*1 jurisdic- lack of and the entities Wártsilá selec- forum America’s Holland under
tion
tion clause. section
However, in the concur I cannot dismissal that affirms opinion the basis Canada and BV
BVNA con The record clauses.
forum selection con the contracts no evidence
tains signed clauses, were which those
taining Veritas, Bureau America and
by Holland performed
S.A., any work governed Manetti-Far BV Canada. or
BVNA Cf. America, Inc., F.2d row, Inc. v. Gucci Cir.1988) selec a forum
509(9th (applying where nonsignatories clause
tion contract intertwined were
claims clause). dis respectfully I
containing the opinion. that section of
sent a lack
Nevertheless, evidence shows (either specific jurisdiction personal BVNA over either Washington
general) in the Therefore, I concur
or BV Canada. and BV Canada. BVNA
judgment as BLANKENHORN,
Gary
Plaintiff-Appellant, Romero; ORANGE; Andy OF
CITY Ross; Tamara
Dung Nguyen; Garrett Montano, Of Gray, Sergeant;
South; Officer; Roman, Offi
ficer; Kayano, Defendants-Appellees.
cer,
No. 04-55938. Appeals, States Court
United
Ninth Circuit. 6, 2006. March
Argued Submitted 8, 2007. May
Filed *4 mall (“Blankenhorn”) shopping at a
enhorn before, been he had where, months six en- banned permanently and evicted Blank- arrested The again. tering and trespass, suspicion enhorn disturbing the charged later resist- three counts and trespass, peace, added also prosecutor ing arrest. After charge. enhancement gang-related months spent three had he was dropped charges were jail, all released. civil brought this then under Defendants against suit
rights arrest, exces- unlawful U.S.C. prosecution; force, malicious sive *5 impris- law false for state California under battery, and assault onment, negligence, dis- emotional infliction intentional and police alleges tress. cause have did officers unreason- they used and him gang-tack- by during Morri- the arrest S. force and Michael able L. Hoffman Paul hobble him, using and Harris him, Seplow punching ling DeSimone son, Schonbrun from damages seeks appellant. He also Venice, CA, for Hoffman, restraints. & (“Rome- Andy Romero City Chief and the& Woodruff, Boback, Spradlin M. Lois supervi- and municipal ro”) theories on A. California; David and Smart, Orange, liability. sorial Orange, City of Attorney, Berry, De Defendants’ granted court CA, appellees. district The for Orange, all of summary judgment for motion action, Blank- and causes Blankenhorn’s juris- have We appealed. timely enhorn af-We 28 U.S.C. under diction and remand reverse and part firm part. McKEOWN M. MARGARET Before: BERZON, Circuit S. MARSHA and I. KING,* District P. and SAMUEL
Judges, at 2001, security guard a February On Judge. (“The Block” Orange Block The Judge. KING, District Blanken- mall, issued “mall”), shopping and Trespass” Forbidding “Notice horn from 2001, police July In The premises. to leave him asked Gary Blank- (“City”) found Orange City of waii, designation. * sitting by King, United Senior P. Samuel Honorable of Ha- District Judge District States Notice stated: “You are hereby notified Block facility in February 2001.” A short you are FORBIDDEN TO TRES- later, time Nguyen and Gray spotted upon PASS or my enter lands or buildings Blankenhorn, who talking with Victor ... thereof Failure to comply with this (“Garcia”) Garcia younger Garcia’s your NOTICE shall prosecution result A brother. video1 taken a mall securi- for TRESPASSING.” Sergeant Gray Jeff ty camera shows that there was another (“Gray”) was at The Block when Blanken- young boy there as well. ejected horn was on February 2001, but The parties dispute certain incidents actually did not mall security see issue the that occurred during this initial encounter. Gray was, notice. however, “aware that report, Nguyen claims that Gary Blankenhorn had ejected been he immediately told Blankenhorn he was The Block at that time and provided being “detained for trespassing.” In his notice that he was not to return.” declaration supporting the motion for sum- Sometime around first week July mary judgment, Nguyen claims he ex- 2001, Officer (“Ross”), Garret Ross heard plained to Blankenhorn that “he was being a radio report of gang fight at The Block stopped so that we could determine his and, shortly afterward, saw Blankenhorn identity and confirm with security whether running from the area. stopped Ross or not he was allowed at the location.” Blankenhorn, they sat together, down Nguyen also says in his police report that, Ross asked Blankenhorn what he knew because Blankenhorn had a prior convic- fight. about the Ross found Blankenhorn tion for robbery and awas known member “completely calm” “cooperative” of the 18th Street Gang, he asked Blank- *6 throughout the interview. enhorn if he was carrying any weapons. About midnight July 28, on 2001, Gray Blankenhorn’s saw version Blankenhorn the initial en- crowd at The Block. counter is quite He could not different. alleges He remember that Blankenhorn’s Nguyen, standing name but believed he about had fifteen feet previously away, re- yelled ceived a for Notice him to come Forbidding over Trespass. he because Gray to asked Officer wanted talk Dung to him. Nguyen Blankenhorn (“Ngu- asked yen”) why, to help him locate but Nguyen did not respond. Blankenhorn so Blank- they him, talk said, “could to enhorn identify then “I’m having him and a conversa- determine The tion friend, whether Block with a you security rudely interrupt me, wished to have him removed or what’s wrong take you, some you with don’t have any other In Nguyen’s action.” police report, manners?” When Blankenhorn continued Nguyen stated Gray that told him Garcia, talking Nguyen simply stared Blankenhorn ais “known 18th gang Street them. Finally, said, Blankenhorn member and had been banned from the “What’s up? You want to me[,] talk to pole 1. A foreground of the video ob- view is of the grant district court’s of sum structs much of the encounter between Blank- mary judgment in Defendants, favor of the we enhorn Furthermore, and the officers. draw all reasonable inferences that can be result, video has no audio. As a the video is drawn from the video in Blankenhorn's favor. only limited assistance in determining what Inc., Liberty Anderson v. Lobby, 477 U.S. happened during the encounter between 106 S.Ct. 91 L.Ed.2d 202 Blankenhorn and police the defendant offi- (holding that summary judgment “the cers. Not surprisingly, given these limita- drawing legitimate inferences from the tions, parties draw different inferences functions, jury facts are not judge” those of a from the regarding video actually what oc- justifiable and "all inferences” must be drawn during curred the incident. Because our re- non-movant). in favor of the re- his fists. South’s and clenched stance me, Ngu- here, then.” to talk over come ap- times several says Blank- Blankenhorn doing. port what he him asked yen man- threatening and “in a Nguyen a friend talking proached to he said enhorn The video questions. this. any more Blankenhorn denies had Nguyen if ner.” asked Blanken- respond, times gesture not several Nguyen did Blankenhorn shows When got then away. Nguyen head and to above his raising tried walk his arms horn to hands out his put and of him him in front It also shows chest. touching his Blankenhorn leaving. him from prevent at him. point once Nguyen and approach leave, but not he could why Nguyen asked clench Blankenhorn it does not show But When respond. not again did Nguyen in her also claimed South his fists. Nguyen, around to walk tried Blankenhorn stop Blankenhorn during report arm. by Blankenhorn grabbed he the 18th a member of he was yelled out admission, Blankenhorn, by own When Garcia and Gang. Blankenhorn Street grasp,” offi- [Nguyen’s] out “yanked himself identified ever deny Blankenhorn mace. him with spray threatened cer gang member. by The employed security g-uard A officers how the dispute also parties The (“Medlin”), joined Block, Medlin Trevor Nguyen’s declaration the arrest. made the initial shortly after Gray and Nguyen to kneel Blankenhorn he asked states do parties’ statements Although the stop. Blanken- him. could handcuff he down so arrived, exactly when make clear my refused, going “I’m not saying, horn when already at the scene Medlin * alleges *ing knees.” f* A short begins. encounter of the video this, Ngu- that, he said immediately after another offi- begins, video after the time jumped on Ross,2 “all yen, South (“South”), ap- South cer, Tamara Detective Gray officers [him],” though all three in re- came South scene. on the pears first reached Nguyen maintain back-up. Gray’s request for sponse him in place wrist left Blankenhorn’s Blankenhorn’s characterize parties shows The video handcuffs. custody into taken before conduct several struggling for *7 and Gray, Nguyen, differently. somewhat him take finally the officers before seconds rude, un- as Blankenhorn described South hand- Blankenhorn was ground. the during verbally abusive and cooperative, Gray accomplished, this Once was cuffed. admits Blankenhorn initial encounter. the an- and his wrists to secure Ross ordered “loud,” he that used and “angry” he restraints, Ross and ripp-hobble kles frustration, he that, in profanity, did so.3 ground. the license on his driver’s threw that, the during claims Blankenhorn reports police Ross’s Nguyen’s and Both several him punched Nguyen struggle, fighting took a that Blankenhorn state arm so it Blankenhorn's left grabbed and held arrived on video shows Ross The 2. Though Kayano stated just sec- handcuffed. be could behind scene stood him remember attempted to take he could not declaration before the his onds placed the video actually not custody. Nguyen It is clear into he or whether wrist, request to kneel Nguyen's Kaya- heard whether Ross left on Blankenhorn's handcuffs response. Blankenhorn's were used the handcuffs certain that no was con- helped with crowd Montano his own. (“Kayano”) Kayano and Montano Officers 3. ("Roman”) arrived Paul Roman Officer trol. struggle. (“Montano”) during the arrived already Blankenhorn was after scene on the trying to tackle seeing other officers Upon subdued. Blankenhorn, pile and Kayano ran to the over 470 times, and another officer or Med., officers Bd. (9th 922 Cir. of placed a knee behind his neck and pressed 2004). Likewise, grant of summary his ground. face to the The video clearly judgment on ground qualified of immu shows Nguyen punch nity is also reviewed de novo. Martinez head and twice more in the side. Nguyen Stanford, (9th F.3d Cir.
landed at one least punch to Blankenhorn’s 2003). body after Blankenhorn already
the ground.
mayWe
Though
South,
Nguyen,
grant
affirm a
of
summary
Ross fail to
punches
judgment
mention the
if
there
their
genuine
police reports,
they
issue
all
of
reported
material
fact or the district court
Blankenhorn resisted
incorrectly
applied
handcuffed
the substantive law.
maneuvering his
Olsen,
hands and
See
arms under his
Blankenhorn was charged by informa-
viewing a grant of summary
tion on September 17,
judgment,
2001, with one count
“[t]he
evidence
trespass,
three
non-movant is to
counts
be
of resisting ar-
believed,
rest,
justifiable
and all
and one count of
inferences are
disturbing the
to be
peace.
drawn in his
trespass
favor.” Anderson,
was charged
as a
255, 106
U.S. at
misdemeanor, but
S.Ct.
2505.
resisting
“[I]f
arrest and
rational
trier
disturbing
peace
fact might
counts were
resolve
charged
the issue in
favor
felonies
gang-related
due to a
the nonmoving party,
enhance-
summary
ment.4
judgment
At the preliminary
must be denied.”
hearing, Ngu-
T.W. Elec.
yen
that,
Serv.,
admitted
though
Inc.
he did
v. Pac.
not men-
Elec.
Ass’n,
Contractors
tion it in
reports,
punched
F.2d
Cir.1987)
(citing
Blankenhorn several times when
Matsushita
making
Elec. Indus. Co. v. Zenith Ra
the arrest. The deputy district
dio
attorney,
Corp.,
475 U.S.
587, 106 S.Ct.
Sonia
(“Balleste”),
Balleste
later
decided
(1986)).
at the preliminary hearing would damage his credibility as a witness and A. “cause Blankenhorn’s Causes of Action Un- enough of a concern in a jury’s mind to der
raise a reasonable doubt.” By time, *8 1. Unlawful Arrest. however, Blankenhorn had already spent three in jail. months Blankenhorn claims that his arrest vio lated his Fourth rights. Amendment A II. warrantless arrest an of individual in a A grant of summary judgment public is place a crime committed in an reviewed de novo. Olsen v. Idaho State presence officer’s violates the Fourth provided California law at time of any criminal street gang specific with the Blankenhorn’s arrest imprisonment for the of promote, further, intent to or assist in “[a]ny person who is public convicted of a criminal gang conduct members.” Cal. punishable offense felony as a or a misde 186.22(d) Pen. (West § Code Supp. 1999 & meanor, which is committed for the benefit 2001). of, at the direction with, of or in association
471 she faces. Under situation he or specific supported is not if the arrest Amendment circumstance, the officer’s mis See, ‘[i]f v. a e.g., Atwater such cause. by probable is reason 318, 354, requires Vista, 121 as to what law take 532 U.S. Lago City of (2001). the im able, entitled to ... the officer is 1536, 549 149 L.Ed.2d S.Ct. ” at Motley, 432 F.3d immunity munity from this defense.’ qualified seek 205, Saucier, 121 533 U.S. (quoting 1077 claim. 2151) (alteration original). in S.Ct. ‘an entitle immunity is “Qualified face the other trial or not to stand ment to Ar- Probable Cause a. Officers had ” Katz, v. litigation.’ Saucier burdens rest. 2151, 200, 150 194, 121 S.Ct. 533 U.S. a may make “A officer Mitchell v. (quoting 272 L.Ed.2d the ‘officer has arrest when warrantless 511, 526, 105 S.Ct. Forsyth, 472 U.S. person to believe that the cause probable (1985)). Defendants are 411 L.Ed.2d 86 felony, a be arrested has committed if facts only to such relief entitled fact, felony, in has been or not whether submitted, resolved alleged and evidence ” Penghu, v. Mei Chin Peng committed.’ in the viewed favor and Blankenhorn’s Cir.2003) (9th (quoting 976 335 F.3d him, show favorable to most light (West 2003)). 836(a)(3) Cal.Penal Code not violate federal conduct did their California, probable “an officer has or, did, right scope if it right; ‘if the facts cause for a warrantless at the time. clearly established [person] lead a to him would known Lewiston, See, 354 v. e.g., Beier to believe and prudence ordinary care Cir.2004). (9th 1058, 1064 F.3d an honest and conscientiously entertain circumstances, anal unusual Absent person guilty is suspicion that the strong concentrating on ysis proceeds by first ” Adams, People v. (citing Id. of a crime.’ viola was a whether there constitutional Cal.Rptr. Cal.App.3d analytical easier might if it Even be tion. (1985)). are consistent: standards Federal scope address whether ly to cause ex “The test for whether established,” we are to “clearly right of arrest ‘at the moment is whether ists question first. the constitutional decide within and circumstances the facts Parks, 1077- Motley v. See and of arresting officers knowledge of the Cir.2005) (en (9th banc); Mey see also trustworthy in reasonably they had which (9th 765, 770 City, F.3d v. Redwood ers pru to warrant were sufficient formation Cir.2005). believing petition that the [person] dent Thus, Defen- first address whether we an committing or was er had committed Fourth violated Blankenhorn’s dants ” Jensen, 425 States offense.’ United Rights. If no violation Amendment omitted), Cir.2005) (citation 698, 704 F.3d found, prevail. On Blankenhorn cannot - U.S. -, denied, 126 S.Ct. rt. ce (or hand, if if is a violation there the other (2006). 1664, 164L.Ed.2d 398 of fact question triable is a there when, under exists “Probable cause whether determine then we must regard), *9 known totality of the circumstances clearly was es- violation constitutional that (or the knowl within arresting if the “Finally, even at the time. tablished scene), a at the established, edge of the other officers clearly right was violated suspect believe person would may prudent it be that recognized court Saucier v. Dubner a crime.” had committed fully appreci- officer for difficult 959, Francisco, F.3d 266 County San to the & apply legal constraints how ate 472 Cir.2001) (citation (9th omitted). against
966 an engaged officer perform “When there has been communications ance of official duties unless the officer [officers], probable cause can among rest acting lawfully was at the time. ‘The rule investigating upon the ‘collective [officers’] premise flows from the that because an ” Vizo, knowledge.’ United States v. Del officer duty action, has no illegal take he (9th Cir.1990) (citation 821, 918 F.2d 826 ‘duties,’ engaged she is not pur for omitted). poses of an terms, offense defined in such ”) if the officer’s conduct is unlawful.’ probable “Because cause must be Gonzalez, (quoting People v. 51 Cal.3d perspective ‘prudent evaluated from the 1179, 729, Cal.Rptr. 1159, 275 800 P.2d technicians,’ [people], legal not an officer (1990) (internal omitted)). 1176 citation probable need not have every cause for Blankenhorn was However, forbidden from enter- element of offense. when ing reiterate, The Block. To specific required intent is a element he was is- of the offense, sued a “Notice arresting Forbidding Trespass” officer must have stat- ing: probable hereby “You are you cause for element in order notified that are reasonably believe that a crime FORBIDDEN TO has oc TRESPASS or enter States, upon my curred.” v. Gasho United lands or buildings thereof ... (9th Cir.1994) 1420, (citations 1428 omit comply Failure to with this NOTICE shall ted). your result in prosecution for TRESPASS- ING.” He knew he by was banned The on trespassing. Although We focus Gray Block. Officer saw Blankenhorn and Blankenhorn was also arrested for resist knew or thought previously he had been ing arrest under California Penal Code (and by banned Gray the owner. other 148(a), (and section such resistance officers) knew Blankenhorn was somehow cause) corresponding probable arose out of associated with the “18th gang.5 Street” the initial trespassing. arrest for If there Gray Nguyen then stopped Blanken- no cause to arrest Blanken- horn, sought identification horn to confirm trespassing for in the place, first it whether or not he had previously makes no been present purposes difference for banned, and if he events escalated. Arpin resisted arrest. v. Officers See Santa were seeking an Valley Transp. Agency, Clara indication from F.3d 912, Cir.2001) (“If Block’s management or security the officers as to lawfully could not whether The person] removed, arrest Block wanted him [a battery, or had actually the officers could been lawfully security also told arrest.”) person] for The Block resisting [the wanted him arrested for tres- G., (citing 805, In re passing. Manuel 16 Cal.4th And security guard Medlin did Cal.Rptr.2d 701, (1997)); 941 P.2d issue (although immediately after the inci- dent) Simons, see People also 42 Cal.App.4th a written citizen’s arrest statement (1996) (“De 50 Cal.Rptr.2d form indicating Blankenhorn trespass- fendant cannot be convicted of an ing offense demanding officers “receive custo- was, been) deny does not at gang least July member on when member; point, gang some he testified (Officer he was arrested. South indicated "repeatedly that he [police] told '[a]t one yell she heard Blankenhorn ain loud point gang in time I was [a member]. [But] 28, 2001, Nguyen Gray voice at July " doing I’m not that no more.' There is no member; gang he was an "18th Street” disputed evidence to contradict various offi- witness, however, Blankenhorn and another cers' testimony declarations and that Blank- time.) denies that he said that at the (or enhorn was known to officers to be have
473 officer, arresting as by the not invoked to Penal pursuant dy [Blankenhorn] conduct for the same long as it involves 142.”6 and Sections Code ” Bing suspect the was arrested.’ which facts, had Defendants those Given Beach, F.3d Manhattan City ham v. was Blankenhorn cause to believe probable omitted). Cir.2003) (citation 939, 950 Block would that The trespassing had some reason the officers long “As as have him removed. or prosecute want to had [Blankenhorn] basis to believe able in Nguyen particu (Gray and Defendants crime, justified the is a committed lar) “conscientiously enter have could cause. on being based [ ] strong suspicion an honest tained] any only exist as to cause need Probable aof guilty [was] that [Blankenhorn] under the charged could that be offense is, That F.3d at 976. Peng, crime.” (quoting at 952 Barna Id. circumstances.” the totality of circumstances “under the F.3d Amboy, 42 Perth (or within arresting officers to the known Cir.1994)). (3d the the other officers knowledge of the believe” scene), person would prudent a 602(j), reasonable of- then-section Under Dubner, trespassing. Blankenhorn was that Blanken- have concluded could ficers at 966. horn&emdash;known been) (or a gang have to be been banned previously who had member for a was arrested earlier&emdash;couldreturned have months a few Penal of California violation suspected injuring any purpose the either “for 602(k)] 602(j) section 7[now Code section the rights” or “with property property or violating sec charged with ultimately but with, obstructing, interfering intention of 602(o)].8 602(n)[now It doesn’t section tion Reason- injuring any lawful business.” or if was purposes present for matter thought have could able officers crime than with a different charged Blankenhorn, he had been banned knowing “[P]robable arrested. for which he was earlier, intended have could a few months closely ‘for a for an arrest may exist cause “injury constitute would presence that his offense, was if that offense even related land, prop- Refusing failing real to leave or in the record indicates evidence 6. Other lawfully belonging to or disruptive erty, been earlier structures had or ejected open a evening to the occupied by and had been and not the another no indica- Block. There is being requested at The upon restaurant general public, however, tion, this officers knew about (1) request of peace at the by officer leave arrest. the time of the or at incident before owner, person agent, the or the owner's the upon in- possession, in lawful arrested, section 7. When Blankenhorn that he or she is by peace officer the formed trespass 602(j) made it misdemeanor owner, the own- request of the acting at the lands, any or whether unenclosed "[e]nter[] posses- person in lawful agent, the or er’s fence, injuring purpose by the enclosed owner, sion, agent, or owner's the the or rights or property any property or possession. The own- person lawful with, obstructing, or interfering intention of er, person in agent, owner’s or occupation or injuring lawful business separate re- possession shall make lawful land, owner of carried on each occasion quest peace officer to the person lawful agent by the owner’s in deal- (West peace officer’s assistance when 602(j) § possession.” Code Pen. Cal. trespass requested. ing with a Supp.2001). & 602(n) (West Supp. 1999 & Code Cal. Pen. arrested, in rele- 8. When Blankenhorn 2001). 602(n) following part made section vant trespass: a misdemeanor action *11 474 property rights”
to
or “interference” with mining “whether Block security wished to
The Block’s business.
have [Blankenhorn] removed or take some
other action” and that “security further
Alternatively, a
officer
reasonable
could
confirmed that they
place
wished to
Mr.
conclude that Blankenhorn’s conduct satis
Blankenhorn under arrest for trespassing.
602(n).
fied the elements under section
...
security
Block
then advised Mr.
His return to The Block constituted a
Blankenhorn that he was under arrest for
to
“[r]efus[al]
fail[ure]
leave” after be
trespassing.”
ing
Forbidding
issued
Notice
Trespass.
out,
As it
upon
turns
close parsing
center,
a shopping
While
under California
statutory language
law,
and California ease
law,
generally “open
is
public,”
appears
it
an actual conviction
trespass
Forbidding
Notice
Trespass arguably ren
might have been difficult without addition
dered The Block “not open
public”
to the
al evidence. The California Penal Code
respect
with
to Blankenhorn.
Picray
Cf.
does not define “injury to property” nor
Sealock,
767,
Cir.1998)
v.
“interfer[ence] with”
lawful business
(discussing a similar requirement
in an
as those terms are used in
602(j).
section
Oregon trespassing statute
recogniz
Rather,
602(j)
section
is to
interpreted
be
ing
“premises
are not considered
“according
general
to its
usage.” People
‘open
public’
regard
to partic
with
Harris,
754,
191 Cal.App.2d
12 Cal.Rptr.
person
ular individual when
previous
916,
(1961).
919 n. 4
In a criminal context
ly has been barred from the property.”).
law,
under California
“[t]he word ‘inter
And
Notice Forbidding Trespass is
fere’ is a word of ‘well recognized, defined
sued to Blankenhorn could constitute at
meaning.’
...
It imports to ‘disarrange,’
part
“request
least
of a
to leave” under
”
‘disturb,’ or
People
‘hinder.’
v. Agnello,
602(n).
section
before he could be convicted under Was lished. however, Ultimately, inquiry our Moreover, trespassing. probable Blankenhorn was even absent
whether
(or
Rather,
if there were a factual issue as to
it is whether
reasonable officer
cause
leave,
trespass
protesters
and were
arrest cannot be inferred from the
time to
refused
property
previously
after
trespassing.
only evi-
arrestee's return to
arrested for
Id. The
Rather,
stay away.
it holds that
protesters
told
dence that the
had been obstruct-
602(j)
§
evidence
a conviction under
without
ing
deputy
at
was the
sher-
business
the fair
is inval
of actual interference or obstruction
they
testimony that he informed them
iffs
id.
they
would be arrested "if
did not cease their
pathway.”
court
obstruction of the
Id. The
Wallace,
undisputed
In re
there is
Unlike in
testimony “establishe[d]
held that the officer's
possible
evidence of
interference in Blanken-
only the content of his admonition to [the
indication Blanken-
horn’s case. There's no
protesters], not the fact of actual obstruc-
distributing leaflets or the like.
horn was
Finding
protesters "were
tion.” Id.
that the
had been banned and Medlin
physical
not in fact arrested because
security
required to leave his duties
caused,
and,
they may have
but sim-
again,
'obstruction'
station to find Blankenhorn
once
right
ply
they
on their lawful
premises.
because
insisted
him
Whether these
usher
off
leaflets,” the court overturned
convict under
to distribute
facts alone would suffice to
Thus,
they
justify
602(j),
the conviction.
Id.
In re Wallace does
would
a reasonable offi-
believing
was tres-
proposition
for the
that criminal
cer in
that Blankenhorn
not stand
support probable
passing.
intent sufficient to
cause for
existed),
(or
cause
probable
Defen- or
whether
“interference with”
be a “distur-
qualified immunity
10),
dants are entitled to
especially
bance”
property
where a
part
under the second
of the Saucier anal-
specifically
owner
requests police to arrest
cause is a
ysis.
complex
Because
person.
here,
appropriate
proceed
it is
question
Similarly, there is no California case law
*13
question.
Meyers,
past the threshold
See
specifically holding
previous,
that a
rela
(“Although we
what he
doing
right.’
violates that
premises).
voter initiative at business
d’Alene,
Graves v.
Coeur
(9th Cir.2003)
Saucier,
(quoting
846
if
Even
a trespassing conviction ulti-
2151) (other
201-02,
cers used Defendants rights. Amendment Fourth a specif whether To determine this cause of immunity from reasonable, qualified claim we must ic use of force quality action. “the nature balance Fourth on the individual’s intrusion were that Defendants hold Although we against the counter interests Amendment Blank- as to summary judgment entitled interests stake.” vailing government claim, still we are unlawful enhorn’s (internal quota Id. at S.Ct. whether, under to determine required omitted). Relevant factors to marks tion circumstances, officers used arresting to, include, are not limited but inquiry this *14 when tak- amount of force an unreasonable issue, crime at whether severity “the of the Beier, custody. See into ing Blankenhorn immediate threat suspect poses the an (“Because the excessive at 1064 F.3d 354 others, the or and safety the of officers are inquiries arrest and false factual force resisting arrest actively is or he whether probable lack of distinct, establishing a Id.; by flight.” to evade arrest attempting not establish an arrest does to make cause Diego, 25 Forrester v. San see also of vice-versa.”); claim, and force an excessive Cir.1994). (9th 804, 2 When n. F.3d 806 (use of F.3d at 921-22 Arpin, 261 see also determi our reasonableness appropriate, in the ab- even may be reasonable force “allowance nation must also make cause). . of sence are often forced to fact judgments&emdash;in circum split-second make Constitu- of Blankenhorn’s a. Violation uncertain, tense, and rap are stances that Rights. tional amount of evolving&emdash;about force idly Amendment re The Fourth situation.” necessary particular that is making an police officers quires 396-97, Graham, at 109 S.Ct. 490 U.S. objec that is an amount of force only use circum light of the tively reasonable Garner, dispute some facts parties The v. facing them. Tennessee stances qualified 1694, the issue 7-8, necessary to decide 85 L.Ed.2d 105 S.Ct. 471 U.S. force. For exam immunity on excessive (1985). tackling punching nor 1 Neither that Blankenhorn allege necessarily ple, Defendants con to make an arrest suspect he was a arrest that out before yelled his v. Con excessive force. Graham stitutes Gang, Street but 18th nor, 386, 396, 104 member 109 S.Ct. 490 U.S. Also, Nguyen (“ this. (1989) Blankenhorn denies every push or L.Ed.2d 443 ‘Not being resisted Blankenhorn in claims that unnecessary shove, may if it even seem his arms beneath chambers,’ by pinning ... handcuffed judge’s of the peace did this Amendment”) denies he body. Blankenhorn (quoting his the Fourth violates (2d way resisted that he other Glick, F.2d 1033 v. Johnson exist, disputes such handcuffed. Where Cir.1973)). force is But some “even where if only appropriate summary judgment may be actually used the amount justified, qualified immu Gates, Defendants are entitled F.3d v. Santos excessive.” alleged by non- Cir.2002). the facts (9th nity in all question The Ground, 943 moving party. Barlow was of force is whether use cases Cir.1991). must We facts F.2d light of the “objectively reasonable in force deter- make our excessive therefore the arrest confronting” circumstances by viewing the disputed initiation facts in probably dants would be liable for exces- Blankenhorn. force, favor sive both in “gang their tackling,” restraints, use of Nguyen’s hobble and in arrest, Six months before the mall punching is, Blankenhorn. That there security issued Blankenhorn a Notice For genuine are issues of material fact. Three bidding Trespass. before the weeks arrest, stopped Officer Ross Tackle. Gang after him near the spotting scene of an alleged gang fight at The Through Block. A jury rational could find that the use of stop, calm, out the remained gang by Nguyen, Ross, tackle and South and, asked, willingly provided when Ross under these circumstances was unreason- about gang fight. with information First, able. severity alleged of the arrest, night Blankenhorn was crime, trespass, misdemeanor was mini- having suspected of committed a misde mal, only when the bases for suspecting trespass. When Nguyen Gray meanor that Blankenhorn was interfering with him, stopped he talking with an adult mall business presence were his by and was accompanied friend two young mall, banishment, his previous his known Nguyen boys. asked Blankenhorn what association, gang the attention se- mall, doing at the and Blankenhorn curity presence that his required. Second, *15 responded that he was talking with some a rational jury could conclude from Blank- point, Nguyen At some grabbed friends. cooperative enhorn’s behavior with Ross and, his arm when pulled Blankenhorn just arrest, three weeks before his the fact free, spray threatened to him with mace. that Nguyen and Gray him discovered Blankenhorn threw his driver’s license on talking casually friend, with a and the vid- ground, but he the did not a take combat footage eo of Blankenhorn’s behavior dur- stance, fists, ive clench his or otherwise ing detention, the that Blankenhorn did threatening gestures. make Ngu When pose not a serious threat to the or officers’ yen him asked to kneel down so he could safety. others’ The officers’ dur- conduct handcuffed, be Blankenhorn refused. Al ing Blankenhorn’s detention captured immediately, most Nguyen, Ross, and on the e.g., Nguyen’s standing for video — gang-tackled South him. Nguyen did not long periods of folded, time with his arms try to handcuff Blankenhorn before the South’s permitting speak Garcia to with three officers tackled him. Blankenhorn Blankenhorn, the officers’ failure to pre- struggled for several moments before the vent mall patrons other from walking brought officers him to ground. the Once within a few feet of the rea- scene—could however, on ground, the Blankenhorn did sonably support this conclusion. Further- attempt prevent not the officers from more, the pace of reasonably events could handcuffing so, him. Even Nguyen lead to the conclusion that the latitude punched times, him several and an officer requires Graham split-second pushed officers his face pave into the judgments “tense, in uncertain, or rapidly by shoving ment a knee into the back of evolving” situations was not warranted neck. his Once subdued, Blankenhorn was Graham, here. See 490 U.S. at the placed officers hobble restraints on his Finally, S.Ct. 1865. though ankles, which it made difficult for Blanken- verbally refused comply Nguyen’s horn to move and breathe. request down, to kneel a jury reasonable If Blankenhorn can prove the events as could conclude from his testimony and the set above, forth some or all of the Defen- Nguyen video that never tried to handcuff Cir.1992) (citation omitted); 573, 580 ac did not Blankenhorn, and Thus, we F.3d at 921. Arpin, 261 handcuffed, Ngu see also before tively resist could jury a reasonable him. ask whether must Ross, gang-tackled South yen, light conclude, the evidence in viewing all jury drawing rational a Because — Blankenhorn, that favorable most al- the facts reasonable inferences in faith or acted bad Defendant officers gang tackle conclude leged^—could ar- conduct when “provocative” in engaged circumstances, un- under the unreasonable so, re- and Blankenhorn’s resting him. If Saucier, violated conduct the officers’ der reasonable, a constitutional sistance rights. Amendment Fourth Blankenhorn’s occurred. violation Restraints. Hobble the conclusion supports Span arrest shows Span Blankenhorn’s faith. held The video acted bad initially submit did trial for that Blankenhorn not reversible error it was arrest him. attempts to 18 U.S.C. to the officers’ a federal officer under on assault for several Rather, with them struggled he that a jury United § 111 to instruct being tackled trying before ... to ar- seconds “who is Marshal States eventually the officers ground, where official engaged person rest ar- him. Defendants over gained Span control F.2d at 580-81. Span, 970 duties.” could resistance Blankenhorn’s de- gue her this foreclosed claimed instruction to conclude officer prudent led right have to resist that she had fense danger an increased risk might pose it was es- force because use of excessive re- of hobble that the use to others issue of sentially a verdict directed matter justified as a was therefore straints There was no faith. Id. at 581. good disagree. law. We error, was not foreclos- Span’s defense exces- who uses ed, *16 officer “[a]n because of assessing reasonableness Id. acting good in faith.” is not sive force re use of hobble officers’ the defendant then, holding that our earlier Span, Under Blanken- custody of taking straints after could find the defendant jury a reasonable con horn, competing balance we must in force used excessive arresting officers hand, the Fourth the one cerns. On a precludes gang-tackling use to police officers permits Amendment that those same of law finding as a matter resistance force overcome some good in faith. acted officers Graham, 490 U.S. arrested. See pre- that the officers’ conclude We also our sister agree with 109 S.Ct. We could making the arrest situations, actions in cipitate need to that, some circuit “provocative.” reasonably be considered physical person who maintain control Blankenhorn, arresting According to custody into being taken ly struggled while they were warning that gave no use of hobble reasonably call for the might gang-tackling arrest him before going to See, Hopwood, v. e.g., Mayard restraints. Cir.1997). hobble restraints. (8th applying and later him On 1227-28 F.3d shows, did Indeed, Nguyen the video hand, the “limited person has the other handcuff Blankenhorn attempt to an not even reasonable resistance right offer by pre- if he, Ross, and South—as an before officer’s product took signal simultaneously triggered determined right is not That personal frolic. — ground. him to the cause, hold of and wrestled rath but by the absence swiftness, and forewarning, The lack of provocative faith bad er the officer’s offi- the defendant which the violence with F.2d Span, 970 States v. conduct.” United ” upon cers threw themselves the Graham factors.’ County Liston v. Riverside, (9th reasonably Cir.1997) could be considered “provoca- 120 F.3d tive,” triggering (quoting Blankenhorn’s Alexander limited v. & County of Francisco, San right to reasonable resistance 29 F.3d and thus Cir.1994)); see also making their later use of the Headwaters hobble re- Forest Humboldt, County straints unreasonable. Def. (9th Cir.2002) (“Because As for whether Blankenhorn’s resistance officers had control over protesters!,] was itself reasonable under the circum- it would have been any clear to reasonable stances, appears the video to show that he officer that it was unnecessary to pep use stay tried to on his feet while three officers per spray control[.]”). to bring them under and, Nguyen’s case, wrestled with him At preliminary hearing, Nguyen said punched him several times. Defendants punched Blankenhorn several times show, do not allege, and the video does not during the arrest because he trying “was that Blankenhorn at any struck out of the to get Mr. Blankenhorn’s arms out from patrons. officers or mall Considering the underneath him and secure the handcuffs.” rapidity of the officers’ actions and the Nguyen further testified that such punches restrained nature of Blankenhorn’s own are “utilized at times to distract an individ- response, jury could conclude Blanken- ual so that his muscles relax momentarily horn’s resistance was reasonable under the and then you are able to take control.” circumstances. But Blankenhorn claims he never pinned Since a jury reasonable could conclude (The his arms underneath body. his video Ross, that Nguyen, and South acted a does clearly show whether he did so or provocative faith, manner and in bad and not.) Crediting Blankenhorn’s version of that Blankenhorn’s resistance was reason- events, as we must at a summary- circumstances, able under the the arrest- judgment stage, we conclude that a ration- ing officers are not entitled to summary jury al could find that if Blankenhorn did judgment on Blankenhorn’s claim that the not maneuver his arms beneath body it use of hobble restraints was excessive un- eliminated the need for use of force to der the circumstances. them, release and thus Nguyen’s punches were not reasonably justified by
(3) Punches. *17 the circumstances as he claims.11 Although initially resisted b. The Federal Rights Clearly Were arrested,
being
Nguyen’s punches were
Established.
not necessarily a
response.
reasonable
Underlying
objective-reason-
Graham’s
“[I]f a violation could be made out on a
ableness test is the
principle
clear
that the
favorable view of
submissions,
the parties’
“
force used to make an arrest
‘must be
next,
sequential step is to ask whether
balanced against the need for force: it is
right
clearly
was
established” at the
the need for force which
at
is
the heart
Saucier,
time of the arrest.
533 U.S. at
Arpin, 261 F.3d at
(affirming
921-22
cooperate by
she did not
showing her
Cf.
transit
grant
summary judgment
identification;
for officer on
refused;
plaintiff
when of-
claim of
making
excessive force in
arrest,
attempted
ficer
to make the
plaintiff
without
cause where the officer
stiffened her
pulled
arms and
free from the
plaintiff,
warned
who was denied access to a
grasp;
and the
plaintiffs
officer twisted
city bus when
provide
she failed
proper
handcuffs).
arm behind
applied
her and
identification, that she would be arrested if
conclude that
clear
201,
require
for force. We
this
12. Defendants
because Blanken-
cer’s
Boyd,
evidence that Montano and
374 F.3d at
horn offered no
constitutional violation.”
*18
him,
physical contact with
sum-
require
Roman had
780. But it does
some fundamental
proper.
mary judgment for them was
Defen-
allegedly
involvement
in the conduct
that
that, though Rayano helped
argue
dants also
(holding
caused the violation. See id.
that
Blankenhorn, summary judgment
handcuff
backup
every
provided armed
for
officer who
proper
did
for him was
because Blankenhorn
unconstitutionally de
another officer who
allege
doing
not
he used excessive force in
so.
entry
ployed
flash-bang
gain
to a
device to
suspect’s
that
home could be held liable for
liability
An
under section
is
officer's
"every officer
use of excessive force because
"integral participation”
predicated
his
in
meaningful way”
participated
in the
in some
Wright,
alleged
Chuman v.
the
violation.
"
(9th Cir.1996).
"every
of the
and
officer was aware
‘[Integral
arrest
F.3d
294-95
flash-bang,
object
require
the
did not
participation’
not
that each offi-
decision to use
does
Malicious Prosecution.
vestigating
presented
prosecu-
the
tor with
by
“information known
them to be
damages
Blankenhorn seeks
for
false.” Id. at 266-67.
spent
he
the three months
incarcerated
To
attorney
presumption,
after the district
filed
overcome the
charges
Blanken-
horn
against
alleges
Nguyen
him. A
officer who mali
provided false
ciously
recklessly
or
information in
reports
report by
makes false
his
not disclosing
may
Blankenhorn;
prosecutor
punched
be held liable for dam
that Bal-
ages
proximate
charged
incurred as a
leste
him
result of
with two counts of re-
Barlow,
reports.
sisting
those
See
Nguyen’s
943 F.2d at
based on
and
1136-37; see also
Ross’s false
County
Galbraith v.
statements that he took a
Clara,
Santa
combative stance
1126-27
and clenched his fists
Cir.2002)
before
(finding
that a coroner
taken into custody;
who “de
and that
liberately
autopsy
lied about the
Balleste
added the gang-enhancement
autopsy report”
charges against
could be held liable
him on
under
the basis of South’s
1983).
false statement
that he identified himself
a gang-member.
Defendants claim
Nguyen,
allegations
Blankenhorn’s
do not sup-
Ross, and South
immunity
are entitled to
port a
finding
Gray, Montano, Kaya-
damages
for
prosecution
malicious
no, Roman, and Romero
integrally
were
Smiddy
under
Varney,
pate
any integral way
in the arrest. There-
straints. See id.
fore, summary judgment
in their favor was
Gray,
It follows that
who ordered Ross to
properly granted.
restraints,
use the
Nguyen
hobble
and
Kayano's help
handcuffing
prone
South,
Blankenhorn,
partici-
who tackled
also
was,
course, meaningful par-
pated
integral way
in an
application
in the
ticipation in the arrest.
It
true
that Blank-
the hobble restraints.
Kayano
enhorn does not claim
used excessive
Ross, South,
Accordingly, Gray, Nguyen,
him,
Ross,
handcuffing
force in
Kaya-
Kayano may
partic-
be held liable for this
no, placed
ripp-hobbles
*19
the
on Blankenhorn’s
alleged
ular
use of excessive force. See Chu-
Kayano's
wrists and ankles. But
own decla-
man,
However, court’s hold the district resisting- led to his three Nguyen malicious regard to Blankenhorn’s ing with charges, filing charges. im Before against claim South prosecution video, relying look at the Balleste did not court’s rebanee the district proper because Nguyen’s police re on Ross’s and held instead misplaced. Sloman on Sloman that Blanken- falsehood], both of which state ports, allegations “conelusory [of and clenched a combative stance alone, horn took prevent are insufficient standing Thus, information those of his fists. against a claim summary judgment” only resist was the basis reports of in ground on the prosecution malicious Again, Blankenhorn charges. ing-arrest judgment. Slo- prosecutorial dependent conelusory alle mere more than key fact submitted man, at 1474. The submitting the dec of falsehood gations not ... plaintiff “did was that Sloman Garcia, directly witness, fabrication, laration of a ... any evidence of point to A reports. reason re contradicted the officers’ than the fact that other justifiable inferences jury drawing all ac able own [his] inconsistent with ports were witness statements the video and to his ar leading the incidents count of conclude that favor could however, Blankenhorn’s Blankenhorn, provided Id. rest.” Nguyen act as did of the Blankenhorn allegations conelusory than more thus, and, reports alleged Ross Specifical statement. falsehood South’s If intentionally false information. included in opposition motion ly, supported pre so, overcome Blankenhorn would “never that he declaration with Garcia’s independence. sumption prosecutorial he was an yell out that Gary say or heard *20 484 Richmond, 1384, v. 885 may
See Borunda
F.2d
be held liable under section
if
1983 its
Cir.1989)
(9th
(plaintiff
pre
policy
1390
overcame
deliberate
caused the constitutional
prosecutor
sumption where
had no infor
violation alleged. See
Dep’t
Monell v.
reports
York,
police
plaintiff pre
mation but
Social Services
658,
New
436 U.S.
694,
evidence,
98
(1978);
sented
addition to his own
S.Ct.
4. Municipal Liability. cer, that the municipality had made the Blankenhorn seeks to hold the “deliberate” or “conscious” required choice City liable for arresting officers’ al Alexander, under Canton. See 29 F.3d at leged use of excessive force. explained that, 1367. We absent evidence charged Blankenhorn was with three summary judgment, case is on all inferences resisting impossible counts of arrest. It is and, must be drawn in his consequently, favor discern from the record if of these counts prosecution his claim for analyzed malicious stem from his actions before excessive force respect to all three. may have been used on him. Because this *21 (ordering dog in train- For the second incident his inadequacy “program-wide of a child), attack a which single in a officer’s occurred while ing,” any shortfall off-duty, only negli- Nguyen “can classified as he also received a training be municipal forty-hour suspension. defen- For the last one gence part on the of (allegedly pushing fault than a woman in the much lower standard of breast dant —a an during investigatory stop), Nguyen indifference.” Id. Because re- deliberate a proof departmental reprimand. Ngu- Blankenhorn has limited his to the ceived only Nguyen, yen’s train he did evaluations also citi- City’s failure to include several not meet his burden to withstand Defen- zen commendations. summary judgment. motion for We dants’ evaluations, In approved addition to the grant affirm of aspect
therefore this of the presented expert testimony City’s in favor. summary judgment (“Clark”), Roger Clark a ser- former geant and twenty-seven lieutenant with Supervisorial Liability. 5. years experience Angeles the Los Blankenhorn also seeks to hold County Department. Sheriffs Clark’s Nguyen’s alleged liable for Chief Romero opinion Department’s was that the disci- punching of excessive force in Blank- use pline Nguyen in all three matters was the arrest. Romero during enhorn Chief opined discipline insufficient. Clark capacity individual can be held liable “ complaint for the first “should have includ- inaction in culpable ‘for his own action or a re-training component period ed and a training, supervision, or control of his monitoring discipline to make this effective subordinates; acquiescence for his in the second, and for deterrence.” For deprivation[;] constitutional or for conduct Nguyen Clark said should have been fired. that showed a reckless or callous indiffer complaint, For last Clark said that the ” rights ence to the of others.’ Watkins v. “imposition of a written reprimand was Oakland, City 145 F.3d discipline.” tantamount to no Cir.1998) (quoting Larez v. Los Larez, the Ninth Circuit held there (9th Cir.1991)). Angeles, 946 F.2d plain jury finding was no error in a verdict force, Nguyen If used excessive Chief Angeles Daryl of Police Los Chief Gates liability supervisor depends Romero’s as liable for his officers’ use of excessive “ a upon whether he ‘set motion series Larez, force. See 646. Larez others, by knowingly of acts refused to presented personally evidence that Gates others, by terminate a of acts which series complaint force dismissed his excessive known, reasonably knew or have he should against the officers who searched Larez’s would to inflict constitu cause others presented Id. at He also an house. ” Larez, injury.’ (quoting tional Id. expert witness who testified that Chief 646). F.2d at disciplined should have the officers Gates procedures presented evidence and established new to avoid approved Nguyen’s Romero future similar incidents. Id. at 636. The Chief that, personnel despite expert evaluations three com further testified based on study plaints having two-year comparative of excessive force been he had con- ducted, lodged him. inci almost against Angeles For the first Los hair), by a result of (shaking discipline dent an arrestee never received forty-hour Id. held that on Nguyen suspension complaints. received citizens Larez mandatory jury evidence the could have found complete and was ordered to this “condoned, ratified, and en- fitness-for-duty psychological evaluation. Chief Gates among excessive use of force” fied couraged Nguyen actions that he reasonably supervised, and thereby the officers should have known would cause constitu- *22 injuries caused Larez’s constitutional violations. tional like the ones Blankenhorn may Id. at 646. have genuine suffered. Another issue of material fact Accordingly, exists. sum- Watkins, is similar. who Watkins mary judgment for Chief Romero on this injuries for sought damages by caused improper.14 issue was during police dog suspicion his arrest on of charged the burglary, officer who released B. State Law Blankenhorn’s Causes of Chew, of dog, with use excessive force Action. sought to hold Oakland Police Chief Blankenhorn’s suit includes state law Watkins, Samuels liable as well. 145 F.3d against claims Defendants for false arrest/false presented 1093. Watkins evidence that impris onment,15 assault and bat Samuels, determining without whether tery, negligence, and intentional infliction for, signed ameliorative action was called of emotional distress. The district court an internal report dismissing affairs Wat- granted summary judgment for Defen complaint against despite kins’s Chew evi- dants on all grounds these claims on dence in the report of Chew’s excessive Defendants were immune under California during force Watkins’s arrest and other law. dog bite incidents. Id. Watkins also ar-
gued that Chief Samuels failed to establish Defendants claim that they enjoy procedures new to avoid injuries similar statutory immunity under California Penal “despite injuries evidence of numerous 847(b) Code section from Blankenhorn’s suspects apprehended by the use of false imprisonment claim. arrest/false dogs.” Id. That provides statute that an officer can
While
Romero
personally
Chief
did not
civilly
not be held
liable for false imprison
complaints against Nguyen,
dismiss
officer,
as was ment where the
“acting within the
Watkins,
in Larez
case
he did scope of
authority,”
his or her
made a
approve Nguyen’s personnel evaluations
“lawful” arrest or “had reasonable cause to
despite repeated and serious complaints believe the arrest was lawful.” Cal. Pen.
against him for use of excessive
847(b);
§
force. Code
see also Galvin
Hay,
v.
approval, together
(9th
That
expert
739,
Cir.2004).
with the
374 F.3d
758
A Cali
testimony regarding the ineffectiveness of
fornia police officer
is authorized
stat
Nguyen’s discipline
complaints,
for those
ute to make a
proba
warrantless arrest on
could
lead rational factfinder to conclude ble cause that a person has committed a
knowingly
Romero
condoned and rati-
“public offense” in the officer’s presence.
If,
remand,
fails
imprisonment.'').
to estab
imprisonment
"False
14.
violation,
lish a
ques
then
nonconsensual,
constitutional
'the
intentional confinement
supervisorial liability
tion of
would be moot.
person,
of a
privilege,
without lawful
for an
”
Heller,
796,
City
Angeles
See
Los
v.
475 U.S.
time,
of
appreciable length of
however short.’
799,
1571,
(1986);
106 S.Ct.
487 Diego, County San v. Price See rests. is a 836(a)(1). Trespass § Pen. Code Cal. (S.D.Cal.1998); 1230, 1244 F.Supp. 990 See Code Pen. offense. Cal. public Angeles, Los County v. as Martinez offense” 15(2) (defining “public §§ & 772, 780 Cal.Rptr.2d may- person Cal.App.4th for which of the law violation been established fined); (1996). long has But it or alia, imprisoned be, inter apply offi does trespasses); provision that this misdemeanor (enumerating making force impris- unreasonable use who punishment cers (providing § 19 misdemeanors). Haynes, Scruggs Be- See an arrest. fine for onment 355, 360 Cal.Rptr. had Cal.App.2d arresting officers cause-the *23 making an arrest (“[A] tres- officer peace was Blankenhorn believe cause to using for arrest- arrested person was to the when is liable The Block at passing v. force.”); Solano acting Robinson they were that unreasonable ed, conclude we Cir.2002) 1007, under 1016 authority County, 278 F.3d their scope of the within to banc) (“California immunity therefore, denies (en that the ar- and, law California force excessive who use officers police See lawful. Pen. Code was Cal. rest Blanken- 354, 121 Because Atwater, suspect.”). arresting U.S. at 836(a)(1); 532 § claims arise are law remaining state the officers Accordingly, horn’s 1536. S.Ct. during his of force alleged use Blankenhorn’s immunity from from to entitled Ross, Gray, Nguyen, arrest, claim. and because imprisonment false law state to sum entitled not South, Kayano are statutory other several cite Defendants unlawful Blankenhorn’s on judgment mary claim, immu- that, provide they provisions 1983, officers § those under claim force remaining state Blankenhorn’s nity from summary to not entitled are therefore However, none of of action. law causes remaining Blankenhorn’s on judgment claim. their supports provisions these they ground claims on the law state argue that First, Defendants’ section liability under from immune are liable for be held cannot arresting officers 820.2.17 claims state law remaining Blankenhorn’s California claim that Second, Defendants section Code Government under California bars liabil- 821.6 section Code Government California of the This provision 820.2.16 remaining state Blankenhorn’s ity from officers’ police to applies Act Claims Tort provision’s of action.18 causes law during ar- made discretionary decisions that, did Blankenhorn since court held trict as other- “Except provides: 820.2 Section 16. Defendants argument, statute, employee oppose is Defendants' not public provided wise of law. aas matter judgment act resulting his entitled injury were an for not liable alleges However, was also act or omission where or omission was discretion him against of the exercise excessive of use of result officers’ force him, discretion or not such rule we cannot whether Since outrageous vested conduct. § arresting 820.2 litigation be abused.” stage of the this Gov't Code Cal. lawful, Blanken- was force of use reason, district reject the we For the same oppose Defendants' supposed failure horn’s summary judgment granting for basis court’s Summary judg- inconsequential. argument inten- Blankenhorn’s on favor in Defendants’s improper. this claim ment claim. distress emotional of infliction tional they motion, claimed Defendants In their employ- public “A provides: 821.6 18.Section judgment on this summary entitled to were by his insti- caused injury liable for not ee is could because of action cause judicial or adminis- tuting prosecuting taking lawof a matter prove as scope of his within proceeding trative “outrageous" an custody of him lawful maliciously and acts if he even employment, The dis- act, the tort. of required element principal provide function is to relief from act or omission of an employee of the prosecution. Kayfetz malicious See v. Cal public entity within the scope his em ifornia, 491, Cal.App.3d 203 Cal.Rptr. ployment if the would, act or omission (1984). 33, 36 But the statute also “ex apart section, from this given have rise to taken in preparation tends actions a cause of action against that employee or proceedings,” formal including “in actions personal representative.” Cal. Gov’t cidental investigation to the of crimes.” 815.2(a). provision This clearly Code Amylou County Riverside, R. v. 28 Cal. allows for vicarious of a liability public 1205, App.4th Cal.Rptr.2d 321-22 entity when police one of its officers uses (1994). so, 821.6, Even section as it ap excessive force in making an arrest. See plies conduct, is limited to actions Mary M. City Angeles, Los 54 Cal.3d taken in course or consequence as a of 285 Cal.Rptr. 814 P.2d See, an e.g., investigation. Phillips v. City (1991) (“[A] governmental entity can be Fairfield, 406 F.Supp.2d held vicariously liable when a police officer (E.D.Cal.2005). Here, the alleged tortious acting in the course and scope employ *24 during arrest, conduct occurred an not an ment uses excessive force or engages in investigation. Moreover, this is not the conduct.”). assaultive Because City the sort of conduct to which section 821.6 im does not claim that the arresting officers munity See, has been held to apply. e.g., were acting outside scope the of their County Crowe v. Diego, San duties, and the arresting officers are not (S.D.Cal.2004) (inter F.Supp.2d entitled to summary judgment on the use rogations strip and searches conducted force, unreasonable the City is not enti during the course of a murder investiga immunity tled to from liability under Gov tion); Baughman v. California, 38 Cal. ernment Code section 815.2. App.4th 182, 45 Cal.Rptr.2d (destroying computer floppy during disks rv. pursuant
search to investigation of com puter equipment theft); R., Amylou For reasons, the foregoing we AFFIRM Cal.Rptr.2d at 322 (taking rape and at the district grant court’s of summary judg- tempted murder victim against her will to ment for the on Blankenhorn’s munic- the crime and scene later telling neighbors ipal claim, liability and AFFIRM grant the that she lying was about what happened). of summary judgment for Gray, Nguyen, Because Blankenhorn’s assault and bat Ross, and South on Blankenhorn’s unlaw- tery, negligence, and intentional infliction ful arrest claim. We grant REVERSE the of emotional distress claims are based on of summary judgment Gray, for Nguyen, acts that allegedly happened during his Ross, South, Kayano on Blankenhorn’s arrest, pursuant not to an investigation claims; excessive Ross, force for Nguyen, guilt, into his section 821.6 does not confer and South on his prosecution malicious immunity from those upon claims Defen claim; and for Chief Romero on his super- dants. visorial liability claim. We also RE-
Third, argue Defendants that the City, VERSE the grant of summary judgment least, is entitled to immunity from liabil- for Defendants on all of Blankenhorn’s ity under Government claims, Code section 815.2. state law except the false arrest That provides: public section “A entity is claim. We REMAND for proceed- further injury liable for proximately caused an ings with consistent this opinion. probable
without
cause.” Cal. Gov't Code
821.6.
§
that there was
agree
First,
parties
the
on
costs
their own
bear
shall
parties
The
trigger
to
sufficient
to leave
request
no
appeal.
602(n).
suggest
They do
section
could
Trespass”
Forbidding
concurring in
“Notice
Judge,
BERZON, Circuit
parties
And the
request.
as such
serve
dissenting
part:
part
the stat-
language
right:
quite
are
majority
with
in accord
fully
I am
contemporaneous
requires
explicitly
ute
respect:
one
it, except in
join
opinion
and,
to leave
individual
for
request
holding that
majority’s
with
disagree
I
of a
the assistance
necessary, for
when
Blank-
arrest
to
cause
probable
there
weeks
issued
officer, not a notice
peace
dissent
than
rather
I concur
enhorn.
that on
is clear
And,
record
as the
earlier.
I
however, because
issue,
arrest
the false
his arrest
night
qual-
are
arresting officers
that the
believe
prior to
the premises
leave
to
asked
never
arresting
liability for
ifiedly immune
ask the
ever
The Block
nor
did
Penal
California
to
pursuant
cause
him,
probable
our
remove
styled
are
My
602(j).
remarks
Code
end there.
analysis should
conclusion
my
only because
dissent
requires me
cause
respect
asserts
Instead,
majority
question
subsequent
that, on the
602(n)
conclude
by section
required
leave
request
false
claim
law
state
Blankenhorn’s
ar-
with the
contemporaneous
not be
need
not act-
were
arresting officers
arrest, the
lan-
occasion”
“on each
because
rest
authority
of their
scope
within the
ing
to the
only applies
statute
guage
*25
enjoy
do not
law and thus
California
under
offi-
peace
to the
request
owner’s
property
their actions.
immunity for
statutory
indi-
however,
statute,
plainly
The
cer.1
602(n) prohibits
Section
otherwise:
cates
Arrest
to
Cause
A. Probable
failing to
“[rjefusing or
from
individual
an
requested to
being
upon
...
land
con-
leave
majority’s
the
agree
cannot
I
602(n) (empha-
§
leave.”
Code
Penal
probable
Cal.
had
the officers
clusion
context,
de-
added).
“upon”
In this
sis
trespass-
for
to
cause
between the
relationship
temporal
a
602(n)
notes
and section
section
under both
ing
imme-
more
request much
the
and
my refusal
In
Penal Code.
602(j) of the California
passed
five months
the
than
diate
nei-
under
cause
view,
probable
there was
Trespass”
Forbidding
“Notice
the
between
section.
ther
occasion
on each
peace officer
arrest,
quest
the
to
section
of Blankenhorn's
the time
1. At
deal-
in
assistance
officer’s
peace
the
when
602(n)
part:
in relevant
read
However,
requested.
trespass is
ing
awith
land,
prop-
real
failing to leave
Refusing or
assis-
peace officer's
a
single request for
a
lawfully
belonging to or
erty,
structures
or
peri-
a limited
to
may
cover
be made
tance
open to the
by
and not
occupied
another
days
identi-
and
to exceed
not
time
od of
requested
being
upon
public,
general
dates, during
there is
which
specific
by
fied
request of
the
(1) peace officer at
by
a
leave
owner,
agent
owner’s
the
or
hazard
a fire
owner,
person
agent, or the
owner's
the
the
absent
is
possession
in lawful
person
or
being in-
upon
possession,
in lawful
In addi-
property.
premises or
the
is
he or she
peace officer that
by the
formed
peace officer’s
tion,
a
request for
single
a
owner,
own-
the
request of the
acting at the
period not
a
may made
be
assistance
posses-
person
lawful
agent, or the
er’s
sion,
or
premises
the
when
six months
exceed
owner,
agent, or
the owner’s
the
or
posted
public
the
property
closed
own-
possession. The
in lawful
person
the
being closed.
as
person
er,
agent, or the
the owner’s
2001).
602(n) (West
§
separate re-
amake
possession shall
Code
Cal. Penal
lawful
night
question.
and the
See WebsteR’s
Additionally,
portion
602(n)
of section
International
quoted
New
DictionaRY of the En-
by
majority
the
demonstrates
glish Language
(3d ed., 1976) (defin-
why the “Notice Forbidding Trespass”
ing “upon”
“immediately
as
following on:
could not serve as the requisite request to
Compact
very
thereafter”);
soon
The
Ox-
the police officer.
the
After
language
English Dictionary
(2d
ed.,
ford
quoted in
footnote
the statute continues:
1989)
“upon”
(defining
as
“[o]n
occa-
However, a single request for
peace
sion of’ and “[i]mmediately after, following
officer’s assistance may be made to cov-
on”). Because Blankenhorn was never
er a
period
limited
of time not to exceed
asked to leave that evening, the officers
SOdays and
identified
specific dates,
lacked
cause to believe that sec-
during which there is a fire hazard or
602(n)
tion
been
had
violated.2
owner,
agent
owner’s
or person in
Moreover,
majority
con
improperly
possession
lawful
is absent
from the
siders
the statutory
satisfied
requirement
premises or property.
addition,
In
property
owner make a “separate
single request for a peace officer’s assis-
request to
peace
officer on each occa
may
tance
be made
period
for a
not to
sion when
peace
officer’s assistance in
exceed six months
premises
when
dealing with a trespass
is requested.”
property is closed to the public
post-
602(n)
§
(emphasis add
Cal.
Penal Code
ed
closed.
ed). Although
majority
*26
police
the
before,
officer
after,
an indi
convicting [Blankenhorn] under
section
requested
vidual is
to
602(n)
leave and then ar
might
difficult,”
have been
but as
rested
failing
for
to do so. Moreover,
serts
a
reasonable officer could none
“[wjhether probable cause exists depends
theless have
probable
had
cause to think
upon the reasonable conclusion to be
that Blankenhorn violated the statute.
drawn from the facts known to the arrest
cause,
Probable
however, cannot be estab
officer
arrest,”
at the time
Devenpeck v.
by
lished misreading a
statute.
Unit
See
Alford,
U.S.
125 S.Ct.
ed States v. Twilley, 222
F.3d
In his intent to The to leave anyhow. to Blankenhorn request Block and did so neous to The to return a valid request dispositive the absence Block and cannot be But his so told assistance, is no factual there probable for there is question whether of the cause. finding for entered The Block basis that he cause to believe with, ob- interfering intention with “the 602(j), I Second, to section respect with injuring any lawful business” structing, or majority’s conclu- with the go along cannot The Block. See Penal Code Cal. the officers it was reasonable sion Ball, where the 602(j). re Unlike to intended to conclude intend- property came on to the defendant obstruct, the law- with, injure interfere middle of the up table ing set majority of The Block. ful business lot, had no arresting parking support such single on a fact relies that Blanken- to believe reason whatever had been that Blankenhorn finding: intend- property the mall onto horn came ear- a few months from The Block banned with the mail’s any interference ing that one who enters inference that lier. The anything, only If place. take business one is unwant- where property commercial draw —be- can inference we reasonable to interfere necessarily intends ed have been contrary facts to the cause no is too tenuous conducted there business came to that Blankenhorn presented- probable cause. support —is he not act intending that The Block sec Indeed, case law has read California attention; pre- that would draw manner tangible much more 602(j) require tion found out not want to be sumably he did alleged part of intent on indices or arrested. and ousted *27 Ball, Cal.App.3d In In re trespasser. result, prudent that a I would hold aAs (1972), the de Cal.Rptr. that there have concluded not officer could so, told knew, he had been because fendant arrest Blankenhorn cause to probable engage to he wanted activity that 602(j), when all that of section for violation busi Disneyland’s with interfere would (1) arrest was at the time of was known Moreover, the property he came on ness. to return he was not told had been activity, interfering specif in the engage anyway. Block; he did so table in the up to set a solicitation ically Id. at 192. tram. passenger path of Immunity Qualified B. did; regular route it And interfere above, agree parties As discussed to be had diverted. trams passenger 602(n) I apply, not did that section peti a result of (noting “[a]s See id. unambiguous language find that section’s activities, supervisor ... [the] tioner’s on both the need contemporaneous arrest, it follows that I must dissent from request to leave and the need for a pre- its conclusion that Blankenhorn’s state law arrest, contemporaneous request for police claim for false precluded arrest is by statu- assistance. Consequently, I would hold tory immunity. California, an officer qualified immunity fails as to section cannot be held civilly liable cir- these 602(n).3 if he she, cumstances “acting within the scope
I agree do his or with majority, however, her authority,” made qualified arrest, “lawful” immunity precludes or “had liability reasonable cause with respect pursuant believe to section arrest was lawful.” Cal. 602(j). 847(b). That statute lacks specificity I Penal Because would Code 602(n). section the majority notes, As hold that the arrest and, was unlawful pertinent there is little thus, California law not case within scope of the officers’ construing 602(j), section and none authority, I also would find that the offi- makes clear that returning to property cers could not claim immunity under sec- after having been permanently banned 847(b). tion Because I agree with the from it could not constitute an intent to majority provisions that no provide immu- interfere with business. nity on the other claims, state law all Blankenhorn’s state
Further, law claims majority explains, should be there allowed to go is at forward. least one theory on which an officer could reasonably believe that such a return
demonstrates the requisite intent —that
the security The Block would
likely spent have time interacting with get
Blankenhorn to him to leave. Al
though I do believe that the likelihood
that a security officer would have to do what he is hired to do can support proba UNITED of America, STATES ble cause of an intent to interfere with The Plaintiff-Appellee, Block’s business, there is no California case law to the contrary. Peng See v. Mei Chin Penghu, Cir. (A C.M. Juvenile), Defendant-
2003) (“Even probable absent cause, quali Appellant. fied immunity is if available a reasonable No. officer could 05-50585. have believed that his or her lawful, conduct was light of the United States Appeals, Court of clearly law....”). established I therefore Ninth Circuit. concur in the conclusion that there was qualified immunity regard to whether Argued Feb. 2006. there cause to arrest Blank- Submitted May enhorn pursuant to 602(j). section May 8,
Filed *28 C. State Law False Arrest Claim
Finally, because I part ways with the
majority with respect to probable cause for
3. The fact that the defendants concede the suggests ther question that the is not a close probable cause 602(n) issue as to section fur- one. notes 602(n) Cal. Penal (emphasis add- Code “[djefendants gave The Block a chance to ed). Here, course, the “Notice Forbid- fulfill this requirement and that it was ding Trespass” was issued more than 30 fulfilled,” this recitation of the facts is days earlier, there was no fire hazard or fact, misleading. security Block’s owner, absent and the property, The Block communicated the desire that mall, open to the public, although not assist in removing Blankenhorn from the to Blankenhorn. only mall he was arrested. But the after plainly statute contemplates a request The majority recognizes that “actually