding] suspect is literally within striking range, risking their own and others’ lives, before resorting to deadly force.”3 

However, the Court also considered that McBride fired three temporally distinct volleys of two shots each; the Court noted there was almost a two-second pause between McBride’s second and third shots, and about a one-second pause between her fourth and fifth shots.  The Court stated that although McBride’s first volley of shots was reasonable as a matter of law, the question remained as to whether the officer “acted unreasonably in firing a total of [six] shots.”  Plumhoff, 572 U.S. at 777.  The Court stated that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”  Id.  However, “terminating a threat doesn’t necessarily mean terminating [a] suspect.”  Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) (emphasis added).  Thus, if an initial volley of shots has succeeded in disabling the suspect and placing him “in a position where he could [not] easily harm anyone or flee,” a “reasonable officer would reassess the situation rather than continue shooting.”  Id.

The Ninth Circuit stated that the undisputed video evidence showed that, at the time McBride fired the second volley of shots, the threat that Hernandez posed had not yet ended.  Despite falling down after having been hit by two bullets, Hernandez immediately rolled over, pressed his hands against the ground, and began shifting his weight to his feet in order to stand up.  Throughout this time, he continued shouting, and he still held his weapon in his hand despite yet another instruction by McBride to drop it.  The Court thus concluded that McBride’s third and fourth shots were thus reasonable as a matter of law.

However, the Ninth Circuit noted that after the fourth shot, Hernandez was facing away from McBride and still lying on his side on the ground when McBride fired her fifth shot.  Although Hernandez was still moving at the time of that shot, the Court stated that he had not yet shown that he was in any position to get back up.  Hernandez then continued to roll over, so that he was again facing McBride.  As Hernandez, while still down on the ground, first appeared to shift his weight onto his left elbow, McBride fired her sixth shot.  The Court found that under these circumstances, a reasonable trier of fact could find that, at the time McBride fired these two additional shots, the threat from Hernandez — still on the ground — had sufficiently been halted to warrant “reassess[ing] the situation rather than continu[ing] shooting.”  Zion, 874 F.3d at 1076.  The Ninth Circuit determined that a reasonable jury could find that, at the time of the fifth and sixth shots, Hernandez “was no longer an immediate threat, and that [McBride] should have held [her] fire unless and until [Hernandez] showed signs of danger or flight.”  Id.  Alternatively, a reasonable “jury could find that the [third] round of bullets was justified.”  Id.  The Court of Appeals concluded that the reasonableness of the fifth and sixth shots was thus a question for the trier of fact, and the District Court erred in granting summary judgment on that issue.

Qualified Immunity

McBride argued that, even if a reasonable jury could find excessive force, she was nonetheless entitled to qualified immunity.  The Ninth Circuit noted that the doctrine of qualified immunity “shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”  City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).  In determining whether the applicable law is “clearly established,” so as to defeat qualified immunity, the Supreme Court “has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.”  Kisela, 584 U.S. at 104 (citations and internal quotation marks omitted).  The “law at the time of the conduct” must have defined the relevant constitutional “right’s contours” in a manner that is “sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.”  Id. at 104-05 (citations omitted).  Because “[u]se of excessive force is an area of the law ‘in which the result depends very much on the facts of each case,’ . . . police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”  Id. (emphasis added) (citation omitted).

The Ninth Circuit found no such pre-existing precedent that squarely governed the factual scenario presented here.  Plaintiffs argued Zion as precedent.  The Court acknowledged that the legal principles discussed in Zion helped clarify why McBride’s fifth and sixth shots could be unreasonable under Fourth Amendment standards.  However, the Court stated there was a difference between concluding that Zion supported Plaintiffs’ position on the merits and concluding that Zion placed the outcome of this case “beyond debate.”  Kisela, 584 U.S. at 104 (citation omitted).

The Court explained that there were material factual differences between Zion and the instant case and that Zion therefore could not be said to have clearly established the law that governed here.  Unlike the situation in Zion, Hernandez continuously moved in a way that gave the objective appearance of trying to get up; Hernandez never dropped his weapon and still had it in his hand at the end; and McBride’s continued instructions to Hernandez to drop the knife confirm that she continued to believe that he was armed.  In Zion, the Ninth Circuit had held that a jury still needed to resolve the parties’ factual disputes as to whether “Zion was trying to get up”; “[w]hether the knife was still in Zion’s hand or within his reach”; and “whether [the officer] thought Zion was still armed.”  874 F.3d at 1076 & n.2.  Thus, Zion did not “‘squarely govern’ the specific facts” of this case or placed that outcome “beyond debate.”  Kisela, 584 U.S. at 104 (citations omitted).

Because McBride did not violate clearly established law in firing her fifth and sixth shots, the Ninth Circuit Court of Appeals concluded that she was entitled to qualified immunity and, accordingly, affirmed on that basis the grant of summary judgment to McBride on Plaintiffs’ Fourth Amendment excessive force claim.

The Court of Appeals also affirmed the lower court’s grant of summary judgment on Plaintiff’s other federal claims.  Because the Ninth Circuit concluded that the reasonableness of McBride’s final volley of shots presented a triable issue, the Court of Appeals determined that the District Court erred in dismissing the state law claims on that ground.  The Ninth Circuit therefore reversed the District Court’s dismissal of these state claims.


Agencies may observe the Court’s emphasis on the critical facts that the suspect continued to attempt to get up from the ground after the initial shots and continued to hold a perceived weapon.  However, after the first four shots, the Court determined that a reasonable trier of fact could find that, at the time McBride fired the fifth and sixth shots, the threat from Hernandez had sufficiently been halted to warrant “reassess[ing] the situation rather than continu[ing] shooting.”  Zion, 874 F.3d at 1076.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

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1 2024 U.S. App. LEXIS 6729 (9th Cir. Mar. 21, 2024).

2 Defendants did not raise evidentiary objections to the forensic pathologist’s report, nor did they provide any basis for rejecting its conclusions as a matter of law.

3 Reich v. City of Elizabethtown, 945 F.3d 968, 982 (6th Cir. 2019) (holding that shooting of approaching knife-wielding suspect within six feet was reasonable and that even shooting a knife-wielding suspect 36 feet away would not violate clearly established law).