author: SCHROEDER, Circuit Judge:

text:
    Harold John RIERA-RIERA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 13-73062
    United States Court of Appeals, Ninth Circuit.
    Submitted November 10, 2016  Pasadena, California
    Filed November 28, 2016

      Jorget T. Cabrera, Studio City, California, for Petitioner.
    Stefanie Notarino Hennes, Trial Attorney; Leslie McKay, Assistant' Director; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, • Washington, D.C.; for Respondent.-
    Before: MARY M. SCHROEDER and JAY S. BYBEE, Circuit Judges, and WILLIAM. E. SMITH,. Chief District Judge.

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

      The Honorable William E, Smith, Chief United States District Judge for the District of Rhode Island, sitting by designation.

   OPINION

SCHROEDER, Circuit Judge:

Petitioner Harold Riera-Riera, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’s (“BIA”) refusal to consider his application for adjustment of status in proceedings limited to consideration of relief related to asylum. Riera had fraudulently entered the United States under an Italian passport in order to gain the.benefits of the Visa Waiver Program (“VWP”), that carried with it a limitation of his rights to contest deportation. He argues that since he is not now, and never has been, an alien eligible: for lawful admission under the VWP, he is not subject to its limitation. While this is an issue of first impression in this circuit, we now join the other circuits that have rejected a similar argument. Given VWP’s limitation of relief available in deportation proceedings, the BIA properly refused to consider the application for adjustment of status. The denial of asylum and related relief,, as well as the denial of the claim under, the Convention Against Torture (“CAT”), were supported by substantial evidence. We therefore deny the petition.

BACKGROUND

We begin with the legal and factual background. The VWP allows certain aliens who are “[n]ational[s] of program eountrpes]” to enter the United States without a visa. 8 U.S.C. § 1187(a)(2). Admission under the VWP is subject to numerous restrictions, most relevant .here are that the alien present a valid passport from a qualifying country that offers reciprocal rights to American citizens and that the alien present a return ticket for. departure from the United States within ninety days. Id. Most importantly for this case, the VWP requires that the alien agree not to “review or appeal ... an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States” or “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b). We have previously held that this restriction is lawful. See Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).

Riera entered the United States in 1998 using an Italian passport; Riera is a Peruvian citizen, however, and has never been an Italian citizen. Since Italian nationals are able to enter the United States under the VWP, while Peruvian nationals are not, Riera used this fraudulently acquired Italian passport to enter the United States without a visa. He agreed to all conditions of VWP entry and presumably presented his return ticket for a departure within ninety days.

Riera did not depart within ninety days; he remained in the United States. In 2011, Riera came to the attention of the Department of Homeland Security. After initially placing Riera in removal proceedings, the Department realized that he had entered under the VWP, and his removal proceedings were stayed. The Department then proceeded to order his removal under the VWP. After ordering his removal, the Department referred him to an Immigration Judge (“IJ”) for asylum only proceedings. Before both the IJ and the BIA, Riera argued that since he was not an Italian national, and since his entry under the VWP was fraudulent, he could not be bound to the VWP’s restrictions, and he was entitled to have an IJ determine both his removeablity and his petition for adjustment of status. The IJ and the BIA determined that there was no jurisdiction under the VWP for consideration of his non-asylum claims. They considered and . denied the asylum and CAT claims.

DISCUSSION

Whether an ineligible alien who fraudulently enters under the VWP is bound by the VWP’s limitations, including its waiver of any challenge to deportation other than asylum, has never been addressed by this Circuit. The Second, Seventh, and Eighth Circuits, however, have all considered this issue, holding that the VWP'limitations apply to those admitted under the program without being eligible. See Shabaj v. Holder, 602 F.3d 103, 105-06 (2d Cir. 2010) (same); Bayo v. Napolitano, 593 F.3d 495, 501-02 (7th Cir. 2010) (en banc) (holding that such entrants are bound by the VWP limitations); Zine v. Mukasey, 517 F.3d 535, 542-43 (8th Cir. 2008) (same). Similarly, the BIA has ruled that the restrictions of the VWP bind ineligible aliens who enter the country using fraudulent travel documents. See In re Kanagasundram, 22 I. &. N. Dec. 963, 964 (BIA 1999).

Though the statute enacting the VWP does not expressly address fraudulent entrants, the Attorney General has filled in that gap via regulation, issuing a rule that those who “present[ ] fraudulent or counterfeit travel documents” will be removed “without referral of the alien to an immigration judge,” unless the alien “applies for asylum.” 8 C.F.R. § 217.4(a). All of the circuit decisions rely upon the regulation.

There is no real issue concerning the validity of the regulation interpreting the statute. We would evaluate that interpretation under the two-step test from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first step is whether the statute is ambiguous; it is. The statute does not address what happens should a national of a non-VWP country apply or receive entry under the VWP. The second step is whether the Attorney General’s interpretation is reasonable; it is. Indeed, as the Seventh Circuit has observed, “[tjhere is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the [VWP].” Bayo, 593 F.3d at 501-02.

Riera raises a further argument, which is that the refusal to consider his adjustment of status petition or to re-open removal proceedings to allow for it to be considered, denied him due process. Even assuming without deciding that due process attaches to VWP admittees, however, the restrictions of the VWP comport with whatever due process such admittees are entitled. We recognized this in Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011). In that case, we observed that the procedure required by the VWP is neither complex nor unfair. The alien signing the VWP forms gives up any right to challenge removal, except on asylum grounds, if he overstays the grant of time permitted by the VWP. Other courts- have come to a similar conclusion. See Bradley v. Attorney Gen. of the U.S., 603 F.3d 235, 240-43 (3d Cir. 2010); Bayo, 593 F.3d at 505.

. Petitioner also seeks review of the denial of his asylum and withholding of removal claims. Riera is required to show that he has suffered persecution or has a well-founded fear of future persecution on account of one of five protected statutory grounds: race, religion, nationality, political opinion, or membership in a particular social group. See 8 U.S.C. § 1158(b)(l)(B)(i). Riera has never identified, let alone argued, the ground on which he has been or would be persecuted. This issue has been waived. The lack of a nexus to a protected ground is dispositive of his asylum and withholding of removal claims; See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).

With respect to the CAT claim, nothing in the record compels a contrary conclusion to that of the IJ. See 8 U.S.C. § 1252(b)(4)(B). The harm that Riera suffered before he left'Peru did not rise to the level of torture, and he otherwise relies on generalized evidence, which is insufficient for protection under CAT. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).

PETITION DENIED.


source: Caselaw Access Project

author: SESSIONS, District Judge:

license: Public Domain

text:
    Amy HUGHES, Plaintiff-Appellant, v. Andrew KISELA, Corporal, 0203; individually and in his official capacity, Defendant-Appellee.
    No. 14-15059
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 12, 2016, San Francisco, California
    Filed November 28, 2016

      Vince Rabago (argued) and Stacy Scheff, Vince Rabago Law Office PLC, Tucson, Arizona, for Plaintiff-Appellant.
    Robert R. McCright (argued), Assistant Attorney General; Thomas C. Horne, Arizona Attorney General; Office of the Attorney General, Tucson, Arizona; for Defendant-Appellee.
    Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and WILLIAM K. SESSIONS HI, District Judge.

       The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation.

   OPINION

SESSIONS, District Judge:

After receiving a report of a person hacking at a tree with a knife, three members of the University of Arizona Police Department (UAPD) responded to the scene. Upon their arrival, the officers saw Plaintiff Amy Hughes carrying a large kitchen knife. Ms. Hughes then began to walk toward another woman, Sharon Chadwick, at which point the police yelled for her to drop the knife. Ms. Hughes did not comply. Ms. Chadwick has submitted an affidavit in which she describes Ms. Hughes’s demeanor at the time as composed and non-threatening. Multiple witnesses attest that Ms. Hughes never raised the knife as she neared Ms. Chadwick. Unable to approach the two women because of a chain-link fence, defendant and UAPD Corporal Andrew Kisela shot Ms. Hughes four times.

Ms. Hughes brings suit under 42 U.S.C. § 1983 claiming excessive force in violation of her constitutional rights. The district court .granted summary judgment in favor of Corporal Kisela, concluding that his actions were reasonable and that .he was entitled to qualified immunity. The facts when viewed in the light most favorable to Ms. Hughes do not support the district court’s decision. We reverse and remand for further proceedings.

FACTUAL BACKGROUND

On May 21, 2010, Corporal Kisela and UAPD officer-in-training Alex Garcia were monitoring the Tucson Police Department radio when they heard a “check welfare” call regarding a woman reportedly hacking at a tree with a large knife. The officers drove to the location and were told by the reporting party that the person with the knife had been acting erratically. UAPD Officer Lindsay Kunz also responded to the call.

The following events occurred in less than one minute. Soon after the three officers arrived, Amy Hughes emerged from her house carrying a large kitchen knife. Sharon Chadwick was standing outside the house in the vicinity of the driveway. According to Ms. Chadwick’s affidavit, Ms. Hughes was composed and content as she exited the house, holding the kitchen knife down to her side with the blade pointing backwards. Ms. Chadwick submits that she was never in fear, and did not feel that Ms. Hughes was a threat.

As Ms. Hughes approached Ms. Chadwick, the officers each drew their guns and ordered her to drop the knife. Although Corporal Kisela contends that the officers yelled numerous time for Ms. Hughes to drop the knife, Ms. Chadwick recalls hearing only two commands in quick succession. Ms. Hughes did not drop the knife and continued to move toward Ms. Chadwick. Corporal Kisela recalls seeing Ms. Hughes raise the knife as if to attack. Officers Garcia and Kunz later told investigators that they did not see Ms. Hughes raise the knife.

A chain link fence at the edge of the property prevented the officers from getting any closer to the two women. Because the top of the fence obstructed his aim, Corporal Kisela dropped down and fired four shots through the fence. Each of the shots struck Ms. Hughes, causing her to fall at Ms. Chadwick’s feet. Her injuries were not fatal.

In an interview with police after the shooting, Ms. Chadwick explained that she and Ms. Hughes lived together, and that she had managed Ms. Hughes’s behavior in the past. She also informed police that Ms. Hughes had been diagnosed with bipolar disorder and was taking medication. Ms. Chadwick believes that Ms. Hughes did not understand what was happening when the police yelled for her to drop the knife. She also believes that Ms. Hughes would have given her the knife if asked, and that the police should have afforded her that opportunity.

STANDARD OF REVIEW

A district court’s grant of a motion for summary judgment is reviewed de novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). “Summary judgment is appropriate only ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’ ” Stoot v. City of Everett, 582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). In reviewing a summary judgment ruling, we draw all reasonable inferences in favor of the non-moving party. Galvin v. Hay, 374 F.3d 739, 745 (9th Cir. 2004). We are obligated to construe the record in the light most favorable to the party opposing summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We review an officer’s entitlement to qualified immunity de novo. Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir. 2011).

DISCUSSION

I. Excessive Force

When evaluating a Fourth Amendment claim of excessive force, courts ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This inquiry “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. Reasonableness therefore “must be judged from the perspective of a reasonable officer on the scene, rather than with .the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865.

The strength of the government’s interest in the force used is evaluated by examining three primary factors: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Garner, 471 U.S. at 8-9, 105 S.Ct. 1694). The “ ‘most important’ factor under Graham is whether the suspect posed an ‘immediate threat to the safety of officers or third parties.’ ” George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)).

The factors identified in Graham are not exclusive. See Bryan, 630 F.3d at 826. When assessing the officer’s conduct, a court must examine “the totality of the circumstances and consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.’ Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). Other relevant factors may include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed. See, e.g., Bryan, 630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001). With respect to the possibility of less intrusive force, officers need not employ thé least intrusive means available so long as they act within a range of reasonable conduct. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

In this case, when viewing the facts in the light most favorable to Ms. Hughes, the record does not support Corporal Kisela’s perception of an immediate threat. Officer Garcia told Tucson police that Ms. Hughes did not raise the knife and did not make any aggressive or threatening actions toward Ms. Chadwick. Officer Kunz similarly did not see Ms. Hughes raise her arm. Ms. Chadwick describes Ms. Hughes as having been composed and nonthreatening immediately prior to the shooting.

Corporal Kisela was undoubtedly concerned for Ms. Chadwick’s safety. He had received a report of a person with a knife acting erratically, and soon thereafter saw that same person still holding a knife and approaching another individual. In: some situations, “[i]f the person is armed ... a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.” George, 736 F.3d at 838. Nonetheless, “a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281 (“A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury,”); see also Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997) (“Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.”). Here, viewing those “objective factors” in a light most favorable to Ms. Hughes, a rational jury could find that she did not present an immediate threat to the safety of others, and that Corporal Kisela’s response was unreasonable. Id.

The question of the severity of the crime being committed also weighs in Ms. Hughes’s favor. The three officers present at the time of the shooting were responding to a “check welfare” call. No crime was reported. As in Deorle, where the police shot a mentally ill man acting strangely, the officers arrived “not to arrest [Ms. Hughes], but to investigate [her] peculiar behavior.” 272 F.3d at 1280-81. And also as in Deorle, this was not a situation of a “lone police officer suddenly confronted by a dangerous armed felon — ” Id. at 1283. The-majority in Deorle noted that “[t]he character of the offense is often an important consideration.in determining whether the use of force was justified,” and ultimately concluded that “where the crime being committed, if any, was minor and the danger 'to ... others appear to have been minimal,” the governmental interest in using force was “clearly not substantial.” Id. at 1280-82. A rational jury, viewing the facts in a light most favorable to Ms. Hughes, could reach the same conclusion here.

The third factor cited in Graham, whether the suspect was resisting or seeking to evade arrest, does not apply as the events in this cáse occurred too quickly for the officers to make an arrest attempt. A related issue is Ms. Hughes’s disregard of the officers’ commands to drop the knife. It is undisputed that officers yelled at least twice for her to drop the knife. If the case goes to trial, the jury may hear evidence of several additional warnings. At summary judgment, however, the Chadwick affidavit plays an important role on this point. Ms. Chadwick heard only two warnings in quick succession, and perceived that Ms. Hughes did not understand what was happening. Whether the police should have perceived this is a question for the jury.

At the time, the police were privy to facts suggesting that Ms. Hughes might have a mental illness. The initial report was to “check welfare” of a person trying to cut down a tree with a knife. Upon arriving at the scene, the reporting party informed Corporal Kisela that this same person was acting erratically. Just prior to the shooting,' Corporal Kisela himself recalled Ms. Hughes “stumbling” toward Ms. Chadwick.

This Court has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” Bryan, 630 F.3d at 829. The Court has, however, “found that even when an emotionally disturbed individual is acting out and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted ... with a mentally ill individual.” Id. (citation and internal quotation marks omitted). A reasonable jury could conclude, based upon the information available to Corporal Kisela at the time, that there were sufficient indications of mental illness to diminish the governmental interest in using deadly force.

Another factor to be considered is whether there were less intrusive means that could have been used before employing deadly force. As noted previously, officers “need not avail themselves of the least intrusive means of responding to an exigent situation; they need' only act within that range of conduct we identify as reasonable.” Henrich, 39 F.3d at 915. However, “police are ‘required to consider [w]hat other tactics if any were available,’ ” and whether there are “clear, reasonable and less intrusive alternatives” to the force being contemplated. Bryan, 630 F.3d at 831 (quoting Headwaters Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)); see also Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (holding that officers should consider “alternative techniques available for subduing [a suspect] that presented a lesser threat of death or serious injury”).

In this case, the record includes expert opinions about the reasonableness of usirig a firearm in this situation; Ms. Hughes’s expert concluded that ■ Corporal Kisela should have used his Taser, and ‘that shooting through the fence was both dangerous and excessive. Corporal Kisela’s expert opined that a Taser would likely have become tangled in the fence, and that the shooting was reasonable. It is well established that a jury may hear expert testimony in this type of case, and rely upon such evidence in-assessing whether the officer’s use of force was unreasonable. See Larez v. City of Los Angeles, 946 F.2d 630, 635 (9th Cir. 1991) (as amended) (finding that testimony of “an expert on proper police procedures and policies” was relevant and admissible). Here, the differences in the experts’ opinions reinforce- our conclusion that there are questions for a jury to consider in determining whether Ms. Hughes’s constitutional rights were violated.

This Court has noted that “[b]ecause [the question of excessive force] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); see also Liston v. Cty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (as amended) (“We have held repeatedly that the reasonableness of force used is ordinarily a question of fact for the jury.”). This is such a case. Material questions of fact, such as the severity of the threat, the adequacy of police warnings, and the potential for less intrusive means are plainly in dispute. See, e.g., City of Hemet, 394 F.3d at 703 (“Considering the severity and extent of the force used, the three basic Graham factors, and the availability of other means of accomplishing the arrest, it is evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the defendants on summary judgment.”). Corporal Kisela is not entitled to summary judgment with respect to the reasonableness of his actions.

II. Qualified Immunity

The district court determined that because Corporal Kisela acted reasonably, it need not reach the question of qualified immunity. Nonetheless, the court commented that “under the totality of the circumstances and the standard of whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted, it appears that [Corporal Kisela’s] conduct was reasonable; [Corporal Kisela] would therefore be entitled to qualified immunity.” As discussed above, there are questions of fact in dispute that foreclose a finding of reasonableness as a matter of law. We therefore undertake a qualified immunity analysis.

The Supreme Court has explained that “[t]he doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 55S U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity shields an officer from liability even if his or her actions resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (Kennedy, J., dissenting). The purpose of qualified immunity is to strike a balance between the competing “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. “Qualified immunity gives government officials breathing room- tp make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

“In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808). Consequently, at summary judgment, an officer may be denied qualified immunity in a Section 1983 action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

Here, the question of a constitutional violation involves disputed facts which, when viewed most favorably to Ms. Hughes, could support a rational jury finding in her favor. We therefore move to the second question: whether the right at issue was clearly established such that a reasonable officer would have understood his actions were unlawful. The law does not “require a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate.” al-Kidd, 563 U.S. at 740, 131 S.Ct. 2074. That said, this Court has acknowledged that qualified immunity may be denied in novel circumstances. See Mattos v. Agarano, 661 F.3d 433, 442, (9th Cir. 2011) (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). “Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle, 272 F.3d at 1286; see also Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (stating that “in an obvious case, these [Graham] standards can ‘clearly establish’ the answer, even without a body of relevant case law”).

The most analogous Ninth Circuit case is Glenn, 673 F.3d 864, in which an eighteen-year-old man was shot in his driveway by police officers. Police received a report of an agitated, intoxicated man carrying a pocket knife and threatening to kill himself. Although at least one officer- was told that the man had calmed down, when police saw him holding the knife to his own neck they drew their guns and screamed for him to drop it. Additional officers arrived at the scene, one of whom shot the man with several beanbags. The impact of the beanbags caused the man to move away from the beanbag fire and toward the house in which his parents were standing. As police had determined that if the man “made a move toward the' house with his parents inside, they would use deadly force,” they opened fire and killed him. Glenn, 673 F.3d at 869.

Glenn is similar to this case in several respects. For example: it was not clear that the decedent in Glenn was actually threatening anyone; no serious crime was being committed; there was no effort to resist or evade arrest aside from failing to put down the knife; the failure to drop the knife may have been the result of confusion by an impaired person; and it might have been reasonable to use less intrusive force. Although the district court had granted summary judgment, this Court remanded Glenn for a jury trial. Id. at 879-80.

Deorle, 272 F.3d 1272, also offers similar facts, though the plaintiff in Deorle was acting far more strangely than Ms. Hughes. In Deorle, an officer responded to a call about an individual who was drunk and behaving erratically. At different points, the man brandished a hatchet, shouted “kill me,” threatened to “kick [a police officer’s] ass,” and walked around with an unloaded cross-bow. 272 F.3d at 1276-77. Police observed him for five to ten minutes before the man began walking towards an officer with a bottle of lighter fluid. At that point the officer fired a bean bag, permanently blinding the- man and fracturing his skull in several places. Id. at 1277-78.

As in this case, police in Deorle were at the scene to investigate peculiar behavior. Some sort of mental impairment was evident, the suspect was not trying to escape, and the risk of imminent harm was in question. In denying the officer’s qualified immunity defense, this Court wrote:

Every police officer should know that it is objectively unreasonable to shoot ... an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals.

Id. at 1285.

Here, several of those same determinations are in dispute, namely: whether Corporal Kisela was reasonable in believing that the kitchen knife was a weapon; whether he should have suspected mental health issues; whether the warning was sufficient; and most importantly, whether it was reasonable to believe that Ms. Hughes presented a threat to Ms. Chadwick’s safety. If those questions are determined in Ms. Hughes’s favor, then Corporal Kisela clearly violated her constitutional right.

Corporal Kisela claims support to the contrary from Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir. 2005), in which police had received reports of a man in a ski mask carrying a sword through a suburban residential neighborhood. But that case could not reasonably be relied upon as justifying shooting Ms. Hughes. Mr. Blanford was carrying a two-and-a-half-foot-long Civil War-era cavalry saber and made “a loud growling or roaring sound.” Blanford, 406 F.3d at 1113. He then walked toward a residence and tried to enter after searching his pockets for keys. Unsuccessful, he turned to a walkway, saw the police officers with guns drawn, and heard them order him to drop the sword. The police shot the man as he rounded the far corner of the house, then again as he tried to enter through another door. After the man continued walking, police fired a third time and severed his spine, rendering him a paraplegic. On those facts, the Court found that the officers were entitled to qualified immunity. Id. at 1119.

This case, when viewing the facts in Ms. Hughes’s favor, differs from Blanford in several critical respects. Most importantly, in contrast to a clearly disturbed man carrying a sword, Ms. Hughes held a kitchen knife—which has a perfectly benign pii-mary use—down at her side, and according to Ms. Chadwick’s affidavit, did not appear either angry dr menacing. The only information the police had regarding her use of the knife was that she was carving a tree, not that she was threatening or hurting a person. Mr. Blanford plainly disregarded police orders to drop the weapon. Here, it was apparent to Ms. Chadwick, and there is a fact issue whether it should have been evident to the police, that Ms. Hughes did not understand what was happening when they yelled for her to drop the knife. And in Blanford the suspect actively evaded police, while Ms. Hughes made no such attempt to get away.

The application of qualified immunity in this case will depend upon the facts as determined by a jury. The facts, viewed in Ms. Hughes’s favor, present the police shooting a woman who was committing no crime and holding a kitchen knife. While the woman with the knife may have been acting erratically, was approaching a third party, and did not immediately comply with orders to drop the knife, a rational jury—again accepting the facts in the light most favorable to Ms. Hughes—could find that she had a constitutional right to walk down her driveway holding a knife without being shot. As indicated by Glenn and Deorle, as well- as the Supreme Court’s reference to the “obvious case,” Brosseau, 543 U.S. at 199, 125 S.Ct. 596, that right was clearly established. Based on the disputed facts, Corporal Kisela is not entitled to qualified immunity.

CONCLUSION

We therefore reverse the district court’s grant of summary judgment and remand for a jury to determine whether Corporal Kisela’s use of deadly force was lawful.

REVERSED AND REMANDED.

      . While Ms. Chadwick's description may not be entirely consistent with some of her other statements in the record, "we must draw all justifiable inferences in favor of [Ms. Hughes], including questions of credibility and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).


author: KOZINSKI, Circuit Judge:

text:
    IN RE YELLOWSTONE MOUNTAIN CLUB, LLC, Debtor, Timothy L. Blixseth, Plaintiff-Appellant, v. Stephen R. Brown; Garlington, Lohn & Robinson, PLLP, Defendants-Appellees.
    No. 14-35363
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 25, 2016, Pasadena, California
    Filed November 28, 2016

      John C. Doubek (argued), Doubek Pyfer & Fox LLP, Helena, Montana; Michael J. Ferrigno, Law Office of Michael J. Ferrig-no, Boise, Idaho; for Plaintiff-Appellant.
    Dale R. Cockrell (argued) and Mikel L. Moore, Moore Cockrell Goieoechea & Ax-elberg P.C., Kalispell, Montana, for Defendants-Appellees,
    Before: ALEX KOZINSKI, RICHARD A. PAEZ and MARSHA S. BERZON, Circuit Judges.
   OPINION

KOZINSKI, Circuit Judge:

We consider whether, under Barton v. Barbour, 104 U.S. 126, 14 Otto 126, 26 L.Ed. 672 (1881), a plaintiff must obtain a bankruptcy court’s permission before suing a member of the Unsecured Creditors’ Committee (UCC) in district court, and whether bankruptcy courts have authority to enter a final judgment on Barton claims.

BACKGROUND

This is but .the latest chapter in the long-running saga of the Yellowstone Mountain Club bankruptcy litigation. See Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215 (9th Cir. 2014) (per curiam); In re BLX Grp., Inc., 419 B.R. 457 (Bankr. D. Mont. 2009). In the late 1990s, Timothy Blixseth and his wife, Edra, developed the Yellowstone Mountain Club, an exclusive ski and golf resort in Montana , that caters to the “ultra-wealthy.” Blixseth, 742 F.3d at 1218; see also In re BLX Grp., 419 B.R. at 460.

As part of his business-development efforts, Blixseth borrowed $375 million from Credit Suisse on behalf of the Yellowstone entities but used some of the proceeds to pay off personal debts. In re BLX Grp., 419 B.R. at 461. Blixseth alleges that he relied on the advice of his attorney, Stephen Brown, who assured him that his actions were lawful.

When shareholders of the Yellowstone entities caught wind of Blixseth’s actions, they sued in Montana state court. On Brown’s advice, Blixseth settled. Around the same time, Blixseth and Edra divorced. Represented by Brown, Blixseth divided his property pursuant to a marital settlement agreement (MSA) that gave the Yellowstone entities to Edra. Id.

In November 2008, Edra filed bankruptcy petitions on behalf of the Yellowstone entities. Id. at 462. A month later, the U.S. Trustee appointed nine individuals to serve as the UCC. One of the UCC members— the chairman, no less—was Blixseth’s former counsel, Stephen Brown.

Blixseth suspected that Brown used confidential information to Blixseth’s detriment in the bankruptcy proceedings. Accordingly, he sued Brown in district court. The district court held that it lacked jurisdiction because Blixseth hadn’t first obtained the bankruptcy court’s permission to sue, as required by Barton.

Under Barton, plaintiffs must obtain authorization from the bankruptcy court before “initiat[ing] an action in another forum” against certain officers appointed by the bankruptcy court for actions the officers have taken in their official capacities. In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir. 2005). A district court is- considered to be “another forum,” requiring leave of the bankruptcy court before a lawsuit can be brought. In re Kashani, 190 B.R. 875, 885 (9th Cir. BAP 1995).

The district court recognized that Barton normally applies to suits against receivers and bankruptcy trustees but discerned a broader purpose: to “centralize bankruptcy litigation” and “keep a watchful eye” on court-appointed officers. Accordingly, it applied Barton to lawsuits against UCC members and dismissed the complaint. In the district court’s view, all of ' Blixseth’s claims were “based on Brown’s alleged misconduct as Chair of the Unsecured Creditors Committee,” and •the bankruptcy court never authorized the lawsuit. We previously dismissed Blix-seth’s appeal from this decision in an unpublished order, determining that it wasn’t taken from a “final order.”

Blixseth then asked the bankruptcy court for permission to bring his claims in district court. In his Barton motion, Blix-seth explained that a number of his claims against Brown were based on pre-petition conduct that arose before the bankruptcy litigation began so they didn’t relate to Brown’s actions on the UCC. The bankruptcy court - found it “impossible ,.. to isolate Blixseth’s so-called ‘pre-petition malpractice and malfeasance’ claims from Brown’s activities as a member of the Unsecured Creditors Committee.” In a final order, the bankruptcy court denied Blixseth. permission to bring his claims in district court and dismissed the claims on the merits. Blixseth appealed to the district court, which affirmed the bankruptcy court. He now appeals to us.

DISCUSSION

We review the bankruptcy court’s order denying leave to sue for abuse of discretion. See In re Crown Vantage, 421 F.3d at 977. And we review de novo whether the bankruptcy court had authority to resolve Blixseth’s claims on the merits. See In re Bay, 624 F.3d 1124, 1130 (9th Cir. 2010).

I. Applicability of Barton

1. The Barton doctrine traditionally applies to actions against receivers and bankruptcy trustees. See In re Crown Vantage, 421 F.3d at 970-71 (quoting Barton, 104 U.S. at 128); Leonard v. Vrooman, 383 F.2d 556, 560 (9th Cir. 1967). The touchstone of the Barton inquiry is whether a suit challenges “acts done in [a trustee’s] official capacity and within his authority as an officer of the Court.” In re Crown Vantage, 421 F.3d at 974 (quoting Leonard, 383 F.2d at 560); In re Castillo, 297 F.3d 940, 945 (9th Cir. 2002) (“[Without leave of the bankruptcy court, no suit may be maintained against a trustee for actions taken in the administration of the estate.” (quoting 3 Collier on Bankruptcy ¶ 323.03[3] (15th ed. rev. 2001))).

No court of appeals has held that Barton applies to suits against UCC members, but some have extended Barton to actors who aren’t bankruptcy trustees or receivers. The Sixth Circuit held that counsel for the trustee is entitled to Barton protection because he is the “functional equivalent of a trustee” for purposes of administering the estate. In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993). And the Eleventh Circuit bestowed Barton protection on individuals approved to conduct sales of estate property, adopting the “functional equivalent” test. announced in In re DeLorean. Carter v. Rodgers, 220 F.3d 1249, 1251, 1252 n.4 (11th Cir. 2000).

Blixseth argues that the In re DeLorean line of cases is inapposite because the defendants in those.cases aided the trustee in maximizing the value of the estate. Brown, Blixseth claims, owes no duty to the estate; rather, he represents creditors seeking payment from the estate. But Blixseth’s view of the UCC’s interests is too narrow. The UCC can only maximize recovery for the creditors by increasing the size of the estate. This alignment of interests may explain why the bankruptcy code permits UCCs to initiate the. appointment of trustees. See 11 U.S.C. § 1103(c)(4); see also 7 Collier on Bankruptcy § 1103.05[l][e] (16th ed. 2016) (implying that the duties of the committee and trustee overlap because “the role of the committee may be reduced if a chapter 11 trustee is appointed”). Because creditors have interests that are closely aligned with those of a bankruptcy trustee, there’s good reason to treat the two the same for purposes of the Barton doctrine.

UCC members are statutorily obliged to perform -tasks related to the administration of the estate: They “investigate the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtor’s business and the desirability of the . continuance of such business.” 11 U.S.C. § 1103(c)(2). They “participate in the formulation of a plan.” Id. § 1103(c)(3). And they examine the debtor. Id. § 343; see also 3 Collier on Bankruptcy § 341.02[5][d], A lawsuit challenging any of these actions could seriously interfere with already complicated bankruptcy proceedings. Even the fear that such a lawsuit could be filed—and UCC members would have to answer for their actions in a court unfamiliar with bankruptcy proceedings—may cause UCC members to be timid in discharging their duties; This is doubtless why the Commission to Study the Reform of Chapter 11 recommended extending the Barton doctrine to “estate neutrals, and statutory committees and their members.” Am. Bankr. Inst., Comm’n to Study the Reform of Chapter 11, ■ 2012-2011 Final Report and Recommendations 43 (2014), available at https://abiworld.app.box.eom/s/wircv5xv 83aavl4dp4h. We conclude that Barton applies to UCC members like Brown who are sued for acts performed in their official capacities. See In re Crown Vantage, 421 F.3d at 970. Any such suit must be brought in the bankruptcy court, or in another court only with the express permission of the bankruptcy court. Id. at 970-71.

2. Some of Blixseth’s claims allege misconduct by Brown prior to the bankruptcy proceedings. For example, Blixseth alleges that Brown gave dubious legal advice in 2005 about how he could use funds from the Credit Suisse loan, and, as a result, Blixseth became the target of a shareholder lawsuit. Blixseth also alleges that Brown provided subpar representation during the shareholder litigation and divorce by overlooking key defenses and drafting provisions in the MSA that were later deemed unenforceable.

The bankruptcy court held that these claims are “so intertwined with and dependent upon Brown’s actions as a member of the Unsecured Creditors Committee” that it is “impossible” to separate the pre-petition claims from Brown’s activities on the UCC. But Blixseth’s pre-petition claims have nothing to do with Brown’s position on the UCC. These claims sound in tort, contract and fraud, and are untethered to Brown’s position as Chair of the UCC. And in his Barton motion, Blixseth clearly separated his pre-petition claims from the post-petition claims that implicated Brown’s activities on the UCC. Accordingly, Blixseth didn’t need permission from the bankruptcy court before bringing his pre-petition claims in district court. See id. at 974. The courts below erred in concluding otherwise.

3. Blixseth’s remaining claims challenge conduct related to Brown’s actions after he was appointed UCC chair. These claims challenge “acts done ... within [Brown’s] authority as an officer of the Court.” Id. (quoting Leonard, 383 F.2d at 560). Blixseth needed the bankruptcy court’s permission before bringing these claims in district court.

Bankruptcy courts have applied a five-factor test to decide whether to grant leave to sue in another forum pursuant to Barton, or to retain jurisdiction over the claims in bankruptcy court. See id. at 976. These factors are: (1) whether the acts complained of “relate to the carrying on of the business connected with the property of the bankruptcy estate,” (2) whether the claims concern the actions of the officer while administering the estate, (3) whether the officer is entitled to quasi-judicial or derived judicial immunity, (4) whether the plaintiff seeks a personal judgment against the officer and (5) whether the claims seek relief for breach of fiduciary duty, through either negligent or willful conduct. In re Kashani, 190 B.R. at 886-87. Even satisfying “one ... factor[ ] may be a basis for the bankruptcy court to retain jurisdiction.” Id. at 887.

Blixseth sought a personal judgment against Brown, thereby satisfying the fourth Kashani factor. The bankruptcy court didn’t abuse its discretion in denying Blixseth’s Barton motion to bring his post-petition claims in district court.

II. Final Adjudication of Claims

Blixseth also claims that the bankruptcy court lacked authority to decide his claims against Brown.

1. Brown argues that we need not resolve the question of the bankruptcy court’s authority because Blixseth consented to having his claims resolved on the merits and, even if he hadn’t consented, the district court’s de novo review cured any error. But Blixseth never expressly consented and, at the hearing on the Barton motion, he maintained that he had a “right to litigate his legal malpractice claims against Mr. Brown in district court.” And the district court’s de novo review didn’t cure any error resulting from the bankruptcy court entering a final judgment on Blixseth’s claims. Though the district court claimed to conduct a de novo review, it didn’t undertake a meaningful “claim-by-claim analysis.” Dunmore v. United States, 358 F.3d 1107, 1114 (9th Cir. 2004). The district court’s order didn’t afford Blixseth anything close to an independent decision by an Article III adjudicator. See Wellness Int'l Network, Ltd. v. Sharif, — U.S.-, 135 S.Ct. 1932, 1946, 191 L.Ed.2d 911 (2015).

2. Blixseth argues that the bankruptcy court exceeded its Article I jurisdiction under Stern v. Marshall by adjudicating his -claims on the merits. Stem prohibits bankruptcy courts from adjudicating “common law cause[s] of' action, [that] neither derive[ ] from nor depend[ ] upon any agency regulatory regime.” 564 U.S. 462, 494, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Blixseth points out that his claims sound in tort and contract and thus are “the stuff of the traditional actions at common law” -that must be litigated in an Article III forum. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Rehnquist, J., concurring in the judgment). ■

Blixseth reads Stem too broadly. Stem dealt with claims that didn’t “stem[] from the bankruptcy itself’ and wouldn’t “necessarily be resolved in the claims allowance process.” 564 U.S. at 499, 131 S.Ct. 2594. Stem thus precludes bankruptcy courts from deciding common law claims that have no connection to the bankruptcy estate other than that they happen to be assets of the estate. Barton claims are different; they concern actions taken in a trustee’s . or officer’s official capacity. See In re Crown Vantage, 421 F.3d at 970.

Because Barton claims could not “exist independently of [a] bankruptcy case,” In re Harris, 590 F.3d 730, 738 (9th Cir. 2009), they are not the “stuff of the traditional actions at common law tried by the courts at Westminster in 1789,” Stern, 564 U.S. at 484, 131 S.Ct. 2594 (quoting N. Pipeline, 458 U.S. at 90, 102 S.Ct. 2858 (Rehnquist, J., concurring in the judgment)). A suit against a bankruptcy court officer for actions undertaken in his official capacity necessarily “stems from the bankruptcy itself.” Id. at 499, 131 S.Ct. 2594. We conclude that Stem doesn’t preclude bankruptcy courts from adjudicating Barton claims.

3. We review de novo the bankruptcy court’s dismissal of Blixseth’s claims on the merits. See Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1188 (9th Cir. 2011). Blixseth raised three post-petition claims that relate to Brown’s actions as Chair of the UCC. See supra p. 1096 note 2. The bankruptcy court held that Brown, as an officer of the court, was entitled to derivative judicial immunity for actions taken as Chair of the UCC. But Brown’s position on the UCC doesn’t entitle him to immunity for all actions as Chair. See In re Castillo, 297 F.3d at 953. For derived judicial immunity to apply, Brown must have acted within the scope of his authority and “candidly disclosed [his] proposed acts to the bankruptcy court.” In re Harris, 590 F.3d at 742 (citations omitted). Additionally, the debtor must have had notice of his proposed acts and the bankruptcy court must have approved these acts. Id.

We remand for the bankruptcy court to consider whether Brown is entitled to derived judicial immunity for Blixseth’s post-petition claims. Unless he is, we see no reason Blixseth couldn’t proceed to discovery on these claims.

Because Barton never applied to Blix-seth’s pre-petition claims, he can bring them in district court as he originally intended. We remand Blixseth’s post-petition claims for further proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED IN PART,

The parties shall bear their own costs.

      . These entities were Yellowstone Mountain Club, LLC, Yellowstone Development, LLC and Big Sky Ridge, LLC.

      . Blixseth alleges that Brown used confidential information that he learned while representing Blixseth. He also claims that Brown drummed up support for a bankruptcy plan that made Blixseth liable to the debtors but exculpated Brown. Finally, Blixseth claims that Brown testified against him in an adversary proceeding, thereby breaching his fiduciary duty.

      . The bankruptcy court also concluded that Brown satisfied the third Kashani factor because he was entitled to derived judicial immunity. But if Brown were entitled to judicial immunity, he couldn’t be sued in any court. We question Kashani to the extent it suggests that an officer entitled to judicial immunity may be sued in the bankruptcy court that appointed him.

      . Brown argues that Blixseth's claims are barred by the exculpation clause of the bankruptcy plan. The clause covers any "act or omission in connection with, relating to or arising out of the Chapter 11 cases, [and] the formulation, negotiation, implementation, confirmation or consummation of this Plan.” Blixseth challenged the validity of the exculpation clause in a previous appeal. We held that his challenge wasn’t equitably moot and remanded for the district court to consider it in the first instance. See Blixseth v. Yellowstone Mountain Club, LLC, 609 Fed.Appx. 390 (9th Cir. 2015). On remand, the district court upheld the clause, and Blixseth again appealed. Blixseth v. Yellowstone Mountain Club, LLC, No. 2:11-cv-00065-SEH, Dkt. Nos. 163, 164 (D. Mont. Mar. 23, 2016 & Apr. 19, 2016), The validity of the exculpation clause will be decided in that appeal so we express no view of the matter here.