Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

No. 90-15679.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and RYMER, Circuit Judges, and McDONALD, District Judge.^** 

MEMORANDUM^**

Manuvao Grohse and Silivellio Grohse, Sr., appeal the district court's summary judgment of qualified immunity on federal constitutional claims, and on pendent claims, for the shooting of their son by San Francisco police officers. They argue that triable issues as to reasonableness of the force used preclude summary adjudication and that the district court erred in concluding that reasonable force was used in the circumstances.

The district court correctly relied on Anderson v. Creighton, 483 U.S. 635 (1987), and White v. Pierce County, 797 F.2d 812 (9th Cir. 1986), in resolving the issue of qualified immunity on summary judgment. Nor did it exceed permissible fact-finding limits on this issue. See White, 797 F.2d at 816; Bryant v. United States Treasury Dept., 903 F.2d 717, 721 (9th Cir. 1990). Trial was to be to the court and it could properly conclude that the specific facts in the record, viewed most favorably to plaintiff, would not have shown the police officers' actions were unreasonable.

The district court correctly considered and applied the appropriate factors in determining the reasonableness of the use of force. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1871 (1989); see also Ting v. United States, 927 F.2d 1504, 1510 n. 3 (9th Cir. 1991). It was undisputed that the officers in this case were responding to reports of gunfire shots in the Potrero Hill area and that while en route, they received a second report locating the source as around the water tower. They saw Grohse walking across the street with a gun in his hands. They shouted for him to throw down the weapon and he did not respond verbally but did turn and face the officers and wave the gun in the air. One of the police officers then fatally shot Grohse in the head. Given these facts, the district court did not improperly discount evidence about what Grohse did with the gun as carrying insufficient probative force to withstand summary judgment.

Because disposition of the pendent claims depends on the federal constitutional claim, summary judgment was properly entered as to them.

AFFIRMED.