FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

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,
                                               No. 08-16853
                 v.
CITY AND COUNTY OF SAN                          D.C. No.
                                            3:06-cv-04686-JSW
FRANCISCO; HEATHER FONG, in her
capacity as Chief of Police,                     OPINION
                         Defendants,
                and
JOHN KEESOR, Police Officer;
MICHELLE ALVIS, Police Officer;
PAUL MORGADO, Police Officer,
             Defendants-Appellants.
                                        
        Appeal from the United States District Court
           for the Northern District of California
         Jeffrey S. White, District Judge, Presiding

                  Argued and Submitted
        October 5, 2009—San Francisco, California

                     Filed March 9, 2010




                             3643
3644               ESPINOSA v. SAN FRANCISCO
    Before: Procter Hug, Jr. and Richard A. Paez, Circuit
        Judges, and George H. Wu,* District Judge.

                   Opinion by Judge Hug;
    Partial Concurrence and Partial Dissent by Judge Wu




  *The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
3648              ESPINOSA v. SAN FRANCISCO




                         COUNSEL

Peter J. Keith, Deputy City Attorney, San Francisco, Califor-
nia, for the appellants.

Benjamin Nisenbaum, Law Offices of John L. Burris, Oak-
land, California and Julie M. Houk, Law Offices of James B.
Chanin, Berkeley, California, for the appellees.


                          OPINION

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 Sul-
livan (“plaintiffs”). Plaintiffs allege that Officers Paulo Mor-
gado, Michelle Alvis, and John Keesor violated Asa
Sullivan’s Fourth Amendment rights by entering and search-
ing 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 Sulli-
van. We review de novo the denial of defendants’ summary
judgment motion, Hopkins v. Bonvicino, 

, 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
                   ESPINOSA v. SAN FRANCISCO                 3649
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 Med-
icine, 

, 922 (9th Cir. 2004). For qualified immu-
nity, 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, 

, 201 (2001);

. 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 Humbolt, 

, 1129 (9th Cir. 2002). If
the officers did not violate a constitutional right, then they are
entitled to immunity. 

. If the officers
violated such a right, but it was not clearly established, then
they are entitled to immunity. 

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, 

, 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 stay-
ing, and shot and killed him. Evidence indicated that Sullivan
was staying at the apartment (“the apartment”) with the per-
mission of the lease holders and another resident, Jason Mar-
tin. That evening, the police received a call in which a
3650               ESPINOSA v. SAN FRANCISCO
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 apart-
ment complex and another police unit for a walk-through of
the apartment. Officer Morgado then pushed open the apart-
ment 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 apart-
ment. 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 coop-
erative 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
                    ESPINOSA v. SAN FRANCISCO              3651
“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. Offi-
cer 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

   [1] 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 apart-
ment 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, 

, 88
(1998). A search of a home or residence without a warrant is
presumptively unreasonable. Lopez-Rodriguez v. Mukasey,

, 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. 

Expectation of Privacy

   [2] The district court properly found that there are ques-
tions 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, 

, 98-100 (1990); United States v. Armenta, 

,
3652              ESPINOSA v. SAN FRANCISCO
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 pos-
session 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 posses-
sion of the apartment. Although defendants argue that Sulli-
van 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 Mar-
tin, defendants have failed to show as a matter of law that Sul-
livan did not have a reasonable expectation of privacy. See
United States v. Davis, 

, 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, 

, 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, 

, 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 proba-
ble cause).

       B.   The Emergency and Exigency Exceptions

   [3] 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 bound-
aries are ‘rigorously guarded’ to prevent any expansion that
would unduly interfere with the sanctity of the home.” Hop-

(quoting United States v. Stafford, 416
                   ESPINOSA v. SAN FRANCISCO                

, 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 offi-
cer has objectively reasonable grounds to believe that an
emergency exists and that his immediate response is needed.

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. 

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 “proba-
ble cause to believe that a crime has been or is being commit-
ted 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. 

however, require that the officer have an objec-
tively reasonable belief that the circumstances justify entry.

Morgado

   [4] 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 win-
dow 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
3654                 ESPINOSA v. SAN FRANCISCO
the apartment, such as the bloody shirt or knife on Jason Mar-
tin, is irrelevant. This court has stated that evidence discov-
ered after an illegal entry cannot be used retroactively to
justify a search. United States v. Licata, 

, 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 

(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 plain-
tiffs, defendants also failed to show that the emergency or exi-
gency 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.

   [5] 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
                   ESPINOSA v. SAN FRANCISCO                3655
prior to entry. Viewing the evidence in the light most favor-
able to plaintiffs, defendants have failed to establish as a mat-
ter 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 Offi-
cers 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 objec-
tively reasonable, good-faith belief that he is acting pursuant
to proper authority. Motley v. Parks, 

, 1081-82
(9th Cir. 2005) (en banc). The officer relying on the informa-
tion must make reasonable inquiries to determine if there is a
sufficient basis for the entry and search. 

“The
lynchpin is whether the officer’s reliance on the information
was objectively reasonable.” 

   [6] 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 Mor-
gado 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 war-
rantless entry and search of the apartment. Viewing the evi-
dence 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, 

, 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 with-
out further verification where the detectives had a general
3656              ESPINOSA v. SAN FRANCISCO
description of the suspect, a witness who identified the sus-
pect in a suggestive photograph presentation, no evidence of
plaintiff’s gang affiliation, and no physical evidence tying
plaintiff to the crime).

                        D.    Consent

   [7] 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 con-
sent. United States v. Ruiz, 

, 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. 

Regarding implied consent, only in narrow circum-
stances 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, 

, 1233 n.3 (9th Cir. 1984); United States v. Rosi, 

, 411-12 (9th Cir. 1994). It is “a most uncommon sit-
uation” where the court is asked to infer consent from a third
party’s actions. 

n.3.

   [8] 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
                  ESPINOSA v. SAN FRANCISCO                3657
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 Mor-
gado did not ask and was not told by security that the apart-
ment 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 can-
not 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, 

,
1426-27 (9th Cir. 1990) (declining to imply consent where
officers did not request entry and no steps were taken to imply
consent); 

& n.3 (holding implied
consent was not given by third party).

                 II.   Unreasonable Force

   [9] 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 Amend-
ment claims of excessive or deadly force are analyzed under
an objective reasonableness standard. Scott v. Harris, 

, 381 (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, 

, 396-97 (1989); Price v. Sery, 

, 968 (9th Cir.
2008); Miller v. Clark County, 

, 964 (9th Cir.
2003). Our analysis involves three steps. First, we must assess
3658              ESPINOSA v. SAN FRANCISCO
the severity of the intrusion on the individual’s Fourth
Amendment rights by evaluating “the type and amount of
force inflicted.” 

; Drummond ex rel.
Drummond v. City of Anaheim, 

, 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.; 

. Third, “we balance
the gravity of the intrusion on the individual against the gov-
ernment’s need for that intrusion.” 

.
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 cir-
cumstances.” Santos v. Gates, 

, 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, 

, 11-12 (1985). The parties “relative culpability” i.e.,
which party created the dangerous situation and which party
is more innocent, may also be considered. 

. Finally, this court has often held that in police miscon-
duct cases, summary judgment should only be granted “spar-
ingly” because such cases often turn on credibility
determinations by a jury. 

.

   [10] Here, defendants failed to show that there are no ques-
tions 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, employ-
ing 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 offi-
cers to forcibly enter the home; he ran from them. Sullivan
did not present a danger to the public. Sullivan could not
                   ESPINOSA v. SAN FRANCISCO                3659
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 plain-
tiffs, 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 

(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, 

, 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 phys-
ical injury.”); Robinson v. Solano County, 

,
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).

   [11] 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 Sulli-
van. 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
3660                 ESPINOSA v. SAN FRANCISCO
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, Sul-
livan 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, 

, 1061 (9th Cir. 2003) (affirming denial of qualified
immunity on excessive force claim where suspect posed no
safety risk).

              III.   Provoking a Confrontation

   [12] Finally, the district court properly denied defendants’
summary judgment motion on whether the officers were enti-
tled to qualified immunity for allegedly violating Sullivan’s
Fourth Amendment rights by intentionally or recklessly pro-
voking a confrontation. Where a police officer “intentionally
or recklessly provokes a violent confrontation, if the provoca-
tion is an independent Fourth Amendment violation, he may
be held liable for his otherwise defensive use of deadly
force.” Billington v. Smith, 

, 1189 (9th Cir.
2002). If an officer intentionally or recklessly violates a sus-
pect’s constitutional rights, then the violation may be a provo-
cation creating a situation in which force was necessary and
such force would have been legal but for the initial violation.

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
                     ESPINOSA v. SAN FRANCISCO                   3661
Fourth Amendment rights. Viewing the evidence in the light
most favorable to the plaintiffs, there is evidence that the ille-
gal 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, 

, 1366 (9th Cir. 1994) (holding offi-
cers 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 reck-
lessly provoked a violent confrontation, the district did not err
in denying defendants’ summary judgment motion on this
issue. See 

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.



WU, District Judge, concurring in part and dissenting in part:

   I agree with the majority that the district court properly
denied summary judgment as to the defendant officers’ claim
of qualified immunity in regards to their entering and search-
ing the apartment. However, I disagree with the Opinion’s
resolution of the qualified immunity question in the contexts
of the unreasonable force and provoking a confrontation
issues.

I.       FACTS/EVIDENCE1
     1
  Northern District of California Civil Local Rule 56-1(a) states that
“Unless required by the assigned Judge, no separate statement of undis-
3662                  ESPINOSA v. SAN FRANCISCO
   Initially, further consideration of the facts/evidence is war-
ranted.2 On June 6, 2006 at approximately 8:28 p.m., a dis-
patch call went out over the San Francisco Emergency
Communications Department (“ECD”) system for an officer
to conduct a premises check at 2 Garces Drive located in the
Park Merced apartment complex.3 San Francisco Police
Department Officer Paulo Morgado responded at 8:33 p.m.
After he had opened the door to the premises and saw the
bloody T-shirt hanging on an interior door, between 8:40 and
8:43 p.m., he made requests over the ECD system for another
police unit to assist in conducting a walk-through to check out
the premises. In doing so, he specifically referenced “a T-shirt
. . . hanging on the door with blood all over it.”

   Officers Michelle Alvis and John Keesor heard Morgado’s
transmission and responded at about 8:50 p.m. Additional
police units also arrived thereafter. Morgado, Alvis, Keesor

puted facts or joint statement of undisputed facts shall be submitted.”
   The record herein, does not contain any separate or joint statement of
undisputed facts. Furthermore, aside from Defendants’ Second Objection
to and Motion to Strike Evidence Offered by Plaintiffs in Support of their
Opposition to Motion for Summary Judgment (which mostly challenged
the evidentiary basis for plaintiffs’ expert’s opinions), no evidentiary
objections (or rulings thereon) have been provided.
   The following factual summary has been made from a review of the
entire record submitted on this appeal, noting any relevant factual dis-
putes.
   2
     As observed in Blanford v. Sacramento County, 

, 1115
(9th Cir. 2005), an analysis of an excessive force claim under the objective
reasonableness standard of the Fourth Amendment requires “consideration
of the totality of the facts and circumstances in the particular case [empha-
sis added].”
   3
     The specified times cited herein are based upon the transcript of the
audio dispatch recording of the communications over the ECD system that
were made while the events herein were transpiring (“transcript”). The
ECD system automatically records the times at which the calls are gener-
ated. A copy of that transcript was placed into the record, apparently with-
out objection as to its accuracy.
                  ESPINOSA v. SAN FRANCISCO                3663
and Officer Yukio Oshita entered the premises, announcing
that they were San Francisco police officers. They did not
encounter anyone on the first floor. Moving up to the second
floor, there were a number of closed doors, one of which was
to a bathroom. The door to the first bedroom was locked, but
there were sounds of movement from within. The officers
again announced that they were police officers and ordered
the occupants to open the door. After a period of time, entry
was obtained and the officers encountered Jason Martin. The
officers ordered Martin to the ground. He complied and was
handcuffed.

   While dealing with Martin, the bedroom closet door was
open and the officers heard movement above them. Believing
that another person was trying to gain access to the roof, Mor-
gado announced through the ECD system that “we got one
going on the roof.” Keesor went back downstairs and out of
the building to determine if he could locate anyone on the
roof. Eventually, personnel from the apartment complex
informed Keesor that there was no roof-top exit from the attic,
and he called in that information. Keesor then returned to the
second floor of the premises and, with other officers, checked
out a second bedroom. It was unoccupied. Although it had a
closet, there was no access to the attic from that room. Upon
Keesor’s return to the first bedroom, Martin was searched for
weapons and a four inch “ninja” knife was located in his back
pocket. It did not appear to have any blood on it.

  At about 8:56 p.m., Officer Erik Leung spoke with Keesor
about setting up a perimeter. Morgado spoke with the dis-
patcher (“Dispatch”) about getting a search dog unit. Around
9:02 p.m., Dispatch reported that it was “negative” as to the
dog unit.

   The officers elected to investigate the attic. Access to the
attic was solely through an approximate 2-2½ foot hole at the
top of the first bedroom’s closet. To enter one had to utilize
the closet’s shelving to lift oneself up. Once inside, the attic
3664                  ESPINOSA v. SAN FRANCISCO
was extremely dark with no lighting. The attic was triangular-
shaped but even at its center there was not enough room for
the taller officers to stand. The floor of the attic was trans-
versed at regular intervals by wood beams approximately six
inches in height, in between which had been placed copious
amounts of cotton-like white insulation material. Also inter-
spaced at regular intervals were both vertical wood beams
from floor to ceiling and outstretched diagonal rafters sup-
porting the roof. There were also heating ducts and other
obstructions present.

   Alvis was the first officer up into the attic, followed by
Keesor and Morgado. Because of a lack of space, Oshita
remained half-way through the opening. They announced
themselves as police officers. There was no verbal response.
Using their flashlights and with guns drawn, the officers
began searching the attic for any persons. Eventually, Alvis
spotted Asa Sullivan, who was wearing a black T-shirt, jeans,
heavy boots, and eyeglasses.4 Sullivan was sitting/reclining in
between two of the wooden beams and was partially covered
by insulation. Alvis was the nearest officer to Sullivan,
approximately 15 feet away. There were wood beams, rafters
and other obstructions between the officers and Sullivan.
Alvis ordered Sullivan to show the officers his hands, Sulli-
van did not comply and verbally indicated that he would not
be taken into custody. Morgado announced through the ECD
system, “Stand by, he’s gonna be a 148, stand by.” “148” is
code for “resisting arrest.”5 At that point, all three officers
(i.e., Alvis, Keesor and Morgado) had their flashlights and
guns trained on Sullivan.

  Thereafter, the officers tried to get Sullivan to cooperate.
He did not do so and continued to make statements indicating
  4
    According to the Coroner’s Report, Sullivan was 25 years old, five feet
nine inches in height and weighed 208 pounds.
  5
    Included in the transcript was a table as to the meaning of the code
words utilized by the officers during the incident.
                   ESPINOSA v. SAN FRANCISCO                3665
his intent to resist. Dispatch finally made contact with a dog
unit that responded that it would be there in a few minutes.
Alvis announced to Dispatch, “Be advised, this subject is
refusing to show us his hands. I cannot see what is in his
hands. Be advised.” Morgado stated, “He’s also said he’s not
coming into custody.” Around that point, someone asked
whether the officers could use “less than lethal.” “Less than
lethal” refers to a shotgun that has been fitted to shoot bean
bags rather than pellets, and is usually not deadly unless fired
at very close range. Morgado responded over the ECD sys-
tem, “Hey Sarge, there’s no way we can use less lethal. We’re
in the attic with rafters.”

   At about 9:06 p.m., it was reported that Sullivan had begun
to pound the floor with his foot in an apparent attempt to
make a hole through the floor into the bathroom below.
Leung, who was in the bathroom, stated that “there doesn’t
appear to be any access.” At some point, Martin began yelling
to Sullivan from the bedroom to “just come on down, it’s
okay.” Morgado asked the officers in the bedroom with Mar-
tin to inquire if he could tell them the name and date of birth
of the person in the attic in order to check on his criminal sta-
tus. Leung reported that Martin “doesn’t know his name or his
date of birth.”

   At around 9:07 p.m., Sullivan began getting more agitated
and made statements of a threatening nature to the officers.
Morgado reported via the EDC system that Sullivan was “try-
ing to 801 by cop. Can’t see his hands. He’s claiming to have
something.” “801” is code for “person attempting suicide.”
During this period, Sullivan had continued to kick on the
flooring and had managed to break open a small hole above
the bathroom tub. Certain officers tried to use a pole with a
hook to enlarge the hole in order to be able to pull Sullivan
through it or to secure him. The ceiling material would not
give way. At approximately 9:12 p.m., Officer Tracy McCray
asked Morgado through the EDC system whether the less than
lethal option could be used through the hole. Leung, who was
3666                 ESPINOSA v. SAN FRANCISCO
in the bathroom, responded that “we can’t identify a target
through a dark hole. So why don’t we slow it down, see if we
can get a hostage negotiator or something, because this guy’s
not listening to us.”

   Shortly thereafter, Alvis announced through the EDC sys-
tem, “He’s bringing his hand around, he’s got something, hold
on. **** The suspect’s under the insulation, cannot see it,
he’s making movement.” An officer on the ground reported
that the canine unit had arrived. At about 9:15 p.m., McCray
shouted over the EDC “shots fired, shots fired!”

   The evidence as to what happened immediately before the
shooting started varies somewhat among the four officers who
were in the attic. Each officer was in a different location from
the others.6

   In the recorded interview of Alvis taken in the early morn-
ing of June 7, 2006 by inspectors from the San Francisco
Police Department Investigations Unit, Alvis stated that she
repeatedly asked Sullivan to show the officers his hands but
he did not do so. He then began to move his right hand under
the insulation and behind his back and then rapidly moved his
right arm up. She heard a “pop” and saw what she thought
was a “muzzle flash.” Believing that she was being fired on,
Alvis shot her own weapon. Alvis’s February 22, 2008 depo-
sition testimony and her June 16, 2008 declaration are consis-
tent with her interview statements except that in her
deposition and declaration she said that, when she saw Sulli-
van suddenly move his right arm, she “moved”/“fell back-
ward,” then heard the sound she believed was gunfire and saw
the muzzle flash, and made the decision to fire her weapon.
Also, in her deposition, Alvis stated that, just before the
  6
   Alvis was standing and closest to Sullivan (about fifteen feet away).
Morgado was a number of feet behind and to the left of Alvis. Keesor was
even further away from Alvis but in a prone position on the attic floor.
Oshita was still half-way through the opening into the attic.
                    ESPINOSA v. SAN FRANCISCO                    3667
shooting, Sullivan did bring up his left hand and was doing
something with it, but she is certain he did not have a weapon
in that hand.

   Keesor in his June 7, 2006 interview stated that just prior
to the shooting he had been talking to Sullivan trying to get
him to cooperate. Sullivan — who had been responding ver-
bally — stopped and gave Keesor “this weird look; and he
takes a deep breath.” Thereafter, he saw Sullivan appear to
raise his hand(s)7 holding a “black oblong thing” which
looked to Keesor to be a barrel of a gun. He then heard a
“pop” and Alvis fell from his peripheral field of vision.
Believing that Sullivan had shot Alvis, Keesor opened fire.
Keesor’s February 12, 2008 deposition testimony and his June
18, 2008 declaration are generally consistent with his inter-
view statements except that in his declaration it is unclear
whether he fired his weapon upon seeing Sullivan raising his
hand(s) with the dark object therein or if it was after also
hearing what he though was gunfire. Keesor in his deposition
stated that he did not see any muzzle flash coming from Sulli-
van’s direction.

    In his June 7, 2006 interview, Morgado stated that Sullivan
had been repeating “tell my mom, tell my girlfriend I love
them,” followed by Alvis saying something that he couldn’t
understand, and then shots were fired. Upon hearing gunfire,
Morgado was about to also fire his weapon but Keesor got in
front of him and he elected not to shoot his gun. In his deposi-
tion, when asked when he first realized that “a gun had gone
off in the attic,” Morgado responded that it was when he “saw
sudden movement of Mr. Sullivan . . . . I saw his right shoul-
der move in a forward direction over his waist to the left
. . . .” In his June 16, 2008 declaration, Morgado stated that:

         While the Suspect was seated, after he made the
      statements that caused me to believe he may attempt
  7
   Keesor was unsure if Sullivan raised only one hand or both hands.
3668                ESPINOSA v. SAN FRANCISCO
      to force us to shoot him, he made a sudden move-
      ment with the right side of his body that I thought
      was consistent with producing a firearm. Believing
      he was about to shoot at us, I began to depress the
      trigger on my weapon. Before I could fire, however,
      I realized that Officer Keesor may be in my way and
      I held fire. As a result, I did not discharge my
      weapon during this incident. Shortly after I saw the
      sudden movement of the right side of the Suspect’s
      body I heard the sound of gunshots, some of which
      I believed were coming from the Suspect.

   In his June 10, 2008 declaration, Oshita stated that before
the shooting, Sullivan said: “hey, tell my mom that I love her,
and tell my girl that I love her. You guys, I’m gonna make my
move and you’ll be sorry.” Shortly thereafter, he heard gun-
shots and saw muzzle flashes.

   No firearm or other weapon was found on or near Sulli-
van’s body. A dark eyeglass case was located underneath his
right forearm.

II.    UNREASONABLE FORCE

  A.    Applicable Law

  As noted in Billington v. Smith, 

(9th Cir.
2002):

         In Saucier v. Katz, [

(2001),] the
      Supreme Court instructed lower courts deciding
      summary judgment motions based on qualified
      immunity to consider “this threshold question: Taken
      in light most favorable to the party asserting the
      injury, do the facts alleged show the officer’s con-
      duct violated a constitutional right?” [Id. at 201.] If
      not, then “there is no necessity for further inquiries
      concerning qualified immunity.” [Id.] If so, then “the
                  ESPINOSA v. SAN FRANCISCO                  3669
    next, sequential step is to ask whether the right was
    clearly established.” [Id.] A constitutional right is
    clearly established when, “on a favorable view of the
    other parties’ submissions” “it would be clear to a
    reasonable officer that his conduct was unlawful in
    the situation he confronted.” [Id.] In Saucier, the
    Supreme Court overruled Ninth Circuit precedent
    holding that “the inquiry as to whether officers are
    entitled to qualified immunity for the use of exces-
    sive force is the same as the inquiry on the merits of
    the excessive force claim.” The Court rejected our
    view because an officer might be reasonably mis-
    taken as to the facts justifying his actions, or as to
    the law governing his actions, so that an officer
    could use objectively excessive force without clearly
    violating the constitution.

                          *****

    A police officer may reasonably use deadly force
    where he “has probable cause to believe that the sus-
    pect poses a threat of serious physical harm, either
    to the officer or to others. We analyze excessive
    force claims in the arrest context under the Fourth
    Amendment’s reasonableness standard. We balance
    “the nature and quality of the intrusion on the indi-
    vidual’s Fourth Amendment interests against the
    countervailing governmental interests at stake” and
    ask whether, under the circumstances, “including the
    severity of the crime at issue, the suspect poses an
    immediate threat to the safety of the officers or oth-
    ers, or whether he is actively resisting arrest or
    attempting to evade arrest by flight.” The reason-
    ableness inquiry is objective, without regard to the
    officer’s good or bad motivations or intentions.

(footnote and citations omitted). As further
observed in Graham v. Connor, 

(1989):
3670              ESPINOSA v. SAN FRANCISCO
    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. **** The calculus of reasonable-
    ness must embody allowance for the fact that police
    officers are often forced to make split-second judg-
    ments — in circumstances that are tense, uncertain,
    and rapidly evolving — about the amount of force
    that is necessary in a particular situation.

Finally, Tekle v. United States, 

,
844-45 (9th Cir. 2006), states that:

       The legal framework is clearly established. The
    first factor in determining whether the force used
    was excessive is the severity of the force applied.
    Drummond ex rel. Drummond v. City of Anaheim,
    

, 1056 (9th Cir. 2003). The second
    factor, and the most important, is the need for the
    force. Miller v. Clark County, 

, 964 (9th
    Cir. 2003). The amount of force used is “permissible
    only when a strong government interest compels the
    employment of such force.” 

(quoting Deorle v. Rutherford, 

,
    1280 (9th Cir. 2001)). ****

       Finally, we must balance the force used against
    the need, to determine whether the force used was
    “greater than is reasonable under the circumstances.”
    Santos v. Gates, 

, 854 (9th Cir. 2002).
    This determination

        “requires careful attention to the facts and
        circumstances of each particular case” and
        a “careful balancing” of an individual’s lib-
        erty with the government’s interest in the
        application of force. Because such balanc-
        ing nearly always requires a jury to sift
                      ESPINOSA v. SAN FRANCISCO                      3671
           through disputed factual contentions, and to
           draw inferences therefrom, we have held on
           many occasions that summary judgment or
           judgment as a matter of law in excessive
           force cases should be granted sparingly.
           This is because police misconduct cases
           almost always turn on a jury’s credibility
           determinations.

(quoting Graham, 

) (internal citations
omitted).

B.     Analysis

  1.    The Officers’ Pointing their Guns at Sullivan

   There were two instances of force applied as to Sullivan
which must be addressed and analyzed. First is the officers’
act of training their firearms on Sullivan.8 As stated in 

, “[w]e have held that the pointing of a gun
at someone may constitute excessive force, even if it does not
cause physical injury. See Robinson v. Solano County, 

, 1014-15 (9th Cir. 2002) (en banc).” Second is the
actual shooting of the firearms by Officers Alvis and Keesor.

   Turning to the facts and circumstances confronting the offi-
cers, while encountering the bloody T-shirt would not by
itself constitute probable cause to believe that a crime had
been committed, it would certainly give rise to a reasonable
belief that caution (because of possible danger to the officers)
was appropriate.9 Another factor was the officers’ being
  8
    Defendant Morgado is alleged to have used excessive force even
though he did not fire his weapon at Sullivan or otherwise make physical
contact with him. Hence, the only basis for an unreasonable force claim
against Morgado would rest on his aiming his gun at Sullivan.
  9
    As conceded in the 

at page 3659, the presence of the
bloody shirt in the interior of the apartment and the knife found on Martin
“may have suggested some risk of harm.”
3672                  ESPINOSA v. SAN FRANCISCO
denied immediate access to the first bedroom following their
identifying themselves as police officers and requests for the
door to be opened. Thereafter, the officers found Martin in the
bedroom who cooperated with their commands. From the
sounds of movement coming from the attic at that point, it
was rational to conclude that there was another individual
who was attempting to flee from the officers and who was in
the attic or on the roof. Before climbing into the attic, a knife
was found on Martin’s person. Upon entering the attic, the
officers found it to be extremely dark, illuminated only by the
flashlights which they carried in one hand, and filled with raf-
ters and other obstructions which hampered both movement
and vision. When the person in the attic did not respond to
their presence or announcements and remained hidden, in
light of all of the referenced factors, it was objectively reason-
able for the officers to have drawn their guns because of the
possibility of danger to the officers in that situation.10

   Thereafter, the officers located Sullivan who was in a posi-
tion in between sitting and lying down on his back between
two wooden beams on the floor, and partly covered by the
insulation material. Despite the officers’ repeated demands for
him to show them his hands, he never raised his right hand
which was underneath the insulation and, periodically, he
would move his left hand in and out of the insulation material.
Consequently, at no time during the entire incident could the
officers have determined whether or not Sullivan was armed
with a gun, knife or other weapon. Sullivan was a 25 year old
  10
    In Motley v. Parks, 

, 1089 (9th Cir. 2005) (en banc), in
the context of conducting a warrantless search of a parolee’s purported
residence not based on probable cause but solely upon a mandatory condi-
tion of parole, this court held that “While it may have been reasonable for
[the police officer] to have drawn his firearm during the initial sweep of
a known gang member’s house, his keeping the weapon trained on the
infant, as he was alleged to have done, falls outside the Fourth Amend-
ment’s objective reasonableness standard.” “[A] police officer may well
act reasonably in drawing his gun while he approaches a [person] in an
uncertain situation.” In re Joseph R., 

, 961 (1998).
                      ESPINOSA v. SAN FRANCISCO                        3673
able-bodied, five foot nine inch, 208 pound man. Thus, point-
ing their weapons at him cannot be found to have been objec-
tively unreasonable. The facts of this case are clearly
distinguishable from Ninth Circuit precedent finding exces-
sive force from the mere act of aiming weapons at an individu-
al.11 Here, Sullivan was not cooperative, was indicating that
he would not be taken into custody, and was possibly armed
with a weapon, plus all of the participants were in a dark, con-
fined and obstructed location. In light of the above facts, the
defendant officers are entitled to qualified immunity as to this
portion of plaintiffs’ unreasonable force claim.

  2.    Officers Alvis and Keesor’s Shooting of Sullivan

   The problem with the district court’s analysis of the unrea-
sonable force issue in regards to Sullivan’s shooting is that the
court focused solely on the “provoking a confrontation”
aspect without any consideration as to whether the undisputed
facts/evidence show that the officers’ firing of their weapons
was objectively reasonable at the point in time of the shoot-
ing. As discussed below, the district court’s conclusions as to
the provoking a confrontation issue are incorrect. Hence, this
portion of the case should be reversed and remanded for the
  11
     For example, in Tekle, “twenty-three armed officers saw a barefoot
[and unarmed] eleven-year old boy, clad in shorts and a T-shirt” emerge
from a garage and, even after he cooperated with the officers’ instructions,
certain agents “held a gun to his head, searched him handcuffed him,
pulled him up from behind by the chain of the handcuffs, and sat him on
the sidewalk, still handcuffed, with their guns pointed at him, for ten to
fifteen 

.
   In 

, this court en banc, while finding that the
law “was not sufficiently established in this circuit in 1995 to override the
officers’ claim of qualified immunity,” held that “[t]he development of the
law with respect to arrests and detentions now allows us to recognize as
a general principle that pointing a gun to the head of an apparently,
unarmed suspect during an investigation can be a violation of the Fourth
Amendment, especially where the individual poses no particular danger.
[Emphasis added].”
3674                  ESPINOSA v. SAN FRANCISCO
district court to decide whether the undisputed facts establish
that Officers Alvis and Keesor’s firing of their weapons was
objectively reasonable.

   On the issue of the shooting, all of the previously discussed
facts/evidence would come into play. Furthermore, the offi-
cers continually made requests throughout the incident for
Sullivan to show both his hands, but he never did so. Addi-
tionally, he made statements which: 1) indicated his intent not
to be taken into custody; 2) were of a threatening nature in
regards to the officers’ safety; and 3) led the officers to
believe that he was contemplating “suicide by cop.”12 In addi-
tion, once the officers encountered Sullivan in the attic, they
did not act precipitously. They did not rush and attempt to
subdue him. As the time elapsed, they considered options
such as using less than lethal weapons and trying to force a
larger hole through the bathroom ceiling/attic flooring to gain
access to Sullivan’s person. Also, they had made a request for
a canine unit and were waiting for it to arrive.

   Finally, and most importantly, one must consider what was
happening just before the officers’ use of the force.13 Here,
there was testimony that immediately preceding the shooting,
there were: 1) Sullivan’s sudden movement of his right hand
behind his back, 2) Sullivan’s sudden lifting of his right arm,
3) Sullivan’s raising something in one or both of his hands,
4) the sound of a “pop” that, to certain of the officers, was
like a gunshot, and 5) a muzzle flash as if from a gun. Officer
Alvis stated that she believed that Sullivan was shooting a gun
at her so she returned fire. Officer Keesor testified that he
thought that Sullivan had shot Alvis after he heard the pop
  12
      As to the validity of the “suicide by cop” concept, see generally Boyd
v. City and County of San Francisco, 

, 945-46 (9th Cir.
2009).
   13
      It does not appear that the district court specifically considered the
facts and circumstances confronting the officers at this critical period of
time.
                       ESPINOSA v. SAN FRANCISCO                        3675
and she fell from his peripheral view. He then opened fire.
Although it is not disputed that Sullivan had no firearm to
shoot, the question not addressed by the district court is
whether Alvis and Keesor had objectively reasonable beliefs
that Sullivan had a gun and was using it at the time they fired
their weapons.14

III.   PROVOKING A CONFRONTATION

  A.     Applicable Law

   Alexander v. City and County of San Francisco, 

(9th Cir. 1994), involved a case where San Francisco
police officers, pursuant to merely an administrative inspec-
tion warrant, decided to storm into the home of a man known
to be “a mentally ill, elderly, half-blind recluse who threat-
ened to shoot anybody who entered [his house].” 

He was shot and killed when he pointed and tried to fire a
handgun at the entering officers. This court held that, if the
officers committed an independent Fourth Amendment viola-
tion by using unreasonable force to enter the decedent’s
  14
     The majority Opinion seems to imply that there are factual questions
in regards to the use of deadly force because Officers Keesor and Alvis
emptied their entire magazines when firing at Sullivan and because, in the
majority’s view, Sullivan “had not initially caused this situation.” A ques-
tion arises as to why the majority feels that, under the facts herein, it
makes any difference whether the officers fired one bullet or “12 shots.”
If there was a reasonable basis to believe that deadly force was appropriate
in the situation, given the darkness of the location, the rafters and other
obstructions, and additional factors which impeded the officers’ determi-
nation as to the accuracy of their shots, there is no basis to believe that it
would have been rational for the officers to count the number of bullets
fired and to stop at some arbitrary figure.
   Additionally, to claim that Sullivan “had not initially cause this situa-
tion” is highly questionable. Had Sullivan remained in the first bedroom
when the officers announced their presence, had he shown both of his
hands when repeatedly requested to do so by the officers, and had he not
made the statements to the officers which were of a threatening and unco-
operative nature, then the “situation” would have been entirely different.
3676                    ESPINOSA v. SAN FRANCISCO
house, then they could be held liable for shooting him — even
though it was objectively reasonable to use their guns at the
moment of the shooting — because they “used excessive
force in creating the situation which caused [the decedent] to
take the actions he did.” 

court’s analysis of the
excessive force issue, although citing to the Billington deci-
sion, actually rests on the initial concepts delineated in Alexan-
der.15

  However, as noted in 

:

           We have since placed important limitations on
        Alexander. In Scott v. Henrich [,

(9th
        Cir. 1994)], we held that even though the officers
        might have had “less intrusive alternatives available
        to them,” and perhaps under departmental guidelines
        should have “developed a tactical plan” instead of
        attempting an immediate seizure, police officers
        “need not avail themselves of the least intrusive
        means of responding” and need only act “within that
        range of conduct we identify as reasonable.” [Id. at
        1169.] We reinforced this point in Reynolds v.
        County of San Diego, [

(9th Cir. 1994),]
  15
   As specifically stated in the district court’s Order re Parties’ Cross-
Motions for Summary Judgment:
       The Court’s determination that it cannot find as a matter of law
       that Officers Alvis and Keesor’s warrantless entry and search did
       not violate the Fourth Amendment also precludes granting sum-
       mary adjudication as to whether the officers’ use of deadly force
       was reasonable. “[W]here an officer intentionally or recklessly
       provokes a violent confrontation, if the provocation is an inde-
       pendent Fourth Amendment violation, he may be held liable for
       his otherwise defensive use of deadly force.” Billington v. Smith,
       

, 1189 (9th Cir. 2002). In addition to the questions
       of fact regarding whether Officers Keesor and Alvis’ entry and
       search was an independent violation of Sullivan’s Fourth Amend-
       ment rights, the Court finds there are questions of fact as to
       whether the officers’ entry and search provoked the officers’ use
       of deadly force.
              ESPINOSA v. SAN FRANCISCO                   3677
which distinguished Alexander because “the court
must allow for the fact that officers are forced to
make split second decisions.” [Id. at 915.] We
affirmed summary judgment for the defendant police
officers despite experts’ reports stating — like the
expert report in the case at bar — that the officers
should have called and waited for backup, rather
than taking immediate action that led to deadly com-
bat. We held that, even for summary judgment pur-
poses, “the fact that an expert disagrees with the
officer’s action does not render the officer’s action
unreasonable.” [Id. at 1170.] Together, Scott and
Reynolds prevent a plaintiff from avoiding summary
judgment by simply producing an expert’s report
that an officer’s conduct leading up to a deadly con-
frontation was imprudent, inappropriate, or even
reckless. Rather, the court must decide as a matter of
law “whether a reasonable officer could have
believed that his conduct was justified.” 

an additional limitation on Alexander
in Duran v. City of Maywood [, 

(9th
Cir. 2000)]. In Duran, police officers responding to
a report of shots fired in a residential neighborhood
walked up the plaintiffs’ driveway toward their
garage silently, without identifying themselves, and
holding their guns. Then they heard someone cock-
ing a pistol and saw an armed man in the garage.
They shot him after he ignored their orders to drop
his gun and pointed his gun at them. The plaintiffs
appealed the jury’s defense verdict because the dis-
trict court did not instruct the jury, under Alexander,
that the officers could violate the Fourth Amendment
by provoking the use of deadly force. We affirmed,
holding that an Alexander instruction is unnecessary
where there is no “evidence to show that the offi-
cer’s actions were excessive and unreasonable” and
caused the “escalation that led to the shooting,” and
3678              ESPINOSA v. SAN FRANCISCO
    where the evidence does not show that the officer’s
    actions “should have provoked an armed response.”
    [Id. at 1131.]

       We read Alexander, as limited by Duran, to hold
    that where an officer intentionally or recklessly pro-
    vokes 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. In Alexander, the officers allegedly
    used excessive force because they committed an
    independent Fourth Amendment violation by enter-
    ing the man’s house to arrest him without an arrest
    warrant, for a relatively trivial and non-violent
    offense, and this violation provoked the man to shoot
    at the officers. Thus, even though the officers rea-
    sonably fired back in self-defense, they could still be
    held liable for using excessive force because their
    reckless and unconstitutional provocation created the
    need to use force.

       Alexander’s requirement that the provocation be
    either intentional or reckless must be kept within the
    Fourth Amendment’s objective reasonableness stan-
    dard. The basis of liability for the subsequent use of
    force is the initial constitutional violation, which
    must be established under the Fourth Amendment’s
    reasonable-ness standard. Thus, if a police officer’s
    conduct provokes a violent response, as in Duran,
    but is objectively reasonable under the Fourth
    Amendment, the officer cannot be held liable for the
    consequences of that provocation regardless of the
    officer’s subjective intent or motive. But if an offi-
    cer’s provocative actions are objectively unreason-
    able under the Fourth Amendment, as in Alexander,
    liability is established, and the question becomes the
    scope of liability, or what harms the constitutional
    violation proximately caused. [Footnotes omitted.]
                        ESPINOSA v. SAN FRANCISCO                          3679
  B.       Analysis

   Even accepting the proposition that Officers Alvis, Keesor
and Morgado’s presence in the attic was not constitutionally
proper,16 they cannot be found to have provoked a confronta-
tion under the Alexander/Billington line of cases. First of all,
unlike the facts in Alexander, the officers here had no advance
knowledge that, when they got into the attic, they would meet
an individual who was definitely armed and/or mentally
unstable. Also, the officers’ actions were not excessive and/or
unreasonable in light of the developing events that transpired
in the attic. Furthermore, the evidence does not demonstrate
that the officers’ conduct either caused an escalation that led
to the shooting or should have provoked an armed or violent
response. See 

. Indeed, had Sulli-
van cooperated with the officers’ commands as did Martin,
there is no doubt that he would have been treated in the same
manner and survived the encounter.

   One last point should be made: it is not disputed that the
only entrance to (or exit from) the attic known to the officers
was through the hole in the closet ceiling. As they indicated
in their statements/testimony which is uncontradicted by the
  16
     The fact that the officers may have been negligent when they decided
to climb up into the attic will not give rise to liability for the use of reason-
able force thereafter. As stated in Billington,
       Under Alexander, the fact that an officer negligently gets himself
       into a dangerous situation will not make it unreasonable for him
       to use force to defend himself. The Fourth Amendment’s “rea-
       sonableness” standard is not the same as the standard of “reason-
       able care” under tort law, and negligent acts do not incur
       constitutional liability. An officer may fail to exercise “reason-
       able care” as a matter of tort law yet still be a constitutionally
       “reasonable” officer. Thus, even if an officer negligently pro-
       vokes a violent response, that negligent act will not transform an
       otherwise reasonable subsequent use of force into a Fourth
       Amendment 

(footnote omitted).
3680              ESPINOSA v. SAN FRANCISCO
evidence in the record, once they encountered Sullivan in the
attic, the officers reasonably believed they could not safely
retreat and exit the attic without first determining whether or
not he had a gun, knife or other weapon. To climb down
through the hole, one had to use both hands/arms to lower
oneself, which would render the officer defenseless to an
attack. Thus, until such time as the officers could make a
determination as to whether Sullivan had a weapon, they
could not safely retreat or leave the attic.

IV.    CONCLUSION

  For the reasons stated, I dissent from the majority’s affir-
mation of the district court’s denial of the defendant officers’
motion for summary judgment on the basis of qualified
immunity as to the issues of excessive force and provoking a
confrontation.