Kathleen ESPINOSA, individually and as personal representative of the Estate of decedent Asa Sullivan; Asa Sullivan; A.S., by and through his Guardian ad Litem; Nicole Guerra, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; Heather Fong, in her capacity as Chief of Police, Defendants, and John Keesor, Police Officer; Michelle Alvis, Police Officer; Paul Morgado, Police Officer, Defendants-Appellants, 598 F.3d 528

HUG, Senior Circuit Judge: Officers of the San Francisco Police Department and the City and County of San Francisco (“defendants”) brought an interlocutory appeal from the district court’s denial of their

summary judgment motion in this 42 U.S.C. § 1983 action brought by Kathleen Espinosa and other survivors of Asa Sullivan (“plaintiffs”). Plaintiffs allege that Officers Paulo Morgado, Michelle AMs, and John Keesor violated Asa Sullivan’s Fourth Amendment rights by entering and searching an apartment, using unreasonable force, and intentionally or recklessly provoking a confrontation. The three officers entered an apartment in which Asa Sullivan was staying, searched it, and Officers Alvis and Keesor fatally shot Sullivan. We review de novo the denial of defendants’

summary judgment motion, Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir.2009), and we affirm. The district court properly denied defendants’

summary judgment motion regarding whether Officers Morgado, Alvis, and Keesor are entitled to qualified immunity for the alleged Fourth Amendment violations. For

summary judgment, we determine whether, viewing the evidence in the light most favorable to the non-moving party, “there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004). For qualified immunity, we determine whether the facts show that (1) the officer’s conduct violated a constitutional right; and (2) the right which was violated was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Hopkins, 573 F.3d at 762.

A right is clearly established if a reasonable officer would know that his conduct was unlawful in the situation he confronted. Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1129 (9th Cir.2002). If the officers did not violate a constitutional right, then they are entitled to immunity. Hopkins, 573 F.3d at 762. If the officers violated such a right, but it was not clearly established, then they are entitled to immunity. Id. In this case, the district court properly denied the

summary judgment motion because there are genuine issues of fact regarding whether the officers violated Asa Sullivan’s Fourth Amendment rights. Those unresolved issues of fact are also material to a proper determination of the reasonableness of the officers’ belief in the legality of their actions. See Santos v.

Gates, 287 F.3d 846, 855 n. 12 (9th Cir.2002) (finding it premature to decide the qualified immunity issue “because whether the officers may be said to have made a ‘reasonable mistake’ of fact or law may depend on the jury’s resolution of disputed facts and the inferences it draws therefrom”) (internal cite omitted). On June 6, 2006, Officers Morgado, Alvis, and Keesor entered an apartment in which Sullivan, the victim, was staying, and shot and killed him. Evidence indicated that Sullivan was staying at the apartment (“the apartment”) with the permission of the lease holders and another resident, Jason Martin.

That evening, the police received a call in which a neighbor stated that the front door of the apartment was swinging open and that the location could be a drug house. Officer Morgado arrived and saw that the apartment door was closed. He pushed up against the front door and it opened slightly. He then looked in the windows and saw several items inside. He requested police dispatch call security for the apartment complex and another police unit for a walk-through of the apartment. Officer Morgado then pushed open the apartment door and entered the apartment.

After entering, he saw a bloody shirt hanging over the top of an interior door. In a post-incident interview with investigators, he stated that he could not tell if the blood was fresh or dry, but later stated it appeared fresh. Officers Alvis and Keesor arrived and entered the apartment. All three officers searched the first floor and found nothing except paint cans and painting sheets. Officer Keesor stated that it looked like the apartment was being renovated and that he did not have any reason to believe there were squatters there.

He stated that they found nothing to indicate an emergency, except for the bloody shirt. The officers continued searching the apartment and on the second floor, they found a locked bedroom. They announced that they were the police and kicked down the bedroom door. Inside the room, they found resident, Jason Martin. They ordered him to the ground and handcuffed him. He was cooperative and complied with their requests. They searched him and found a knife. Then, they heard noises coming from the attic indicating that someone was in the attic. Officer Alvis climbed into the attic with her gun drawn.

Officers Morgado and Keesor entered the attic after Officer Alvis with their guns drawn as well. It was dark, but Officers Alvis and Morgado had flashlights. Officer Alvis shouted that she saw Sullivan. An officer responded over the radio “Hey, why don’t we just pull back really quick, set up a perimeter and just try to get him later.” Officer Alvis then shouted “Cover both closets. I have him at gunpoint. He’s not going anywhere....” The officers told Sullivan to put up his hands, but he failed to follow the instruction. Officers Keesor and Alvis fired their guns at Sullivan, fatally wounding him.

Officer Keesor stated that he shot because he believed that he saw something black in Sullivan’s hand that looked like a gun. Officer Alvis stated that she shot because she thought she saw something in Sullivan’s hand and that she saw him move his right arm. Sullivan was unarmed. I. Warrantless Entry and Search of Home The district court properly denied defendants’

summary judgment motion on whether they were entitled to qualified immunity for the warrantless entry and search of the apartment because there are questions of fact regarding the first prong of the qualified immunity test, i.e., whether the officers violated Sullivan’s Fourth Amendment rights. The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. For the Fourth Amendment to apply, one must have a reasonable expectation of privacy in the place that is invaded. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

A search of a home or residence without a warrant is presumptively unreasonable. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir.2008). A warrantless entry into a home violates the Fourth Amendment unless an exception to the Fourth Amendment warrant requirement applies, such as emergency, exigency, or consent. Id. A. Reasonable Expectation of Privacy The district court properly found that there are questions of fact regarding whether Sullivan had a reasonable expectation of privacy in the apartment under the Fourth Amendment.

An overnight guest in a home staying with the permission of the host has a reasonable expectation of privacy under the Fourth Amendment. Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Armenta, 69 F.3d 304, 308-09 (9th Cir.1995). Here, there is evidence that Sullivan was staying in the apartment with the permission of a lease holder, Bryant Gudor, and another resident, Jason Martin.

The evidence strongly suggests that the lease holders were in possession of the apartment on the day of the entry and search because the lease holders were charged June rent for the apartment, the lease holders had not returned the keys for the apartment, and management for the apartment testified that they considered the lease holders at that time to be in possession of the apartment.

Although defendants argue that Sullivan had no privacy expectation, because the evidence strongly indicates that Sullivan had permission to stay in the apartment from a lease holder, Bryant Gudor, and a resident, Jason Martin, defendants have failed to show as a matter of law that Sullivan did not have a reasonable expectation of privacy. See United States v. Davis, 932 F.2d 752, 756-57 (9th Cir.1991) (holding that the defendant had a reasonable expectation of privacy in an apartment where he was free to come and go and had independent access, stored items, and joint control); United States v.

Young, 573 F.3d 711, 716-20 (9th Cir.2009) (holding that the defendant had a reasonable expectation of privacy in his hotel room where the hotel had not informed him that he was evicted or taken any action to evict him); United States v. Bautista, 362 F.3d 584, 589-91 (9th Cir.2004) (holding that hotel guest who used stolen credit card had an expectation of privacy in the rented hotel room and that the officer’s entry into room was not supported by probable cause). B.

The Emergency and Exigency Exceptions The district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied. These two “exceptions are ‘narrow’ and their boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly interfere with the sanctity of the home.” Hopkins, 573 F.3d at 763 (quoting United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005)).

Under the emergency exception, an officer may enter a home without a warrant to investigate an emergency that threatens life or limb if the officer has objectively reasonable grounds to believe that an emergency exists and that his immediate response is needed. Id. at 763-64. This exception is derived from police officers’ community caretaking function, allowing them to enter a home when an emergency which threatens physical harm is presented. Id. at 763.

The exigency exception, in contrast, stems from police officers’ investigatory function: it allows an officer to enter a residence without a warrant if he has “probable cause to believe that a crime has been or is being committed and a reasonable belief that [his] entry” is needed to stop the destruction of evidence or a suspect’s escape or carry out other crime-prevention or law enforcement efforts. Id. Both exceptions, however, require that the officer have an objectively reasonable belief that the circumstances justify entry. Id. i.

Officer Morgado Viewing the evidence in the light most favorable to the plaintiffs, defendants failed to show as a matter of law that the emergency or exigency exceptions to the Fourth Amendment warrant requirement applied with regard to Officer Morgado’s entry and search of the apartment.

The only evidence that Officer Morgado had prior to forcing open the front door of the apartment and entering the unit was: (1) the neighbor’s report that the front door had been swinging open and that it might be a drug house; (2) a visual inspection through a window that, according to Officer Morgado, revealed “several items, unknown items” inside; and (3) the security officer’s statement that the unit was supposed to be vacant and that the front door lock was not one of the approved locks installed by the landlord.

This evidence does not establish that Officer Morgado could have had an objectively reasonable belief that a life-threatening emergency was occurring or a crime was in progress. Any evidence found after Officer Morgado entered the apartment, such as the bloody shirt or knife on Jason Martin, is irrelevant. This court has stated that evidence discovered after an illegal entry cannot be used retroactively to justify a search. United States v.

Licata, 761 F.2d 537, 543 (9th Cir.1985) (stating that the “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion.”). Thus, defendants fail to show as a matter of law that the emergency or exigency exceptions applied with regard to Officer Morgado’s entry and search of the apartment.

See Hopkins, 573 F.3d at 764-69 (holding that the officers who responded to minor hit- and-run could not justify their warrantless entry and that there was no probable cause where the officers entered the home based on statements by a witness that the resident was in an accident and smelled of alcohol). ii. Officers Keesor and Alvis Viewing the evidence in the light most favorable to plaintiffs, defendants also failed to show that the emergency or exigency exceptions applied with regard to Officers Keesor’s and Alvis’s entry and search of the apartment.

Defendants argue that the exceptions apply to Officers Keesor’s and Alvis’s entry because both officers (1) were aware of the bloody shirt prior to entry; and (2) reasonably relied on Officer Morgado’s instruction to enter and search the apartment. First, defendants fail to show as a matter of law that Officers Keesor and Alvis were aware of the bloody shirt prior to entry. Officer Morgado requested an additional unit for a walk-through of the apartment before he found the bloody shirt and cannot recall if he told the officers about the bloody shirt upon their arrival prior to entry.

Officer Alvis stated that Officer Morgado told police headquarters about the bloody shirt. Officer Keesor, immediately after the shooting, did not tell investigators that Officer Morgado told him about the bloody shirt. Later, when he was deposed, Officer Keesor stated that Officer Morgado did tell him about the bloody shirt prior to entry. Viewing the evidence in the light most favorable to plaintiffs, defendants have failed to establish as a matter of law that Officers Keesor and Alvis were aware of the bloody shirt prior to their entry.

Defendants also failed to show as a matter of law that Officers Keesor and Alvis reasonably relied on Officer Morgado’s instructions to enter the apartment. An officer is not liable for acting on information supplied by another officer, even if that information later turns out to be wrong, if he has an objectively reasonable, good-faith belief that he is acting pursuant to proper authority. Motley v. Parks, 432 F.3d 1072, 1081-82 (9th Cir.2005) (en banc). The officer relying on the information must make reasonable inquiries to determine if there is a sufficient basis for the entry and search.

Id. at 1081-82. “The lynchpin is whether the officer’s reliance on the information was objectively reasonable.” Id. at 1082. Viewing the evidence in the light most favorable to the plaintiffs, there is a material issue of fact regarding whether Officer Keesor’s and Alvis’s reliance on information gathered by Officer Morgado was objectively reasonable. Officer Morgado instructed the officers to clear the house. It is unclear if the officers knew of the bloody shirt prior to entry.

Even if they did, the record does not show whether they inquired about the nature of the shirt, whether Officer Morgado knew that it was blood, whether the blood appeared fresh or old, or whether there was blood on any other area of the apartment. The record also does not show that Officers Keesor and Alvis made inquiries about other facts which would allow a warrantless entry and search of the apartment. Viewing the evidence in the light most favorable to the plaintiffs, there is a material question of fact regarding the reasonableness of the officers’ reliance. See Torres v.

City of Los Angeles, 548 F.3d 1197, 1212 (9th Cir.2008) (holding that there was a material issue of fact regarding whether a reasonable officer would have relied on information possessed by the detectives without further verification where the detectives had a general description of the suspect, a witness who identified the suspect in a suggestive photograph presentation, no evidence of plaintiffs gang affiliation, and no physical evidence tying plaintiff to the crime). C. Consent Defendants also failed to prove as a matter of law that the consent exception to the Fourth Amendment warrant requirement applied.

Defendants argue that the security guard for the apartment complex had apparent authority to consent to the entry and search of the apartment and that the guard implied consent by agreeing to watch the windows of the apartment while Officer Morgado entered. A third party’s consent to the search of another person’s belongings is valid if the consenting party has actual or apparent authority to consent. United States v. Ruiz, 428 F.3d 877, 880 (9th Cir.2005).

To establish apparent authority, it must be shown that (1) the officer believed an untrue fact which made him believe the consent-giver had control over the area searched; (2) it was objectively reasonable for the officer to believe that the fact was true; and (3) the consent-giver had actual authority. Id. at 880-81. Regarding implied consent, only in narrow circumstances may consent be implied by actions and in most implied consent cases it is the suspect himself who takes an action which implies consent. United States v. Impink, 728 F.2d 1228, 1233 n. 3 (9th Cir.1984); United States v.

Rosi, 27 F.3d 409, 411-12 (9th Cir.1994). It is “a most uncommon situation” where the court is asked to infer consent from a third party’s actions. Impink, 728 F.2d at 1233 n. 3. In this case, defendants fail to show that there are no questions of fact regarding whether the security guard had apparent authority to consent and implied consent.

When Officer Morgado was interviewed immediately after the shooting, he stated that (1) he asked the security guard if he had a key to the apartment; (2) the guard said he did not and that the lock was not their lock; and (3) he asked the guard to stand outside and scream if he saw anyone climbing out of a window. When he was deposed, Officer Morgado added that the security guard told him the apartment was vacant. The two security guards involved stated that Officer Morgado asked them for the keys; neither guard stated that Officer Morgado asked them about the status of the apartment.

Viewing the evidence in the light most favorable to plaintiffs, Officer Morgado did not ask and was not told by security that the apartment was vacant and when he looked in the window he saw several items which could have indicated occupancy. Because defendants cannot show that Officer Morgado believed an untrue fact (i.e., that no one lived in the apartment), and cannot show Officer Morgado had any objectively reasonable grounds to believe the apartment was vacant, it was proper for the district court to find that consent was not established as a matter of law. See United States v.

Shaibu, 920 F.2d 1423, 1426-27 (9th Cir.1990) (declining to imply consent where officers did not request entry and no steps were taken to imply consent); Impink, 728 F.2d at 1233 & n. 3 (holding implied consent was not given by third party). II. Unreasonable Force The district court properly denied defendants’

summary judgment motion regarding whether the officers are entitled to qualified immunity for allegedly violating Sullivan’s Fourth Amendment rights by using excessive force. Fourth Amendment claims of excessive or deadly force are analyzed under an objective reasonableness standard. Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

To determine if a Fourth Amendment violation has occurred, we must balance the extent of the intrusion on the individual’s Fourth Amendment rights against the government’s interests to determine whether the officer’s conduct was objectively reasonable based on the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Price v. Sery, 513 F.3d 962, 968 (9th Cir.2008); Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003). Our analysis involves three steps.

First, we must assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating “the type and amount of force inflicted.” Miller, 340 F.3d at 964; Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir.2003). Next, we must evaluate the government’s interests by assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting to escape. Id.; Graham, 490 U.S. at 396, 109 S.Ct. 1865.

Third, “we balance the gravity of the intrusion on the individual against the government’s need for that intrusion.” Miller, 340 F.3d at 964. Ultimately, we must balance the force that was used by the officers against the need for such force to determine whether the force used was “greater than is reasonable under the circumstances.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir.2002). In deadly force cases, “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v.

Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The parties “relative culpability” i.e., which party created the dangerous situation and which party is more innocent, may also be considered. Scott, 550 U.S. at 384, 127 S.Ct. 1769. Finally, this court has often held that in police misconduct cases,

summary judgment should only be granted “sparingly” because such cases often turn on credibility determinations by a jury. Drummond, 343 F.3d at 1056. Here, defendants failed to show that there are no questions of fact regarding whether Officers Morgado, Keesor and Alvis used unreasonable force when they entered the attic and pointed loaded guns at Sullivan. The three officers climbed into the attic and each pointed a gun at Sullivan. With regard to the force used, pointing a loaded gun at a suspect, employing the threat of deadly force, is use of a high level of force.

The officers pointed guns at Sullivan knowing that he had not been accused of any crime. Sullivan had not caused the officers to forcibly enter the home; he ran from them. Sullivan did not present a danger to the public. Sullivan could not escape from the attic because it had only one exit. The bloody shirt and finding a knife on resident Jason Martin may have suggested some risk of harm. However, the officers offered inconsistent testimony regarding whether the blood appeared fresh or old. Viewing the evidence most favorably for plaintiffs, the officers did not know if the blood was new or old.

With regard to the knife, according to Officer Keesor, the officers kicked down Martin’s bedroom door, Martin put his hands up, allowed the officers to handcuff him even though he had not been accused of any crime, and complied with their demands. After he was arrested, they found a knife. However, his behavior did not make future danger more likely.

Viewing the evidence in the light most favorable to plaintiffs, even considering the shirt and knife, defendants fail to show that there are not questions of fact regarding whether the level of force used was reasonable at the point when they entered the attic given the low level of threat. See Hopkins, 573 F.3d at 776-77 (affirming denial of

summary judgment on excessive force claim where suspect was not a safety threat, did not have a gun, and the officers outnumbered him); Tekle v. United States, 511 F.3d 839, 845 (9th Cir.2007) (stating that this court has held that “the pointing of a gun at someone may constitute excessive force, even if it does not cause physical injury.”); Robinson v. Solano County, 278 F.3d 1007, 1013-14 (9th Cir.2002) (holding that the officers’ use of a drawn gun at close range when they pointed the gun at head of unarmed misdemeanor suspect is actionable) (en banc).

In addition, there are questions of fact regarding whether Officer Keesor’s and Alvis’s use of deadly force was reasonable. Both officers fired their entire magazines at Sullivan. Officer Keesor fired 12 shots at Sullivan. Officer Alvis fired 13 shots at Sullivan. All shots were fired at close range. The officers stated that Sullivan refused to show his hands and made disturbing statements, such as “Kill me or I’ll kill you” and “Are you ready to shoot me?” Officer Alvis stated that she thought she saw something in Sullivan’s hands and when he moved his right arm that she thought he was going to shoot her.

Officer Keesor stated that he saw something that looked like a gun in Sullivan’s hand, heard a pop, and began shooting at Sullivan. According to the officers, Sullivan was resisting arrest and posed a high risk to their safety. Still, Sullivan had not been accused of any crime. He was not a threat to the public and could not escape. He had not initially caused this situation. He had not brandished a weapon, spoken of a weapon, or threatened to use a weapon. Sullivan, in fact, did not have a weapon.

Viewing the evidence in the light most favorable to the plaintiffs, defendants have failed to show that there are no questions of fact regarding whether the use of deadly force was reasonable. See id.; Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003) (affirming denial of qualified immunity on excessive force claim where suspect posed no safety risk). III. Provoking a Confrontation Finally, the district court properly denied defendants’

summary judgment motion on whether the officers were entitled to qualified immunity for allegedly violating Sullivan’s Fourth Amendment rights by intentionally or recklessly provoking a confrontation. Where a police officer “intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.2002).

If an officer intentionally or recklessly violates a suspect’s constitutional rights, then the violation may be a provocation creating a situation in which force was necessary and such force would have been legal but for the initial violation. Id. In this case, the district court did not err in finding that there are genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation with Sullivan. Evidence strongly suggests that the initial entry into the apartment by Officer Morgado violated Sullivan’s Fourth Amendment rights.

Viewing the evidence in the light most favorable to the plaintiffs, there is evidence that the illegal entry created a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable. See Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994) (holding officers provoked a confrontation where they entered a man’s house without a warrant and this violation provoked the man to shoot at the officers).

Because there is a genuine issue of fact regarding whether the defendants intentionally or recklessly provoked a violent confrontation, the district did not err in denying defendants’

summary judgment motion on this issue. See id. Based on the foregoing, the district court properly denied the

summary judgment motion regarding qualified immunity because defendants failed to show as a matter of law that they did not violate Sullivan’s Fourth Amendment rights. All parties shall bear their own costs. AFFIRMED.