JENNIFER ANDERSON INDIVIDUALLY AND AS PARENT AND GUARDIAN OF MINOR AND MINOR v. LYON COUNTY TIMOTHY WRIGHT AND BRETT WILLEY (2026)

ORDER OF AFFIRMANCE

Jennifer Anderson, M.R.A., and S.G.A. appeal a district court order granting summary judgment in a tort matter. Third Judicial District Court, Lyon County; Hon. John Schlegelmilch, Judge.

This case arises out of a domestic violence incident wherein Robert Anderson was shot and killed by responding law enforcement officers. On the date of the incident, one of Robert's children made a 9-1-1 call and reported that Robert had been drinking and was physically assaulting their mother, appellant Jennifer Anderson. The caller reported that there were no weapons involved and an ambulance was unnecessary. In response to the call, respondents Lyon County Sheriff's Sergeant Bret Willey and Deputy Timothy Wright (collectively “officers”) arrived at Robert's home.

The body camera footage of the incident initially shows Deputy Wright arriving at the scene and announcing his arrival to the occupants of the home. Appellants, M.R.A. and S.G.A., the children of Jennifer and Robert, exited the home in an emotionally charged state, explaining that Robert was actively “throwing” their mother and that she needed medical attention. At that time, Wright called for backup and requested an ambulance for Jennifer, and Sergeant Willey arrived on the scene. Willey appeared within one minute of Wright's call for backup.

Within seconds of Willey's arrival, the officers announced: “sheriff's department” and entered the residence with their weapons drawn. The video reveals a cluttered kitchen area and a short hallway off to the left leading to other living areas. The officers can be seen approaching the entrance to the hallway. Almost immediately upon entry, Robert can be heard shouting a profane, derogatory remark at the officers, and he then ran down the hallway toward the officers, who were located at the entrance of the hallway in the kitchen. Robert was shirtless, wearing shorts, and unarmed. Willey ordered Robert to get on the ground. Robert did not comply and continued running toward the officers. As Robert ran toward the officers, Wright and Willey discharged their weapons, ultimately shooting Robert five times.¹ The officers escorted Jennifer out of the home, and Willey attempted to provide medical attention to Robert and called for a care flight. Robert eventually succumbed to his wounds at the scene.

Thereafter, Jennifer as co-special administrator ² of Robert's estate, and personally on behalf of herself and her two children, M.R.A. and S.G.A., brought federal and state claims against respondents in the United States District Court for the District of Nevada. The federal claims included a Fourth Amendment claim for use of excessive force, a Fourteenth Amendment substantive due process claim based upon the failure of the officers to provide medical care to Robert, and a Fourteenth Amendment substantive due process claim based upon alleged interference with familial relationships. The United States District Court granted summary judgment as to the federal claims on both substantive and qualified immunity grounds and declined to exercise supplemental jurisdiction over the state law claims. Thereafter, Waid, Jennifer, M.R.A., and S.G.A. filed the instant suit in state court and, at the same time, appealed the federal judgment to the United States Court of Appeals for the Ninth Circuit.  ³

In a published opinion, Waid v. Cnty. of Lyon, 87 F.4th 383 (9th Cir. 2023), the Ninth Circuit affirmed the order of the United States District Court. As to the excessive force claim, the Ninth Circuit held that even when considering the facts in the light most favorable to Jennifer, M.R.A., and S.G.A., (collectively, the Andersons), they did not demonstrate an “obvious violation” of Robert's constitutional rights or controlling authorities that would have “put every reasonable officer on notice that Wright's and Willey's conduct violated the Fourth Amendment.” Id. at 388-89. In doing so, the Ninth Circuit explained that

[e]ven assuming that [Robert] was unarmed and not reaching for a weapon, there is no dispute that he used aggressive language with the officers, ignored an order from the officers, and rushed toward them in a small and confined space. It is not obvious that the officers were constitutionally precluded from firing in this situation, where they were responding to an active domestic violence situation, lacked the benefit of having time to fully assess the circumstances, and needed to make split-second decisions as they were being charged.

Id. at 389. Thus, the Ninth Circuit affirmed the United States District Court's application of qualified immunity as to the Fourth Amendment claim. Id. at 392. Similarly, the Ninth Circuit affirmed the determination that Wright and Willey did not violate the Andersons’ Fourteenth Amendment substantive due process rights on the basis that Wright and Willey's actions did not shock the conscience, and no evidence suggested that they acted with “a purpose to harm unrelated to the legitimate law-enforcement objective of defending themselves.” Id. at 393.

In state court, the Andersons brought claims for battery, negligence, and negligent infliction of emotional distress (NIED), against Wright, Willey, and respondent Lyon County as their employer.⁴ Relevant here, the Andersons alleged that Wright and Willey used excessive force against Robert while he did not pose an immediate threat of death or serious bodily injury to Wright and Willey or anybody else on the premises. The Andersons alleged that Wright and Willey failed to warn Robert that deadly force would be used and failed to use the less-than lethal options available to them prior to resorting to the use of deadly force. As to the negligence claim, the Andersons asserted that Wright and Willey were negligent in that they failed to properly and adequately assess the need to use deadly force against Robert, and further that they failed to use proper pre-shooting tactics when assessing the situation. Finally, as to the NIED claim, the Andersons asserted that both Jennifer and M.R.A, who was a minor at the time of the incident, were present at the scene and witnessed Wright and Willey fatally shoot Robert, causing severe emotional distress.

Following discovery, respondents moved for summary judgment on all claims. In their motion, respondents argued that summary judgment was appropriate on the battery and use of excessive force negligence claims under the Graham ⁵ factors for assessing the reasonableness of the use of force; that discretionary-act immunity applied to the Andersons’ pre-shooting negligence claim; and that the Andersons’ NIED claim failed as they could not prove negligence, or, in the alternative, because Jennifer and M.R.A's discovery responses demonstrated they could not prove physical damages. Respondents also argued that there were no genuine disputes of material fact as to what occurred during the incident as the footage from Wright and Willey's body cameras was available and provided to the district

In their opposition, the Andersons included a slow-motion copy of Willey's body camera footage, along with an expert witness report from a retired police officer, who examined the footage of the incident and expressed opinions as to Wright and Willey's conduct during the incident. The Andersons argued that a reasonable jury could find a genuine dispute of material fact as to whether the domestic violence incident was ongoing at the time of the shooting, whether Robert posed an active threat to Wright and Willey or any other persons at the scene, and whether Wright and Willey were negligent to the extent that they should have pursued other options such as using less than deadly force, or warning Robert that they intended to use deadly force. The Andersons further argued that they demonstrated all the elements of their NIED claim as they showed a genuine dispute of material fact as to the negligence claim and because the incident, namely the fatal shooting of Jennifer's husband and M.R.A.’s father, would naturally cause the extreme emotional distress required to cause damages. Following full briefing and a hearing, the district court entered an order granting respondents’ motion for summary judgment.

In its order, the district court first found that “[t]he material facts [of the incident] are not in substantive dispute because the events in question were recorded by the body cameras worn by Sgt. Willey and Deputy Wright at the time of the incident which were submitted to the Court by Defendants in support of their Motion for Summary Judgment.” In recounting the facts, the district court noted that it rejected both the slow- motion body camera footage and the Andersons’ expert witness report analyzing it on grounds that considering the altered footage involved engaging “in just the sort of 20/20 vision of hindsight expressly prohibited by the United States Supreme Court” in Graham.

Accordingly, the district court analyzed the Andersons’ battery claim under the Graham factors, and ultimately granted summary judgment in respondents’ favor on the basis that all three prongs of the analysis favored respondents. As to the Andersons’ negligence claims for deficient pre-shooting conduct and excessive use of force, the court found, among other things, that Wright and Willey were entitled to discretionary-act immunity under NRS 41.031 for their pre-shooting activities. As to the use of deadly force, the district court found that, based upon the standard of care articulated in Graham, the use of force here was objectively reasonable and not negligent. Thus, the court granted summary judgment on the Andersons’ negligence claims. As to the Andersons’ remaining claim for NIED, the district court found that the Andersons’ claim failed as a matter of law as respondents were not negligent, and because Jennifer and M.R.A.’s admissions during discovery demonstrated that they did not suffer any physical damage caused by emotional or mental distress from the events in question. As all claims were resolved, the district court granted summary judgment in favor of respondents, and the Andersons now appeal.

This court reviews a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine dispute of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. The party seeking summary judgment must initially demonstrate the absence of a genuine dispute of material fact. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007).

If the moving party does so, to withstand summary judgment, the nonmoving party cannot rely solely on general allegations and conclusions set forth in the pleadings, but “must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine [dispute] for trial or have summary judgment entered against him.” Wood, 121 Nev. at 732, 121 P.3d at 1031 (quoting Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992)); NRCP 56(c)(1)(a). “[T]he evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.” Wood, 121 Nev. at 729, 121 P.3d at 1029.

On appeal, the Andersons first challenge the district court's grant of summary judgment as to their battery claim. In doing so, they argue that the district court erred in analyzing the three-factor test under Graham, 490 U.S. at 395, and that a reasonable jury could have found genuine disputes of material fact when examining the circumstances of Robert's death. Specifically, they argue that a rational jury could find that it was unreasonable for Wright and Willey to use deadly force against Robert as he was unarmed, the domestic dispute was no longer active, and they did not give Robert proper time to comply with their demands or warning that deadly force would be used. The Andersons argue that, when viewing the slow-motion camera footage, it is clear that Robert never reached for any weapons, was unarmed, and could not be an active threat to Jennifer as she was behind him. Respondents argue that the Graham factors support Wright and Willey's actions in this case, and when viewing the actions from the perspective of a reasonable officer on the scene and not a slow-motion viewing of the body camera footage, Wright and Willey's actions were not objectively unreasonable.

Under Nevada law, law enforcement officers “are privileged to use that amount of force which reasonably appears necessary, and are liable for battery to the extent they use more force than is reasonably necessary.” Ramirez v. City of Reno, 925 F. Supp. 681, 691 (D. Nev. 1996). Nevada courts examine a law enforcement officer's use of force under the same objective reasonableness standard as federal courts use to evaluate Fourth Amendment excessive force claims. See Graham, 490 U.S. at 397 (explaining that a claim of excessive force must be evaluated on an “objectively reasonable” standard); Ramirez, 925 F. Supp. at 691 (recognizing that a state-law battery claim is governed by the same standard applicable to a Fourth Amendment excessive force claim). Under Graham, the analysis of whether use of force is objectively reasonable “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396.

The actions of law enforcement officers must “be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “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.

In its order, the district court found that all three prongs of the objective reasonableness analysis under Graham favored respondents. The Andersons argue that the first prong of the Graham analysis—the severity of the crime—does not apply here as Robert had left Jennifer behind at the time he moved toward Wright and Willey, thus lowering the severity of the incident. Similarly, as to the second factor—whether the suspect poses an immediate threat to the safety of officers or others—the Andersons also argue that Robert could not be an active threat to Jennifer as she was behind him, and that he could not be a threat to Wright or Willey as he was unarmed, and (when viewing the slow-motion body camera footage) it was clear based on the position of his hands that he could not have reached for a weapon or posed an immediate threat to the officers. As to the third factor— resisting arrest or fleeing the scene—the Andersons argue it could not apply here as Wright and Willey did not provide Robert with the opportunity to comply with their demands.

After reviewing the arguments of the parties and the record on appeal, we first conclude that the district court properly declined to review the slow-motion body camera footage and accompanying expert witness report, as the objective reasonableness analysis must be conducted from the viewpoint of a reasonable officer on the scene, Graham, 490 U.S. at 396, and as long as “a reasonable officer could have believed his conduct was justified, a plaintiff cannot avoi[d] summary judgment by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” City & Cnty. of San Francisco, Cali. v. Sheehan, 575 U.S. 600, 616 (2015) (internal quotation marks omitted). Thus, we likewise do not consider the slow-motion body camera footage and the expert witness report as part of our review.

Viewing the unaltered body camera footage from the perspective of a “reasonable officer on the scene,” we conclude the Graham factors weigh in favor of respondents. See 490 U.S. at 395. First, we consider the severity of the crime. Id. Neither the Andersons nor respondents contest that domestic violence constitutes a severe crime. Instead, the Andersons contend that the first factor weighs in their favor as the situation had deescalated by the time Wright and Wiley had arrived on the scene and that the crime was no longer ongoing. We disagree. Although the initial 9-1-1 call indicated that no one was harmed during the ongoing domestic violence incident, the body camera footage supports that Wright and Willey obtained new information that the domestic violence incident was ongoing, that Robert was now “throwing” Jennifer around, and that Jennifer now required medical attention, indicating that immediate intervention was necessary. We thus conclude that Wright and Willey were involved in an active and ongoing domestic violence incident and that the severity of the crime weighs in their favor. Id.

We now turn to the second Graham factor—the threat of bodily harm to the officers or others—and likewise conclude that this factor weighs in favor of respondents. Id. After Wright and Willey entered the house and announced their presence, Robert immediately shouted and began running down a short hallway toward the officers, who simultaneously directed him to get on the ground. As noted by the district court: “[a]lthough unarmed, [Robert] rapidly approached the officers in a narrow hallway while screaming at the [o]fficers, with no barrier between them, and he could have accessed their weapons at any time or otherwise harmed them with multiple weapons accessible in the kitchen.” Robert ultimately did not comply before Wright and Willey fired their weapons and Robert collapsed in the same room as Wright and Willey. Under these circumstances, we conclude that the use of lethal force here is the type of “split-second” decision making recognized under the objective reasonableness standard in Graham, and that a reasonable officer on the scene could have believed his life was endangered. Graham, 490 U.S. at 396-97; see also Lal v. California, 746 F.3d 1112, 1118 (9th Cir. 2014) (recognizing that police officers “need not avail themselves of the least intrusive means of responding” and need only act “within that range of conduct we identify as reasonable” as “the court must allow for the fact that officers are forced to make split-second decisions” (internal citations omitted)).

We now turn to the third factor—whether the suspect was resisting arrest or attempting to flee the scene. Graham, 490 U.S. at 396. As to this factor, the body camera footage demonstrates that Robert did not comply with Wright and Willey's directive to get on the ground and instead continued to quickly advance toward the officers in a state of agitation. Although mere seconds passed between the order and shooting, Robert did not appear to slow down or begin to comply with the orders but instead continued to advance toward the officers in a confined space. We thus conclude that the third Graham factor weighs in favor of respondents.

Overall, although the present appeal concerns a battery claim rather than the constitutional claims the Andersons presented before the Ninth Circuit, our review of the Graham factors can be summarized by the Ninth Circuit's holding that “[i]t [was] not obvious that the officers were ․ precluded from firing in this situation, where they were responding to an active domestic violence situation, lacked the benefit of having time to fully assess the circumstances, and needed to make split-second decisions as they were being charged.” Waid, 87 F.4th at 389. And because we conclude that all three of the objective reasonableness factors identified in Graham favor respondents, we affirm the district court's grant of summary judgment on the Andersons’ battery claim in their favor.⁶

Next, the Andersons argue that the district court erred by granting summary judgment as to their negligence claims, which included use of deadly force and the officers’ pre-shooting tactics and decisions. Specifically, the Andersons argue that the district court erred when it concluded that respondents were entitled to discretionary-act immunity under NRS 41.032 for their pre-shooting conduct. In support of this argument, the Andersons direct this court to Estate of Brenes v. LVMPD, No. 78272, 2020 WL 4284335 (Nev. Jul. 24, 2020) (Order of Reversal and Remand). While Brenes stands for the proposition that discretionary-act immunity does not apply to a law enforcement officer's decision to use lethal force, it does not mention pre-shooting tactical decisions, id., and the Andersons do not otherwise provide argument or authority to challenge the district court's determination that Wright and Willey's pre-shooting activities and tactical decisions amounted to discretionary functions of the sheriff's department. See Palmieri v. Clark County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015) (stating that issues that are not raised on appeal are deemed forfeited). Accordingly, we conclude that the district court did not err when it granted summary judgment on the Andersons’ pre-shooting negligence claim under NRS 41.032. As to the Andersons’ negligence claim relating to the use of deadly force, the Andersons do not expressly present any arguments that the court erred when it found that the use of deadly force was reasonable. Id. Thus, the Andersons have also forfeited any challenge to the district court's order on these grounds. Id.

Finally, the Andersons argue that the district court erred when granting summary judgment on their NIED claim. However, negligence is a necessary element of NIED. See Chowdhry v. NLVH, Inc., 109 Nev. 478, 482, 851 P.2d 459, 462 (1993) (recognizing the tort of negligent infliction of emotional distress where a “bystander suffers serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant” (internal quotation marks omitted)). And here, as discussed above, the district court correctly determined that respondents were not negligent. Thus, the Andersons did not meet one of the elements necessary for their NIED claim and we conclude summary judgment is appropriate. As the Andersons have not demonstrated a basis for relief, we

ORDER the judgment of the district court AFFIRMED.  ⁷

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   We note that the order to get on the ground, Robert's continued advance, and the shooting occurred within seconds of one another.

2.   Fredrick Waid—who acted as co-special administrator of Robert's estate alongside Jennifer and participated in the proceedings below—is not a party to this appeal.

3.   At the request of the parties, the state court stayed the proceedings until the Ninth Circuit resolved the appeal.

4.   The Andersons’ remaining claims for negligent hiring, training, and supervision; failure to provide adequate medical care; and loss of consortium were withdrawn below.

5.   See Graham v. Connor 490 U.S. 386, 396 (1989).

6.   Because we conclude that all three Graham factors weigh in favor of respondents’ use of force, we need not address the Andersons’ other arguments concerning Wright and Willey's lack of warning or alternative tactical plans. See Napouk v. LVMPD, 123 F.4th 906, 920 (9th Cir. 2024) (recognizing that while other factors are relevant in evaluating the totality of the circumstances, “they do not overcome the Graham factors to prove a constitutional violation where all three Graham factors favor the officers’ use of force”).

7.   Insofar as the Andersons raise arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.