author: GRABER, Circuit Judge: BERZON, Circuit Judge,

text:
    N.E., BY AND THROUGH his parents C.E. AND P.E.; C.E.; and P.E., Plaintiffs-Appellants, v. SEATTLE SCHOOL DISTRICT, Defendant-Appellee.
    No. 15-35910
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 5, 2016 Seattle, Washington
    Filed November 17, 2016
    Lauren Rebecca Hruska (argued) and Charlotte Cassady, Cassady Law Firm, Seattle, Washington, for Plaintiffs-Appellants.

      David T. Hokit (argued), Curran Law Firm P.S., Kent, Washington, for Defendant-Appellee.
    Before: SUSAN P. GRABER, MARSHA S. BERZON, and MARY H. MURGUIA, Circuit Judges.
   Dissent by Judge BERZON

OPINION

GRABER, Circuit Judge:

Plaintiff N.E. is a child with a disability who, in accordance with the Individuals with Disabilities Education Act (“IDEA”), has received a series of Individualized Education Programs (“IEP”). In May 2015, three-and-a-half weeks before the 2014-15 school year ended, the Bellevue School District produced an IEP for N.E. that encompassed two stages: The first stage would begin immediately and the second would begin at the start of the 2015-16 school year. N.E.’s parents, Plaintiffs C.E. and P.E., allowed their son to finish the school year in accordance with the first stage of the IEP but did not agree to the second stage. Over the summer, the family moved to Seattle. Just before the start of the 2015-16 school year, Defendant Seattle School District proposed a class setting for N.E. that was similar to the second stage of the May 2015 IEP. Plaintiffs objected and sought a “stay-put” placement.

The pivotal issue is what “educational placement” was “then-current,” 20 U.S.C. § 1415(j), after N.E.’s family moved to Seattle in the summer of 2015 but before the 2015-16 school year began. Plaintiffs contend that the “then-current educational placement” must be the educational setting in which N.E. was enrolled either before his May 2015 IEP or, in the alternative, during the first stage of the May 2015 IEP. Defendant counters that the “then-current educational placement” for the 2015-16 school year is the setting described in the second stage of the May 2015 IEP. We agree with Defendant and, accordingly, affirm the district court’s denial of injunctive relief.

The relevant facts in this case are not disputed. N.E. was in the third grade at Newport Heights Elementary School in the Bellevue School District for most of the 2014-15 school year. Until the final month of that school year, and in prior school years, N.E. spent most of his instructional time in general education classes. His most recent IEP reflecting that arrangement dates from December 2014.

During the 2014-15 school year, Belle-vue School District officials reported that N.E. exhibited very serious behavioral problems on a regular basis. As a result, the school district began to consider changes. An IEP meeting occurred on May 26, 2015, at which Bellevue School District officials proposed a new IEP that placed N.E. in a self-contained, special education class for students with behavioral and emotional disorders (“self-contained class”). Plaintiffs objected to that proposal and wrote “disagree” on the front sheet of the proposed IEP. Bellevue officials and Plaintiffs also discussed where to place N.E. for the remainder of the school year. Bellevue and Plaintiffs agreed that N.E. would finish the final few weeks of the 2014-15 school year at a different school. At that school, he would spend most of the day in a one-on-two educational setting with a teacher and a paraeducator, but with no other students (“individual class”).

One day later, on May 27, 2015, the Bellevue School District produced the May 2015 IEP. The IEP incorporated two stages: During stage one, N.E. would finish the end of the 2014-15 school year in the agreed-upon individual class; during stage two, for the 2015-16 school year and beginning on September 1, 2015, N.E. would be placed in a self-contained class. Plaintiffs received that IEP approximately one week later, along with a prior written notice notifying Plaintiffs that the Belle-vue School District intended to alter N.E.’s educational placement and that the individual class would serve as a transition to the self-contained class. Plaintiffs did not file an administrative due process challenge to the May . 2015 IEP and, instead, allowed N.E. to attend the individual class until the end of the school year on June 22, 2015.

Plaintiffs moved to Seattle in the summer of 2015 and contacted the Seattle School District to enroll N.E. Plaintiffs requested an individual class setting similar to the one in which N.E. had completed the prior school year. The school district, however, reviewed N.E.’s records and proposed placing him in a self-contained class similar to the one embodied in stage two of the May 2015 IEP. Plaintiffs objected on September 9, 2015, and filed an administrative due process challenge. Plaintiffs also filed a “stay-put” motion, pursuant to 20 U.S.C. § 1415(j), arguing that N.E.’s stay-put placement was the general education class described in the December 2014 IEP. Defendant resisted the stay-put motion and argued that the self-contained class described in the May 2015 IEP was N.E.’s stay-put placement,

An administrative law judge agreed with Defendant and determined that the self-contained class was.N.E.’s stay-put placement. Plaintiffs appealed that decision and filed a motion with the district court seeking a temporary restraining order and a preliminary injunction. The motion sought an order requiring Defendant to place N.E. in a general education class pending the outcome of the due process challenge. The district court denied Plaintiffs’ motion on the ground that they had not established a likelihood of success on the merits. Plaintiffs timely appeal.

We review the denial of a preliminary injunction for abuse of discretion. Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). But we review legal questions, such as the meaning of a statute, de novo. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046 (9th Cir. 1999).

The pertinent portion of the IDEA provides:

[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or- .local, educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child....

20 U.S.C. § 1415(j) (emphasis added). The IDEA does not define “then-current educational placement.” The reading most consistent with the ordinary meaning of the phrase suggests that the “then-current educational ■ placement” refers to the educational setting in which the student is actually enrolled at the time the parents request a due process hearing to challenge a proposed change in the child’s educational placement. But two conceptual difficulties complicate the analysis. First, during the hiatus between school years, it is artificial to refer to remaining in a then-current placement; literally, there is none. Second, when an IEP contains two Stages, determining the “then-current educational placement” requires one to look either backward or forward. Here is a graphic representation of the situation: .

Our caselaw assists us in resolving the conundrum. We have defined “educational placement” as “the general educational program of the student.” N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). More specifically, we have, in a series of cases, “interpreted ‘current educational placement’ to mean ‘the placement set forth in the child’s last implemented IEP.’” K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1117-18 (9th Cir. 2011); N.D., 600 F.3d at 1114; L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 911 (9th Cir. 2009); Johnson ex rel. Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam). Although the statute refers to “educational placement,” not to “IEP,” the purpose of an IEP is to embody the services and educational placement or placements that are planned for the child. See Timothy O. v. Paso Robles Unified Sch. Dist. 822 F.3d 1105, 1111-12 (9th Cir. 2016) (describing the creation and elements of an IEP).

That rule does not fully resolve the dispute here, though, because the parties disagree about the status of N.E.’s “then-current educational placement.” Plaintiffs contend that a multi-stage IEP should be viewed as containing several, discrete “educational placements” and that any unrealized stage within such an IEP should be seen as an unimplemented “educational placement” that cannot serve as the stay-put placement. Thus, Plaintiffs argue, because stage two of the May 2015 IEP was never implemented,, it cannot .be considered the “then-current educational placement.” That conclusion, according to Plaintiffs, leaves only two options as .permissible stay-put placements: the individual class setting described in stage one of the May 2015 IEP or. the general education setting that preceded the May 2015 IEP. Because the individual class setting was considered short-term at the time the parties created the May 2015 IEP, Plaintiffs claim that the earlier general education setting is the most appropriate stay-put placement. Defendant counters that the May 2015 IEP, as a whole, was N.E.’s “then-current educational placement” and that no legal authority precludes a multi-stage IEP or an IEP that spans a summer break.

We agree with Defendant that a partially implemented, multi-stage IEP, as a whole, is a student’s. then-current educational placement. A multi-stage IEP could be structured as several distinct IEPs, but it need not be. For example, some of our past cases assume that a single. IEP may contain several phases. See, e.g., T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 462-63 (9th Cir. 2015) (describing a procedural defect in a multi-stage IEP, but not criticizing the IEP for having several stages), cert. denied, - U.S. -, 136 S.Ct. 1679, 194 L.Ed.2d 769 (2016). Plaintiffs’ reading of the statute would allow students and their families to challenge the second half of any two-stage IEP when the transition occurs during a school break and would permit repeated challenges at every stage of a multi-stage IEP. We do not think that Congress intended that result.

Additionally, by the time N.E.’s parents filed their due process challenge, the second stage of the May 2015 IEP had already been scheduled to start. As noted, the May 2015 IEP provided that stage two—the self-contained placement—would begin on September 1, 2015, while N.E.’s parents did not request a due process hearing until September 9, 2015. Under Plaintiffs’ view, parents who disagree with a new IEP could wait until it is scheduled to take effect, pull their child out of school, and then request a due process hearing after the effective date of the new IEP. The new IEP would not be.“implemented” because the child is not physically present in the new setting. By this logic, the parents could then avail themselves of the stay-put mechanism to enforce the terms of a preferred old IEP during the course of the new school year while their due process challenge is litigated. Once again, we do not think that Congress intended such a result because it would undermine the cooperative process envisioned by the IDEA.

We do not suggest that Plaintiffs’ request for a due process hearing was untimely; the issue here does not pertain to a statute of limitations. Rather, the question simply is how to identify the status quo when a timely challenge occurs. For example, had a one-stage IEP been completed on August 31, for a single year, had N.E. begun school on September 1, and had his parents brought their challenge a week later, the challenge plainly would have been timely; but, just as plainly, the “stay-put” placement would have been the current (as of September 1) placement.

In short, the December 2014 IEP was superseded. The May 2015 IEP encompassed both the individual class and the self-contained class stages. Plaintiffs did not challenge the May 2015 IEP despite having had months to do so before the scheduled implementation of its second phase in September 2015. The May 2015 IEP had already been implemented (and the scheduled start date for stage two had already passed) by the time Plaintiffs requested a due process hearing and, thus, was N.E.’s “then-current educational placement.”

The remaining question is whether the fact that the hearing request occurred during the summer—before N.E. physically enrolled in a self-contained class like the one described in stage two of the May 2015 IEP—forces us to view stage one as the stay-put placement. We think not, for two reasons. First, and more importantly, the IEP was implemented, and stage two was always the intended setting in which N.E. would begin the 2015-16 school year, effective September 1 (before N.E.’s parents requested a due process hearing). Second, we commonly think of education as forward-looking; we refer to a child who has completed fourth grade and is about to enter fifth grade as a “rising fifth grader.” The status quo at the time of the hearing request was the anticipated entry into the self-contained program. Stage two of the May 2015 IEP, therefore, was N.E.’s stay-put placement.

AFFIRMED.

BERZON, Circuit Judge,

Dissenting:

I respectfully, but emphatically, dissent.

The majority applies the IDEA’S “stay-put” provision to allow N.E. to be placed in an entirely new learning environment, more restrictive than any in which he had previously been enrolled, over his parents’ objection. The “stay-put” provision was designed precisely to preclude transferring students to new, more restrictive environments while theft parents challenge the transfer. None of the majority’s explanations for refusing to enforce the statute’s promise that children will remain in the existing placement while challenges go forward are persuasive, and each would open a large gap in the IDEA’S “stay-put” assurance.

I.

The majority opinion is short on facts. The facts matter in this case. I therefore fill in the gaps.

N.E. is an “intelligent child, [who] performs well when he desires to be engaged.” Overall, he was, as of the spring of 2015, “very strong academically. He loves to read. He has a great knowledge base.” He “qualifies for special education services ... due to an ADHD diagnosis,” and because he needs “specially designed instruction in Social Emotional” development.

N.E. was enrolled as a student in the Bellevue School District from kindergarten through third grade. He received special education services throughout- his time there. During the 2014-15 school year, as in earlier years, N.E. received the majority of his instruction “mainstreamed”—that is, in a classroom with other children of his grade—with full time, one-on-one support from a paraeducator. This instructional setting, with associated- services, was set forth most recently in. his December 2014 Individualized Education Program (“IEP”).

N.E. had a difficult third grade year; the parties dispute the reasons for the difficulties. In May 2015, Bellevue School District conducted a reevaluation of N.E.’s special educational needs. N.E.’s IEP team met on May 26, 2015 to discuss the reevaluation and to adopt an IEP for the 2015-16 school year. At that meeting, the Bellevue School District determined that N.E.’s educational needs had changed and proposed that N.E.’s placement be altered, to a self-contained classroom program for emotionally and behaviorally disordered students (the Cascade Program), for the 2015-16 school year. N.E.’s parents rejected the proposed placement at the IEP team meeting, writing “disagree’,’, on the draft IEP.

Just before the May IEP meeting, the school emergency expelled N.E., due to alleged escalating aggressive behaviors at school. At the time of the meeting, N.E. was still expelled and several -weeks remained in the school year. After the full IEP team dispersed, N.E.’s parents met with their attorney, the principal, the Special Education Supervisor, and the district’s attorney to discuss N.E.’s return to school following the emergency expulsion.

N.E.’s parents did not want N.E. to return to Newport Heights Elementary, as their trust in the school had been strained by the emergency expulsion. They requested that the district pay for a private school for the approximately three weeks remaining in the school year. After the district declined the request, N.E.’s parents and the district.agreed that N.E. would attend a different public elementary school for those final days, where he would receive individualized instruction from a certified teacher with support from a full-time par-aedueator, N.E. began attending that individual classroom program two days later.

This short-term solution was not mentioned at all in the. text of the May 2015 IEP. Instead, the narrative stated that “[N.E.] will be served in the Cascade program, which has therapeutic social-emotional and behavior supports.” A grid in the IEP, though, includes, under “Special Education and Related Services,” the short-term solution the parents and the principal had arrived at, as well as--the year-long self-contained classroom setting, to begin the following fall, discussed at the IEP meeting—that is, the Cascade placement to which the parents had already noted their objection.

Consistent with this sequence of events and with the Prior Written Notice, both school personnel and N.E.’s parents consistently described this individual class thereafter as a “temporary” or “interim” program. The Special Education Supervisor for the Bellevue School District described this placement as a “temporary program to finish out the remaining few weeks of the school year,” in an “interim setting.” Likewise, the Seattle School District later described the program as a “temporary measure,” taken because “the decision to move him to a. self-contained program came near the end of the school year.” N.E.’s mother also repeatedly described the individual class program as “interim.”

At the time N.E.’s parents received the Prior Written Notice, they knew the family would be moving from Bellevue to Seattle during the summer, and that it was the Seattle School District that would be' responsible for deciding N.E.’s 2015-16 placement. Moreover; an Independent Educational Evaluation funded by the Belle-vue School District was pending at the time of the May 2015 IEP meeting. N.E.’s parents expected the results of that evaluation to inform the Seattle School District’s placement decision for the next school year.

In August, N.E.’s family moved to Seattle and enrolled N.E, in the Seattle School District. The Seattle School District scheduled a Transfer Review IEP meeting with the family for September 3, before the school year started. At the IEP meeting, N.E.’s parents provided the District with a letter from N.E.’s treating psychologist and the report from the then-completed Independent Educational Evaluation, both recommending against N.E.’s placement in a self-contained classroom. Nonetheless, after considering the relevant materials,, the Seattle School District proposed placing N.E. in a self-contained classroom like the one adopted by the Bellevue School District in the May 2015 IEP. N.E.’s parents rejected the Seattle School District’s proposal at the September 3 meeting and filed their due process complaint' less than one week later, on September 9.

II

A.

Against this background, I turn to the question whether, as the majority holds, the statute permitted the Seattle School District immediately to place N.E., who had been “mainstreamed” in Bellevue except for -the three week end-of-year agreed-upon program, in a self-contained special education classroom. I am convinced that doing so while the parents were challenging that restrictive placement violated the IDEA’S “stay-put” provision.

I begin with the statute:

(i) Section 1415(j),' titled “Maintenance of current educational placement,” states:

[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program, until all such proceedings have been completed.

20 U.S.C. § 1415(j) (emphasis added). Notably, § 1415(j) uses the term “then-current educational placement,” not “Individualized Education Program,” as the benchmark.

Throughout the statute, the term “placement” refers to a child’s on-the-ground educational experience, not the content of a document. See, e.g., 20 U.S.C. §§ 1414(e); 1415(d)(2); (k)(l); (k)(3). For example, Section 1415(k)(l)(B) authorizes school personnel in exigent circumstances temporarily to remove a child who violates the code of student conduct from their ■ “current placement” to an interim alternative setting. Id, § 1415(k)(l)(B). Section 1415(k)(l)(C) further, provides that a school can only in narrow circumstances order a “change of placement” exceeding 10 days. Id. § 1415(k)(l)(C). Section 1415(k)(3) provides a mechanism for a parent to challenge such a “decision regarding placement.” Id, § 1415(k)(3). These provisions indicate parents may challenge individual placements without regard to whether or how they are set forth in an IEP, and so confirm that as used throughout the statute, “placement” refers to the child’s actual educational experience.

The phrase “then-current educational placement,” then, refers to an educational setting actually experienced by the student. “Because the term connotes preservation of the status quo, it refers to the operative placement actually functioning at the time....” Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir. 1990); cf. N.W. ex rel. J.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611, 617 (6th Cir. 2014) (explaining that any such operative placement cannot be one in which the parents unilaterally place them child); 34 C.F.R. § 300.116 (describing how educational placements are determined). Consistently with this understanding, Section 1415(j) is commonly referred to as the “stay-put” provision.

(ii) The IDEA separately defines “Individualized Education Program.” An “Individualized Education Program” (“IEP”) is “a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section.” 20 U.S.C. § 1414(d)(1)(A). An IEP sets out a child’s present educational performance and measurable annual goals, describes how progress toward those goals will be measured, and explains the special education and related services the child will receive in the future. Id.

The term “Individualized Education Program” (“IEP”) appears in various sections of the statute. See, e.g., 20 U.S.C. § 1415(c)(1)(E); (f)(l)(B)(i); (k)(l)(D)(i); (k)(l)(E)(i). The term helps describe the role of the team responsible for establishing a child’s education program; the child’s documented learning goals; and the documents administrators must review when determining if a child’s behavior is a manifestation of their disability. As these uses and the definition indicate, an IEP is a “statement”—a document. It is not the operational, on-the-ground educational setting experienced by the child.

(iii) The distinct uses of the terms “placement” .and “Individualized Educational Program” throughout the IDEA confirm that the terms refer to distinct concepts. As the Sixth Circuit observed in Cincinnati Bd. of Educ., 918 F.2d at 625, “[h]ad Congress intended a prospective IEP to govern the Act’s stay-put provision, as opposed to an operational placement, it could have employed the term ‘individualized educational program’ which it had already defined.” By using the term “placement,” not “Individualized Education Program,” in the stay-put provision, the IDEA evidences the intent not to tether the stay-put placement to a program planned for the future. Instead, the “then-current educational placement of the child” is the educational program to which the child was accustomed at the time a proposed new, never-implemented program is under challenge.

B.

My reading.of the statutory language and structure reflects the role of the “stay-put” provision in the statutory scheme.

The IDEA was first enacted in 1975 in response to evidence that disabled children were not receiving adequate educational services and that many children were “excluded entirely from the public school system and [would] not go through the educational process with their peers.” Pub. L. No. 94-142, § 3(b)(4), 89 Stat. 773, (1975) (codified at 20 U.S.C. § 1401 note (1976) (Congressional Findings)). The IDEA prevents the unnecessary exclusion of children with special educational needs from the classrooms attended by nondisabled children (“general education classrooms”), by requiring that school districts provide to special needs children the least restrictive education setting practical. 20 U.S.C. § 1412(a)(1), (5); Honig v. Doe, 484 U.S. 305, 309-11, 324, 325 n.8, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), partially superseded by statute on other grounds, Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, § 615(k), 111 Stat. 37 (1997). Toward that end, the IDEA provides both a substantive guarantee that all children with disabilities will receive a free appropriate public education, 20 U.S.C. § 1412(a)(1), and procedural safeguards to ensure that result. Among those safeguards are provisions that require meaningful parent participation in all aspects of the child’s education, including the right to challenge in impartial proceedings official school action. 20 U.S.C. § 1415(f)(1)(A); see Honig, 484 U.S. at 312,108 S.Ct. 592.

The statute’s stay-put provision complements both the substantive concern with avoiding restrictive educational environments if possible and the assurance that parents may meaningfully participate in deciding on their children’s educational placement. Enacted “to prevent school officials from removing a child from the regular public school classroom over the parents’ objection pending completion of the review proceedings,” Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 373, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); see also KD., 665 F.3d at 1120, the stay-put provision “meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students_” Honig, 484 U.S. at 323, 108 S.Ct. 592. By doing so, the stay-put requirement eliminated the “heightened risk of irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting.” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009). Tying the stay-put provision to an actual educational setting experienced by the child—not a planned future placement included in an IEP statement— avoids that result.

C.

Here, at the time N.E.’s parents brought- their due process challenge on September 9, 2015, the summer break was just concluding, the 2015-16 school year was about to begin (apparently that day), and the new school district had just announced N.E.’s assignment for the coming year. In this circumstance, the IDEA’S promise that parents can preserve the status quo while challenging school district actions most sensibly requires us to look for stay-put purposes to the general education classroom (with, accommodations).

The two other candidates for the “stay-put” benchmark are the individual class, the stop-gap educational setting agreed to by his parents and understood' by all concerned as temporary or interim, and the Cascade Program, which N.E. had never attended.

As to the first, the school district and NJE.’s parents agreed that N.E. would be in the individual class for approximately three weeks, to finish the school year. As both parties now recognize, “[t]he policy behind [the stay-put provision] supports an interpretation of ‘current educational placement’ that excludes temporary placements. ...” Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 10 (1st Cir. 1999). Such placements do not reflect any considered judgment, at any point, that the temporary placement is suitable for the long-term educational development of the child. In situations like this one, where the school district and the child’s family do not agree to extend a temporary placement, the stay-put provision requires placing the student “in the last placement that the parents and the educational authority agreed to be appropriate.” Id.

As to the Cascade Program, it was certainly not the “then-current educational placement” at the time N.E.’s parents challenged the Seattle District’s proposed placement. N.E. had never been taught in an isolated special education classroom. To place him in one would fundamentally alter his educational experience, without his parents’ consent and before the proceedings designed to prevent the “heightened risk of irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting,” Joshua. A., 559 E.3d at 1040,' could go.forward.

’ The third alternative, placement in the general education classroom with full-time paraeducator support, is the setting in which N.E. received instruction for all but the last few weeks of the prior school year, as well as in prior years. The May 2015 IEP identifies this setting and associated services as N.E.’s “current placement at his neighborhood school.” Placing. N.E. in that general education setting while his parents bring their due process challenge would fulfill the statutory “stay-put” purpose of ensuring that schools cannot unilaterally exclude children from the general educational setting. See Honig, 484 U.S. at 323, 108 S.Ct. 592. And it would provide stability for N.E. in his educational experience, to the degree possible given the change in school districts.

The alternative embraced by the majority—allowing Seattle to move N.E. for the first time to a self-contained classroom for emotionally and behaviorally disordered children—would, in contrast, fundamentally disrupt N.E.’s education. Yet, the challenge to the IEP, if successful, could result in a second disruption, returning N.E. to the general educational setting his parents seek. In the meantime, N.E. would have been educated for a long period in an inappropriate setting, in isolation from his peers. Section 1415(j) is designed to preclude precisely such disruption and such potentially long term harm to students with disabilities.

III.

The majority disagrees with my application of the IDEA “stay-put” requirement to this' case. It does not contest that “then-current educational placement” ordinarily refers tó the actual educational setting in which á student is enrolled. But it insists that for several reasons, the usual understanding does not apply here, and that, instead, the “stay-put” baseline is the self-contained classroom setting which N.E. had never actually experienced.

First, the majority maintains that the May 2015 IEP contained two stages, one of which was implemented, and that the “then-current educational placement” therefore became the never-implemented, longterm part of the IEP. Second, the majority sees significance in the timing of N.E.’s. parents due process challenge— during the summer break. Maj. Op., pp. 1095-96. Third, the majority indicates that N.E.’s parents brought the stay-put problem on themselves by filing their challenge to the Cascade Program when they did. Finally, the majority suggests that N.E.’s alleged disruptive behavior in the spring, of 2015 justified the transfer. None of these circumstances supports the majority’s conclusion that “a partially implemented, mul-ti-stage IEP, as a whole, is a student’s then-current educational placement,” and that the self-contained classroom is therefore N.E.’s stay-put placement. Maj. Op., p. 1097. I take in turn each of the specific circumstances of this case on which the majority relies.

A.

The majority characterizes the May 2015 IEP as a partially implemented, mul-ti-stage IEP. In fact, the May 2015 IEP proposed only one continuing placement, the self-contained classroom program. On both the Prior Written Notice and in the IEP, the . district stated that it was proposing a new placement for N.E. in the Cascade Program, a self-contained classroom. The Prior Written Notice specifically referred to the. individual class as .an “interim” setting and did not propose the individual class as a new placement. Instead, it noted that “to assist with [N.E.’s] transition to the cascade program at the beginning of the year,” for the remainder of the current school year N.E, “would receive 1:1 instruction provided by a certificated teacher and supported by a paraeducator in an interim setting at another elementary school.” The IEP itself included the three-week interim program in the matrix of services, but it did not elsewhere describe the program. All concerned parties understood the individual classroom program to-be a stop-gap measure that was distinct from the placement proposal made at the May IEP meeting. See pp. 1099-1100, supra. The manner in which these documents present, and the participants in the IEP decision understood, the two programs indicates that the proposed placement was the self-contained program; the one-on-one setting, was a temporary, agreed-upon measure to close out the last weeks of .the school year. :

In the end, though, on my reading of the statute,- the dispute over whether the IEP is a two-stage educational program or a one-stage, full-year program with a temporary, stop-gap placement ultimately does not matter. The “stay-put” provision, as I have explained, focuses not on what is contained in the IÉP document but on the child’s actual educational experience.

Here, N.E. had never experienced the self-contained classroom program the 2015 IEP proposed. A child cannot “stay-put” in a program in which he never took part; the “then-current educational placement” cannot be an educational setting the child has never experienced. From the child’s point of view, moving him' to an entirely new kind of educational experience, one that exists only on paper, is precisely the sort of fundamental disruption the “stay-put” provision was designed to prevent.

Moreover, permitting the school district to implement an entirely new educational program while the parents are properly challenging it allows the unilateral school district decisionmaking the IDEA does not permit. “The preservation of the status quo [is meant to] ensure[ ] that the student remains in the last placement that the parents and the educational authority agreed to be appropriate.” Verhoeven, 207 F.3d at 10.

B.

Like the majority’s concern with the nature of the IEP, the circumstance that the summer break intervened does not require departure from the stay-put provision’s mandate to preserve the status quo. Even if “we commonly think of education as forward-looking,” Maj. Op., p. 1098, the focus of the stay-put requirement is static—to preserve an existing educational placement until any challenge to a newly proposed one is resolved. An entirely new, future placement, never experienced by the child, is not what one would call the “current” one in ordinary language; “current” suggests continuity, not disruption. As between (1) the educational placement in place at the time the IEP was devised and for the entirety of N.E.’s prior education, and (2) an educational program N.E. had never experienced, the former, most recent one (except for the three-week stop gap) has to be the “then-current” one for purposes of a provision designed to preserve the status quo and prevent disruption. Further, if school districts could unilaterally and fundamentally change a child’s educational placement over the summer break because there is no “then-current” educational placement during that period, the IDEA’S commitment to parental involvement in devising educational programs for disabled children would be severely undermined.

C.

The majority also faults N.E.’s parents for filing their due process challenge when they did, suggesting the result might be different had the challenge been lodged earlier. But the parents filed their challenge when they did for a practical reason: N.E.’s parents did not know the Seattle School District would propose the self-contained classroom placement proposed by the Bellevue School District until the IEP meeting on September 3.

Having moved from one district to another over the summer, N.E.’s parents knew that the Seattle School District would decide N.E.’s placement for the 2015-16 school year. The statute requires that “[a]t the beginning of each school year, each local educational agency ... shall have in effect, for each child with a disability in the agency’s jurisdiction, an individualized education program.” 20 U.S.C. § 1414(d)(2)(A). Given the Independent Educational Evaluation report and the psychologist’s letter recommending against the self-contained classroom placement, N.E.’s parents had good reason to anticipate that the Seattle School District might not propose the self-contained classroom placement in adopting the new IEP. A due process challenge against the Seattle School District before September 1 would have been premature.

The majority’s focus on the September 1 date is misplaced for another reason. The Bellevue School District listed September 1 on the May IEP as the start date for the self-contained classroom placement, but the date did not correspond to the actual start of the school year in Seattle. As noted, school had not yet begun in Seattle on September 1. Because the stay-put provision requires attention to a child’s actual educational experience, a projected start date in a document should not obscure the on-the-ground reality.

The majority’s critique of the timing of N.E.’s parents’ due process challenge leads to untoward practical consequences if accepted. The majority faults N.E.’s parents for not challenging what they call “stage one” of the IEP, a challenge which would have been meaningful only had it been brought before that stage finished. But N.E.’s parents agreed with the stage one placement, as an available interim measure. There is nothing in the statute requiring parents to object to a short, interim, emergency placement to which they agree so that they can challenge a later, long-term, entirely different, placement they oppose, while still benefitting from IDEA’S stay-put provision.

Moreover, under the majority’s reasoning, for the general education setting to become the “stay-put” placement, N.E.’s parents would have had to file their due process challenge before stage one began. But it would have been impossible for N.E.’s parents to do so here, as they did not receive the statutorily-mandated prior written notice until a week or ten days after N.E. began attending the interim individual class. That notice was the first time in which the interim, agreed-upon setting and the self-contained classroom placement were bundled into a single IEP. Under the majority’s approach, N.E.’s parents were effectively locked into both stages of the IEP by the time they saw the IEP document.

Even assuming that the parents received sufficient notice in the May meetings that the two programs would thereafter be inextricably linked—and I do not think they did—it would take some time for the parents to bring a due process challenge. N.E. began attending the interim program only two days after the IEP meeting. To bring a due process challenge, parents must: find and contact a competent lawyer; set up an appointment; discuss their options with the lawyer and probably between themselves; draft and file a complaint; and then assert their child’s stay-put right.

Indeed, even in a situation in which parents do receive timely prior written notice of an IEP containing a short-term interim placement and a new placement, it is quite possible that they would not be able to file a complaint to challenge the IEP before the first stage is implemented. The statute requires roughly ten days’ notice prior to implementation of a proposed change. See Letter to Winston, 213 IDELR 102, p. 3 (Office of Special Educ. Programs 1987). Filing a due process complaint will likely often take more than ten days.

Under the majority’s rule, any time an emergency placement is proposed for rapid implementation and is attached to a longer placement in an IEP, the parents’ only feasible option is to challenge both the interim and new placement before the interim placement begins. Otherwise, they will be stuck with implementation of the unacceptable stage of the IEP while the challenge proceeds. And doing so is likely to be difficult, given the time necessary to mount a challenge.

D.

Finally, moving N.E. to a restrictive environment during the pendency of the due process proceedings was not necessary to address any concern about N.E.’s allegedly aggressive and violent behavior. The IDEA provides procedures for addressing behavioral problems and safety concerns short of such unilateral action.

First, the Act provides that an IEP team “consider the use of positive behavioral interventions and supports” when a child’s behavior “impedes the child’s learning or that of others.” 20 U.S.C. § 1414(d)(3)(B)(I). Next, when a child with a disability violates a code of student conduct, the Act authorizes school personnel to remove that child to an alternative educational setting, or to suspend the student, for up to 10 days, to the extent such discipline would be applied to children without disabilities. 20 U.S.C. § 1415(k)(l)(B). If, after school personnel remove a child from their current placement pursuant to that authority, the IEP team determines that the problem behavior is a manifestation of the child’s disability, the Act directs the IEP team to “conduct a functional behavioral assessment, and implement a behavioral intervention plan,” or to review and modify an existing behavioral intervention plan to address the child’s problem behavior. Id. § 1415(k)(l)(F). Finally, school authorities can remove a child'with a disability to an alternative setting for up to 45 days when that child has a weapon, possesses or uses illegal drugs, or injures another person at school. Id. § 1415(k)(l)(G). If N.E.’s problem behavior recurred while he was placed in a general education classroom, these provisions would provide the Seattle School District with lawful, effective means of addressing those problems and preserving classroom safety.

* * * *

In short, although the circumstances of this case do introduce some complexity into applying the IDEA’S stay-put requirement, these circumstances do not change ray conclusion that N.E.’s stay-put placement is the general educational setting with individual paraeducator support he had experienced for almost all his student life.

IV.

The majority’s approach simply cannot be reconciled with the text of the statute or its purposes. It confínes N.E. to the most restrictive placement contained in any of his IEPs, removes him almost entirely from the general education setting, and places him in a setting in which he was never previously enrolled. The majority’s approach has the practical potential broadly to preclude relief to parents and their children with special educational needs. I respectfully dissent.

      . Pursuant to the procedural requirements of the IDEA, school districts must provide parents with "[w]ritten prior notice ... whenever the local educational agency proposes to initiate or change or refuses to initiate or change ... the identification, evaluation, or educational placement of the child.” 20 U.S.C. § 1415(b)(3)(A).
      In addition to making the arguments discussed in text, Plaintiffs argue that Bellevue School District committed a procedural error, in violation of the IDEA, by sending the written notice after the school district had already implemented stage one of the May 2015 IEP. They argue that this error prevents the May 2015 IEP from serving as the stay-put placement. But that argument was waived; Plaintiffs raised it only in a motion for reconsideration, which does not suffice to preserve the issue for appeal. Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 998 (9th Cir. 2014).

      . The dissent argues that a general education class with full-time paraeducator support (the December 2014 IEP) should be considered N.E.’s stay-put placement, and it dismisses the individual class (stage one of the May 2015 IEP) as ‘‘understood by all concerned as temporary or interim,” and "not reflecting] any considered judgment, at any point, that the temporary placement is suitable for the long-term educational development of the child.” Dissent at 1103-04. But N.E.’s parents, citing the recommendations of two psychologists, requested an individual class setting when they first contacted the Seattle School District. In other words, Plaintiffs initially sought a more isolated, not a less isolated, environment for N.E. Had the Seattle School District acceded immediately to Plaintiffs’ wishes, N.E. would not have been placed in a general education class.

      .Plaintiffs do not argue that Defendant’s proposal differed meaningfully from the second stage of the May 2015 IEP.

      . It is our view that the change of school districts, in this case, does not affect the analysis.

      . We cannot fault Plaintiffs for not having objected to stage one before allowing N.E. to attend the individual class for the last few weeks of the 2014-15 school year. But we view as critical the fact that Plaintiffs never challenged the May 2015 IEP at any point before the new school year was set to begin. Had Plaintiffs done so, they likely would have been entitled to a stay-put order under the terms of the December 2014 IEP that they could have presented to the Seattle School District upon transferring there.

      . N.E. has scored in the 99th percentile in reading and 85th percentile in mathematics on his last standardized test.

      . That draft was blank on one page on which a proposed placement was to be listed. The District had indicated its intention to fill in that page with the proposed self-contained classroom program. The parents therefore wrote “disagree” on the cover page of the draft.

      . An "emergency expulsion” in Washington public schools is a denial of attendance for no more than ten days, imposed while a student poses a danger or risk of substantial disruption. See Wash. Rev. Code 28A.600.015; Wash. Admin. Code 392-400-295. A student who is emergency expelled does not have the right to remain in school while challenging the disciplinary action. See Wash. Admin. Code 392-400-295. This state law accords with the IDEA, which allows school authorities to remove a child with disabilities who violates a code of student conduct from the classroom, to the extent they would do so for children without disabilities, for up to ten days. See 20 U.S.C. § 1415(k)(l)(B).
      The school asserted that N.E. had gotten into a fight with his younger brother while waiting to be picked up after school. N.E.’s parents maintain that the Bellevue School District “fabricated” this incident because of hostility to N.E.

      . The Prior Written Notice sent to N.E.’s parents along with the final IEP stated as N.E.’s “current placement” "his neighborhood school with resource room support, 1:1 para[educator], and Behavior Intervention Plan.” The “proposed or refused action” was “a change of placement to the Cascade Program.” Under “Any other factors that are relevant to the action,” the District explained that “[t]o assist with transition to the [C]as-cade program ... the team discussed that for the remainder of this school year, [N.E,] ' would receive 1:1 instruction provided by a certificated teacher and supported by a parae-ducator in an interim setting at another elementary school.” (emphasis added).

      . The Seattle School District’s "Transfer Review IEP” for N.É. lists the dates of the proposed placement as September 9, 2015 to May 25, 2016, indicating that the school year started on September 9.

      . N.E.’s temporary placement in the individual classroom was not made by the District pursuant to § 1415(h). Instead, the school district and N.E.’s parents agreed to place N.E. in the individual classroom as a temporary measure after his emergency expulsion, because N.E.’s parents preferred he not return to Newport Heights Elementary School for the remaining few weeks of the school year,

      . Our precedents are not to the contrary. Some refer to an implemented IEP as the touchstone for the ''stay-put” requirement. But those cases state only that the then-current educational placement “is typically the placement described in the child’s most recently implemented IEP,” not that it always is. Johnson ex rel. Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam) (emphasis added); see also L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 911 (9th Cir. 2009). None of those cases held that the child’s stay-put placement was an educational setting the child never before experienced. See Johnson, 287 F.3d at 1178—81; Capistrano, 556 F.3d at 911-13; K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1117-21 (9th Cir. 2011); N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). Use of the shorthand term "last implemented IEP” in that line of cases thus did not encompass situations in which a future educational placement projected in an IEP never occurred.

      . The Act was originally entitled the Education for All Handicapped Children Act of 1975. It was amended in 1990 and renamed the “Individuals with Disabilities Education Act,” Pub. L. No. 101-476, 104 Stat. 1103 (1990). I refer to both versions of the statute as “IDEA.”

      . The majority notes that we might refer to a child who is about to enter fifth grade as a "rising fifth grader.” But we do not refer to that child as a "fifth grader,” precisely because they have not yet started fifth grade.

      . The statute also contains a section that deals with student transfers between school districts that take place within an academic year. That section provides: “In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State Law.” 20 U.S.C. § 1414(d)(2)(C). Since N.E. did not transfer districts within the same academic year, this section does not govern his case. The Seattle School District nonetheless described N.E.'s new proposed IEP as a "Transfer Review" IEP, so it may have been under the impression that this provision applied. Whether under § 1414(d)(2)(A) or § 1414(d)(2)(C), it was clear to both school officials and N.E.’s parents that the Seattle School District had an obligation to adopt an IEP for N.E. for the beginning of that school year.

      . The majority is correct thát N.E.’s parents waived their argument that the entire May 2015 IEP is invalid because they did not receive timely prior written notice. That does not, however, change the fact that, given the tardiness of the notice, N.E.’s parents could not have filed a challenge and brought a stay-put motion before the stage one placement began.

      . N.E.’s "emergency expulsion” before his temporary placement in the individual class conformed with this statutory authorization,


source: Caselaw Access Project

author: W. FLETCHER, Circuit Judge:

license: Public Domain

text:
    Jerry NEWMAKER; Susan Olesen, Plaintiffs-Appellants, v. CITY OF FORTUNA; Maxwell Soeth; Charles Ellebrecht, Defendants-Appellees.
    No. 14-15098
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 14, 2016, San Francisco, California
    Filed November 22, 2016

      Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellants.
    Nancy K. Delaney (argued) and Nicholas R. Kloeppel, Mitchell Brisso Delaney & Vrieze LLP, Eureka, California, for Defendants-Appellees.
    Before: WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

Maxwell Soeth, a police officer in Fortu-na, California, fatally shot Jacob Newmaker during an attempted arrest. In this 42 U.S.C. § 1983 case alleging excessive force, Officer Soeth maintained in the district court that he shot Newmaker after he grabbed Soeth’s police baton. According to Soeth, Newmaker was standing upright and was swinging the baton violently toward Sergeant Charles Ellebrecht at head height when he was shot. According to Soeth, Newmaker then fell to the ground. Soeth maintained he shot Newmaker again as Newmaker was getting up and again swinging the baton.

The district court granted summary judgment to Officer Soeth based on qualified immunity. Because evidence in the record contradicts Soeth’s testimony, we reverse and remand.

I. Procedural Background

In 2012, Newmaker’s parents (“Plaintiffs”) filed this suit against the City of Fortuna, Officer Soeth, and Fortuna Police Sergeant Ellebrecht. Plaintiffs allege that Soeth used unconstitutionally excessive force by striking Newmaker multiple times with his police baton and then fatally shooting him. Plaintiffs originally asserted various federal and state law claims, but eventually agreed to dismiss several of them, leaving only the excessive force and substantive due process claims against Soeth and a few state law claims against both the City and Soeth.

After excluding some of Plaintiffs’ proffered evidence, the district court concluded on summary judgment that Officer Soeth was entitled to qualified immunity. Based on Soeth’s testimony that Newmaker had taken his police baton, the court concluded that “it was reasonable for Officer Soeth to conclude that Newmaker might use the baton in a dangerous way against Elle-brecht, merely by virtue of having it in his possession.” After granting summary judgment on the § 1983 claims, the district court dismissed the remaining state law claims without prejudice. Plaintiffs appeal the grant of summary judgment to Soeth.

II. Standard of Review

We review a district court’s grant of summary judgment de novo. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We review for abuse of discretion a district court’s decision to exclude expert testimony and other evidence during summary judgment proceedings. See Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th Cir. 2014).

III. Discussion

Because we are reviewing a grant of summary judgment in favor of defendant Soeth, we view the evidence in the light most favorable to Plaintiffs. “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Evidence in the Record

1. Officer Soeth’s Deposition Testimony

Officer Soeth testified in his deposition that Newmaker walked into the Fortuna Police Station at about midnight on the morning of March 16, 2012. Newmaker told Soeth that unidentified people had just chased him down an alley and that he was afraid. Soeth told Newmaker that he needed either to file a report or to leave the station. Newmaker declined to file a report and asked for a ride home. Soeth refused, and Newmaker left. Newmaker was acting strangely, and Soeth thought he might be mentally impaired or on drugs.

About two hours later, while in a patrol car, Officer Soeth encountered Newmaker on a street in Fortuna. Newmaker was fully clothed, wearing a jacket, but shoeless. Newmaker told Soeth that he was going to the hospital and asked for a ride to his mother’s house. Soeth refused to give Newmaker a ride, but followed New-maker until he arrived at his mother’s house and went inside. A check with dispatch to determine whether Newmaker was on probation or parole or had any outstanding warrants came up negative.

At about 6:00 a.m. that morning, Officer Soeth received a call at the station about a “male subject ... banging on the doors and windows of an occupied dwelling.” While Soeth went in his patrol car to investigate, Sergeant Ellebrecht spoke to the caller, who reported that the subject had left on a bicycle. The caller stated that the subject had said his “skin was crawling” and “[t]hat he was in contact with radiation.” Ellebrecht relayed this information to Soeth. Soeth encountered New-maker on a bicycie at an intersection. Newmaker was no longer wearing his jacket. Soeth attempted a stop, but Newmaker rode away.

Officer Soeth followed Newmaker and “called out” a pursuit. After about two blocks, Newmaker got off his bicycle and started running. Soeth got out of his patrol car and pursued on foot. Newmaker turned around and came back toward Soeth. Soeth ordered Newmaker to get on the ground. Newmaker responded by lying on the hood of a parked car. .Soeth ordered Newmaker to get on the ground and show his hands. When Newmaker did not comply, Soeth physically forced him to the ground.

Officer Soeth stated in his deposition that he again ordered Newmaker to show his hands. When Newmaker did not comply, Soeth used his Taser in “drive” mode (without darts) to stun Newmaker in the lower back. Soeth stated that Newmaker reacted by grabbing the Taser with one hand and Soeth’s leg with the other. Soeth stepped back, and Newmaker got up and ran away. Soeth again pursued Newmaker on foot. At some point, Newmaker had lost his pants. He was now naked from the waist down and wearing only a t-shirt. He had no weapon.

Officer Soeth stated in his deposition that Newmaker stopped running and assumed a “fighter’s stance.” Soeth pointed his Taser at Newmaker and told him to get on the ground. When Newmaker failed to comply, Soeth fired the Taser in “probe” mode (with darts). The darts hit Newmaker in the torso, and he fell onto his back. Soeth ordered Newmaker to roll on his stomach and put his hands on his back. When Newmaker failed to comply, Soeth activated another Taser cycle. New-maker grabbed the Taser wires and bit through them.

Sergeant Ellebrecht, who had just arrived in a separate patrol car, joined Officer Soeth in the attempt to subdue Newmaker. Officer Soeth stated in his deposition that he hit Newmaker twice with his police baton to prevent him from getting up, although video from Elle-brecht’s dashboard camera shows a greater number of strikes. Soeth stated that he then tried to close the baton to put it back in its holster, but he could not do so. He threw the baton to the edge of the sidewalk next to a fence. El-lebrecht succeeded in handcuffing New-maker’s right wrist. Soeth and Ellebrecht then dragged Newmaker onto the street behind a parked car, out of view of the dashboard camera. What happened next is at the core of this case.

The video taken by the dashboard camera shows Officer Soeth going to retrieve his baton from beside the fence and then returning behind the parked car. Soeth stated in his deposition that he intended to use the baton to pry NewmakePs left arm free so Ellebrecht could handcuff his left wrist. Soeth stated that Newmaker grabbed the baton and’that he shouted, “He’s got my baton.” According to Soeth, Newmaker stood up and swung the baton “violently” and “aggressively” at Elle-brecht’s head. Soeth stated in his deposition that he then drew his firearm and told Newmaker to drop the baton. Soeth stated that he then shot Newmaker from a standing position in order to protect Ellebrecht. Soeth stated that Newmaker fell to the ground, either because he was shot or because he “was swinging so violently that he fell.” Soeth stated that he shot New-maker again as he was getting up and starting to swing the baton again. Soeth estimated that the time between the two shots was “[t]wo seconds tops” and could have been less than a second. The shots killed Newmaker.

2. Carol Harris’s Declaration

A witness to the encounter, Carol Harris, provided a sworn declaration. Harris stated that she lived “directly to the south” of where Officer Soeth and Sergeant Elle-brecht were attempting to subdue New-maker. She did not specify how far away she was. She stated that she “exited [her] residence and stood on the front porch from where [she] observed a man fighting in the street with officers[.]” She stated that she “either blinked or looked away for a moment.” When she “looked back,” one of the officers had drawn his gun and stated, “ ‘Put. the weapon down.’ ” That officer “again stated, ‘Put the weapon down, put the weapon down.’ ” Harris stated that she “saw two muzzle flashes from the ■ gun ..., approximately two seconds apart[.]” “After the male was transported by ambulance from the scene, [she] observed items in the roadway, including one that had a handle and appeared to be ‘telescoped’ out[.]”

3. Evidence Conflicting with Officer So'eth’s Testimony

a. The Hislop Interviews

The day after the shooting, Officer Soeth and Sergeant Ellebrecht were interviewed by Investigator Michael Hislop of the Humboldt County District Attorney’s Office, accompanied by a detective from the Fortuna Police Department. Before the interviews, Soeth and Ellebreeht had viewed the dashboard camera video. Only-after receiving suggestions from Investigator Hislop did Soeth and Ellebreeht arrive at the version of events they ultimately presented to the district court.

At the beginning of his first interview, Officer Soeth gave the following description of what happened after he and Sergeant ■ Ellebreeht dragged Newmaker behind the parked car:

I run back to the sidewalk, grab my baton, get towards the subject, go to initiate that move, that technique [of .using the baton,as a tool to pry New-maker’s left hand], he jerks his right hand out of [Ellebrecht’s] grasp. Latches onto my baton with both hands. I latch onto my baton with both hands. We struggle. Charles yells, ‘Pepper spray him.’ I said, “He’s get—he’s getting my baton.”
He jerks the batons [sic] out of my hand. I yell, “He’s got my baton.” I create distance between me and him. Draw my weapon, my firearm. He is— he has the baton in both hands and he’s—he’s just swinging it back and forth towards Charles.
He takes a step or two towards Charles. I’m ordering him to drop it. .,. Giving ... him orders to comply.
I shoot him twice. Subject drops.

Soeth stated that Newmaker was “aggressively swinging [the baton] towards Charles” at about “head height” when he shot him.

Near the end of -the interview, Investigator Hislop suggested, to Officer Soeth that it might not have happened the way Soeth had initially described it, with Newmaker falling to the ground only after Soeth had shot him twice;

Investigator Hislop: Okay. So you shot two shots and—let’s go back to that real quick. You shot two shots. And on the videotape which you’ve watched ...
[He’s] doing this big overt swing towards Sergeant Ellebreeht. You shoot him. And then he falls down and he’s getting back up again. And then you shoot him again?
Maxwell Soeth: After seeing the video, I—I believe that is what happened.
Investigator Hislop: Okay. Good. Anything else?

In his deposition approximately one year later, Soeth repeated the version of events suggested by Investigator Hislop.

Investigator Hislop next interviewed Sergeant Ellebreeht. Ellebreeht stated early in the interview, “I knew he had Soeth’s baton. And at that point, I saw him, like, swing at me. And I remember backing up trying to get away from him. And then that’s when Soeth fired.” “It was head high. ... And it was a full swing, so definitely head high at some point.” Elle-brecht remembered two shots, resulting in Newmaker on his knees:

Investigator Hislop: Okay. So once Jacob [Newmaker] swung at you with the baton and you backed up, what happened right after that?
Charles Ellebreeht: That’s when Officer Soeth who was a little bit away from Newmaker at that point. I don’t know at what point he backed up. But he—I saw his gun and I remember him firing two shots.
Investigator Hislop: What happened to Jacob after that?
Charles Ellebreeht: He was on his knees[.]

Investigator Hislop then suggested to El-lebrecht the same sequence of events that he had suggested to Officer Soeth:

Investigator Hislop: You watched the video and in how he kind of lunges. There’s a large, like, lunge as you’re backing up.
Charles Ellebrecht: I think it was right at—right at the same time Newmaker began swinging.
Investigator Hislop: Okay. And the second shot—
Charles Ellebrecht: It was like less than a second later, if I recall correctly. Like, it was pretty much back to back as much as I can remember.
Investigator Hislop: Okay. Now if—if you referred back to the video if you can, so when he does the big lunge and then he gets shot and it looks like he way over-extended and he fell.
Charles Ellebrecht: He—
Investigator Hislop: He fell and then again didn’t seem like it stopped him. He fell and then he started to get back up again.
Charles Ellebrecht: That, I think is— that might be when Soeth—
Investigator Hislop: Would it be possible that he shot once while he swung at you and then when he fell, he got back up and Soeth shot again?
Charles Ellebrecht: It’s possible.
Investigator Hislop: Okay. Okay.
Charles Ellebrecht: I don’t remember.

Investigator Hislop interviewed Sergeant Ellebrecht again a month later, on April 19. At the end of the first interview, Ellebrecht had said only that it was “possible” that Newmaker had fallen to the ground between shots. Ellebrecht was still hesitant in the second interview, but he now recited, unassisted, the version of events that had been suggested by Hislop:

Once Newmaker got the baton from Soeth, I guess he turned—he was kind of facing towards me. And I remember him, like, coming down with it at me.
And that’s when I—I tried backing up when he was swinging it at me.
And then my recollection is that’s when Soeth fired the first shot. And I’m not one hundred percent positive.
And then I remember Newmaker falling down, down to his knees, I guess. And then seeing another shot. I—I think after the second shot, he started to get up. He fell. I remember him falling and trying to get up.
And then I guess the second shot went off, he tried to get up again. And then shortly later that’s when he, like fell forward, like, on the pavement and had the baton.
b. The Autopsy Report

The report from the autopsy performed on Newmaker’s body conflicts with Officer Soeth and Sergeant Ellebrecht’s version of events. When Investigator Hislop initially interviewed Soeth and Ellebrecht, no autopsy had been performed. The autopsy, performed three days later, showed that two bullets killed Newmaker. They both entered his lower back and traveled at thirty degree angles upward toward his chest. One bullet entered the left lower back, broke a rib, traveled through the left lung, and lodged in the left pectoral muscle. The other entered the right lower back, traveled through the lower right lung, lacerated two lower thoracic vertebrae, and lodged in the descending right aorta.

The video from Sergeant Ellebrecht’s dashboard camera and Officer Soeth’s own statements make plain that Soeth was standing upright, holding his gun at about chest level, when he shot Newmaker. Soeth claimed that he fired the first shot when Newmaker was standing upright, swinging the baton violently toward Elle-brecht, and the second shot as Newmaker was getting up off the ground, again swinging the baton. The autopsy report contradicts Soeth’s testimony. The autopsy results can be explained only by Newmaker having been turned away from Soeth, bending over, and low to the ground in both shots—not, as Soeth maintains, standing up and swinging the baton at head height (the first shot) or attempting to stand up and swinging the baton again (the second shot).

c. The Video,

.The video taken by Sergeant Elle-brecht’s dashboard camera is also inconsistent with Officer Soeth’s version of the events. Plaintiffs had the video “enhanced” in an attempt to improve the lighting and image quality. The district court had before it both an “enhanced” and “unen-hanced” version of the video. We rely for our analysis on the unenhanced version.

The quality of the video is poor, as the recording was made a little after 6:00 a.m., while it was dark and raining. The dashboard camera was supposed to record sound, but for reasons that are unexplained, none has been preserved. The following can nonetheless be discerned. After Newmaker has bitten through the Taser wires, Officer Soeth and Sergeant' Elle-brecht struggle with him on the sidewalk. The video shows Soeth hitting Newmaker about five times with his baton while still on the sidewalk. (During his deposition, Soeth stated that he hit Newmaker two times.) Ellebrecht succeeds in handcuffing Newmaker’s right wrist. Soeth and Elle-brecht drag Newmaker .off the sidewalk onto the street behind a parked car. Elle-brecht’s patrol car is in front of the parked car, and what happens on the ground behind the parked car cannot be seen in the video. Soeth goes to the fence, on the left-hand side of the video screen* to retrieve his baton. He returns with the baton to the rear of the parked car and disappears from sight. Soeth’s head appears briefly, rising high enough behind the parked car that it can be seen. Ellebrecht stands, and then Newmaker comes into view. He rises behind the car, and almost immediately twists and falls toward the right, onto the street. There is nothing clearly visible in his hands. After he has fallen, only his legs are visible on the video.- The rest of his body is off the screen to the right. At 06:17:44 on the videotape clock, just after Newmaker has fallen to the street, Soeth appears to shoot.

d. Internal Inconsistencies in the Defendants’ Statements

Officer Soeth’s and Sergeant Elle-brecht’s statements are inconsistent with one another on several points. They disagreed over the number of times Newmaker swung the baton. Soeth stated that Newmaker “aggressively” and “violently” swung the baton multiple times, while El-lebrecht stated that Newmaker swung the baton only once. They also offered conflicting testimony about what happened to the baton after .Newmaker, was shot. Soeth stated that Newmaker fell to the ground with a baton in his hand and that Elle-brecht later kicked the baton away from Newmaker. Ellebrecht originally did not remember Newmaker having the baton in his hand after being shot. He later remembered Newmaker with the baton, but denied kicking the baton away. A photograph taken after the shooting shows the baton lying several feet away from where New-maker fell.

B. Summary Judgment Is Inappropriate

The district court granted summary judgment because of qualified immunity. Qualified immunity analysis entails a two-pronged inquiry. Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014). First, we “ask[] whether the facts, ‘taken in the light most favorable to the party asserting the injury, ... show the officer’s conduct violated a federal right.’” Id. (alterations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Second, we “ask[] whether the light in question was ‘clearly established’ at the time of the violation.” Id. at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

Plaintiffs maintain that Officer Soeth violated Newmaker’s clearly established Fourth Amendment rights by using excessive, and ultimately deadly, force. Excessive force claims are analyzed under a Fourth Amendment reasonableness inquiry, Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In conducting this analysis, a court must balance the severity of the intrusion on the individual’s Fourth Amendment rights against the government’s need to use force. Graham, 490 U.S. at 396, 109 S.Ct. 1865; Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). Relevant factors include “(1) the severity of the crime; (2) whethei 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.” Espinosa, 598 F.3d at 537. The second factor—whether the suspect posed an immediate threat—is the most important. Mottos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). Deadly force is not permitted “[w]here the suspect poses no immediate threat to the officer and no threat to others.” Garner, 471 U.S. at 11, 105 S.Ct. 1694; see also Espinosa, 598 F.3d at 538.

We hold that the district court erred in granting qualified immunity to Officer Soeth. Summary judgment is not appropriate in § 1983 deadly force cases that turn on the officer’s credibility that is genuinely in doubt. Gonzalez v. City of Anaheim, 747 F.3d 789, 791 (9th Cir. 2014); see also C.V. v. City of Anaheim, 823 F.3d 1252, 1256 (9th Cir. 2016); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Wilson v. City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002). Qualified immunity should not be granted when other evidence in the record, “such as medical reports, contemporaneous statements by the officer[,] the available physical evidence, [and] any expert testimony proffered by the plaintiff’ is inconsistent with material evidence proffered by the defendant. Scott, 39 F.3d at 915; see Gonzalez, 747 F.3d at 791.

The version of events offered by Officer Soeth and Sergeant Ellebreeht to the district court is materially contradicted by evidence in the record. Their versions of events changed over time. The version they' presented to the district court was suggested to them by Investigator Hislop. Both their original version of events (that Officer Soeth shot Newmaker twice in quick succession while he was standing up and swinging the baton at Ellebreeht) and their second version of events (that Officer Soeth first shot while Newmaker was standing and swinging the baton, and quickly shot again as.Newmaker attempted to stand back up while swinging the baton) conflict with the autopsy report and with the video evidence. A reasonable jury could conclude that Soeth and Ellebreeht were wrong when they claimed that New-maker grabbed the baton. In the alternative, a reasonable jury could conclude, given the trajectory of the bullets through Newmaker’s body, that even if Newmaker had grabbed the baton Officer Soeth could not have fired--his first shot while New-maker was standing up and swinging the baton. See Curnow v. Ridgecrest Police, 952 F.2d 321, 322, 325 (9th Cir. 1991) (holding that, officers were not entitled to qualified immunity for shooting a suspect who was holding a semiautomatic rifle when the suspect’s back was to the officers and the suspect was not pointing the rifle at them); Ting v. United States, 927 F.2d 1504, 1508, 1511 (9th Cir. 1991) (holding officers were not entitled to qualified immunity because, although the suspect was originally armed with a gun, the plaintiffs version of events suggested that the officers shot “an unarmed and injured felon lying or kneeling on the floor surrounded by five heavily armed agents”). Because this case “requires a jury to sift through disputed factual contentions”—including whether the officers were telling the truth about when, why, and how Soeth shot Newmaker—summary judgment was inappropriate. Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

Conclusion

Based on the foregoing, we reverse the decision of the district court and remand for further proceedings.

REVERSED and REMANDED.


author: GARBIS, Senior District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
    No. 15-10063
    United States Court of Appeals, Ninth Circuit.
    Submitted July 5, 2016 , San Francisco, California
    Filed November 29, 2016

      Robert W. Story, Reno, Nevada, for Defendant-Appellant.
    Shannon M. Bryant, Assistant United States Attorney; Elizabeth 0. White, Appellate Chief; Daniel G. Bogden, United States Attorney; United States Attorney’s Office, Reno, Nevada; for Plaintiff-Appel-lee.
    Before: BARRY G. SILVERMAN and JACQUELINE H. NGUYEN, Circuit Judges, and MARVIN J. GARBIS, Senior District Judge.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

       'pjjg Honorable Marvin J. Garbis, Senior United States District Judge for the District of Maryland, sitting by designation.

   OPINION

GARBIS, Senior District Judge:

Appellant John Doe appeals from his convictions of aggravated identity theft under 18 U.S.C. § 1028A, for knowingly possessing and using the name, birth date, and social security number of another person when he applied to renew a Nevada driver’s license and when he submitted a Form 1-9 Employment Eligibility Verification form to his employer.

Doe contends that the Government failed to prove an element of the offense— specifically that he knew that the false identity he used belonged to a real person. He also challenges the reasonableness of his 78-month sentence.

This case presents the question, not previously addressed by this Court, of whether evidence of a defendant’s repeated submission of false identifying information as part of successful applications to a government agency is sufficient to permit a reasonable jury to find that the defendant knew that the information belonged to a real person. We hold that it is and that Doe’s convictions were thus based upon sufficient evidence. We also hold that the district court did not abuse its discretion with regard to Doe’s sentence.

I. Background

The victim of Doe’s identity theft, referred to herein as “V,” was bom in San Jose, California in 1963 and, in or about 1977, was assigned a social security number and card. No later than 1987, V’s uncle sold V’s birth certificate and provided his social security number to a man, not identified at trial. In 1987, someone, most likely Doe, used V’s birth certificate, name, and social security number to obtain a “replacement” social security card from the Social Security Administration. For some 27 years, until Doe’s arrest in 2014, V’s identification was used without his authorization, most likely by Doe. In this regard, V received notices from the Social Security Administration (approximately every three years) that his name and social security number were being used in connection with multiple jobs in different places, including Nevada, with which V had no connection.

The evidence establishes that Doe’s use of V’s identity began no later than 2002 when Doe obtained a driver’s license upon an application to the Nevada Department of Motor Vehicles (“DMV”) that contained Doe’s photograph but V’s name and birth date. Doe renewed this license multiple times by resubmitting V’s identifying information and had such a license in his possession when arrested in 2014.

On or around May 15, 2013, Doe submitted such a driver’s license together with a social security card with Vs number to Doe’s employer with a Form 1-9 Employment Eligibility Verification.

The unauthorized use of Vs identity caused him problems for approximately three decades. In the 1990s, hi’s driver’s license was suspended twice—including once while he was employed as a truck driver—because of DUIs committed in a different state by another person using his social security number. Tax refund checks due to him from the IRS were sent to a person'in Nevada using his social security number. His wages were garnished three times to pay child support for children that were not his. More likely than not, these problems were caused by Doe’s misuse of Vs identity. In any event, it is clear that in 2013 Vs unemployment benefits were halted because of child support payments owed (and not made) by Doe. V contacted Doe’s employer to notify it that an employee was unlawfully using his identity.

On or around June 4, 2014, Doe was arrested in connection with a fraud investigation conducted by the Nevada DMV and the Department of Homeland Security. At that time, he was found to be in possession of a Nevada driver’s license bearing his photo and Vs identification information.

In this case, Doe was charged with two counts of aggravated identity theft- under 18 U.S.C. § 1028A, unlawful production of an identification document under 18 U.S.C. § 1028(a)(1), and false attestation in an immigration matter in violation of 18 U.S.C. § 1546(b)(3). At trial, he was convicted on all charges. The district court sentenced Doe to 78 months of incarceration.

Doe appeals, challenging (1) the sufficiency of the evidence upon which his aggravated identity theft convictions were based, and (2) the reasonableness of his sentence.

We have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

A. Sufficiency of the Evidence

1. Standard of Review

This Court reviews the sufficiency of evidence supporting a defendant’s conviction de novo. We must construe the evidence “in the light most favorable to the prosecution” and must affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

2. The Evidence Was Sufficient

Title 18 U.S.C. § 1028(A) provides that a person who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” in connection with an enumerated felony shall be sentenced to two years imprisonment. 18 U.S.C. § 1028A (2012).

To -prove a violation of § 1028A, the Government must prove beyond a reasonable doubt that:

1. The defendant knowingly transferred or used a means of identification of another person without legal authority;
2. The defendant knew the means of identification belonged to a real person; and
3. The defendant did so in relation to one of the crimes enumerated in 18 U.S.C. § 1028A(c).

See Flores-Figueroa v. United States, 556 U.S. 646, 647, 655-56, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009); United States v. Miranda-Lopez, 532 F.3d 1034, 1037, 1040 (9th Cir. 2008).

Doe does not debate the Government’s proof of the first and third elements. Doe was proven to have used V’s means of identification without legal authority. And the use was proven to be in relation to crimes enumerated in 18 U.S.C. § 1028A(c), i.e., the violations of 18 U.S.C. §§ 1028(a)(1) and 1546(b)(3) for which he was convicted in the instant case.

Doe acknowledges that the Governmeht proved that V was a real person. Doe contends however, that, without direct proof of his knowledge (such as proof that he knew V or had any connection to the sale of-V’s birth certificate and identifying information), the evidence was insufficient to establish his knowledge that V was a real person. The Court does not agree.

While direct evidence of the knowledge element is often presented in § 1028A prosecutions, this Court has recognized that the element can be proven by circumstantial evidence. See Miranda-Lopez, 532 F.3d at 1040 (citing United States v. Villanueva-Sotelo, 515 F.3d 1234, 1249 (D.C. Cir. 2008) (“[PJroving the defendant knew the stolen identification belonged to another person shouid present no major obstacle, as such knowledge will often be demonstrated by the circumstances of the case.”)). Thus, the issue here presented is whether the circumstantial evidence was sufficient to establish Doe’s knowledge that the identity of V was that of a real person.

When “determining the sufficiency of circumstantial evidence, the question is not whethér the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion.” Nevils, 598 F.3d at 1165 (quoting United States v. Eaglin, 571 F.2d 1069, 1076 (1977)).

The Government presented ample circumstantial evidence to establish Doe’s knowledge that V was a real person. Most persuasive was proof of Doe’s repeated success in obtaining renewed Nevada driver’s licenses bearing Doe’s photograph and Vs name, date of birth, and social security number. In this regard, the Government introduced copies of5'applications to the DMV for Nevada driver’s licenses and state identity cards in Vs name. The “image history” associated with the applications dating back to 2002 showed photographs of Doe taken when he applied for reissuances' of the driver’s license and/or identity cards in Vs name. Denise Riggle-man, a DMV Compliance Enforcement Investigator, described the process involved in obtaining a new license or identity card through the'Nevada'DMV. Ms. Riggleman testified that new applicants must present proof of identity documents, such as a social security card. or; birth certificate, along with their applications to a DMV technician' in person. This information is input into the DMV computer system, and the actual license is mailed to the applicant seven to ten days later.

In addition, the Government proved that Doe had submitted such a Nevada driver’s license and a social security card in V’s name as proof of identity in connection with an 1-9 Employment Verification Form that he submitted to his employer.

In regard' to the knowledge element of the § 1Ó28A charge, the district court instructed the jury:

Repeated and successful testing of the authenticity of a victim’s identifying information by submitting it to a government agency, bank or other lender is circumstantial evidence that you may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one. It is up to you to decide whether to consider any such evidence and how much weight to give it.

The jury found Doe guilty on both § 1028A charges. .

This Court holds that the evidence of Doe’s repeated successful use of Vs identity in applications subject to scrutiny was sufficient to permit the jury to find that he knew that V was a real person. The Court’s holding is- consistent with decisions issued by its'sister Circuits. E.g., United States v. Valerio, 676 F.3d 237, 244-45 (1st Cir. 2012) (“ ‘[Wjillingness to subject [a] social security number repeatedly to government scrutiny is evidence that allows a reasonable jury to find that a defendant knew that a stolen identity belonged to a real person.”); United States v. Doe, 661 F.3d 550, 562-63 (11th Cir. 2011) ("[A] defendant’s repeated and successful testing of the authenticity of a victim’s identifying information prior to the crime at issue is powerful circumstantial evidence that the defendant knew the identifying information belonged to a real person as opposed to a fictitious one.”); United States v. Gomez-Castro, 605 F.3d 1245, 1249 (11th Cir. 2010) (concluding that “repeatedly and successfully testing] the authenticity of the birth certificate and social security card” to obtain a license, benefit card, and passport was sufficient to show that the identity belonged to a real person); United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (“A reasonable jury also, could have found that Holmes’s willingness, to subject the social security card repeatedly to government, scrutiny established that she knew, all along, that the social security card belonged to a real person and was not a forgery.”); United States v. Foster, 740 F.3d 1202, 1207 (8th Cir. 2014) (“[Rjepeated subjection of [a victim’s] identity to a lender’s scrutiny provides strong circumstantial evidence that the [defendant] knew the identity was real.”).

Doe, asserting that he is a Mexican national, contends that it was unreasonable for the jury to find that he knew how U.S. government agencies and their verification procedures worked. His not being a citizen, although a resident, of the United States is a fact that the jury could have considered relevant but does not render the jury’s finding unreasonable. As stated in Gomez-Castro, 605 F.3d at 1249 (affirming the conviction of-a citizen of the Dominican Republic), “[Kjnowledge [of verification processes] can be inferred reasonably based on ordinary human experience for which no special proof is required; a trier of fact can rely on common sense.” See also Holmes, 595 F.3d at 1258 (concluding that a reasonable jury could infer that a defendant (not a United States citizen) knew that the government “requested and sometimes retained for many weeks” the submitted personal information to verify authenticity).'

In sum, the Court holds that the circumstantial evidence presented, establishing Doe’s repeated successful use of V’s identification information, sufficed to permit the jury to find that he knew that V was a real person. Hence, he was properly convicted on two counts charging aggravated identity theft in violation of 18 U.S.C. § 1028A.

B. Reasonableness of Sentence

1. ' Standard of Review

A district court’s sentencing determination—whether inside or outside of the determined Sentencing Guidelines range—is reviewed for abuse of discretion. A sentence will be set aside only if it is substantively unreasonable or the result of a procedural error. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Autery, 555 F.3d 864, 872-73 (9th Cir. 2009). In reviewing the substantive reasonableness of a sentence, we consider whether the district court identified the correct legal standard and whether its findings were illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009). Our review is deferential, and relief is appropriate only in rare cases when the appellate court possesses “a definite and firm conviction that the district court committed a clear error of judgment.” United States v. Ressam, 679 F.3d 1069, 1087-88 (9th Cir. 2012) (en banc) (quoting United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009)).

2. The Sentence Was Not Substantively Unreasonable

The district court determined that Doe’s Offense Level was 14 and his Criminal History Category was II, yielding a Guideline range of 18 to 24 months. However, the district court varied upward and imposed a sentence of 78 months.

Doe contends that his 78-month sentence is substantively unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). Specifically, he claims the sentence is of greater duration than necessary to comply with the purposes of sentencing and is unsupported by credible evidence.

At sentencing, the district court stated: The Guideline sentence, I think, does not adequately reflect the seriousness of the defendant’s conduct in terms of the length, the nature of his conduct, and the profound effect on the victim. The defendant did not just steal the victim’s identity and use it for a few years, he stole and utilized the victim’s identity for about 27 years, which is more than half of the victim’s life.
And, as I noted, defendant didn’t just live a normal, law-abiding life. He committed offenses under the victim’s identity and further perpetuated the harm to the victim, having these offenses reflect under the victim’s identity. And, as noted, defendant’s conduct caused terrible disruptions to the victim and his family.

The Court finds that the district court properly considered, and stated the reasons for, the upward variance to the sentence imposed. In particular, the district court emphasized the substantial harm done to Y over many years, as well as the criminal offenses committed by Doe in V’s name, as revealed by Nevada public records. The district court’s decision was within a range of reasonableness. We hold that the district court’s imposition of a 78-month sentence was neither illogical, implausible, nor without support in the record. Hinkson, 585 F.3d at 1251.

III. Conclusion

For the foregoing reasons, we affirm Doe’s convictions and sentence.

      . To the date of this writing the Defendant, who has refused to provide his name, has not been affirmatively identified and is referred to as "John Doe.”

      . The felonies enumerated in § 1028A(c) include violation of "any provision contained in this chapter (relating to fraud and false statements).’' 18 U.S.C. § 1028A(c)(4), 18 U.S.C. §§ 1028(a)(1) & 1546(b)(3) are provisions contained in the chapter.

      . In United States v. Cardenas, 408 Fed.Appx. 106 (9th Cir. 2011), the defendant’s conviction under § 1028A was reversed because no evidence was presented, proving that a real person actually existed with the name and birth date given by the deféndant to Border Patrol.

      . As noted in Flores-Figueroa, 556 U.S. at 656, 129 S.Ct. 1886, in "the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person’s identification' information to get access to that person’s bank account, the Government can prove knowledge with little difficulty. The same is tnre when the defendant has gone through someone else’s trash to find discarded credit card and bank statements, or pretends to be from the victim’s bank and requests personal identifying information. Indeed, the examples of identity theft in the legislative history (dumpster diving, computer hacking, and the like) are all examples of the 1ypes of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem.”

      . Prior to 2002, the. Nevada DMV did not maintain image histories.

      . The Court reduced Doe’s recommended Offense Level from 16 to 14 after finding that there should not be a two-level obstruction of justice adjustment by virtue of Doe’s refusal to admit his identity, an action intertwined with his constitutional right to deny his guilt.