NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 28 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JAMEE L. WADE,                                   No.   14-35281

              Plaintiff-Appellee,                D.C. No. 1:12-cv-00465-CWD

 v.
                                                 MEMORANDUM*
BILL COPELAND, Police Officer, City of
Fruitland Police Department,

              Defendant-Appellant,

 and

CITY OF FRUITLAND; CITY OF
FRUITLAND POLICE DEPARTMENT,

              Defendants.


                    Appeal from the United States District Court
                              for the District of Idaho
                    Candy W. Dale, Magistrate Judge, Presiding

                     Argued and Submitted September 2, 2016
                              Seattle, Washington




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS, McKEOWN, and DAVIS,** Circuit Judges.

      City of Fruitland Police Department officer Bill Copeland appeals the

district court’s denial of his motion for summary judgment based on qualified

immunity in this 42 U.S.C. § 1983 action brought by Jamee Wade. We have

jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand.

      We review de novo an order denying summary judgment based on qualified

immunity. Glenn v. Wash. Cty., 

, 870 (9th Cir. 2011). When a

defendant asserts a qualified immunity defense on an excessive force claim, we

inquire “into the objective reasonableness of the officer’s belief in the necessity of

his actions, and there is no Fourth Amendment violation if the officer can satisfy

this standard.” Wilkins v. City of Oakland, 

, 954 (9th Cir. 2003). The

court also must ask “whether the actions alleged violate a clearly established

constitutional right, where clearly established means that it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

internal quotation marks omitted).




      **
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
                                           2
      The district court properly denied summary judgment as to the first shooting.

There is a genuine issue of material fact as to whether Copeland’s shooting of

Wade was objectively reasonable, since there is evidence that Wade had his hands

up when he was shot. It violates clearly established Supreme Court law to “seize

an unarmed, nondangerous suspect by shooting him dead.” Torres v. City of

Madera, 

, 1128 (9th Cir. 2011) (quoting Tennessee v. Garner, 

, 11 (1985)).

      However, Copeland was entitled to qualified immunity as to the second

shooting. Copeland’s belief that his use of force was legal and that he faced

serious risk of harm was objectively reasonable. Graham v. Connor, 

,

396 (1989). Video evidence shows that despite having been shot once already,

Wade was advancing quickly towards Copeland and was very near Copeland at the

time of the shooting. It is also uncontroverted that Copeland knew that Wade had

called the police the night before, seeking to have a SWAT team sent to his house

so he could fight with officers.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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