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TORRES v. CITY OF MADERA

No. 09-16573.

648 F.3d 1119 (2011)

Maria TORRES and Melchor Torres, individually and as Administrators of the Estate of Everardo Torres, Plaintiffs-Appellants, v. CITY OF MADERA; Marcy Noriega, individually and as a member of the Madera Police Department; Does 1-50, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed August 22, 2011.

Attorney(s) appearing for the Case

Thomas A. Brill , Young & Nichols, Bakersfield, CA, for the plaintiffs-appellants.

Bruce D. Praet , Ferguson, Praet & Sherman, Santa Ana, CA, for the defendants-appellants.

Opinion by Judge HAWKINS; Concurrence by Judge SILER.

OPINION

HAWKINS, Senior Circuit Judge:

While handcuffed in the back seat of a patrol car, Everardo Torres ("Everardo") was mortally wounded when Madera City Police Officer Marcy Noriega ("Officer Noriega") shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo's family filed this survival action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment,...

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