Nancy Ann RANDALL, as mother of Jazmyn Lee Vent, and as personal representative of the estate of Corwin Lee Vent; Jazmyn Lee Vent; Corwin Lee Vent, Estate of, Plaintiffs-Appellants, v. Perry WILLIAMSON, Defendant-Appellee, 211 F. App'x 565

MEMORANDUM Counsel for Officer Williamson conceded at oral argument that Corwin Vent did not pose a sufficient threat to justify the use of deadly force against him prior to his arrival at the roadblock. If the use of deadly force against Vent was justified, then, it was on account of the threat Vent posed to Officer Williamson or bystanders once he arrived there. We have two inconsistent accounts of what happened at that point. According to Williamson and a bystander, the van struck Williamson and did not stop until after Williamson shot Vent.

According to plaintiff, Vent had brought the van to a complete stop by the time Williamson fired. Under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), deadly force violates the Fourth Amendment where “the suspect poses no immediate threat to the officer and no threat to others.” Id. at 11, 105 S.Ct. 1694. If the van had come to a complete stop, as plaintiff contends, there was no cause to believe that Vent was a danger to Williamson or to anyone else when Williamson shot him. Unlike the plaintiff in Brosseau v.

Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam), Vent was not suspected of a crime of violence. At the time Williamson fired, the officer knew only that Vent was suspected of traffic violations and had failed to pull over when ordered to do so earlier that evening. And, assuming that Vent had stopped the van, he was not attempting to flee the scene — unlike the suspect in Brosseau. Perhaps the record at trial will reveal more, in which case Williamson may renew his claim of qualified immunity.

But at this stage of the proceedings, defendant has shown insufficient undisputed facts to justify the use of deadly force under Garner. We take seriously the Court’s statement in Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that a material factual dispute should not always defeat

summary judgment in qualified immunity cases. What the Court was saying, though, is that even if there is a disputed issue of material fact,

summary judgment may nonetheless be appropriate on qualified immunity grounds — if the facts, taken in a light most favorable to the injured party, do not show a constitutional violation. Saucier says nothing to suggest that we can affirm

summary judgment where there are material disputed facts, and where the injured party’s version of those facts show a rights violation that would be clear to a reasonable officer. Post-Scmcier, we’ve held to the contrary. See Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir.2003).

The dissent dismisses the disputed factual issue, but if we assume that Vent had brought the van to a complete stop, what we are left with is a police officer who shot and killed a motorist for nothing more than traffic violations — violations that the officer’s own lawyer admits were not serious enough to justify the use of deadly force. Under these circumstances, Officer Williamson’s conduct was not justified under Tennessee v. Garner, and no reasonable officer could have thought otherwise. Saucier, 533 U.S. at 202, 121 S.Ct. 2151.

The dissent also seems to suggest that it doesn’t matter whether Vent stopped because his assault was complete even before he struck Officer Williamson. Dissent at 5. Presumably this is based on a theory that the officer could reasonably believe that Vent wouldn’t stop. But this is an intensely factual issue that cannot be resolved at

summary judgement. We do know that the van approached Williamson at a very low rate of speed and that Williamson suffered at most scrapes and bruises when it eventually struck him. We must also assume, for the reasons explained above, that the van did stop before reaching Williamson. This sequence of events hardly establishes that a reasonable person would have perceived that Vent used his van as a battering ram.

Summary judgment was thus inappropriate. REVERSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. . In response to the question, “at any. point during this trip could [the police] have simply shot [Vent] because he was driving recklessly/' defense counsel answered “no.” . The dissent states as a fact that Vent used the van as a “deadly weapon” by failing to stop before Williamson was hit. Dissent at 4. In so doing, the dissent accepts as true the accounts of Williamson and a bystander, Jennifer Grundy.

But the record also contains testimony from Nancy Randall, a passenger in the van, who clearly testified to the contrary: Q: Did the van make contact with the police officer? A: No. Q: Can you tell me how [Williamson’s] handprint got on the hood of the van? A: It probably got there after he shot him, because he — we—we didn’t touch the officer, so I — I would imagine that it got there after, because the van continued to roll after he shot him. Q: ... [S]o, what, your testimony is that the print on the front here would have been the — would have been placed there after the shots were fired? A: Yeah.

The officer, he was — I mean, he— he walked up in front of the van, and told them to stop, and he had no intention of running him over or anything. Q: And how do you know that? A: Because he stopped. So I — so I believe he didn’t have any intention at all to run over anyone. Q: So your testimony today is that the van had completely stopped, was not moving forward when the officer fired the shots? A: Yeah. And that was my testimony back then, too.

To the extent Randall may have given a somewhat different account immediately after the incident (and it’s not clear she did), resolving any inconsistencies is a matter for the trier of fact. In re Zilog, Inc., 450 F.3d 996, 1002 n. 6 (9th Cir.2006). Viewing the record in the light most favorable to plaintiff — as we must at this stage — a reasonable jury could piece together the following sequence of events: Vent stopped the van as directed by Williamson; Williamson then fired, hitting Vent and causing his foot to slip off the brake; the van then started rolling forward, making contact with the officer.

Whether this is a true account of what happened can only be resolved at trial. . Contrary to the dissent’s suggestion, dissent at 2 n. 1, there is a dispute as to whether Vent committed third degree assault against Officer Williamson. If Vent obeyed the Officer’s order and brought the van to a stop, he would not have been guilty of assault.